Association of Christian Schools International et al v. Burwell et al
ORDER. Plaintiffs Association of Christian Schools International, Samaritan Ministries International, Taylor University, and Indiana Wesleyan University's Motion for Preliminary Injunction 11 is DENIED. Plaintiffs Asbury Theological Seminary and Alliance Defending Freedom's Motion for Preliminary Injunction 24 is DENIED. By Judge Philip A. Brimmer on 11/26/14.(pabsec)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-02966-PAB
ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL,
SAMARITAN MINISTRIES INTERNATIONAL,
INDIANA WESLEYAN UNIVERSITY,
ASBURY THEOLOGICAL SEMINARY, and
ALLIANCE DEFENDING FREEDOM,
SYLVIA M. BURWELL, 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
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,
UNITED STATES DEPARTMENT OF LABOR, and
UNITED STATES DEPARTMENT OF THE TREASURY,
This matter is before the Court on two motions for a preliminary injunction: one
filed by plaintiffs Association of Christian Schools International (“ACSI”), Samaritan
Ministries International (“SMI”), Taylor University, and Indiana Wesleyan University
(“IWU”) [Docket No. 11] (the “original motion”), and a second motion filed by plaintiffs
Asbury Theological Seminary (“ATS”) and Alliance Defending Freedom (“ADF”) [Docket
No. 24].1 The Court has jurisdiction pursuant to 28 U.S.C. § 1331.
Plaintiffs are Christian non-profit organizations challenging a particular aspect 2 of
the contraceptive coverage requirement of the Patient Protection and Affordable Care
Act (the “Act”), 42 U.S.C. § 300gg-13(a)(4) (the “mandate”). Plaintiffs’ principal claim –
and the sole basis for their preliminary injunction motion – is that the mandate imposes
a substantial burden on their religious exercise in violation of the Religious Freedom
Restoration Act (“RFRA”). 42 U.S.C. § 2000bb et seq.3
A. The Mandate
The mandate requires group health plans, including both insured and selfinsured employer-based plans, to include minimum coverage for a variety of
preventative health measures at no cost to covered beneficiaries. 42 U.S.C. § 300gg13(a); see also id. § 300gg-91(a) (defining “group health plan”). With respect to
women’s health, the Act required the Health Resources and Services Administration
(“HRSA”) to develop “comprehensive guidelines” that would define the required
preventative services that must be covered free of charge. Id. § 300gg-13(a)(4).
After filing the original motion, plaintiffs filed an amended complaint, Docket No.
23, adding ATS and ADF as parties to this action. ATS and ADF’s motion for
preliminary injunction contains no substantive argument, but rather “incorporate[s] by
reference the facts and arguments set forth in the original [p]laintiffs’ motion for
preliminary injunction.” Docket No. 24 at 1. All cites to the preliminary injunction motion
in this Order are to the original motion, and all cites to the complaint are to the
See infra at 9 n.5; see also Docket No. 19 at 9.
Both plaintiffs and defendants represented to the Court that there was no need
for oral argument or to submit stipulated facts. See Docket Nos. 18, 20.
HRSA, in reliance on work performed by the independent Institute of Medicine,
established guidelines for women’s preventative services that include screening for
gestational diabetes, human papillomavirus testing, counseling for sexually transmitted
infections, and, as relevant to this motion, “[a]ll Food and Drug Administration approved
contraceptive methods, sterilization procedures, and patient education and counseling
for all women with reproductive capacity.” See Health Resources and Servs. Admin.,
Women’s Preventive Services Guidelines, http://www.hrsa.gov/womensguidelines.
In February 2012, the three agencies responsible for the Act’s implementation –
the Department of Health and Human Services (“HHS”), the Department of Labor
(“DOL”), and the Department of the Treasury (“Treasury”) (collectively, the
“Departments”) – each issued regulations that adopted the HRSA’s guidelines, thus
requiring group health plans to cover contraceptive services. See 45 C.F.R.
§ 147.130(a)(1)(iv) (HHS); 29 C.F.R. § 2590.715-2713(a)(1)(iv) (DOL); 26 C.F.R.
§ 54.9815-2713(a)(1)(iv) (Treasury).
1. The Religious Employer Exemption
In August 2011, HHS issued an interim final regulation that adopted HRSA’s
guidelines as applied to contraceptive coverage. See 76 Fed. Reg. 46621 (Aug. 3,
2011). In light of concerns over “the effect on the religious beliefs of certain religious
employers if coverage of contraceptive services were required in the group health plans
in which employees in certain religious positions participate[,]” the interim final
regulation provided HRSA with discretion to exempt certain religious employers from
the mandate. Id. at 46623. This exemption would apply to any employer that
(1) Has the inculcation of religious values as its purpose; (2) primarily
employs persons who share its religious tenets; (3) primarily serves persons
who share its religious tenets; and (4) is a non-profit organization under
section 6033(a)(1) and section 6033(a)(3)(A)(I) or (iii) of the [Internal
Revenue] Code. Section 6033(a)(3)(A)(I) and (iii) refer to churches, their
integrated auxiliaries, and conventions or associations of churches, as well
as to the exclusively religious activities of any religious order.
Id.; see also 45 C.F.R. § 147.131(a). The stated purpose of the exemption was to
“respect the unique relationship between a house of worship and its employees in
ministerial positions.” 76 Fed. Reg. at 46623. The exemption did not apply to
organizations, like plaintiffs, that share the beliefs of exempt entities but do not qualify
as houses of worship or their auxiliaries. The interim final regulations required
employers not subject to the exemption to begin covering preventive services, including
contraception, as of August 2012. Id. at 46624.
2. The Eligible Organization Accommodation
In January 2012, HHS Secretary Kathleen Sebelius announced that non-prof it
employers who, based on religious objections, did not provide contraceptive coverage
in their insurance plans (referred to as “eligible organizations” in the regulations), would
be given a one-year extension, until August 2013, to comply with the law. See
Statement by U.S. Department of Health and Human Services Secretary Kathleen
Sebelius (Jan. 20, 2012), available at
http://www.hhs.gov/news/press/2012pres/01/20120120a.html. This “temporary
enforcement safe harbor” was officially announced in February 2012, and the
Departments indicated that they would work “to develop alternative ways of providing
contraceptive coverage without cost sharing with respect to non-exempted, non-profit
religious organizations with religious objections to such coverage.” 77 Fed. Reg. 8725,
8728 (Feb. 15, 2012).
In July 2013, after the conclusion of a notice and comment period, the
Departments issued final rules providing for an accommodation for eligible
organizations (the “original accommodation”). 78 Fed. Reg. 39870 (July 2, 2013); see
also 45 C.F.R. §§ 147.131 (HHS); 26 C.F.R. § 54.9815-2713A (T reasury); 29 C.F.R.
§ 2590.715-2713A (DOL). The original accommodation was intended to “protect . . .
nonprofit religious organizations with religious objections to contraceptive coverage
from having to contract, arrange, pay, or refer for such coverage.” 78 Fed. Reg. at
39871. Under the original accommodation, eligible organizations wishing to opt out of
paying for the mandate were required to fill out a self-certification form, EBSA Form
700–Certification (“Form 700”).4 Form 700 requires eligible organizations to certify that
they “ha[ve] a religious objection to providing coverage for some or all of any
contraceptive services that would otherwise be required to be covered.” The form
states that “the organization or its plan . . . must provide a copy of this certification to
the plan’s health insurance issuer (for insured health plans) or a third-party
administrator (for self-insured health plans) in order for the plan to be accommodated
with respect to the contraceptive coverage requirement.” The original accommodation
did not require eligible organizations to send a copy of Form 700 to any of the
Departments, but instead required only that the organizations maintain a copy of the
self-certification and make it available for inspection upon request. 78 Fed. Reg. at
For institutions with insured health plans, once the insurance issuer received the
self-certification form, the issuer was required to “[p]rovide separate payments for any
contraceptive services required to be covered . . . for plan participants and beneficiaries
for so long as they remain enrolled in the plan.” 29 C.F.R. § 2590.7152713A(c)(2)(i)(B). The issuer was prohibited from “impos[ing] any cost-sharing
requirements . . . or impos[ing] any premium, fee, or other charge, or any portion
thereof, directly or indirectly, on the eligible organization, the group health plan, or plan
participants or beneficiaries.” Id. § 2713(A)(c)(2)(ii). In the case of self-insured health
plans, when a third-party administrator received the self-certification form, it was
required to “provide or arrange payments for contraceptive services” either by providing
the payments itself or by arranging for an issuer or another entity to provide the
payments. 29 C.F.R. § 2590.715-2713A(b)(2)(i), (ii). The third-party administrator was
also prohibited from imposing any fee on the eligible organization, either directly or
indirectly. Id. § 2590.715-2713A(b)(2)(ii).
In July 2014, the Supreme Court preliminarily enjoined the requirement that any
party seeking to opt out of the mandate fill out Form 700 as specified in the regulations
governing the original accommodation. Wheaton Coll. v. Burwell, --- U.S. ----, 134 S.
Ct. 2806 (2014). Specifically, the Court enjoined HHS from enforcing the original
accommodation against a non-profit organization that had notified the Secretary of
Health and Human Services in writing of its eligibility for the accommodation, even
though the organization had not completed Form 700. Id. at 2807.
In August 2014, the Departments issued a new interim final rule in response to
the Court’s order in Wheaton. See 79 Fed. Reg. 51092 (Aug. 27, 2014). The new
interim final rule modified the notice requirements for organizations that wished to
invoke the accommodation (the “new accommodation”). See id. Consistent with the
Supreme Court’s order in Wheaton, the new accommodation
provides that an eligible organization may notify HHS in writing of its religious
objection to coverage of all or a subset of contraceptive services. The notice
must include the name of the eligible organization and the basis on which it
qualifies for an accommodation; its objection based on sincerely held
religious beliefs to providing coverage of some or all contraceptive services
(including an identification of the subset of contraceptive services to which
coverage the eligible organization objects, if applicable); the plan name and
type . . .; and the name and contact information for any of the plan’s third
party administrators and health insurance issuers.
Id. at 51094-95. The interim final rule noted that the required information “represents
the minimum information necessary for the Departments to determine which entities are
covered by the accommodation, to administer the accommodation, and to implement
the policies in the July 2013 final regulations.” Id. at 51095. While eligible
organizations are still permitted to use Form 700, they are no longer required to do so
under the new accommodation.
After notice is provided to HHS, a separate notification is sent (by DOL in the
case of self-insured plans or by HHS in the case of insured health plans) to the plan’s
third-party administrator or health insurance issuer. 79 Fed. Reg. at 51095. That
notification informs the administrator or health insurance issuer of the organization’s
religious objection to the mandate, and provides for continuing contraceptive coverage
for the organization’s employees at no cost to the organization. See id.
Congress enacted RFRA in direct response to the Supreme Court’s holding in
Employment Division, Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990).
In Smith, the Court held that laws of general applicability do not violate the Free
Exercise Clause even if complying with those laws burdens individuals’ religious beliefs.
Id. at 884-85. In so holding, the Court abandoned the “compelling interest” test that it
had previously applied to claims under the Free Exercise Clause. See, e.g., Sherbert v.
Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972). The stated
purposes of RFRA are: “(1) to restore the compelling interest test as set forth in
Sherbert v. Verner . . . and Wisconsin v. Yoder . . . and to guarantee its application in all
cases where free exercise of religion is substantially burdened; and (2) to provide a
claim or defense to persons whose religious exercise is substantially burdened by
government.” 42 U.S.C. § 2000bb(b).
RFRA provides that “[g]overnment shall not substantially burden a person’s
exercise of religion even if the burden results from a rule of general applicability.” 42
U.S.C. § 2000bb-1(a). RFRA recognizes only one exception, where the substantial
burden (1) furthers a compelling governmental interest; and (2) is the least restrictive
means of furthering that compelling governmental interest. Id. §§ (b)(1)-(2). “Congress
directly referenced and incorporated the legal standards the Supreme Court used in its
pre-Smith line of cases in RFRA. Constitutional free exercise clause cases that predate
Smith accordingly remain instructive when determining RFRA’s requirements.” Priests
For Life v. U.S. Dep’t of Health & Human Servs., --- F.3d ----, 2014 WL 5904732 at *9
(D.C. Cir. Nov. 14, 2014) (citing Kaemmerling v. Lappin, 553 F.3d 669, 678-80 (D.C.
C. Plaintiffs’ Objection to the Mandate and Accommodation
Plaintiffs are non-profit organizations that object to certain methods of
contraception that they believe are abortifacients, including Plan B, ella, and
intrauterine devices.5 Plaintiffs “hold, as a matter of religious conviction, that it would be
sinful and immoral for them intentionally to participate in, pay for, facilitate, enable, or
otherwise support access to abortion, which destroys human life.” Id. at 2, ¶ 2.
Plaintiffs argue that the mandate violates RFRA by “impos[ing] enormous pressure
upon [them] to violate their religious convictions and significantly undermines their
ability to pursue their affirmative religious objectives.” Docket No. 11 at 5. 6 In their
complaint, plaintiffs allege that invoking the new accommodation via written notice to
See Docket No. 23 at 8, ¶ 28 (plaintiff ACSI’s opposition to “abortion-causing
drugs and devices like Plan B, ella, and [intra-uterine devices]”); 12, ¶ 45 (plaintiff SMI’s
objection to same); 15, ¶ 66 (plaintiff Taylor University’s opposition to “abortion-causing
drugs and devices like Plan B and ella”); 19, ¶ 85 (plaintiff IWU’s opposition to
“abortion-causing drugs and devices like Plan B and ella”); 24, ¶ 108 (plaintiff ATS’s
objection to same); 28, ¶ 130 (plaintiff ADF’s objection to “elective abortion or the use of
any abortifacient”); see also Docket No. 19 at 9.
In addition to their RFRA claims, plaintiffs bring claims for violation of the Free
Exercise Clause of the First Amendment, the Establishment Clause of the First
Amendment, the Free Speech Clause of the First Amendment, the Due Process Clause
of the Fifth Amendment, the right of freedom of expressive association, and violation of
the Administrative Procedure Act. See Docket No. 23. Plaintiffs’ preliminary injunction
motion, however, is based solely on their RFRA claim and does not discuss the
preliminary injunction factors in relation to any of their other claims for relief. See
Docket No. 11 at 5-11. Plaintiffs’ proposed order likewise only suggests that an
injunction should be granted based on plaintiffs’ likelihood of success on their RFRA
claim. See Docket No. 11-1 at 2. Accordingly, the Court does not consider any of
plaintiffs’ other claims for relief in this Order.
HHS would “trigger” plaintiffs’ third-party administrators’ provision of coverage for the
methods of contraception that plaintiffs find objectionable. Docket No. 23 at 46, ¶ 230.
Plaintiffs allege that, as a result of this “trigger,” plaintiffs would “continue to play a
central role in facilitating free access to abortifacient services” even under the new
accommodation. Id. ¶ 232. According to plaintiffs, any “participat[ion] in or facilitat[ion]”
of the mandate violates their religious convictions. Id. at 47, ¶ 235. Defendants do not
dispute that plaintiffs’ claimed objections to the mandate and the accommodation are
To justify the issuance of a preliminary injunction, the moving party must show
(1) a likelihood of success on the merits; (2) a likelihood that the movant will suffer
irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips
in the movant's favor; and (4) that the injunction is in the public interest. RoDa Drilling
Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009) (citing Winter v. Natural Resources
Defense Council, Inc., 555 U.S. 7, 20 (2008)). Because RFRA claims are analogous to
First Amendment claims, plaintiffs’ likelihood of success on the merits will often be the
determinative factor. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 114546 (10th Cir. 2013) (citing ACLU of Illinois v. Alvarez, 679 F.3d 583, 589 (7th Cir.
2012)), aff’d by Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014).
Plaintiffs’ motion makes little mention of the new accommodation and why
plaintiffs believe it fails to alleviate the substantial burden the mandate places on their
religious exercise. See Docket No. 11 at 5-9. Plaintiffs’ primary argument is that the
Court should adopt the reasoning of Judge William Pryor’s concurrence in Eternal Word
Television Network, Inc. v. Sebelius, 756 F.3d 1339 (11th Cir. 2014). In that case, the
plaintiff sought a preliminary injunction based on four objections to the mandate: (1) that
the plaintiff would “trigger” a third-party’s obligation to make payments for contraceptive
services for the plaintiffs employees and beneficiaries, (2) that the plaintiff would have
to participate in provision of coverage for contraceptive services by identifying its
employees to the third-party administrator and by notifying the administrator when
employees and beneficiaries need to be removed or added to the plan, (3) that the
plaintiff would have to find a new third-party administrator if its extant administrator also
objected to providing contraceptive coverage on religious grounds, and (4) that the
mandate barred the plaintiff from telling a third-party administrator to disregard the
instructions on Form 700 or otherwise influencing the administrator’s decision to provide
contraceptive coverage. Id. at 1342-43. Plaintiffs’ complaint repeats only one of those
objections as applied to the new accommodation, that providing notice “triggers” the
provision of contraceptive services, see Docket No. 23 at 46, ¶ 230, and their
preliminary injunction motion does not elaborate on this objection. See Docket No. 11.
In his concurrence, Judge Pryor stated that the requirement that the plaintiff
deliver Form 700 to the third-party administrator of its health care plan substantially
burdened the plaintiff’s religious exercise because it required an action that the plaintiff
believed “makes it complicit in a grave moral wrong[.]” Eternal Word, 756 F.3d at 1348.
Judge Pryor further stated that “[s]o long as the [plaintiff’s] belief is sincerely held and
undisputed . . . we have no choice but to decide that compelling the participation of the
[plaintiff] is a substantial burden on its religious exercise.” Id. According to Judge
Pryor, as long as plaintiffs sincerely believe that an action compelled by the government
substantially burdens its religious exercise, courts are powerless to conclude otherwise.
In contrast to Judge Pryor’s concurrence, the Sixth, Seventh, and D.C. Circuits
have rejected the argument that mandatory self-certification under Form 700 imposed a
substantial burden on religious exercise by requiring religious organizations to “trigger”
provision of contraceptive coverage. See Univ. of Notre Dame v. Sebelius, 743 F. 3d
547 (7th Cir. 2014), Mich. Catholic Conference & Catholic Family Servs. v. Burwell, 755
F.3d 372 (6th Cir. 2014), Priests For Life, 2014 WL 5904732. In each of these cases,
the courts concluded that whether a required action substantially burdens religious
exercise is a matter of law for the court to decide, regardless of the parties’ sincere
beliefs that submitting Form 700 made them complicit in providing contraceptive
coverage. See Notre Dame, 743 F.3d at 558 (“Notre Dame may consider the [selfcertification] process a substantial burden, but substantiality – like compelling
governmental interest – is for the court to decide”); see also Mich. Catholic Conference,
755 F.3d at 385 (“although we acknowledge that the [plaintiffs] believe that the
regulatory framework makes them complicit in the provision of contraception, we will
independently determine what the regulatory provisions require and whether they
impose a substantial burden on [plaintiffs’] exercise of religion”); Priests for Life, 2014
WL 5904732 at *12 (“[a]ccepting the sincerity of [p]laintiffs’ beliefs, however, does not
relieve this Court of its responsibility to evaluate the substantiality of any burden on
[p]laintiffs’ religious exercise, and to distinguish [p]laintiffs’ duties from obligations
imposed, not on them, but on insurers and [third-party administrators].”).
The Court finds that plaintiffs’ argument that the mere invocation of a sincerely
held belief divests the court of discretion to decide whether a governmental mandate
substantially burdens religious exercise “collapses the distinction between sincerely
held belief and substantial burden.” Priests For Life, 2014 WL 5904732 at *14.
Affording an objector’s sincere belief determinative weight as to the “substantial burden”
requirement of RFRA would have the effect of removing the word “substantial” from the
statute. Under plaintiffs’ approach, any burden, no matter how de minimis, would
satisfy the requirement so long as the religious objector’s belief in the burden is sincere.
Yet courts are “to give meaning to every word used in a statute to realize congressional
intent.” Nutraceutical Corp. v. Von Eschenbach, 459 F.3d 1033, 1039 (10th Cir. 2006).
Plaintiffs’ interpretation is also inconsistent with the Tenth Circuit’s application of
the “substantial burden” requirement. For example, in Abdulhaseeb v. Calbone, 600
F.3d 1301, 1321 (10th Cir. 2010), the Tenth Circuit considered a Muslim inmate’s claim
that prison officials who had forced him to accept certain foods on his meal tray
substantially burdened his religious exercise under the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq.7 The plaintiff in
Abdulhaseeb claimed that the presence of Jell-O and pudding, which may contain pork
products, rendered all of the food on his tray contaminated and inedible and that he
Although Abdulhaseeb was decided under RLUIPA, the Tenth Circuit’s analysis
of substantial burden applies equally to RFRA claims. See Abdulhaseeb, 600 F.3d at
1313, n.5 (recognizing that RLUIPA merely “applies the RFRA standard to protect the
religious exercise of persons residing in or confined to institutions . . . such as prisons” )
was therefore forced to choose between eating nothing and violating his religious
beliefs. Abdulhaseeb, 600 F.3d at 1321. Although the Tenth Circuit did not question
the sincerity of the plaintiff’s religious beliefs, it found that as a matter of law the prison
officials’ conduct did not substantially burden his religious exercise because plaintiff had
provided evidence of only one instance where he was forced to accept the
objectionable foods on his tray, along with a general allegation that the practice
continued. Id. (citing Rapier v. Harris, 172 F.3d 999, 1006 n.4 (7th Cir. 1999), a f ree
exercise clause case, for the notion that a de minimis burden on a sincerely held belief
does not violate RLUIPA). The Tenth Circuit observed that “as the frequency of
presenting unacceptable foods increases, at some point the situation would rise to the
level of a substantial burden,” but held that, as a m atter of law, the evidence presented
by the plaintiff did not create an issue of fact as to whether his religious exercise was
substantially burdened. Id.
Although the facts of Abdulhaseeb are different from this case, the Abdulhaseeb
court recognized that under RLUIPA, and by extension under RFRA, courts may
properly find that certain burdens on religious exercise are de minimis and not
substantial. Accordingly, notwithstanding the sincerity of plaintiffs’ beliefs as to the
effect of complying with the mandate, the Court has an independent oblig ation to
analyze the actions required of plaintiffs and to determine whether the compelled action
rises to the level of a substantial burden.
Plaintiffs state that their religious convictions do not allow them to “pay for,
facilitate, enable, or otherwise support access to abortion[.]” Docket No. 23 at 2, ¶ 2.
The new accommodation does not require them to do so. All that plaintiffs are required
to do under the new accommodation is provide a single sheet of paper that attests to
their sincere religious objection and identifies their insurance provider or third-party
administrator. See 79 Fed. Reg. at 51094-95. Plaintiffs claim that, by invoking the new
accommodation via written notice, they would be “enabling the government’s scheme to
facilitate free access to abortifacient services[.]” Docket No. 23 at 46, ¶ 231. But
plaintiffs’ involvement with the administration of the mandate ends the moment they
submit the written notice opting out of paying for contraceptive coverage. Plaintiffs’
objection is not to the notice they must submit to the government, but rather to the
actions of third parties that will occur afterwards. But “[f]ederal law, not the religious
organization’s signing and mailing the [opt-out notice], requires health-care insurers,
along with third-party administrators of self-insured health plans, to cover contraceptive
services.” Notre Dame, 743 F.3d at 554; see also Mich. Catholic Conf., 755 F.3d at 387
(rejecting the “trigger” argument because “it is federal law that requires the insurance
issuer or the third-party administrator to provide this coverage”); Priests For Life, 2014
WL 5904732 at *16 (“the insurers’ or TPAs’ obligation to provide contraceptive
coverage originates from the [Act] and its attendant regulations, not from plaintiffs’ selfcertification or alternative notice”).
Plaintiffs argue that under the mandate, plaintiffs’ decision to offer their
employees health benefits is a but-for cause of those employees’ access to free
abortifacients. Docket No. 19 at 8. The concept of but-for causation, however, goes
too far in this context. See Notre Dame, 743 F.3d at 554-55. Plaintiffs have no right to
“require the Government to conduct its own internal affairs in ways that comport with
the religious beliefs of particular citizens.” Bowen v. Roy, 476 U.S. 693, 699 (1986)
(holding, in a pre-Smith Free Exercise Clause case, that plaintiff’s religious exercise
was not burdened by the government’s use of his daughter’s social security number).
Accordingly, plaintiffs “do not suffer substantial burdens under RFRA where the only
harm to them is that they sincerely feel aggrieved by their inability to prevent what other
people would do to fulfill regulatory objectives after they opt out.” Priests for Life, 2014
WL 5904732 at *11. 8 Plaintiffs also argue that by exempting rather than
accommodating religious employers, the government has admitted that the exemption
is “the best way to avoid substantially burdening a religious entity’s religious exercise.”
Docket No. 19 at 2-3. The Court disagrees. The Departments’ decision to fashion a
different arrangement for churches and their affiliates begs the question of whether the
mandate, as augmented by accommodations, substantially burdens plaintiffs’ religious
exercise. As explained above, the Court concludes that it does not.
The Court finds that the new accommodation imposes a de minimis rather than a
substantial burden on plaintiffs’ religious exercise. In light of this finding, plaintiffs have
While not determinative, as plaintiffs point out, the Court notes that in Burwell v.
Hobby Lobby Stores, Inc., the Supreme Court cited the accommodation as a potential
option to accommodate the religious beliefs of the for-profit corporation plaintiffs while
continuing to provide contraceptive coverage to their employees. 134 S. Ct. 2751, 2782
(2014). Although Burwell did not conclude that the accommodation satisfies RFRA, see
id., Justice Kennedy wrote an a separate concurrence that the accom modation “equally
furthers the Government’s interest but does not impinge on the plaintiffs’ religious
beliefs.” Id. at 2786 (emphasis added). The Court further notes that Judge Pryor’s
concurrence in Eternal Word, which plaintiffs urge the Court to adopt wholesale, see
Docket No. 11 at 8, identified the new accommodation as an example of a permissible
means to effectuate the mandate. Eternal Word, 756 F.3d at 1349 (“[t]he United
States, for example, could require the [plaintiff] to provide a written notification of its
religious objection to the Department of Health and Human Services, instead of
requiring the [plaintiff] to submit Form 700[.]”).
not established a likelihood of success on the merits and are therefore not entitled to a
preliminary injunction. As a result, the Court need not address the rem aining
preliminary injunction factors or whether the mandate satisfies the “compelling interest”
test under RFRA. Priests For Life, 2014 WL 5904732 at *9 (“if the law’s requirements
do not amount to a substantial burden under RFRA, that is the end of the matter”); see
also Russell v. Dep’t of Air Force, 915 F. Supp. 1108, 1122 (D. Colo. 1996) (“having
decided that [plaintiff] has not shown clearly that he has a substantial likelihood of
success on the merits, I need not address the remaining factors . . . .”); Sofinet v. INS,
188 F.3d 703, 707 (7th Cir. 1999) (noting that if a plaintiff fails to meet the “threshold
requirements” of showing “likelihood of success and irreparable injury” then “the court’s
inquiry is at an end and the injunction must be denied”) (citing Abbott Labs v. Mead
Johnson & Co., 971 F.2d 6, 12 (7th Cir. 1992)).
For the foregoing reasons, it is
ORDERED that plaintiffs Association of Christian Schools International,
Samaritan Ministries International, Taylor University, and Indiana Wesleyan University’s
Motion for Preliminary Injunction [Docket No. 11] is DENIED. It is further
ORDERED that plaintiffs Asbury Theological Seminary and Alliance Defending
Freedom’s Motion for Preliminary Injunction [Docket No. 24] is DENIED.
DATED November 26, 2014.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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