Briscoe et al v. Sebelius et al
Filing
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ORDER that a hearing regarding the limited issue set forth in this Order is set for 9/5/2013 at 03:00 PM in Courtroom A1002 before Judge Wiley Y. Daniel. by Judge Wiley Y. Daniel on 8/27/2013. (trlee, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 13-cv-00285-WYD-BNB
STEPHEN W. BRISCOE;
CONTINUUM HEALTH PARTNERSHIPS, INC.;
CONTINUUM HEALTH MANAGEMENT, LLC; and,
MOUNTAIN STATES HEALTH PROPERTIES, LLC,
Plaintiffs,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States
Department of Health and Human Services;
SETH D. HARRIS, in his official capacity as Acting Secretary of the United States
Department of Labor;
NEAL WOLIN, in his official capacity as Acting Secretary of the United States
Department of the Treasury;
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES;
UNITED STATES DEPARTMENT OF LABOR; and,
UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.
ORDER
THIS MATTER is before the Court on Stephen W. Briscoe, Continuum Health
Partnerships, Inc., Continuum Health Management, LLC, and Mountain States Health
Properties, LLC’s: (1) Motion For Preliminary Injunction [ECF No. 15]; (2) Motion For
An Order Or, In The Alternative, Request To Set Motion For Preliminary Injunction For
Hearing [ECF No. 34]; (3) Motion For An Order Or, In The Alternative, Request To Set
Plaintiffs’ Preliminary Injunction Motion For Hearing and Request For Forthwith
Consideration [ECF No. 39]; (4) Emergency Application For A Temporary Restraining
Order Pending The Court’s Ruling On Plaintiffs’ Motion For Preliminary Injunction and
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Request For Forthwith Consideration [ECF No. 40]; and, (5) Second Emergency
Application For A Temporary Restraining Order Pending The Court’s Ruling On
Plaintiffs’ Motion For Preliminary Injunction Or, In The Alternative, A Request For A
Preliminary Injunction and Request For Forthwith Consideration [ECF No. 42].
ANALYSIS
On June 27, 2013, the United States Court of Appeals for the Tenth Circuit
issued its decision in Hobby Lobby Stores, Inc. v. Sebelius, 2013 U.S. App. LEXIS
13316, regarding a similar challenge to the Patient Protection and Affordable Health
Care Act (“AHCA”), Pub. L. No. 111-148, 124 Stat. 119 (2010), as is presented in the
case at bar. The Tenth Circuit, sitting en banc, held that: (1) Hobby Lobby and Mardel
(a Christian bookstore) are persons under the Religious Freedom Restoration Act
(“RFRA”), 42 U.S.C. §§ 2000bb to bb-4, and are entitled to bring RFRA claims; (2) the
plaintiffs demonstrated that the AHCA’s mandate substantially burdened their religious
exercise; (3) the plaintiffs established a likelihood of success on their RFRA claims; and,
(4) the plaintiffs established that they would suffer irreparable harm if an injunction was
not issued. 2013 U.S. App. LEXIS 13316, *2. Because the en banc Tenth Circuit did
not reach a majority on whether the plaintiffs satisfied the latter two requirements for
issuance of a preliminary injunction i.e., whether the harm alleged by the movant
outweighs any harm to the non-moving party and whether an injunction is in the public
interest, it remanded the case back to the district court with instructions to “address the
remaining two preliminary injunction factors and then assess whether to grant or deny
the plaintiffs’ motion.” Id. at *81.
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In analyzing the third requirement for issuance of preliminary injunction i.e.,
whether the harm alleged by the movant outweighs any harm to the non-moving party,
the Tenth Circuit explained the AHCA’s preventative mandate and stated:
The FDA [Food and Drug Administration] has approved
twenty such methods [that fall under the AHCA’s
preventative care mandate], ranging from oral contraceptives
to surgical sterilization. Four of the twenty approved
methods—two types of intrauterine devices (IUDs) and the
emergency contraceptives commonly known as Plan B and
Ella—can function by preventing the implantation of a
fertilized egg. The remaining methods function by preventing
fertilization.
Id. at 9. The Tenth Circuit then went on to state that the plaintiffs oppose only four of
the twenty approved methods. Specifically, the plaintiffs oppose preventative care “that
prevent[s] uterine implantation,” not conception. Id. at *10 n.3. The Tenth Circuit took
this important fact into consideration when it stated:
A preliminary injunction would forestall the government’s
ability to extend all twenty approved contraceptive methods
to Hobby Lobby and Mardel’s 13,000 employees. But Hobby
Lobby and Mardel will continue to provide sixteen of the
twenty contraceptive methods, so the government’s interest
is largely realized while coexisting with Hobby Lobby and
Mardel’s religious objections.
Id. at *79 (emphasis added).
I cannot glean from the record whether the plaintiffs in the case at bar present
an identical objection as the plaintiffs in Hobby Lobby. The Tenth Circuit took particular
notice of the precision of the plaintiffs’ objection to the AHCA in Hobby Lobby. I am
persuaded that I do the same.
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CONCLUSION
After careful consideration of the matters before this Court, it is
ORDERED that the parties shall file supplemental briefing on the limited issue of
the exact and precise scope of the plaintiffs’ objection to the AHCA’s preventative care
mandate. Specifically, the plaintiffs shall inform the Court on how many of the
twenty approved FDA methods they object to, and the defendants shall state what
difference, if any, does the number of objections to the FDA approved methods
make in the overall determination of whether to issue a preliminary injunction.
The parties shall file their respective briefs on or before Tuesday, September 3,
2013. It is
FURTHER ORDERED that a hearing regarding the limited issue set forth in this
Order is set for Thursday, September 5, 2013, at 3:00 p.m. in Courtroom A-1002.
Dated: August 27, 2013.
BY THE COURT:
/s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior U. S. District Judge
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