Colorado Christian University v. United States Department of Health and Human Services et al

Filing 70

ORDER granting and denying 64 Motion for Preliminary Injunction. Colorado Christian University SHALL POST with the clerk of the court a bond or other security in the amount of 500 dollars on or before Tuesday, June 24, 2014, at 5:00 p.m. (mountain daylight time). By Judge Robert E. Blackburn on 6/20/2014.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-02105-REB-MJW
COLORADO CHRISTIAN UNIVERSITY,
Plaintiff,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States
Department of Health and Human Services;
THOMAS E. PEREZ, in his official capacity as Secretary of the United States
Department of Labor;
JACOB J. LEW, in his official capacity as 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 GRANTING MOTION FOR PRELIMINARY INJUNCTION
Blackburn, J.
This matter is before me on the Plaintiff’s Motion To Expedite Summary
Judgment or, in the Alternative, For a Preliminary Injunction [#64]1 filed March 31,
2014. The defendants filed a response [#65] and the plaintiff filed a reply [#66]. Having
considered carefully all relevant evidence educed, all reasons stated, all arguments
advanced, all authorities cited, and all apposite law, I find and conclude that the motion

1

“[#64]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

for preliminary injunction should be granted.2 I deny the alternative request of the
plaintiff for expedited consideration of its pending motion for summary judgment.
I. JURISDICTION
I have jurisdiction over this case under 28 U.S.C. § 1331 (federal question).
II. BACKGROUND
The plaintiff, Colorado Christian University (CCU), challenges certain
requirements imposed on group health plans by the Patient Protection and Affordable
Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) (Affordable Care Act or ACA) and
regulations implementing the ACA. Specifically, CCU challenges the requirement that
the group health plans for employees of CCU and for CCU students or, in the
alternative, another entity, provide coverage for drugs, devices, procedures, or related
education and counseling that may destroy human life after fertilization of the egg of a
mother and either before or after the implantation of a fertilized egg in the uterus of its
mother. CCU contends that any participation by them in the implementation of this
required coverage imposes a substantial burden on the exercise of its religious beliefs
and violates its rights under the First Amendment of the Constitution of the United
States and under the Religious Freedom Restoration Act (RFRA)3.
Included with the motion for preliminary injunction is the affidavit of William
Armstrong, the President of CCU. Mr. Armstrong says CCU is “a ‘Christ-centered’
liberal arts university committed to offering a complete education that develops students

2

The issues raised by and inherent to the motion are sufficiently briefed; thus, obviating the
necessity for evidentiary hearing or oral argument.
3

42 U.S.C. §§ 2000bb through 2000bb-4.

2

intellectually, professionally, and spiritually. Although CCU does not affiliate with any
specific denomination, it is united with the broad, historic evangelical faith.” Declaration
of President William L. Armstrong in Support of Plaintiff’s Motion for Partial Summary
Judgment [#64-1] (Armstrong Declaration), ¶¶ 5-6. “(A)s part of its commitment to a
Christian education, CCU believes and actively teaches that each human being bears
the image of God, and that all human life is sacred from the moment of conception.
Promoting the sanctity of life is one of CCU’s Strategic Objectives.” Id., ¶¶ 13 - 14. The
current CCU student health plan excludes coverage for abortions and all contraceptives,
including emergency contraceptives. Id., ¶ 19. The current CCU employee health plan
excludes coverage for all services, drugs, and devices that could terminate human life
from the moment of conception, including medical abortions, emergency contraceptives
like Plan B and Ella, and IUDs. CCU’s employee health plan does provide coverage for
other contraceptives. Id., ¶ 20. Mr. Armstrong says CCU excludes these coverages
“because their ability to prevent an embryo from implanting in the uterus ends an
innocent human life. It would be a violation of CCU’s religious beliefs concerning the
sanctity of life . . . to deliberately arrange insurance coverage that facilitates access to
abortion-inducing drugs and devices or related educational counseling services.” Id., ¶
21 - 22. The CCU employee health plan is a self-insured plan.
The ACA requires many health insurance plans to provide coverage for women's
“preventative care and screenings [as] . . . provided for in comprehensive guidelines
supported by the Health Resources and Services Administration[.]” See 42 U.S.C. §
300gg - 13(a)(4). The details of this requirement are expatiated in regulations adopted
to implement the statutory requirement. 29 C.F.R. § 147.130 (a)(1)(iv) states the basic
3

requirement, with reference to other resources for the details. This requirement now
includes “all Food and Drug Administration approved contraceptive methods,
sterilization procedures, and patient education and counseling for all women with
reproductive capacity.” Health Resources & Services Administration, “Women's
Preventive Services Guidelines,” www.hrsa.gov/womensguidelines (visited April 10,
2014). I will refer to this aspect of the ACA and regulations as the Preventative Care
Coverage Requirement.
CCU objects to a portion of the Preventative Care Coverage Requirement. The
religious objections of CCU are limited to coverage for drugs, devices, or procedures
that may destroy human life after fertilization of the egg of a mother and either before or
after the implantation of a fertilized egg in the uterus of its mother, as well as any related
counseling or education. The objections of CCU include surgical abortion, the so-called
morning after pill, also know as Plan B, the week afer pill, also known as Ella, and intra
uterine devices. For purposes of this order, I will refer to this part of Preventative Care
Coverage Requirement as the Mandate.
After the enactment of the ACA, the government adopted administrative
regulations which provide a religious exemption from the Preventative Care Coverage
Requirement. The current regulations provide an exemption from the Preventative Care
Coverage Requirement for organizations like CCU. The exemption relevant to this case
includes the following four criteria, all of which must be satisfied for the exemption to be
applicable:

4

(1) The organization opposes providing coverage for some or all of any
contraceptive services required to be covered under § 147.130(a)(1)(iv) on
account of religious objections.
(2) The organization is organized and operates as a nonprofit entity.
(3) The organization holds itself out as a religious organization.
(4) The organization self-certifies, in a form and manner specified by the
Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of
this section, and makes such self-certification available for examination
upon request by the first day of the first plan year to which the
accommodation in paragraph (c) of this section applies. The
self-certification must be executed by a person authorized to make the
certification on behalf of the organization, and must be maintained in a
manner consistent with the record retention requirements under section
107 of the Employee Retirement Income Security Act of 1974.
29 C.F.R. § 2590.715-2713A. An organization that satisfies these quadripartite criteria
is an “eligible organization.” Under 29 C.F.R. § 2590.715-2713A (b), an eligible
organization is deemed to have complied with the requirements of the Preventative
Care Coverage Requirement. An eligible organization is “not required to contract,
arrange, pay, or refer for contraceptive coverage . . . .” See Coverage of Certain
Preventive Services Under the Affordable Care Act, 78 FR 39870-01, 39874 (section
II(B)(2)).
The process necessary to invoke the exemption is relatively simple. The
organization seeking the exemption must complete and execute a short form certifying
that it meets the first three criteria. The form, titled EBSA Form 700 - Certification,
requires the organization to provide its name, the name of the individual authorized to
make the certification for the organization, and the mailing address, email address, and
phone number for that individual.4 I will refer to this form as the Exemption Form. In the

4

The form can be viewed at
dol.gov/ebsa/pdf/preventiveserviceseligibleorganizationcertificationform.pdf.

5

case of an organization with a self-insured health plan, such as the CCU employee
health plan, the organization must deliver the Exemption Form to the third-party
administrator (TPA) of its plan along with a list of the employees of the organization.
Once the Exemption Form is properly completed, executed, and delivered, the
eligible organization is not obligated to comply with the Mandate and is not obligated to
administer or pay for the coverages required by the Mandate. Rather, the Exemption
Form “shall be treated as a designation of the third party administrator as the plan
administrator” for any “contraceptive services required to be covered” under the
Preventative Care Coverage Requirement “to which the eligible organization objects on
religious grounds . . . .” 29 C.F.R. § 2510.3-16 (b). The TPA then is obligated to
provide or arrange for separate payments for contraceptive services for persons insured
by the plan as required by the ACA. The TPA is reimbursed for costs it incurs when it
provides such coverage.
After the TPA receives the Exemption Form, it must notify female employees who
are covered by the health plan of the eligible organization that the TPA will cover and
administer the preventive services required by the ACA, including the services that are
the subject of the Mandate. 29 C.F.R. § 2590.715-2713A (d). Self-insured eligible
organizations “must not, directly or indirectly, seek to interfere with a third party
administrator's arrangements to provide or arrange separate payments for contraceptive
services for participants or beneficiaries, and must not, directly or indirectly, seek to
influence the third party administrator's decision to make any such arrangements.” 29
C.F.R. § 2590.715-2713A (b)(1)(iii).
In short, when an eligible organization properly completes, executes, and delivers
the Exemption Form, the organization is not obligated to comply with the Mandate. The
6

organization is not required to administer or fund health insurance coverages required
by the Mandate. Rather, the third party administrator of the health plan of the
organization must arrange to provide those coverages.
The next plan year for the CCU employee health insurance plan begins on July 1,
2014. The next plan year for the CCU student health insurance plan begins on August
21, 2014. CCU is required to comply with the ACA, including the specific requirements
described above, when the plan year for each of these plans begins in 2014. According
to CCU, it now faces a choice: (1) it can violate its religious beliefs and provide the
health insurance coverage required by the Mandate; (2) it can stop providing health
insurance coverage for the employees of CCU, and face prodigious penalties; (3) it can
continue to provide health insurance coverage without the coverages required by the
Mandate, and face prodigious penalties; or (4) it can violate its religious beliefs and
complete, execute, and deliver the Exemption Form.
In the view of CCU, the fourth option, the Exemption Form, triggers a process
which results in the provision of the religiously objectionable insurance coverages
required by the Mandate. Taking an action which initiates such a process, CCU
contends, violates its religious beliefs.

Mr. Armstrong represents that “(e)xpressly

designating CCU’s third party administrator as an ERISA plan and claims administrator
and notifying the administrator of its obligations under the final regulations would make
CCU morally complicit in providing the objected-to drugs and services. By maintaining
a plan that facilitates access to abortifacients and self-certifying that it will not directly
pay for them, CCU would be arranging for access to abortifacients and referring its plan
participants to the third party administrator or insurer for payments. Acting as a conduit
for these products violates CCU’s Christian faith.” Armstrong Declaration [#64-1], ¶¶ 23
7

- 25. Notably, failure to provide the coverages required by the Mandate, failure to
execute the Exemption Form, and cancellation of the health insurance plan of CCU to
avoid the Mandate each would subject CCU to substantial financial penalties. See
Roman Catholic Archdiocese of Atlanta v. Sebelius, 2014 WL 1256373, *4 (N.D.
Ga. Mar. 26, 2014).
III. PRELIMINARY INJUNCTION - STANDARD OF REVIEW
FED. R. CIV. P. 65 authorizes federal courts to issue preliminary injunctions.
Because a preliminary injunction is an extraordinary remedy, the right of a party to such
relief must be clear and unequivocal. See Federal Lands Legal Consortium ex rel.
Robart Estate v. United States, 195 F.3d 1190, 1194 (10th Cir. 1999). The plaintiffs
are entitled to a preliminary injunction only if they prove (1) that there is a substantial
likelihood that they will prevail on the merits; (2) that they will suffer irreparable harm
unless the preliminary injunction is issued; (3) that the threatened injury to the plaintiffs
outweighs the harm the preliminary injunction might cause defendants; and (4) that the
preliminary injunction is in the public interest. Prairie Band of Potawatomi Indians v.
Pierce, 253 F.3d 1234, 1246 (10th Cir. 2001).
IV. ANALYSIS
A. LIKELIHOOD OF SUCCESS
To secure a preliminary injunction, a plaintiff must establish a substantial
likelihood that it is likely to prevail on the merits of the substantive claim or claims that
are the basis for its motion. Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d
1234, 1246 (10th Cir. 2001). However, “[t]he determination of a motion for a preliminary
injunction and a decision on the merits are different.” Valdez v. Applegate, 616 F.2d
570, 572 (10th Cir. 1980). “It is not necessary that plaintiffs show positively that they will
8

prevail on the merits before a preliminary injunction may be granted.” Atchison,
Topeka and Santa Fe Railway. Co. v. Lennen, 640 F.2d 255, 261 (10th Cir. 1981).
Instead, a plaintiff need only establish “a reasonable probability of success, . . . not an
‘overwhelming’ likelihood of success[.]” Id.
CCU asserts, inter alia, claims under the Religious Freedom Restoration Act, the
Establishment Clause of the First Amendment, the Free Exercise Clause of the First
Amendment, and the Free Speech Clause of the First Amendment. I conclude that
CCU has shown a substantial likelihood that it will prevail on its RFRA claim. As a
result, I do not analyze this factor as to its other claims.5
1. RFRA - Substantial Burden
Under the RFRA, the “Government shall not substantially burden a person's
exercise of religion.” 42 U.S.C. § 2000bb-1(a). To prevail on a claim under this section
of the RFRA, the plaintiff must show: (1) it wishes to engage in a religious exercise; (2)
which is motivated by a sincerely held belief; and (3) which exercise is subject to a
substantial burden imposed by the government. See Abdulhaseeb v. Calbone, 600
F.3d 1301, 1312 (10th Cir. 2010) (applying the Religious Land Use and Institutionalized
Persons Act). The term “substantial burden,” as used in the Religious Land Use and
Institutionalized Persons Act (RLUIPA), addressed in Abdulhaseeb, is to be interpreted
by reference to the Religious Freedom Restoration Act of 1993. Grace United
Methodist Church v. City Of Cheyenne, 451 F.3d 643, 661 (10th Cir. 2006). Under
either act, the substantial burden standard is the same.
To evaluate the RFRA claim of CCU, the court must identify the apposite
5

“A fundamental and longstanding principle of judicial restraint requires that courts avoid
reaching constitutional questions in advance of the necessity of deciding them.” Lyng v. Nw. Indian
Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988).

9

religious belief, determine whether such belief is sincere, and decide whether the
government, via the Mandate, has placed “substantial pressure on the religious
believer.” Hobby Lobby, 723 F.3d at 1140. In this case, the relevant religious beliefs of
CCU are summarized in paragraphs two through eight of the Verified Complaint [#1]
and in paragraphs 13 through 26 of the Declaration of President William L.
Armstrong in Support of Plaintiff’s Motion for Partial Summary Judgment [#64-1].
There is no dispute that the beliefs in question are religious beliefs, and there is no
dispute that these beliefs are sincerely held religious beliefs of CCU. Thus, only the
third factor is at issue: whether the government has imposed a substantial burden on
the relevant exercise of religion.
To determine if a burden is substantial, a court must determine if the burden puts
“substantial pressure on an adherent to modify his behavior and to violate his beliefs.”
Abdulhaseeb, 600 F.3d at 1315 (internal quotation and citation omitted). The
government imposes a substantial burden on religious exercise if it (1) requires
participation in an activity prohibited by a sincerely held religious belief; (2) prevents
participation in conduct motivated by a sincerely held religious belief; or (3) places
substantial pressure on an adherent . . . to engage in conduct contrary to a sincerely
held religious belief. Hobby Lobby, 723 F.3d at 1315.
Under the ACA and the regulations, CCU has essentially four options. It may: (1)
refuse to provide employee health insurance coverage; or (2) provide the coverage
required under the Mandate in its employee health insurance plan; or (3) provide a
health insurance plan for its employees that does not include the coverages required by
the Mandate; or (4) execute and deliver the Exemption Form and declare itself to be
exempt from the Mandate. The first option would subject CCU to prodigious financial
10

penalties. Without dispute, CCU asserts that the second option would violate its
religious beliefs. Option three obviously would be a violation of the ACA and would
subject CCU to ruinous penalties. Thus, CCU is essentially constrained to consider the
fourth option – whether to seek exemption status.
However, CCU contends that completion, execution, and delivery of the
Exemption Form would violate its religious beliefs. This is true, according to CCU,
because execution and delivery of the Exemption Form triggers or initiates a process
which results in the provision of the coverages required by the Mandate to the
employees and students of CCU. Taking an action which initiates and facilitates such a
process, CCU contends, violates its religious beliefs. Thus, CCU contends, the
government has given it a Hobson’s choice: violate its sincerely held religious beliefs or
face ruinous financial penalties. This choice, CCU asserts, exerts and constitutes a
substantial – and thus impermissible – burden on the exercise of its religion.
Courts have lined up on opposites sides of the debate. For example, in Zubik v.
Sebelius, ___ F. Supp. 2d ___, ___, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013), the
court addressed an exemption for a religious organization under the ACA. As in this
case, the plaintiffs in Zubik asserted that the affirmative acts of signing the Exemption
Form stating the religious objections of the plaintiffs, compiling a list of the employees of
the organization, and providing those items to its heath insurer or third-party
administrator is an action which imposes a substantial burden on their exercise of
religion. Referring to the exemption process as the “accommodation,” the court agreed:
(U)nder the “accommodation,” the reason the documentation is required is
so that contraceptive products, services, and counseling can be provided
in direct contravention of Plaintiffs' sincerely-held religious beliefs. The
Government is asking Plaintiffs for documentation for what Plaintiffs
sincerely believe is an immoral purpose, and thus, they cannot provide it.
11

Id. at *25.
(A)lthough the “accommodation” legally enables Plaintiffs to avoid directly
paying for the portion of the health plan that provides contraceptive
products, services, and counseling, the “accommodation” requires them to
shift the responsibility of purchasing insurance and providing contraceptive
products, services, and counseling, onto a secular source. The Court
concludes that Plaintiffs have a sincerely-held belief that “shifting
responsibility” does not absolve or exonerate them from the moral
turpitude created by the “accommodation”; to the contrary, it still
substantially burdens their sincerely-held religious beliefs.
Id.
The holding in Univ. of Notre Dame v. Sebelius, 743 F.3d 547 (7th Cir. 2014),
is to the contrary. In Notre Dame, the Seventh Circuit held that execution and delivery
of the Exemption Form does not trigger or enable the objectionable coverage and does
not constitute a substantial burden on religion under the RFRA.
The accommodation in this case consists in the organization's (that is,
Notre Dame's) washing its hands of any involvement in contraceptive
coverage, and the insurer and the third-party administrator taking up the
slack under compulsion of federal law. Notre Dame is telling [its health
insurance providers]: “we're excused from the new federal obligation
relating to contraception,” and in turn, the government tells those
insurance companies “but you're not.” This is a warning, not a trigger. It
enables nothing. The sole “enabler” is the federal statute that Notre Dame
has been allowed to opt out of.
Id. at 557. “The delivery of a copy of the form to [a health insurance provider] reminds it
of an obligation that the law, not the university, imposes on it - the obligation to pick up
the ball if Notre Dame decides, as is its right, to drop it.” Id. at 555. In essence, the
Seventh Circuit concluded, the religious objections of Notre Dame are to the
independent action of the government in mandating contraceptive coverage, not to any
action that the government has required Notre Dame to take. Id. at 559. Given these
circumstances, the Seventh Circuit held that the Exemption Form does not constitute a
substantial burden on the exercise of religion under the RFRA. Id.
12

Based on the careful review of these competing cases, I find the ratiocination of
the court in Zubik to be the more cogent, a fortiori, given the important rights at stake.
Thus, I approve, adopt, and incorporate its ratio decidendi.
Analysis of the burden imposed on the religious beliefs of a plaintiff can begin to
bleed into an assessment of the validity or credibility of those beliefs or the sincerity of
those beliefs. Here, however, the sincerity of the beliefs of CCU is conceded. Thus, an
assessment of the validity or credibility of those beliefs by the court is not appropriate.
United States v. Lee, 455 U.S. 252, 257 (1982) (It is not within the judicial function or
judicial competence to determine whether an appellee or the government has the
proper interpretation of the relevant religious faith; courts are not arbiters of scriptural
interpretation; citing Thomas v. Review Bd. of Indiana Employment Security Div.,
450 U.S. 707, 716 (1981)).
How little Plaintiffs must do to qualify for the accommodation would
be highly relevant if they objected only to paying for contraceptives
directly. Taking a few minutes to complete some paperwork would hardly
be a significant burden on their religious exercise. But because Plaintiffs
also object to executing the self-certification, the government's argument
amounts to disbelief that the self-certification has much religious
significance. And adopting this argument would therefore require an
examination of the sincerity of Plaintiffs' professed beliefs – which the
government does not question – or second-guessing the importance or
rationality of Plaintiffs' convictions – a task beyond the Court's ability or
competence.
Ave Maria Found. v. Sebelius, ___ F. Supp. 2d___, ___, 2014 WL 117425, *5 (E.D.
Mich. Jan. 13, 2014).
Courts may still evaluate whether a law pressures a litigant to modify her
behavior and whether that pressure is significant. But having conceded
that the accommodation requires Plaintiffs to change their behavior in
some way – here, by executing a certification – the government cannot
then label that newly required action as trivial. It is not the government's
business to decide what behavior has religious significance. Only when a
law or regulation requires no action or forbearance by a religious objector
13

can the government dismiss otherwise significant burdens on religious
exercise offhand.
Id.
Any myopic focus on the brevity of the Exemption Form and its ease of
completion misses the mark. It is the de facto forced facilitation of the objectionable
coverage that is religiously repugnant. The resultant moral abhorrence is not effectively
extenuated by a transfer of responsibility via the Exemption Form from CCU to the TPA
or another entity. Such legal legerdemain does not expiate the morally unacceptable
means or end. Such a compelled concession by an ostensibly innocuous legal
prophylactic does not ameliorate the ignominy of the moral obliquity created by the
participation in the process.
Further, it is of no moment that ultimately the decision by an employee to elect
the objectionable coverage is optional. It is the offer that is morally offensive regardless
of the extent of its acceptance.
For the reasons summarized above, CCU says either providing the health
insurance coverage required under the Mandate or execution and delivery of the
Exemption Form, the EBSA Form 700 - Certification, which effectively exempts CCU
from the Mandate, both would violate its religious beliefs. If CCU refused to provide
health insurance coverage for its employees, or if CCU provided a health insurance plan
for its employees that did not include the coverages required by the Mandate, CCU
would be subject to significant – if not ruinous – financial penalties imposed under the
ACA. In short, the ACA requires CCU to choose to take an action that violates its
religious beliefs or to take an action that exposes CCU to substantial financial penalties.
Thus, there is a substantial likelihood that CCU can show that the pressure to execute

14

the Exemption Form imposed on it by the ACA and the concomitant regulations
constitutes impermissible pressure to act in violation of its religious beliefs. If so, the
ACA and the regulations constitute a substantial burden on the exercise of religion of
CCU.
2. RFRA - Compelling Governmental Interest & Least Restrictive Means
Under the RFRA, the government may impose a substantial burden on the
exercise of religion under certain narrow circumstances. The government “may
substantially burden a person's exercise of religion only if it demonstrates that
application of the burden to the person – (1) is in furtherance of a compelling
governmental interest; and (2) is the least restrictive means of furthering that compelling
governmental interest.” 42 U.S.C.A. § 2000bb-1 (b).
In the view of the government, the ACA and the regulations are narrowly tailored
to serve compelling governmental interests in public health and gender equality.
Response [#40], p. 14. As the government notes in its brief, the United States Court of
Appeals for the Tenth Circuit rejected this contention. Hobby Lobby, 723 F.3d at 1143
- 1144. The Tenth Circuit found that the interests articulated by the government are
insufficient because they are broadly formulated interests justifying the general
applicability of government mandates and the government offers “almost no justification
for not granting specific exemptions to particular religious claimants.” Id. at 1143 (citing
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 431
(2006)). In addition, the Tenth Circuit concluded that
the interest here cannot be compelling because the contraceptive coverage requirement presently does not apply to tens of millions of
people. As noted above, this exempted population includes those working
for private employers with grandfathered plans, for employers with fewer
than fifty employees, and, under a proposed rule, for colleges and
15

universities run by religious institutions. As the Supreme Court has said, “a
law cannot be regarded as protecting an interest of the highest order when
it leaves appreciable damage to that supposedly vital interest
unprohibited.” [Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 547 (1993)]; see also O Centro, 546 U.S. at 433,
126 S.Ct. 1211 (citing Lukumi as instructive in determining whether
exemptions undermine a compelling government interest for purposes of
RFRA). The exemptions at issue here would yield precisely this result:
they would leave unprotected all women who work for exempted business
entities.
Id. at 1143 - 1144. Because there is not a showing of compelling governmental interest,
I need not address the least restrictive means consideration.
3. Conclusion
The only issue in dispute concerning the RFRA claim of CCU is whether the ACA
and the regulations, as they relate to CCU and its possible exemption from the
Mandate, constitute a substantial burden on the religious beliefs of CCU. I conclude
that there is a substantial likelihood that CCU can show that the ACA and the
regulations constitute a substantial burden on the exercise of its religion. Obversely, the
government has not shown that this substantial burden is permissible under the RFRA
because the Mandate is in furtherance of a compelling governmental interest. Thus, I
conclude that CCU has shown a substantial likelihood of success on the merits of its
RFRA claim.
B. IRREPARABLE INJURY
Establishing a likely violation of the RFRA rights of CCU satisfies the irreparable
injury factor.

Hobby Lobby, 723 F.3d at 1146.
C. BALANCE OF HARMS

When considering the balance of harms, a court must balance “the competing
claims of injury and must consider the effect on each party of the granting or withholding

16

of the requested relief.” Amoco Prod. Co. v. Gambill, 480 U.S. 531, 542 (1987). In
this case, a preliminary injunction would forestall the ability of the government to require
that health insurance coverage of employees of CCU include coverage for drugs,
devices, or procedures that may destroy human life after fertilization of the egg of a
mother and either before or after the implantation of a fertilized egg in the uterus of its
mother, as well as any related counseling or education. Other coverages required by
the Preventative Care Coverage Requirement would not be affected by a preliminary
injunction. Thus, even with a preliminary injunction, a significant portion of the asserted
interest of the government is largely realized while coexisting with the religious
objections of CCU. In contrast, absent an injunction, CCU would remain subject to a
requirement that likely constitutes a violation of its rights under federal law. Accordingly,
I find and conclude that the balance of equities tips in favor of CCU. See Hobby
Lobby, 723 F.3d at 1146 (plurality concluding balance of harms factor satisfied).
D. PUBLIC INTEREST
Generally, the public interest is served by enjoining the enforcement of a law that
likely violates the Constitution. Chamber of Commerce of U.S. v. Edmondson, 594
F.3d 742, 771 (10th Cir. 2010). Although a violation of the RFRA is not, on its face, a
violation of the constitution, “Congress has given RFRA similar importance by
subjecting all subsequent congressional enactments to a strict scrutiny standard of
review unless those enactments explicitly exclude themselves from RFRA. See 42
U.S.C. § 2000bb-3(b).” See Hobby Lobby, 723 F.3d at 1146 - 1147 (plurality
concluding public interest factor satisfied). On the public interest factor, this case is
directly analogous to Hobby Lobby. Thus, I find and conclude that the public interest
factor weighs in favor of the issuance of a preliminary injunction.
17

E. SECURITY
“The court may issue a preliminary injunction or a temporary restraining order
only if the movant gives security in an amount that the court considers proper to pay the
costs and damages sustained by any party found to have been wrongfully enjoined or
restrained.” FED. R. CIV. P. 65(c). I conclude that security in the amount of five hundred
(500) dollars is sufficient to satisfy this requirement.
VI. ORDERS
THEREFORE, IT IS ORDERED as follows:
1. That the Plaintiff’s Motion To Expedite Summary Judgment or, in the
Alternative, For a Preliminary Injunction [#64] filed March 31, 2014, is granted to the
extent the plaintiff seeks a preliminary injunction;
2. That effective forthwith, each of the defendants is ENJOINED AND
RESTRAINED from any application or enforcement against the plaintiff of any provision
of 42 U.S.C. § 300gg-13(a)(4) and any regulations implementing that provision to the
extent the statute and the implementing regulations require the plaintiff to include in the
group health plan for employees or students of Colorado Christian University coverage
for drugs, devices, or procedures that may destroy a human embryo or fertilized egg of
a mother either before or after the implantation of a fertilized egg in the uterus of its
mother, as well as any related counseling or education;
3. That effective forthwith, each of the defendants is ENJOINED AND
RESTRAINED from any application or enforcement against Colorado Christian
University of any provision of 42 U.S.C. § 300gg-13(a)(4) and any regulations
implementing that provision to the extent the statute and the implementing regulations
require Colorado Christian University to execute and deliver the EBSA Form 700 18

Certification in order for the plaintiffs to obtain an exemption from the requirement that
Colorado Christian University include in the group health plan for employees of
Colorado Christian University coverage for drugs, devices, or procedures that may
destroy a human embryo or fertilized egg of a mother either before or after the
implantation of a fertilized egg in the uterus of its mother, as well as any related
counseling or education;
4. That effective forthwith, each of the defendants is ENJOINED AND
RESTRAINED from any application or enforcement against Colorado Christian
University of any provision of 42 U.S.C. § 300gg-13(a)(4) and any regulations
implementing that provision to the extent the statute and the implementing regulations
impose a penalty on Colorado Christian University based on the failure of Colorado
Christian University (a) to execute and deliver the EBSA Form 700 - Certification, as
provided by law; or (b) to include in the group health plans for employees and students
of Colorado Christian University coverage for drugs, devices, or procedures that may
destroy a human embryo or fertilized egg of a mother either before or after the
implantation of a fertilized egg in the uterus of its mother, as well as any related
counseling or education;
5. That under FED. R. CIV. P. 65(c), Colorado Christian University SHALL POST
with the clerk of the court a bond or other security in the amount of five hundred (500)
dollars on or before Tuesday, June 24, 2014, at 5:00 p.m. (mountain daylight time);
6. That this preliminary injunction SHALL REMAIN IN EFFECT until modified or
rescinded by further order of the court; and
7. That the Plaintiff’s Motion To Expedite Summary Judgment or, in the
Alternative, For a Preliminary Injunction [#64] filed March 31, 2014, is DENIED to the
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extent the plaintiff seeks expedited resolution of its pending motion for summary
judgment.
Dated June 20, 2014, at Denver, Colorado.
BY THE COURT:

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