Eternal Word Television Network Inc v. Sebelius et al

Filing 79

MEMORANDUM OPINION. Signed by Chief Judge Sharon Lovelace Blackburn on 3/25/2013. (KAM, )

FILED
2013 Mar-25 PM 04:46
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ETERNAL WORD TELEVISION
NETWORK, INC.,
Plaintiff,
v.
KATHLEEN SEBELIUS, Secretary
of the United States Department of
Health and Human Services,
UNITED STATES DEPARTMENT
OF HEALTH AND HUMAN
SERVICES,
HILDA SOLIS, Secretary of the
United States Department of Labor,
UNITED STATES DEPARTMENT
OF LABOR,
TIMOTHY GEITHNER, Secretary
of the United States Department of
the Treasury, and
UNITED STATES DEPARTMENT
OF THE TREASURY,
Defendants.

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CASE NO. 2:12-cv-501-SLB

MEMORANDUM OPINION
On February 9, 2012, Eternal Word Television Network, Inc. (“EWTN”) filed a
Complaint in this court naming Kathleen Sebelius, Secretary of the United States Department
of Health and Human Services; the United States Department of Health and Human Services;

Hilda Solis, Secretary of the United States Department of Labor; the United States
Department of Labor; Timothy Geithner, Secretary of the United States Department of the
Treasury; and the United States Department of the Treasury as defendants (collectively
“defendants”). (Doc. 1.)1 EWTN’s Complaint, as amended on March 21, 2012, alleges that
defendants promulgated regulations pursuant to the Patient Protection and Affordable Care
Act, Pub. L. 111-148, 124 Stat. 119 (2010), and the Health Care and Education
Reconciliation Act, Pub. L. 111-152, 124 Stat. 1029 (2010) (collectively “Affordable Care
Act” or “ACA”) in violation of (1) the Religious Freedom Restoration Act, 42 U.S.C. §
2000bb et seq., (2) the Free Exercise Clause of the First Amendment, U.S. Const. amend. I,
(3) the Establishment Clause of the First Amendment, U.S. Const. amend. I, (4) the Freedom
of Speech Clause of the First Amendment, U.S. Const. amend. I, and (5) the Administrative
Procedure Act, 5 U.S.C. 550 et seq. (Doc. 13 ¶¶ 118-205.)
This case is currently before the court on defendants’ Motion to Dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(1). (Doc. 29.) Upon consideration of the record, the
submissions of the parties, and the relevant law, the court is of the opinion that defendants’
Motion to Dismiss is due to be granted.

1

Reference to a document number, (“Doc. __”), refers to the number assigned to each
document as it is filed in the court’s record.

I. FACTS, STATUTORY BACKGROUND, AND PROCEDURAL HISTORY2
A. Eternal Word Television Network
In 1981, Mother Angelica, a Catholic nun of the Poor Clares of Perpetual Adoration
order, founded EWTN in Irondale, Alabama. (Doc. 13 ¶ 2.) EWTN is “dedicated to the
advancement of truth as defined by the Magisterium of the Roman Catholic Church.” (Id.
¶ 23.) Its mission is “to serve the orthodox belief and teaching of the Church as proclaimed
by the Supreme Pontiff and his predecessors.” (Id.) EWTN claims to be the world’s largest
Catholic media network: among other things, it transmits television programing through eight
different services, broadcasts in both English and Spanish, has two 24-hour radio services,
and maintains a popular website. (Id. ¶¶ 2, 21.) Currently, EWTN has more than 300
employees. (Id. ¶ 27.)
EWTN promotes the Roman Catholic Church’s teachings regarding the sanctity of
human life and the purpose of human sexuality. (Id. ¶ 24-25.) In terms of the sanctity of
human life, EWTN teaches that “all . . . life is sacred and precious, from the moment of
conception.” (Id. ¶ 24.) Accordingly, it believes that “abortion ends a human life and is a
grave sin.” (Id.) Regarding human sexuality, EWTN believes that it has two main purposes:
(1) to closely unite husband and wife and (2) to generate new life. (Id. ¶ 25.) Thus, EWTN
both believes and teaches that “any action which either before, at the moment of, or after
2

For purposes of this Opinion, the “facts” alleged in the Amended Complaint are
accepted as true. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572 (2007); Resnick v. AvMed,
Inc., 693 F.3d 1317, 1321-22 (11th Cir. 2012) (citing Lanfear v. Home Depot, Inc., 679 F.3d
1267, 1271 n.4 (11th Cir. 2012)).

3

sexual intercourse, is specifically intended to prevent procreation, whether as an end or as
a means—including contraception and sterilization—is a grave sin.” (Id. (internal quotation
marks and citation omitted).)
In accordance with these beliefs, EWTN provides health care coverage that it
considers to be “superior to coverage generally available in the Alabama market,” (id. ¶ 28),
but which excludes coverage for artificial contraception, sterilization, and abortion, (id. ¶ 30).
EWTN claims that it cannot provide health insurance covering “artificial contraception,
sterilization, or abortion, or related education and counseling, without violating its deeply
held religious beliefs.” (Id. ¶ 29.) EWTN’s employee insurance plan is a self-funded plan
administered by Blue Cross/Blue Shield of Alabama that begins annually on July 1. (Id. ¶
32, doc. 33 at 10, 12.)
EWTN operates off of donations from the public and does not generate revenue from
carriage fees or advertising. (Doc. 13 ¶ 33.) It claims that its donors give with an
understanding of its mission and with the aim that their donations will further EWTN’s
adherence to, dissemination of, and reporting of reliable teachings on Catholic morality and
practices. (Id.) Thus, according to EWTN, using donated funds for purposes known to be
morally repugnant to its donors would violate an implicit trust between the donors and the
network. (Id. ¶ 34.)
B. Statutory and Regulatory History
In March of 2010, Congress passed the ACA. See Patient Protection and Affordable

4

Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010); Health Care and Education
Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (amending the ACA).
Section 1001 of the ACA added section 2713 to the Public Health Service Act (“PHSA”).
See 42 U.S.C. § 300gg-13. Section 2713, in response to the American public’s use of
preventive health care services at approximately half the recommended rate, (see doc. 29-1
at 10), requires, in part, the inclusion of certain preventative care measures in health care
plans:
group health plan[s]3 and [] health insurance issuer[s] offering
group or individual health insurance coverage shall . . . provide
coverage [without] any cost sharing requirements for–
(1) evidence-based items or services that have in effect a rating
of “A” or “B” in the current recommendations of the United
States Preventive Services Task Force; [and]
....
(4) with respect to women, such additional preventive care and
screenings not described in paragraph (1) as provided for in
comprehensive guidelines supported by the Health Resources
and Services Administration for purposes of this paragraph.
42 U.S.C. § 300gg–13(a)(1), (4).
Through section 2713 of the PHSA, Congress intended to increase the public’s access

3

A group health plan includes a plan maintained by an employer that provides medical
care to employees. See 42 U.S.C. § 300gg-91(a)(1). Group health plans may be insured (i.e.,
underwritten through an insurance contract) or self-insured (i.e., funded directly by the
employer). The ACA does not require employers to provide health coverage for their employees,
but, beginning in 2014, some large employers may be required to make payments if they fail to
provide insurance. See 26 U.S.C. § 4980H(a)-(d).

5

to and use of recommended preventive services. See Interim Final Rules Relating to
Coverage of Preventive Services Under the ACA, 75 Fed. Reg. 41,726, 41,729 (July 19,
2010). As demonstrated above, the Affordable Care Act gives the Health Resources and
Services Administration (“HRSA”)—a division of defendant Department of Health and
Human Services (“HHS”)—the authority to develop guidelines determining the
recommended preventive services. See 42 U.S.C. § 300gg–13(a)(4). Because no HRSA
guidelines relating to preventive care and screening for women existed when the ACA was
passed, HHS commissioned the Institute of Medicine (“IOM”) to recommend a set of
comprehensive guidelines. (See doc. 13 ¶ 60); Women’s Preventive Services: Required
Health Plan Coverage Guidelines, HRSA, http://www.hrsa.gov/womensguidelines/ (last
visited Mar. 21, 2013) [hereinafter Preventive Services Guidelines].
On July 19, 2010, defendants promulgated interim final rules that implemented section
2713 of the PHSA. See 75 Fed. Reg. at 41,726, 41,728. In relevant part, the interim final
rules require group health plans or health insurance issuers to provide coverage for newly
recommended preventive services, without cost-sharing, for plan years (or policy years) that
begin “on or after the date that is one year after the date the [new] recommendation or
guideline is issued.” 26 C.F.R. § 54.9815-2713T(b)(1); 29 C.F.R. § 2590.715-2713(b)(1);
45 C.F.R. § 147.130(b)(1).

In other words, plans must comply with the new

recommendations for preventive services starting with the plan year that begins on or after
the one year anniversary of the issuance of the new recommendations. However, the interim

6

final rules further specify that these requirements do not apply to “grandfathered health
plans.” 75 Fed. Reg. at 41,729. Grandfathered plans are those “in which an individual was
enrolled on March 23, 2010” that also comply with certain additional regulations. See 26
C.F.R. § 54.9815-1251T(a); 29 C.F.R. 2590.715-1251(a); 45 C.F.R. § 147.140(a). However,
a plan may lose its grandfathered status if it undergoes one or more of the changes set forth
in 45 C.F.R. § 147.140(g)(1) after March 23, 2010. See also 26 C.F.R. § 54.98151251T(g)(1); 29 C.F.R. § 2590.715-1251(g)(1). The parties agree that EWTN has alleged
that its plan is not eligible for grandfather status.4
On July 19, 2011, one year after the interim final rules were first issued, IOM
published its report, which included the preventative services guidelines. (See doc. 13 ¶ 63);
Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (July 19,
2011), available at http://www.iom.edu/Reports/2011/Clinical-Preventive-Services-forWomen-Closing-the-Gaps.aspx . The report recommends that the HRSA guidelines include,
among other services, well-woman visits, breastfeeding support, domestic violence
screenings, id. at 110, 117, 123, and, most relevant in this case, “the full range of [FDA]approved contraceptive methods, sterilization procedures, and patient education and
counseling for women with reproductive capacity.”

Id. at 109-10.

FDA-approved

contraceptive methods include intrauterine devices, oral contraceptive pills, emergency

4

Initially, defendants contended that EWTN had not pled sufficient facts to show its plan
fell outside the grandfather provision. However, in their Reply, defendants concede that EWTN
does not provide a grandfathered plan. (Doc. 36 at 3 n.1.)

7

contraceptives, and diaphragms. (See doc. 13 ¶ 64); FDA, Birth Control Guide, available
at http://www.fda.gov/ForConsumers/ByAudience/ForWomen/ucm118465.htm (last visited
March 21, 2012).
On August 1, 2011, HHS adopted IOM’s recommendations in full by issuing an
amendment to the interim final rules. See Group Health Plans and Health Insurance Issuers
Relating to Coverage of Preventive Services Under the Patient Protection and Affordable
Care Act, 76 Fed. Reg. 46,621, 46,625 (Aug. 3, 2011); Preventive Services Guidelines, supra
(“HRSA is supporting the IOM’s recommendations on preventive services that address health
needs specific to women and fill gaps in existing guidelines.”). The amended rule lists an
effective date of August 1, 2011, and also states that “[t]hese interim final regulations
generally apply to group health plans and group health insurance issuers on August 1, 2011.”
76 Fed. Reg. at 46,621. Under the requirements discussed earlier, this means that group
health plans and health insurance issuers were required to provide coverage for the newly
recommended services as of August 1, 2012, one year from when they were added to the
guidelines. See 42 U.S.C. § 300gg-13(b)(1), (2); 76 Fed. Reg. at 46,623, 46,624.
However, the interim final rules, as amended (“the amended interim final rules” or
“the Mandate”), also contain an exception for group health plans sponsored by religious
employers, releasing those employers from any requirement to cover contraceptive services
under the HRSA guidelines.5

5

76 Fed. Reg. at 46,623, 46,626; 45 C.F.R. §

The exception became effective on August 3, 2011. See 45 C.F.R. § 147.130.

8

147.130(a)(1)(iv)(A); see also Preventive Services Guidelines, supra (“[P]lans sponsored by
certain religious employers . . . are exempt from the requirement to cover contraceptive
services.”). In order to qualify for the religious employer exemption outlined in the Mandate,
an employer must meet each of the following four criteria:
(1) The inculcation of religious values is the purpose of the
organization.
(2) The organization primarily employs persons who share the
religious tenets of the organization.
(3) The organization serves primarily persons who share the
religious tenets of the organization.
(4) The organization is a nonprofit organization as described in
section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the
Internal Revenue Code of 1986, as amended.
45 C.F.R. § 147.130(a)(1)(iv)(B). EWTN asserts in its Amended Complaint that it is
reasonably certain that it does not qualify for the exemption. (See doc. 13 ¶ 75, 78-83, 186;
doc. 33 at 14.)6 Accordingly, under the Mandate, providers of non-exempt and nongrandfathered health care plans, like EWTN, are required to provide coverage for
recommended contraceptive services, without cost sharing, for plan years beginning on or
after August 1, 2012. See id. § 147.130(a)-(d).
Defendants solicited comments on the Mandate and specifically requested feedback

6

Specifically, based on the facts that EWTN alleges, it appears that it does not qualify
under any part of the four-part exemption. (See doc. 13 ¶ 75, 78-83.) Defendants agree that
EWTN is not exempt under this provision. (See doc. 36 at 10.)

9

on the definition of religious employer.7 76 Fed. Reg. at 46,623 (“We will be accepting
comments on this definition as well as alternative definitions . . . .”). After considering the
comments received, on February 15, 2012, defendants adopted as final the definition of
religious employer that was originally contained within the amended interim final rules,
stating that the religious employer exemption was finalized “without change.” Group Health
Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the
Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725, 8725, 8729, 8730 (Feb. 15,
2012). This finalized version of the Mandate read as follows:
Section 2712 of the PHS[A], as added by the [ACA,] . . . ,
requires that non-grandfathered group health plans and health
insurance issuers offering group or individual health insurance
coverage provide benefits for certain preventive health services
without the imposition of cost sharing. These preventive health
services include, with respect to women, preventive care and
screening provided for in the comprehensive guidelines
supported by [HRSA] that were issued on August 1, 2011
(HRSA Guidelines). As relevant here, the HRSA Guidelines
require coverage, without cost sharing, for “[a]ll Food and Drug
Administration . . . approved contraceptive methods,
sterilization procedures, and patient education and counseling
for all women with reproductive capacity,” as prescribed by a
provider. Except as discussed below, non-grandfathered group
health plans and health insurance issuers are required to provide
7

Comments were solicited after the Mandate had been implemented (as opposed to
before, in accordance with the Administrative Procedure Act’s notice and comment
requirements) based on authority to “promulgate any interim final rules as . . . appropriate” under
section 9833 of the Internal Revenue Code, section 734 of ERISA, and section 2792 of the
PHSA. See 76 Fed. Reg. at 46,624. However, among its other claims, EWTN also challenges
the issuance of the Mandate without proper notice and comment under the Administrative
Procedure Act. (Doc. 13 ¶¶ 10, 65, 179-83.)

10

coverage consistent with the HRSA Guidelines, without cost
sharing, in plan years (or, in the individual market, policy years)
beginning on or after August 1, 2012. . . .
Id. at 8725-26 (footnotes omitted).
Importantly however, the finalized rules also provide a “temporary enforcement safe
harbor” (“safe harbor”) from enforcement of the Mandate for non-exempt employers with
religious objections to covering contraceptive services. Id. at 8727. The safe harbor was
implemented in response to the many comments defendants received on the religious
employer exemption as defined in the amended interim final rules. Id. at 8726-27.
Defendants explained that during the operation of the safe harbor, they would “plan to
develop and propose changes to the[] final regulations” in order to meet two goals:
“providing contraceptive coverage without cost-sharing . . . and accommodating nonexempted, non-profit organizations’ religious objections to covering contraceptive services
. . . .” Id. at 8727. They further stated that they would “work with stakeholders to propose
and finalize this policy before the end of the temporary enforcement safe harbor.” Id. at
8728-29. On February 10, 2012, prior to the issuance of the final rule on February 15, 2012,
HHS issued a guidance describing the safe harbor and stating that defendants would wait an
additional year before enforcing the Mandate against certain non-exempt religious
organizations.8 (See doc. 13 ¶ 87, ¶ 87 n.2); HHS, Guidance on the Temporary Enforcement
8

However, this was not the first time that defendants had publicly discussed the
possibility of a safe harbor going into effect. On January 20, 2012, defendant Sebelius

11

Safe Harbor, 3 (Feb. 10, 2012), available at http://cciio.cms.gov/resources/files/Files2/
02102012/20120210-Preventive-Services-Bulletin.pdf. In other words, the safe harbor will
operate until the first plan year that begins on or after August 1, 2013. Id.
In order to qualify for the safe harbor, an employer must meet all of the following four
criteria:
(1) The organization is organized and operates as a non-profit
entity.
(2) From February 10, 2012 onward, contraceptive coverage has
not been provided at any point by the group health plan
established or maintained by the organization, consistent with
any applicable State law, because of the religious beliefs of the
organization.
(3) As detailed below, the group health plan established or
maintained by the organization (or another entity on behalf of
the plan, such as a health insurance issuer or third-party
administrator) must provide to participants the attached notice,
as described below, which states that contraceptive coverage
will not be provided under the plan for the first plan year
beginning on or after August 1, 2012.
(4) The organization self-certifies that it satisfies criteria 1-3
above, and documents its self-certification in accordance with
the procedures detailed herein.

referenced the safe harbor in a statement on behalf of the HHS. (See doc. 13 ¶ 85); A Statement
by U.S. Department of Health and Human Services Secretary Kathleen Sebelius, HHS.gov (Jan.
20, 2012), http://www.hhs.gov/news/press/2012pres/01/20120120a.html [hereinafter Statement
by Sebelius]. She explained that the additional time would allow employers “more time and
flexibility to adapt,” and that the HHS would “continue to work closely with religious groups
during th[e] transitional period to discuss their concerns.” Statement by Sebelius, supra.

12

Id. Consequently, if a noncomplying employer does not fall under either the provision above
or the religious exemption, and it does not qualify as grandfathered, it will face large fines.
See 26 U.S.C. § 4980H(a); id. § 4980H(c)(1). Specifically, the fines are set to be
approximately $2,000 per year per employee, see 26 U.S.C. § 4980H(c)(1), though the
number of individual employees will be reduced by thirty for the purposes of calculating the
fines each month, see 26 U.S.C. 4980H(c)(2)(D)(i)(I).
In accordance with their statements in the finalized Mandate, on March 16, 2012,
defendants issued an advance notice of proposed rulemaking (“ANPRM”). See Certain
Preventive Services Under the Affordable Care Act, 77 Fed. Reg. 16,501 (March 21, 2012);
(doc. 13 ¶ 90). The ANPRM sought to address alternatives for providing women access to
contraceptive services without cost-sharing and for accommodating religious organizations’
religious liberty interests. Id. at 16,501-03. The purpose of the ANRPM was to give “an
early opportunity for any interested stakeholder to provide advice and input into the policy
development relating to the accommodation to be made” in the forthcoming amendments to
the regulations. Id. at 16,503. It purported to adhere to essentially the same two goals that
were set forth in the February 15, 2012 final rule: (1) maintaining “the provision of
contraceptive coverage without cost sharing to individuals who receive coverage through
non-exempt, non-profit religious organizations with religious objections to contraceptive
coverage in the simplest way possible”; and (2) protecting “such religious organizations from

13

having to contract, arrange, or pay for contraceptive coverage.” Id. It therefore suggested
that health insurance issuers offer health insurance coverage without contraceptive coverage
to religious organizations that object to it on religious grounds and simultaneously offer
contraceptive coverage directly to the organization’s plan participants at no charge. Id. at
16,505. It also offered ideas and solicited comments on how to accommodate religious
organizations that sponsor self-insured group health plans for their employees. Id. at 16,503,
16,505-07. Finally, defendants stated in the ANPRM that they intended “to finalize these
amendments to the final regulations such that they are effective by the end of the temporary
enforcement safe harbor.” Id. at 16,503.
After a comment period for the ANPRM, defendants issued a Notice of Proposed
Rulemaking (“NPRM”) on February 1, 2013. See Coverage of Certain Preventive Services
Under the Affordable Care Act, 78 Fed. Reg. 8456 (Feb. 6, 2013); (doc 75 at 1). As the
“next step in the process,” 78 Fed. Reg. at 8458, the NPRM proposes changes to the finalized
Mandate and requests comments on its suggestions, which may be submitted until April 8,
2013, see id. at 8457. It states that its goal is two-fold: First, to amend the religious employer
exemption in order to keep an employer from being ineligible solely because its “purposes
extend beyond the inculcation of religious values or because the employer serves or hires
people of different religious faiths,” and second, to “establish accommodations for health
coverage [through] . . . eligible organizations . . . with religious objections to contraceptive

14

coverage.” Id. at 8459. Among other proposals, the NPRM suggests changing the religious
employer exemption “by eliminating the first three prongs of the definition and clarifying the
application of the fourth . . . . [so that] . . . an employer that is . . . a nonprofit entity and
referred to in section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code would be
considered a religious employer . . . .” Id. at 8468-69. Additionally, consistent with
defendants’ statements in the ANPRM, the NPRM also maintains that they “intend to finalize
all . . . proposed amendments before the end of the temporary enforcement safe harbor.” Id.
at 8459.
C. Procedural History
On February 9, 2012, EWTN filed a Complaint in this court which it amended on
March 21, 2012. (See doc. 1; doc. 13.)9 The Amended Complaint alleges numerous actual
and imminent effects the Mandate imposes on EWTN, including: being forced “to provide
coverage for contraception, sterilization, abortion, and related education and counseling
against its conscience in a manner that is contrary to law,” (doc. 13 ¶ 94); being pressured
and coerced into changing or violating its religious beliefs, (id. ¶ 95); being assessed
substantial fines for refusing to change or violate its religious beliefs, (id. ¶ 96); being
9

In its Amended Complaint, EWTN has added only a few paragraphs, consisting
primarily of factual developments since the case was first filed on February 9, 2012. (See doc. 13
¶¶ 86-93, 115-17.) All twelve counts against defendants remain the same. (See id. ¶¶ 118-205.)
EWTN’s Amended Complaint refers to both the amended interim final rules promulgated on
August 1, 2011, and the version finalized on February 15, 2012, as “the Mandate.” (See id. ¶¶ 5,
65, 67, 89, 91, 93.)

15

burdened in employee recruitment by creating uncertainty as to whether EWTN will be able
to offer health insurance beyond a date certain in the future, (id. ¶ 97); being forced to
provide emergency contraception free of charge, regardless of the ability of the insured
persons to obtain emergency contraception from other sources, (id. ¶ 109); being forced to
facilitate education and counseling concerning contraception, sterilization, and abortion that
directly conflicts with EWTN’s religious beliefs and teachings, (id. ¶ 110); being forced to
choose among violating its religious beliefs, incurring substantial fines, or terminating its
employee health insurance coverage, (id. ¶ 112); and being forced to devote significant
institutional resources to determine how to respond to the Mandate, (id. ¶ 114).
Based on these allegations, EWTN asserts twelve counts against defendants claiming
that the Mandate violates the following: (1) the Religious Freedom Restoration Act, 42
U.S.C. § 2000bb et. seq., (“RFRA”) (id. ¶¶ 118-129); (2) the First Amendment’s Free
Exercise Clause because the Mandate is neither neutral nor generally applicable, (id. ¶¶ 130144); (3) the First Amendment’s Free Exercise Clause because the Mandate intentionally
discriminates, (id. ¶¶ 145-150); (4) the First Amendment’s Free Exercise Clause because the
Mandate discriminates among religions, (id. ¶¶ 151-155); (5) the First Amendment’s
Establishment Clause because the Mandate prefers certain denominations over others, (id.
¶¶ 156-160); (6) the First Amendment because the Mandate compels speech, (id. ¶¶ 161167); (7) the First Amendment’s guarantee of freedom of speech by expressive association,

16

(id. ¶¶ 168-173); (8) the First Amendment’s Free Exercise Clause and guarantee of the
freedom of speech because the Mandate allows for unbridled discretion, (id. ¶¶ 174-178); (9)
the Administrative Procedure Act, 5 U.S.C. § 500 et seq., due to lack of good cause, (id. ¶¶
179-183); (10) the Administrative Procedure Act, 5 U.S.C. § 500 et seq., due to arbitrary and
capricious action, (id. ¶¶ 184-188); (11) the Administrative Procedure Act, 5 U.S.C. § 500
et seq., for agency action not in accordance with the Weldon Amendment of the Consolidated
Security, Disaster Assistance, and Continuing Appropriations Act of 2009, RFRA, and the
First Amendment, (id. ¶¶ 189-196); and (12) the Administrative Procedure Act, 5 U.S.C. §
500 et seq., for agency action not in accordance with the ACA, (id. ¶¶ 197-205).
On May 4, 2012, defendants filed a Motion to Dismiss EWTN’s Amended Complaint
for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1),
(doc. 29), and Memorandum in Support, (doc. 29-1). Broadly, defendants argue that the case
should be dismissed because (1) EWTN lacks standing and (2) the case is not ripe. (See doc.
29-1 at 20, 26.) Specifically, defendants contend that EWTN lacks standing because it has
not “alleged a concrete and imminent injury resulting from the operation of [the Mandate].”
(Doc. 29-1 at 20.) Defendants also argue that the case is not fit for judicial review, and
therefore not ripe, because issuance of the ANPRM shows that the regulatory scheme has not
taken final shape. (Id. at 26-33.)10
10

After defendants filed their Motion to Dismiss on May 4, 2012, and while the Motion
was still pending before the court, the NPRM was issued. See generally 78 Fed. Reg. 8456.

17

EWTN counters that it has standing because (1) it alleges both actual and imminent
injuries; (2) its plan is not eligible for grandfather status, making the Mandate directly
applicable to its group health plan; (3) the safe harbor does not make its injury non-imminent;
(4) the ANPRM does not make its current harm speculative; and (5) the ANPRM’s proposed
plans will not alleviate its injuries. (Doc. 33 at 14-24).11 Additionally, EWTN argues that
its claims are presumptively ripe because “they involve facial challenges to the mandate’s
constitutionality that require no factual development.” (Id. at 25 (citation omitted).) EWTN
further claims that without judicial review, it would face imminent hardship by operation of
the Mandate. (Id. at 30.)
In their Reply, defendants counter that “[b]ecause [they] are amending the challenged
regulations to address concerns raised by [EWTN], and [EWTN] has not shown that it will

Defendants have diligently kept the court apprised of their position in light of new developments
throughout the course of this case. Accordingly, in regards to the NPRM, defendants argue that
“[w]hile defendants’ prior assurances and concrete steps toward accommodating employers like
plaintiff – the ANPRM, the enforcement safe harbor, and the government’s repeated statements
committing to the timely establishment of the new accommodations – are sufficient by
themselves to establish that plaintiff lacks standing and its claims are not ripe for review, . . . the
NPRM further buttresses defendants’ promise that they will never enforce the current version of
the challenged regulations against plaintiff, further demonstrates concrete action to change those
regulations, and further undermines plaintiff’s unfounded suggestions that the government will
not follow through on its commitment.” (Doc. 74 at 3 (citations omitted).)
11

Like defendants, EWTN has also consistently updated the court on its position. In one
of its many helpful supplemental notices to the court, EWTN asserts that the NPRM’s proposed
change to the religious employer exemption confirms that EWTN will not be exempt from the
requirements of the final Mandate. (See doc. 75 at 3.) It further argues that the NPRM has no
effect on its standing or ripeness, and that it does nothing to alleviate the violation of EWTN’s
religious beliefs. (Id. at 1-5.)

18

suffer hardship during this amendment process, [EWTN]’s challenge is not ripe.” (Doc. 36
at 14.) Defendants further point out that not only is there a lengthy delay before they will
enforce the Mandate against EWTN, but they have also initiated the amendment process in
which EWTN may participate. (Id. at 8.) According to defendants, these circumstances
illustrate the absence of impending injury to EWTN. (Id.)
II. STANDARD OF REVIEW
Parties invoking federal jurisdiction “bear[] the burden of establishing its existence.”
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 104 (1998). Challenges to subject
matter jurisdiction under Fed. R. Civ. P. 12(b)(1) take two forms: “[f]acial attacks” and
“[f]actual attacks.” Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990) (per
curiam). Facial attacks “require [] the court merely to look and see if [the] plaintiff has
sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint
are taken as true for the purposes of the motion.” Id. at 1529 (alteration in original) (quoting
Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)). Factual attacks,
alternatively, challenge “the existence of subject matter jurisdiction in fact, irrespective of
the pleadings, and matters outside the pleadings, such as testimony and affidavits, are
considered.” Id. (internal quotation marks and citation omitted). Given that defendants’
Motion to Dismiss questions whether EWTN sufficiently pled facts establishing subject
matter jurisdiction, (see doc. 29-1 at 19), the standards regarding facial attacks apply in this

19

case.12
In a facial attack on subject matter jurisdiction, the nonmoving party “receives the
same protections as it would defending against a motion brought under [Federal Rule of Civil
Procedure] 12(b)(6).” In re Sea Vessel, Inc., v. Reyes, 23 F.3d 345, 347 (11th Cir. 1994)
(quoting Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990)) (internal quotation
marks omitted). To survive a motion to dismiss under Rule 12(b)(6), “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Furthermore, “[t]he plausibility standard is not akin
to a ‘probability requirement,’ but it asks for more than a sheer possibility that defendant has
acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). And “[w]here a complaint
pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line
between possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550
U.S. at 557).
Additionally, “the tenet that a court must accept as true all of the allegations contained

12

Though EWTN has attached exhibits to its Opposition, the court nevertheless
considers this a facial attack because “[a]lthough a court may consider materials beyond the
pleadings if the defendant has mounted a factual attack on subject-matter jurisdiction, there is no
suggestion in this record that the defendant has done so . . . .” Mulhall v. UNITE HERE Local
355, 618 F.3d 1279, 1286 n.8 (11th Cir. 2010). In addition, because this case involves matters
that touch on administrative rules, guidance documents, government statements, and government
studies, the court notes that it is permitted to consider matters of public record on a motion to
dismiss. Universal Express, Inc. v. U.S. S.E.C., 177 F. App’x 52, 53-54 (11th Cir. 2006).

20

in a complaint is inapplicable to legal conclusions,” id., because “[a] pleading that offers
‘labels and conclusion’ or ‘a formulaic recitation of the elements of a cause of action will not
do,’” id. (quoting Twombly, 550 U.S. at 555). Moreover, “a complaint [will not] suffice if
it tenders ‘naked assertions’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly,
550 U.S. at 557). In other words, “conclusory allegations, unwarranted factual deductions
or legal conclusions masquerading as facts will not prevent dismissal.” Davila v. Delta Air
Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003) (citation omitted).
III. DISCUSSION
Defendants argue that this court does not have jurisdiction to decide EWTN’s claims
(1) because EWTN lacks standing and (2) because its claims are not ripe, since the regulation
that it challenges is in the process of being amended. The court will address these arguments
in turn. First, however, it is worth briefly discussing the numerous federal opinions that have
already been issued considering these very arguments.
A. Federal Cases Reviewing Challenges to the Mandate
After the issuance of the Mandate, several lawsuits were filed in federal courts
throughout the country by religious organizations challenging its enactment (in most cases,
based on the same or similar grounds to EWTN in this case). To date, at least eighteen
opinions directly on point—namely, those involving religious not-for-profit employers who
would not qualify under the religious employer exemption as defined in the interim final

21

rules and later finalized—have been issued.13 See Wheaton Coll. v. Sebelius, 703 F.3d 551
(D.C. Cir. 2012); Geneva Coll. v. Sebelius, 2:12-CV-00207, 2013 WL 838238 (W.D. Pa.
Mar. 6, 2013); Roman Catholic Diocese of Dallas v. Sebelius, 3:12-CV-1589-B, 2013 WL
687080 (N.D. Tex. Feb. 26, 2013); Conlon v. Sebelius, 12-CV-3932, 2013 WL 500835 (N.D.
Ill. Feb. 8, 2013); Roman Catholic Diocese of Fort Worth v. Sebelius, No. 4:12–CV–314–Y
(N.D. Tex. Jan. 31, 2013); Archdiocese of St. Louis v. Sebelius, 4:12-CV-00924-JAR, 2013
WL 328926 (E.D. Mo. Jan. 29, 2013); Roman Catholic Archbishop of Washington v.
Sebelius, CIV.A. 12-0815 ABJ, 2013 WL 285599 (D.D.C. Jan. 25, 2013); Persico v.
Sebelius, 1:12-CV-123-SJM, 2013 WL 228200 (W.D. Pa. Jan. 22, 2013); Colorado Christian
Univ. v. Sebelius, No. 11-CV-03350-CMA-BNB, 2013 WL 93188 (D. Colo. Jan. 7, 2013);
Catholic Diocese of Peoria v. Sebelius, 12-1276, 2013 WL 74240 (C.D. Ill. Jan. 4, 2013);
Univ. of Notre Dame v. Sebelius, 3:12CV253RLM, 2012 WL 6756332 (N.D. Ind. Dec. 31,
2012); Catholic Diocese of Biloxi, Inc. v. Sebelius, 1:12CV158-HSO-RHW, 2012 WL
6831407 (S.D. Miss. Dec. 20, 2012); Roman Catholic Archdiocese of New York v. Sebelius,
12 CIV. 2542 BMC, 2012 WL 6042864 (E.D.N.Y. Dec. 4, 2012); Zubik v. Sebelius, 2:12CV-00676, 2012 WL 5932977 (W.D. Pa. Nov. 27, 2012); Catholic Diocese of Nashville v.

13

In addition, several opinions in cases that are similar, but not completely factually
analogous have been issued. See, e.g., Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d
1278 (W.D. Okla. 2012) (involving a for-profit corporation that could not qualify for the safe
harbor); Legatus v. Sebelius, 12-12061, 2012 WL 5359630 (E.D. Mich. Oct. 31, 2012) (same);
Tyndale House Publishers, Inc. v. Sebelius, CIV.A. 12-1635 RBW, 2012 WL 5817323 (D.D.C.
Nov. 16, 2012) (same); Newland v. Sebelius, 881 F. Supp. 2d 1287 (D. Colo. 2012) (same).

22

Sebelius, 3-12-0934, 2012 WL 5879796 (M.D. Tenn. Nov. 21, 2012); Wheaton Coll. v.
Sebelius, 887 F. Supp. 2d 102 (D.D.C. 2012) rev’d in part, 703 F.3d 551 (D.C. Cir. 2012);
Belmont Abbey Coll. v. Sebelius, 878 F. Supp. 2d 25 (D.D.C. 2012) rev’d in part, 703 F.3d
551 (D.C. Cir. 2012); Nebraska ex rel. Bruning v. U.S. Dept. of Health & Human Services,
877 F. Supp. 2d 777 (D. Neb. 2012). Of these, only one has been a circuit court opinion. See
Wheaton Coll., 703 F.3d at 551.
In Wheaton College v. Sebelius, 703 F.3d 551 (D.C. Cir. 2012), the D.C. Circuit
consolidated an expedited appeal from the United States District Court for the District of
Columbia in two of the earliest decisions to emerge on this issue: Belmont Abbey College v.
Sebelius, 878 F. Supp. 2d 25 (D.D.C. 2012) rev’d in part, 703 F.3d 551 (D.C. Cir. 2012), and
Wheaton College v. Sebelius, 887 F. Supp. 2d 102 (D.D.C. 2012) rev’d in part, 703 F.3d 551
(D.C. Cir. 2012). These two cases, which were filed on November 10, 2011, see Belmont
Abbey Coll., 878 F. Supp. at 29, and July 18, 2012, see Wheaton Coll., 887 F. Supp. 2d at
104, each held that the respective plaintiff lacked standing and that the suit was not ripe for
review. See Belmont Abbey Coll., 878 F. Supp. at 29; Wheaton Coll., 887 F. Supp. 2d at 104.
Many later opinions followed suit, adopting similar reasoning. See, e.g., Univ. of Notre
Dame, 2012 WL 6756332, at *4; Zubik, 2:12-CV-00676, 2012 WL 5932977, at *10, *12;
Catholic Diocese of Nashville, 2012 WL 5879796, at *4, *5. However, upon review of
Wheaton College and Belmont Abbey, the D.C. Circuit held in a three-page per curiam Order
that “[d]ismissal for lack of standing was erroneous because standing is assessed at the time

23

of filing, and the colleges clearly had standing when these suits were filed. The ripeness
question is more difficult.” Wheaton Coll., 703 F.3d at 552 (citing Chamber of Commerce
v. EPA, 642 F.3d 192, 200 (D.C. Cir. 2011)). The court then determined that the case was
not ripe for review but decided to hold it in abeyance until the government issued a new rule.
Id. at 552-53.
As a consequence of the D.C. Circuit’s opinion, many subsequent district court
opinions chose to dismiss similar cases for lack of ripeness, but chose not to decide the
question of standing. See, e.g., Roman Catholic Archbishop of Washington, 2013 WL
285599, at *4; Persico v. Sebelius, 1:12-CV-123-SJM, 2013 WL 228200, at *21; Colorado
Christian Univ., 2013 WL 93188, at *9; Catholic Diocese of Peoria, 2013 WL 74240, at *45; Catholic Diocese of Biloxi, Inc., 2012 WL 6831407, at *6. Further, only two courts to this
point have found both standing and ripeness present, allowing the cases in front of them to
move forward, see Roman Catholic Diocese of Fort Worth, No. 4:12–CV–314–Y, at *12
(N.D. Tex. Jan. 31, 2013); Roman Catholic Archdiocese of New York v. Sebelius, 2012 WL
6042864, *15, *22-23. Finally, two of the most recent district court cases, much like the
D.C. Circuit, have both found standing, but each has dismissed the case before it for lack of
ripeness. See Geneva Coll. v. Sebelius, 2013 WL 838238, *12, *16; Roman Catholic
Diocese of Dallas, 2013 WL 687080, *12, *17. These are the only two courts that have
issued opinions since the NPRM was published on February 1, 2012.

24

B. Standing
Article III of the Constitution limits the power of the federal judiciary to the resolution
of “Cases” and “Controversies.” U.S. Const. art. III. § 2, cl. 1; see also Allen v. Wright, 468
U.S. 737, 750 (1984) (discussing the case-or-controversy requirement). This limitation
“defines with respect to the Judicial Branch the idea of separation of powers on which the
Federal Government is founded.” Allen, 468 U.S. at 750. Standing “is an essential and
unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 (1992) (citation omitted). It “requires federal courts to satisfy
themselves that ‘the plaintiff has alleged such a personal stake in the outcome of the
controversy as to warrant [its] invocation of federal-court jurisdiction.’” Summers v. Earth
Island Inst., 555 U.S. 488, 493 (2009) (quoting Warth v. Seldin, 422 U.S. 490, 498-99
(1975)). In that vein, standing fundamentally focuses “on the party seeking to get his
complaint before the federal court rather than ‘on the issues he wishes to have adjudicated.’”
United States v. Richardson, 418 U.S. 166, 174 (1974) (quoting Flast v. Cohen, 392 U.S. 83,
99 (1968)).
At its “irreducible constitutional minimum,” the doctrine requires a plaintiff to prove
three elements: (1) a concrete and imminent injury-in-fact, (2) causal relationship between
the injury and defendants’ challenged conduct, and (3) a likelihood that the injury suffered
will be redressed by a favorable decision. See Lujan, 504 U.S. at 560-61; see also Allen, 468
U.S. at 751 (“A plaintiff must allege personal injury fairly traceable to the defendant’s

25

allegedly unlawful conduct and likely to be redressed by the requested relief.” (citing Valley
Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464,
472 (1982))). The injury in fact must also be “an invasion of a legally protected interest.”
Lujan, 504 U.S. at 560 (citations omitted).
Particularly relevant to this case is the “injury-in-fact” element. A threat of injury
“must be certainly impending to constitute injury in fact.” Clapper v. Amnesty Int’l USA,
133 S. Ct. 1138, 1147 (2013)14 (emphasis in original) (quoting Whitmore v. Arkansas, 495
U.S. 149, 158 (1990)) (internal quotation marks omitted); see also Koziara v. City of
Casselberry, 392 F.3d 1302, 1306 (11th Cir. 2004) (requiring plaintiffs to show a “real and
immediate threat of future injury” when seeking declaratory and injunctive relief). Though
there is no precise definition, imminence requires that “the injury proceed with a high degree
of immediacy, so as to reduce the possibility of deciding a case in which no injury would
have occurred at all.” Lujan, 504 U.S. at 564 n.2 (citations omitted). However, “imminence
is concededly a somewhat elastic concept, [and though] it cannot be stretched beyond its
purpose, which is to ensure that the alleged injury is not too speculative for Article III
purposes,” Clapper, 133 S. Ct. at 1147 (quoting Lujan, 504 U.S. at 565), “one does not have
to await the consummation of threatened injury to obtain preventive relief. If the injury is
14

Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013), a recent United States
Supreme Court case pointed out by defendants in a Notice of Supplemental Authority, (see doc.
77), reiterates a point that the Court has repeatedly made regarding standing: namely, that
“allegations of possible future injury” are not sufficient to confer standing. Clapper, 133 S. Ct.
at 1147 (quoting Whitmore, 495 U.S. at 158).

26

certainly impending, that is enough,” Babbitt v. UFW Nat’l Union, 442 U.S. 289, 298 (1979)
(citations omitted).
Finally, standing and ripeness tend to overlap significantly in the context of preenforcement challenges to laws and regulations. See ACLU v. Fla. Bar, 999 F.2d 1486, 1490
(11th Cir. 1993). Although the overlap often causes the issues to merge, the court
“discuss[es] standing and ripeness separately.” Elend v. Basham, 471 F.3d 1199, 1205 (11th
Cir. 2006). This is because, despite the overlap, there are differences between the doctrines.
One crucial difference between ripeness and standing is that “the standing inquiry remains
focused on whether the party invoking jurisdiction had the requisite stake in the outcome
when the suit was filed.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008)
(emphasis added) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528
U.S. 167, 180 (2000); Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22
(1997)); see also Am. Civil Liberties Union of Fla., Inc. v. Dixie Cnty., Fla., 690 F.3d 1244,
1257 n.5 (11th Cir. 2012) (“For jurisdiction, standing had to exist when the suit was filed
(not arise later). . . . It is not enough for Plaintiff to try to establish, in terms of shifting
reality, the requirements of standing as the case progresses through the federal courts.”
(internal citation omitted)).15

15

Quite different from standing, which a party always possesses once it is established,
“ripeness can be affected by events occurring after the case is filed,” Yacht Club on the
Intracoastal Condo. Ass’n v. Lexington Ins. Co., 11-15683, 2013 WL 598389, *3 (11th Cir. Feb.
15, 2013), and thus may be gained or lost throughout a case.

27

Defendants contend that EWTN cannot pass the first hurdle in the standing
analysis—specifically, defendants do not believe that EWTN has suffered a concrete and
imminent injury-in-fact. To satisfy this first prong, EWTN must establish that it will suffer
“an invasion of a legally protected interest which is (a) concrete and particularized, and (b)
actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal
quotation marks and citations omitted). A threatened injury must be “certainly impending”
to confer standing; harm that is possible or even likely will not suffice. Whitmore, 495 U.S.
at 158 (internal quotation marks and citations omitted).
While defendants make good points, as the D.C. Circuit noted in Wheaton College,
“standing is assessed at the time of filing.” 703 F.3d at 552. Here, EWTN originally filed
suit on February 9, 2012. (See doc. 1.) At that time, there can be no question that EWTN
had standing: only the amended interim final rules, which were clearly binding and imposed
concrete future obligations on EWTN, had at that point been issued. See 76 Fed. Reg. at
46,625, 46,626 (discussing the “binding comprehensive health plan coverage guidelines”
(emphasis added)); see also Appalachian Power Co. v. E.P.A., 208 F.3d 1015, 1020 (D.C.
Cir. 2000) (explaining that legislative rules “have the force and effect of law”); Humane Soc.
of U.S. v. Johanns, 520 F. Supp. 2d 8, 30 (D.D.C. 2007) (treating interim final rule as binding
because it “create[d] an entirely new regulatory structure” and vacating it on that basis).
Thus, the question of standing at the time that the original Complaint was filed is a simple
one to answer. Because the amended interim final rules, as the law in effect at the time, were

28

“certainly impending” Clapper, 133 S.Ct. at 1147, EWTN had a “real and immediate threat
of future injury,” Koziara, 392 F.3d at 1306, and therefore had standing. See Geneva Coll.,
2013 WL 838238, at *11 (“The subsequent events and assurances upon which defendants
heavily rely . . . do not remove Geneva’s standing as measured at the time this case was filed
in February 2012.”); Wheaton Coll., 703 F.3d at 552 (holding Belmont Abbey College had
standing at the time the complaint was filed on November 10, 2011, when amended interim
final rules were in place, but the safe harbor and ANPRM had yet to be issued).
However, defendants argue that the Amended Complaint, (doc. 13), which was filed
on March 21, 2012—after the safe harbor and ANPRM were issued—is the operative
Complaint for the purposes of assessing standing. (See doc. 36 at 7; doc. 64 at 3.) Though
it presents a more difficult question, even if the Amended Complaint operates as the relevant
Complaint, the court again finds that as of the time it was filed, EWTN had standing.16 See
16

The court notes, however, that it is not entirely convinced that the time the Amended
Complaint was filed is the operative date for purposes of standing. Though defendants observe
that “[w]hen a plaintiff files a complaint in federal court and then voluntarily amends the
complaint, courts look to the amended complaint to determine jurisdiction,” (doc. 36 at 7
(quoting Rockwell Int’l Corp. v. United States, 549 U.S. 457, 473-74 (2007)), that case involved
a situation where the original complaint had made allegations sufficient to confer jurisdiction and
was later amended, replacing those allegations with ones that were insufficient to confer
jurisdiction. Rockwell Int’l Corp., 549 U.S. at 463-76. And though the allegations in the second
complaint controlled, the court reiterated that subject-matter jurisdiction depends on the actual
state of things at the time the action is brought. Id. at 473. Moreover, as noted earlier, here,
EWTN’s Amended Complaint only adds a few paragraphs to its Complaint; the twelve original
claims remain the same. (See doc. 13 ¶¶ 86-93, 115-17, 118-205.) Certainly, were EWTN to add
new claims, standing for those claims would be assessed as of March 21, 2012. But EWTN adds
only a few new facts based upon later developments in this case. And while adding laterdeveloped facts could also be potentially problematic because standing depends on the “state of
things” when the complaint is filed, Rockwell Int’l Corp., 549 U.S. at 473, here, the court

29

Wheaton Coll., 703 F.3d at 552 (holding Wheaton College had standing at the time the
complaint was filed on July 18, 2012). To find otherwise would be to find that the
development of the finalized Mandate and the issuance of the ANPRM essentially mooted
the challenge to the amended interim final rules that EWTN originally brought, which it does
not. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 18992 (2000) (discussing the interaction between standing and mootness).17
Assuming that the date the Amended Complaint was filed is the operative date,
defendants point to two elements of the regulatory history of this case to contend that EWTN
lacks standing: the safe harbor and the ANPRM. (See doc. 29-1 at 8-9, 23-26; doc. 36 at 38.) The court will discuss below why neither of these developments operate to prevent

considers the amended interim final rules and the finalized Mandate—the development of which
EWTN has added to its Amended Complaint—to be, in substance, the same rule. As such, the
Amended Complaint would relate back to the date of filing the original Complaint: February 9,
2012. See Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1275-76 (11th
Cir. 2003) (discussing at length how standing is determined at the time the complaint is filed, and
noting that because the second complaint contained the same allegations as original complaint, it
related back under Federal Rule of Civil Procedure 15(c)(2) for standing purposes); see also
Geneva Coll., 2013 WL 838238, at *11-12 (using original complaint filed in February 2012, as
opposed to amended complaint, for purposes of assessing standing).
17

The court realizes that Friends of the Earth, Inc. v. Laidlaw, 528 U.S. 167 (2000),
discusses how the Supreme Court’s prior statements that “mootness [i]s ‘standing set in a time
frame’” were not comprehensive. Id. at 190. The Supreme Court noted that there might be
certain instances where a case is not yet moot, but it would be too speculative to confer standing.
Id. However, there is still significant overlap between the two doctrines, and while the
ANPRM’s existence at the time of filing the Amended Complaint indicated that EWTN’s
challenge might have someday become moot, it in no way approached satisfying the extremely
high bar that mootness requires. See id. (explaining the “formidable burden” to show mootness).
Thus, the court cannot say that when EWTN filed its Amended Complaint on March 21, 2012, its
harms were too speculative to confer standing.

30

EWTN’s standing at the time of filing its Amended Complaint.
1. The Safe Harbor
Defendants argue that, under the safe harbor, they will not take action against any
qualifying organization until the first plan year that begins on or after August 1, 2013. (Doc.
29-1 at 23-24.) Given that EWTN’s plan year begins on July 1 each year, (doc. 13, ¶ 32), the
Mandate would not be enforced against it until July 1, 2014. Defendants argue that “[w]ith
such a long time before the inception of any possible injury and the challenged regulations
undergoing amendment before then, plaintiff cannot satisfy the imminence requirement for
standing . . . .” (Doc. 29-1 at 24.) EWTN acknowledges that it falls within the safe harbor.
(See doc. 13 ¶ 93). Notwithstanding application of the safe harbor, EWTN argues that
“[w]here the inevitability of the operation of a statute against certain individuals is patent,
it is irrelevant . . . that there will be a time delay before the disputed provisions will come
into effect.” (Doc. 33 at 16 (alterations in original) (quoting Reg’l Rail Reorg. Act Cases,
419 U.S. 102, 143 (1974)) (internal quotation marks omitted).) EWTN additionally cites
New York v. United States, 505 U.S. 144 (1992), and Pierce v. Society of Sisters, 268 U.S.
510 (1925), to show that the Supreme Court has held enforcement delays varying from three
to six years insufficient to deny a plaintiff’s standing. (Doc. 33 at 17.)
The court finds that the law favors EWTN. The safe harbor will end on a definite
date. At that point, the Mandate will take effect against non-grandfathered and non-exempt
organizations’ group health plans absent a change in the regulatory scheme. Moreover, the

31

time delay will be approximately two years, a relatively short period of time in the context
of Supreme Court jurisprudence regarding standing. See New York, 505 U.S. at 153-54, 17475 (three-year delay); Pierce, 268 U.S. at 530-36 (1925) (several year delay). Tellingly,
defendants impliedly concede this point, citing to Eleventh Circuit precedent and
acknowledging that “the mere passage of time alone may not defeat standing.” (Doc. 29-1
at 24 (citing Fla. State Conf. of NAACP v. Browning, 522 F.3d 1153, 1161 (11th Cir. 2008)).)
And, as EWTN correctly points out, (doc. 33 at 18), as a general rule, policies of nonenforcement do not deprive a plaintiff of standing. See Va. Soc’y for Human Life, Inc. v.
Fed. Election Comm’n, 263 F.3d 379, 388 (4th Cir. 2001) (holding that a non-enforcement
policy “not contained in a final rule . . . . [and] not carry[ing] the binding force of law”
cannot defeat standing). Accordingly, the court finds that the safe harbor, by itself, does not
defeat EWTN’s standing. Given this finding, the court need not address the parties’
conflicting interpretations of Fla. ex. rel. Att’y Gen. v. HHS, 648 F.3d 1235 (11th Cir.
2011).18

18

EWTN cites Fla. ex. rel. McCollum, 716 F. Supp. 2d 1120, 1145-46 (N.D. Fla. 2010),
to support its argument that the two-year gap between filing its Complaint and enforcement of
the Mandate does not destroy standing. (Doc. 33 at 17.) Defendants argue that EWTN impliedly
contends that, because the defendants in McCollum conceded standing upon appeal to the
Eleventh Circuit, Fla. Ex rel. Att’y Gen., 648 F.3d at 1243, the defendants in this case—who
significantly overlap with the defendants in that case—should be forestalled from challenging
standing. (Doc. 36 at 4, 4 n.4.) Defendants are right to point out that such non-mutual offensive
collateral estoppel does not apply against the government. See United States v. Mendoza, 464
U.S. 154, 162 (1984); (doc. 36 at 4, 4 n.4.) However, the court does not necessarily agree that
EWTN cited to McCollum for that purpose. Rather, the court sees EWTN’s citation as additional
support for the proposition that a two-year enforcement gap does not defeat standing.

32

2. The ANPRM
Just as the safe harbor does not prevent an actual and imminent injury to EWTN,
neither does the ANPRM. Defendants’ argument regarding the ANPRM is based on
Eleventh Circuit and Supreme Court precedent “requir[ing] that ‘the injury proceed with a
high degree of immediacy, so as to reduce the possibility of deciding a case in which no
injury would have occurred at all.’” Alabama-Tombigbee Rivers Coal. v. Norton, 338 F.3d
1244, 1253 (11th Cir. 2003) (quoting Lujan, 504 U.S. at 564 n.2). Specifically, defendants
contend that by operation of the ANPRM, EWTN will not endure injury as a result of the
Mandate:
In light of the forthcoming amendments, and the opportunity the
rulemaking process provides for [EWTN] to help shape those
amendments, there is no basis to conclude that [EWTN] will be,
or is likely to be, required to sponsor a health plan that covers
contraceptive services in contravention of its religious beliefs
once the . . . safe harbor expires.
(Doc. 29-1 at 25-26.) EWTN counters that defendants’ arguments actually address mootness
and, under that guise, fail. (Doc. 33 at 19-20.) It further argues that because defendants have
not amended the Mandate, but have only offered “statements of future . . . intentions,” the
current Mandate’s impending harm is not speculative. (Id. at 18, 20.) Finally, EWTN
contends that even if the ANPRM were implemented exactly as planned, it still would not
Regardless, the court in no way permits non-mutual offensive collateral estoppel against
defendants based on McCollum, nor does it find it necessary to consider its holding regarding the
two-year delay, given that EWTN has presented ample authority to prove its point without the
support of McCollum.

33

alleviate its injuries. (Id. at 22-23.) The court agrees with EWTN that the ANPRM does not
operate to undermine its injury in fact.
Even using the Amended Complaint, (doc. 13), as the operative complaint for
purposes of measuring standing, the court finds that as of March 21, 2012, EWTN possessed
standing to file suit. As discussed earlier, standing is measured at the time of filing. See
Davis, 554 U.S. at 734. Thus, it is at this moment in time that the standing requirement
operates, attempting to avoid the issuance of what amounts to an advisory opinion. See
United Pub. Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 89 (1947) (stating that federal
courts do not issue advisory opinions on abstract issues). Here, though defendants assert that
the ANPRM creates a case in which there is “no basis to conclude” that EWTN will be
injured, so that there is no case or controversy, the court disagrees. At the time of filing, “the
mandate [wa]s the current law, notwithstanding defendants’ assurances that its requirements
will eventually be changed.” Geneva Coll., 2013 WL 838238, at *11. As the law in effect
at the time of filing, it had a direct and immediate impact upon EWTN, regardless of the safe
harbor or the fact that a new rulemaking process had been initiated.
It is true that the ANPRM launched an amendment process to the Mandate. See
generally 77 Fed. Reg. at 16,501-08. The name itself—advance notice of proposed
rulemaking—illustrates this fact. However, nowhere in the ANPRM did defendants
“promise” that a change would absolutely, unequivocally take place. See id. Though the
ANPRM repeatedly refers to the agencies’ “intention” to amend the rules, there was no

34

concrete assurance at the time EWTN had filed suit that the rules would not bind it or that
they would “never be enforced in their present form by defendants against [EWTN].” (Doc.
61 at 6.); see also. 77 Fed. Reg. at 16,501 (“This advance notice of proposed rulemaking
announces the intention of the [agencies] to propose amendments to [the] regulations . . . .”
(emphasis added)); id. at 16,503 (“The Departments intend to finalize these amendments to
the final regulations such that they are effective by the end of the temporary enforcement safe
harbor . . . .” (emphasis added)).19 Accordingly, the court agrees with EWTN that
defendants’ argument “ultimately amounts to a prediction that the unforeseeable results of
a speculative proposed rulemaking might, sometime in the future, remove EWTN’s injury
. . . . [but] cannot change the fact that EWTN faces the real prospect of harm from a concrete
regulatory mandate . . . .” (Doc. 33 at 23.)20
19

Defendants acknowledge this at one point by stating that “[t]he ANPRM published in
the Federal Register confirms defendants’ stated intention to propose amendments to the
preventive services coverage regulations that accommodate the concerns of religious
organizations . . . .” (Doc. 29-1 at 25 (emphasis added).) However, in other places defendants
overstate their initial intent to make changes by declaring that through the ANPRM they had
“promis[ed] imminent regulatory amendments,” (id. at 24), had “promised new regulations” (id.
at 26), had “done more than merely promise a future rulemaking,” (doc. 36 at 4 n.3), had made a
“commitment . . . to amend the regulations,” (id. at 8). It was only later, in Defendants’
Response to Plaintiff’s Third Notice of Supplemental Authority, that defendants outright
declared that “defendants will never enforce the regulations in their current form against . . .
plaintiff,” (doc. 61 at 3 (emphasis in original)), rather than simply framing their past statements
of intention as promises. Accordingly, at the time EWTN filed suit, no “promises” had been
made.
20

To support this assertion, EWTN cites to Thomas More Law Ctr. v. Obama, 651 F.3d
529, 536 (6th Cir. 2011), rev’d on other grounds, Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S.
Ct. 2566 (2012), for the proposition that “[i]mminence is a function of probability” and that the
ANPRM and its effects are far too speculative to defeat standing. (Doc. 33 at 24.) Further, to

35

In a recent decision from the District Court for the Northern District of Texas, Roman
Catholic Diocese of Dallas v. Sebelius, 3:12-CV-1589-B, 2013 WL 687080 (N.D. Tex. Feb.
26, 2013), the court addressed the exact issues before this court based on a lawsuit that was
filed on May 21, 2012, after the issuance of the safe harbor and the ANPRM. See id. at *5.
The court held that the plaintiff, a nonprofit charitable organization existing under the Code
of Canon Law of the Roman Catholic Church, had demonstrated standing at the time the suit
was filed. Id. at *11-12. It reasoned that
publication of the ANPRM is insufficient to undermine the imminence of
Plaintiff’s alleged injuries. The ANPRM merely states that the government
expects to address concerns similar to those raised by Plaintiff and solicits
comment on the same. 77 Fed. Reg. 16,501. The ANPRM is not a proposed
amendment and does not proffer contents or substance of a proposed
amendment. There is no concrete evidence to indicate that the government is
reversing its course. See API v. EPA, 683 F.3d 382, 388 (D.C. Cir. 2012).
Although the Court cannot say that every ANPRM would be insufficient to
indicate a shift in administrative policy, the ANPRM relevant to this case
provides no specifics to quash Plaintiff’s fear of enforcement or to disprove
the imminence of Plaintiff’s injury upon enforcement of the current, final regulations.
Id. at *9. A similar rationale was set forth in Roman Catholic Archdiocese of New York v.
Sebelius, 12 CIV. 2542 BMC, 2012 WL 6042864 (E.D.N.Y. Dec. 4, 2012), where the court

demonstrate that the ANPRM shows mere intent to amend the Mandate, EWTN cites to
American Petroleum Institute v. EPA, 906 F.2d 729, 739-40 (D.C. Cir. 1990), which observes
that “an agency always retains the power to revise a final rule . . . . [and i]f the possibility of
unforseen amendments were sufficient to [destroy justiciability], review could be deferred
indefinitely.” (Id. at 20.) Finally, EWTN cites American Bird Conservancy, Inc. v. FCC, 516
F.3d 1027, 1031 n.1 (D.C. Cir. 2008) (per curiam), to similarly show that “agencies cannot avoid
judicial review . . . merely because they have opened another docket that may address some
related matters.” (Id.) As discussed above, the court finds EWTN’s arguments on this matter
persuasive.

36

stated
the ANPRM is not a formally announced change[ ] to official government
policy. Despite defendants’ attempt to characterize the ANPRM as a binding
promise not to enforce the Coverage Mandate, the fact is that the ANPRM does
not prevent the Coverage Mandate, as it currently exists, from going into effect.
It is not a change in policy; it merely seeks input to allow the Departments to
consider possible revisions to the Coverage Mandate. The Departments need
not make any changes to the Coverage Mandate to accommodate religious
groups at all.
In this light, the Court finds that plaintiffs’ claimed future injuries are
certainly impending. The law as it currently [is] written requires that,
beginning January 1, 2014, plaintiffs must either pay onerous fines or provide
contraceptive coverage in violation of their beliefs. The Departments may alter
the Coverage Mandate before that time, but the possibility of a change in the
law does not mean that a requirement that will become effective by operation
of law is not certainly impending. Thus, plaintiffs’ future injuries are
sufficiently imminent to constitute injuries in fact.
Id. at *15 (internal quotation marks and citations omitted). The court agrees with the
rationale of both Roman Catholic Diocese of Dallas and Roman Catholic Archdiocese of
New York. Thus, even if the court were to assess standing as of the time of EWTN’s
Amended Complaint, (doc. 13), the safe harbor and the ANPRM do not operate to make
EWTN’s injuries at the time of filing any less concrete or imminent. Accordingly, the court
finds that EWTN has standing to challenge the Mandate.21
21

It is worth noting that because the NPRM was issued after both EWTN’s original
Complaint, (doc. 1), and Amended Complaint, (doc. 13), it “has no bearing on whether [EWTN]
adequately alleged its standing to sue,” Roman Catholic Diocese of Dallas, 2013 WL 687080,
*11. Therefore, to the extent that defendants argue the issuance of the NPRM affects EWTN’s
standing, (see doc. 74 at 3 (“[T]the NPRM further buttresses defendants’ promise that they will
never enforce the current version of the challenged regulations against plaintiff, further
demonstrates concrete action to change those regulations, and further undermines plaintiff’s

37

C. Ripeness
Apart from their standing argument, defendants argue that this court lacks jurisdiction
to hear EWTN’s claims because the case is not ripe for review. (Doc. 29-1 at 26.)
Specifically, defendants contend that the Mandate is in the process of being amended, and
that therefore, there is “a significant chance that the amendments will alleviate altogether the
need for judicial review, or at least narrow and refine the scope of any actual controversy to
more manageable proportions.” (Id. at 29.) Thus, defendants claim that EWTN’s challenge
is not fit for review. (Id. at 32.) Further, defendants argue that a delay in judicial review will
not cause EWTN to suffer any hardship because an “alleged desire to plan for . . .
contingencies” is not enough to constitute hardship under the test for determining ripeness.
(Doc. 36 at 12.) In response, EWTN argues that its claims are ripe because they present
purely legal issues which require no factual development, they challenge a final rule that
marks the consummation of the agency’s rulemaking process, defendants’ arguments address
mootness as opposed to ripeness, and it will suffer hardship if review is delayed because it
must “plan now,” (doc. 33 at 30 (emphasis in original)), for the Mandate’s future effects.
(Doc. 33 at 24-31.) The court agrees with defendants that the action is due to be dismissed
because it is not ripe for review at this time.
The ripeness doctrine is comprised of two main questions: (1) whether the issues are

unfounded suggestions that the government will not follow through on its commitment.”)), they
are mistaken. (See also doc. 75 at 3.)

38

fit for judicial review; and (2) whether withholding a decision will cause “hardship to the
parties.” Abbott Labs. v. Garner, 387 U.S. 136, 149 (1967). As discussed earlier, ripeness
and standing often overlap—in particular, in “cases involving pre-enforcement review, the
standing and ripeness inquiries may tend to converge.” Elend, 471 F.3d at 1205. And like
standing, ripeness is “drawn both from Article III limitations on judicial power and from
prudential reasons for refusing to exercise jurisdiction.” Nat’l Park Hospitality Ass’n v.
Dep’t of Interior, 538 U.S. 803, 808 (2003). However, it is not a hard and fast rule that
ripeness and standing go hand in hand: “there [still] may be standing without ripeness, . . .
or there may be ripeness without standing.” Elend, 471 F.3d at 1205.
Moreover, the doctrines have some key differences. Ripeness differs significantly
from standing in that it asks whether a case is ready (i.e., “ripe”) for entertaining, while
standing focuses on the parties themselves, asking whether they are the right persons to bring
the suit. See Wilderness Soc. v. Alcock, 83 F.3d 386, 390 (11th Cir. 1996) (discussing the
intersection of standing and ripeness and noting the main difference—that while standing
“asks whether these persons are the proper parties to bring the suit,” ripeness “asks whether
this is the correct time for the complainant to bring the action (emphasis in original)).
Further, as noted earlier, “ripeness can be affected by events occurring after the case is filed,”
Yacht Club on the Intracoastal Condo. Ass’n v. Lexington Ins. Co., 11-15683, 2013 WL
598389, *3 (11th Cir. Feb. 15, 2013) (emphasis added) (citing cases), while standing either
exists or does not exist at the time the suit is filed, see Focus on the Family v. Pinellas

39

Suncoast Transit Auth., 344 F.3d 1263, 1275 (11th Cir. 2003). See also Blanchette v. Conn.
Gen. Ins. Corps., 419 U.S. 102, 140 (1974) (“[R]ipeness is peculiarly a question of timing,
it is the situation now rather than the situation at [an earlier time] that must govern.”);
Geneva Coll., 2013 WL 838238, at *12 (“Unlike standing which is determined as of the time
the case commenced, ripeness may consider events which have occurred after the filing of
the complaint.” (citing Buckley v. Valeo, 424 U.S. 1, 114–17 (1976))).
In addition, because ripeness, like standing, is concerned with the case and
controversy requirement of Article III, see Konikov v. Orange Cnty., Fla., 410 F.3d 1317,
1322 (11th Cir. 2005), it aims to avoid deciding cases which need not yet be decided, and
which could eventually be resolved by the agency being challenged, thus avoiding litigation
entirely, see Belmont Abbey, 2012 WL 2914417, at *12 (“[I]f we do not decide the issue
now, we may never need to.” (alterations omitted) (quoting Nat’l Treasury Emps. Union v.
United States, 101 F.3d 1423, 1431 (D.C. Cir. 1996))). It further “counsel[s] judicial
restraint,” Nat’l Adver. Co. v. City of Miami, 402 F.3d 1335, 1339 (11th Cir. 2005) (quoting
Digital Props., Inc. v. City of Plantation, 121 F.3d 586, 589 (11th Cir. 1997)) (internal
quotation marks omitted), in part to “protect[] the other branches from judicial meddling,”
id. (“When a court is asked to review decisions of administrative agencies, it is hornbook law
that courts must exercise patience and permit the administrative agency the proper time and
deference for those agencies to consider the case fully.”). Ultimately, the ripeness doctrine
“prevent[s] the courts, through avoidance of premature adjudication, from entangling

40

themselves in abstract disagreements over administrative policies, and also . . . protect[s] the
agencies from judicial interference until an administrative decision has been formalized and
its effects felt in a concrete way by the challenging parties.” Abbott Labs., 387 U.S. at 14849.
As discussed earlier, in similar challenges to the Mandate, only two out of at least
eighteen cases have found the claims ripe for review. See Roman Catholic Diocese of Fort
Worth, No. 4:12–CV–314–Y, at *12; Roman Catholic Archdiocese of New York v. Sebelius,
2012 WL 6042864, *21-23. This court agrees with the reasoning of the majority of cases on
the issue and finds that, given the current state of the administrative process, EWTN’s claims
are not ripe because they are not fit for review and EWTN will not suffer hardship sufficient
to weigh the balance in favor of judicial review.
1. Fitness for Review
In evaluating ripeness under its two-part test, the Supreme Court has set forth factors
to consider: “(1) whether delayed review would cause hardship to the plaintiffs; (2) whether
judicial intervention would inappropriately interfere with further administrative action; and
(3) whether the courts would benefit from further factual development of the issues
presented.” Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733 (1998). Both of the latter
considerations relate to whether a plaintiff’s claims are fit for review. Pittman v. Cole, 267
F.3d 1269, 1278 (11th Cir. 2001). Other factors to weigh in considering whether a plaintiff’s
claims are fit include “questions of finality, definiteness, and the extent to which resolution

41

of the challenge depends upon facts that may not yet be sufficiently developed.” Mulhall v.
UNITE HERE Local 355, 618 F.3d 1279, 1291 (11th Cir. 2010) (quoting Harrell v. The Fla.
Bar, 608 F.3d 1241, 1258 (11th Cir. 2010)) (internal quotation marks omitted). Finally,
“claims are less likely to be considered fit . . . when they venture beyond purely legal
issues[,] . . . when they require speculation about contingent future events[, or when they] .
. . . interfere[] with an agency’s decisionmaking process before it has the opportunity to
finalize its policies . . . .” Pittman, 267 F.3d at 1278 (internal quotation marks and citations
omitted).
Here, although the ANPRM did not operate to deprive EWTN of standing to challenge
the law that it was directly subject to at the time of filing its Complaint, it does, along with
the NPRM, operate to make the Mandate unfit for review. As noted above, there are a
number of considerations that may be taken into account when considering whether a law or
regulation is fit for judicial review. In this case, one particular concern weighs heavily in
favor of deferring review: that is, the fact that the agency is in the middle of a rulemaking
process which might altogether alleviate the alleged harm, or at the very least narrow the
issues involved, making the eventual resolution of the lawsuit better tailored and much more
efficient.

See Am. Petroleum Inst. v. E.P.A., 683 F.3d 382, 387 (D.C. Cir. 2012)

(“[P]ermitting the administrative process to reach its end can at least solidify or simplify the
factual context and narrow the legal issues at play, allowing for more intelligent resolution
of any remaining claims and avoiding inefficient and unnecessary piecemeal review.”

42

(internal quotation marks omitted)). Thus, judicial review at this point—particularly where
the NPRM has been issued and a new rule is set to emerge shortly—would inappropriately
interfere in the “agency’s decisionmaking process before it has the opportunity to finalize its
policies.” Pittman, 267 F.3d at 1278.
Moreover, other courts have found the government’s representations that it will not
enforce the present rule and that a new rule will be issued before the end of the enforcement
safe harbor persuasive.22 See, e.g., Wheaton Coll., 703 F.3d at 552 (taking the government
at its word that it would “never enforce [the Mandate] in its current form” and that it would
“issue a new Final Rule before August 2013” because waiting for the new rule could resolve
the issues); Catholic Diocese of Peoria, 2013 WL 74240, at *5 (taking government at its
word and stating that reviewing the Mandate “before it is amended and before it is to be
enforced” would “undermine the interests of judicial economy”). This court agrees with the
reasoning of these cases. Accordingly, because defendants “have initiated a rulemaking
specifically intended to amend the challenged regulations to address the concerns raised by
organizations like [EWTN],” (doc. 36 at 6 n.7), the case is not presently fit for review.23

22

As noted earlier, these representations came too late to affect EWTN’s standing in this

case.
23

In response to this, EWTN claims that defendants’ arguments against ripeness are, in
reality, about mootness, (doc. 33 at 29), and further argues that its claims would not be
undermined by mootness in any event because “[t]he ANPRM promises no change to th[e] status
quo,” (id. at 27), and “the NPRM confirms that EWTN will not be exempt from the Mandate,”
(doc. 75 at 3). First, the court agrees that EWTN’s claims are not moot because, as mentioned
earlier, a high bar must be met in order to moot a claim. See Friends of the Earth, Inc., 528 U.S.

43

Reinforcing this conclusion is the fact that yet another factor, lack of finality, weighs
in favor of finding the challenge unripe. While it might seem odd to say that EWTN had
standing to challenge the Mandate when it filed suit, but the Mandate currently lacks finality,
that is the practical result in this case as the administrative rulemaking process progresses.
Though the Mandate is the current state of the law and was binding on EWTN when it filed
its Complaint, the NPRM “illustrate[s] that the challenged regulations are simply
interlocutory.” Roman Catholic Diocese of Dallas, 2013 WL 687080, at *15; see also
Archdiocese of St. Louis, 2013 WL 328926, at *5 (“Because the regulations are in the process
of being amended, in their current form they represent a tentative as opposed to final agency
position.”); Univ. of Notre Dame, 2012 WL 6756332, at *3 (“[T]he challenged regulatory
requirement isn’t sufficiently final. Notre Dame is correct that [the] regulation itself claims
at 190. But second, the court also agrees with defendants that its arguments are not, in fact,
about mootness. (See doc. 36 at 6, 6 n.7.) Rather, despite plaintiff’s contentions, they remain
fundamentally about ripeness (and standing). (See id.) Certainly, potential mootness is a
relevant consideration when assessing ripeness in this case because it underscores the fact that
the rules currently being developed could ultimately resolve the contested issues. See Efron By &
Through Efron v. United States, 1 F. Supp. 2d 1468, 1470 (S.D. Fla. 1998) aff’d sub nom. Efron
v. United States, 189 F.3d 482 (11th Cir. 1999) (stating that there is “an additional, unspoken
element of the ripeness doctrine”: the idea that “if we do not need to decide it now, we may never
need to”). Because ripeness is about whether issues are ready for review, it is only logical to
reason that in some cases involving ongoing agency action or rulemaking that is not yet final,
later developments will indeed moot the issues. See, e.g., In re Aiken County, 645 F.3d 428,
435-36 (D.C. Cir. 2011) (taking into account potential future mootness of claims in determining
whether agency action was fit for review under a ripeness analysis); Belmont Abbey, 2012 WL
2914417, at *12 (“[I]f we do not decide the issue now, we may never need to.” (quoting Nat’l
Treasury Emps. Union v. United States, 101 F.3d 1423, 1431 (D.C. Cir. 1996))). This is the case
even despite EWTN’s protests that no future developments could possibly impact its
constitutional claims. (Doc. 33 at 27). Because the rule is currently in the process of being
amended, EWTN must wait until its allegation becomes a reality.

44

to be final, but events following the regulation’s adoption make clear that it isn’t final.”
(internal citations omitted)). As discussed earlier, unlike standing, ripeness may come and
go throughout the course of a litigation. Yacht Club on the Intracoastal Condo. Ass’n, 2013
WL 598389, at *3. Thus, after the government’s eventual promises to finalize changes to the
Mandate and to forego enforcement in its current form, (see doc. 61 at 6, 6 n.4), and the
issuance of the NPRM, which sets forth specifics regarding future changes, see generally 78
Fed. Reg. 8456, the Mandate’s fundamental nature has transformed into that of a temporary
rule. See Conlon, 2013 WL 500835, *at 5 (“[T]he promised accommodations regarding
religious objections mean the current regulations are not truly final, rendering any judicial
decision as to the legality of the current regulations premature.”).
Primarily for these two reasons—namely, (1) avoiding any interference with the
ongoing rulemaking process before defendants have finalized their policies, and (2) the
temporary nature of the current rules—the court finds that EWTN’s claims are not ripe for
review.24 Nevertheless, to briefly address EWTN’s claim that ripeness requirements are more

24

Whether the question to be resolved presents purely legal issues is yet another of the
factors courts look at when assessing ripeness. See La. Envtl. Action Network v. EPA, 172 F.3d
65, 69 (D.C. Cir. 1999) (quoting George E. Warren Corp. v. EPA, 159 F.3d 616, 622 (D.C. Cir.
1998). The parties agree that EWTN’s claims present primarily legal (as opposed to factual)
issues, (see doc. 29-1 at 31; doc. 33 at 8, 25-26; doc. 36 at 9), however, “an agency’s [actions]
do[] not become final merely because the challenger attacks the agency’s jurisdiction, even where
the attack raises a pure question of law,” Ticor Title Ins. Co. v. F.T.C., 814 F.2d 731, 747 (D.C.
Cir. 1987). See also Pub. Citizen v. Office of U.S. Trade Representatives, 970 F.2d 916, 921
(D.C. Cir. 1992) (“Even if only purely legal issues remained . . . that would not obviate the need
for finality itself. Nor, indeed, would it establish the fitness of the issues for judicial decision, . .
. .” (internal quotation marks and citations omitted)). Thus, even if the issues presented are

45

relaxed in First Amendment cases, (doc. 33 at 13, 25, 27), the court finds that even if the
relaxed standard were to apply, this alone could not overcome the lack of fitness for judicial
review. While the court agrees that EWTN’s observation is an accurate one, the ripeness
requirement “may not be ignored” because of the less stringent standard. See Nat’l Adver.
Co. v. City of Miami, 402 F.3d 1335, 1339 (11th Cir. 2005) (“[W]hile it is true that our
review of a suit’s ripeness is at its most permissive in cases concerning putative violations
of the First Amendment, th[e ripeness] requirement may not be ignored.” (citations omitted)).
Moreover, the court is not convinced that the relaxed standard would apply to this
case. The primary reason that the ripeness requirement has been relaxed in First Amendment
cases is because of the fear that the challenged statute or regulation would create a chilling
effect on speech. See Beaulieu v. City of Alabaster, 454 F.3d 1219, 1227-28 (11th Cir. 2006)
(noting the more permissive review of ripeness in First Amendment cases and discussing “the
fear that free speech will be chilled even before the law, regulation, or policy is enforced”
(quoting Hallandale Prof’l Fire Fighters Local 2238 v. City of Hallandale, 922 F.2d 756,
760 (11th Cir. 1991)) (internal quotation marks omitted)). However, any chilling effect on
speech is not yet a concern in this case because of the safe harbor and enforcement delay;
thus, EWTN cannot now claim that there is a chilling effect on its speech because it fears

purely legal, this does not transform EWTN’s claims into ripe ones.

46

“risking criminal or severe civil sanctions” for noncompliance with the Mandate.25 Dermer
v. Miami-Dade Cnty., 599 F.3d 1217, 1221 (11th Cir. 2010) (quoting Elend, 471 F.3d at
1211). Further, “there [is no] allegation by [EWTN] that their own protected speech, or
anyone else’s, is being chilled; rather they complain that the Mandate in its current form
compels them to engage in speech which they find objectionable but in which they have not
yet actually engaged.” (emphasis in original)). Persico, 2013 WL 228200, at *11; see also
Nebraska ex rel. Bruning, 877 F. Supp. 2d at 803 (noting that though the chilling effect is a
concern in First Amendment cases, because the plaintiffs did not face “a direct and
immediate dilemma that involve[d] the sacrifice of their First Amendment rights,” ripeness
could not be established “even under a relaxed standard”). Accordingly, the ripeness of
EWTN’s claims is not affected by the relaxed standard that it asks the court to apply.
2. Hardship
Finally, as to the hardship prong of the ripeness analysis, EWTN correctly observes
that if a dispute otherwise qualifies as fit for review, any lack of hardship is irrelevant. (See
doc. 33 at 24-25 (quoting Harrell v. The Fla. Bar, 608 F.3d 1241, 1259 (11th Cir. 2010)).)
Conversely, in some circumstances, if a claim is questionably fit, extreme hardship may
weigh the balance in favor of judicial review. See Consol. Rail Corp. v. United States, 896
F.2d 574, 577 (D.C. Cir. 1990). What actually constitutes hardship will inevitably change

25

As defendants further observe, the relaxed analysis only applies where there is a
“credible threat” of enforcement. (Doc. 36 at 3 n.2).

47

depending on the case, however, it cannot simply be a mere inconvenience—it must be
“immediate and significant.” Abbott Labs., 387 U.S. at 153; see also Harrell, 608 F.3d at
1258 (“The hardship prong asks about the costs to the complaining party of delaying review
until conditions for deciding the controversy are ideal.”); Elend, 471 F.3d at 1211 (“Hardship
can sometimes be established if a plaintiff demonstrates that he would have to choose
between violating an allegedly unconstitutional statute or regulation and risking criminal or
severe civil sanctions.” (citing Steffel v. Thompson, 415 U.S. 452, 462 (1974))); Pittman, 267
F.3d at 1280-81 (discussing Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 (1998), and
listing some types of hardship that might weigh a case in favor of judicial review, such as
“adverse effects of a strictly legal kind,” “whether the challenged policy inflicts significant
practical harm upon the interests that the [plaintiff] advances,” and “any other way in which
the [policy] could now force it to modify its behavior in order to avoid future adverse
consequences” (alterations in original) (internal quotation marks omitted)).
Further, allegations that a party must presently begin planning for future events which
are speculative, or even the inability to plan at all for future events, have generally not
constituted hardship sufficient to satisfy the hardship requirement. See Wheaton Coll., 887
F. Supp. 2d at 113 (no hardship where plaintiff desired to plan for contingencies); Cephalon,
Inc. v. Sebelius, 796 F. Supp. 2d 212, 218-20 (D.D.C. 2011) (spending financial resources
now to plan for “remote and speculative” future events did not constitute hardship).
Here, EWTN claims that it faces imminent hardship absent immediate review because

48

the ANPRM will not alter its claims, and it must begin planning now to address the financial
problems it will be faced with as a result. (Doc. 33 at 30.) It further claims that it could be
subject to third-party lawsuits attempting to enforce the Mandate, since the safe harbor only
protects it against the defendants. (Id. at 30-31.) However, the court finds that “[EWTN’s]
hardship claim is insufficient for any [ripeness] exception.” Pub. Citizen v. Office of U.S.
Trade Representatives, 970 F.2d 916, 921 (D.C. Cir. 1992). Said differently, EWTN has not
shown hardship that is sufficient to overcome its unfit claims because it cannot establish that
the alleged harms it faces are “immediate and significant,” Abbott Labs., 387 U.S. at 153.
EWTN furthers the same failing arguments regarding hardship that were made in the
numerous other cases addressing the Mandate, most of which held that there was no hardship
sufficient to weigh the balance in favor of judicial review. See, e.g., Roman Catholic
Diocese of Dallas, 2013 WL 687080, at *16 (“[T]he inability to prepare for contingencies
is not a hardship that outweighs the unfitness for review of the issues in this case.”); Conlon,
2013 WL 500835, at *6 (necessity of postponing judicial review outweighed “purported
hardship . . . in [plaintiffs’] ability to plan for contingencies”); Wheaton Coll., 887 F. Supp.
2d at 113 (planning insecurity not enough to show hardship); Nebraska ex rel. Bruning, 877
F. Supp. 2d at 802-03 (desire to plan for contingencies that may never arise did not constitute
hardship); Belmont Abbey, 878 F. Supp. 2d at 41 (neither planning for the possibility of being
forced to give up health insurance plan in 2014 nor risk of third-party lawsuits created
hardship sufficient to overcome the lack of fitness for judicial review).

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In addition, the court agrees with defendants that if planning for the future were to
constitute hardship, “the hardship prong would become meaningless because organizations
are always planning for the future.” (Doc. 36 at 12.) Others courts have agreed. See Tenn.
Gas Pipeline Co. v. FERC, 736 F.2d 747, 751 (D.C. Cir. 1984) (planning insecurity not
enough to constitute hardship); Bethlehem Steel Corp. v. EPA, 536 F.2d 156, 162-64 (7th Cir.
1976) (uncertainty in business and capital planning not immediate and direct enough to
constitute hardship); Cephalon, Inc., 796 F. Supp. at 218-20 (D.D.C. 2011) (financial
planning for “remote and speculative” future events did not constitute hardship). And in
addition, the “theoretical possibility” of third-party lawsuits is not sufficient to establish the
requisite hardship to overcome a lack of fitness for review. Belmont Abbey, 878 F. Supp. 2d
at 41.

Ultimately, “the ripeness doctrine requires a pragmatic and commonsense

application,” Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905, 918 (D.C. Cir. 1985); in this
case, common sense weighs in favor of withholding judicial review until new regulations are
created and finalized. At that point, if EWTN still has objections, it may then file suit.
IV. CONCLUSION
Based on the foregoing and as directed by the court’s Order entered
contemporaneously with this Opinion, defendants’ Motion to Dismiss will be granted.
EWTN’s case will be dismissed without prejudice.

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DONE, this 25th day of March 2013.

SHARON LOVELACE BLACKBURN
CHIEF UNITED STATES DISTRICT JUDGE

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