Christian and Missionary Alliance Foundation, Inc. et al v. Burwell et al

Filing 45

OPINION AND ORDER granting 22 Request for oral argument; granting in part and denying in part 20 Motion for Preliminary Injunction as set forth in the Opinion and Order. Bond of $100 must be posted with the Clerk for each qualifying plaintiff and the parties shall comply with the deadlines in 36 Order. Signed by Judge John E. Steele on 2/3/2015. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CHRISTIAN
AND
MISSIONARY
ALLIANCE FOUNDATION, INC.
dba Shell Point Retirement
Community, dba Chapel Pointe
at Carlisle, THE ALLIANCE
COMMUNITY
FOR
RETIREMENT
LIVING, INC. dba Shell Point
Retirement Community, dba
Chapel Pointe at Carlisle,
THE
ALLIANCE
HOME
OF
CARLISLE, PENNSYLVANIA dba
Shell
Point
Retirement
Community, dba Chapel Pointe
at
Carlisle,
TOWN
AND
COUNTRY
MANOR
OF
THE
CHRISTIAN
AND
MISSIONARY
ALLIANCE dba Shell Point
Retirement Community, dba
Chapel Pointe at Carlisle,
SIMPSON UNIVERSITY dba Shell
Point Retirement Community,
dba
Chapel
Pointe
at
Carlisle, and CROWN COLLEGE
dba Shell Point Retirement
Community, dba Chapel Pointe
at Carlisle,
Plaintiffs,
v.
SYLVIA MATHEWS BURWELL, in
her official capacity as
Secretary of the Department
of
Health
and
Human
Services,
UNITED
STATES
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, THOMAS E.
PEREZ,
in
his
official
capacity as the Secretary of
the United States Department
of
Labor,
UNITED
STATES
DEPARTMENT OF LABOR, JACOB

Case No: 2:14-cv-580-FtM-29CM

J. LEW, in his official
capacity as Secretary of the
United States Department of
the Treasury, and THE UNITED
STATES DEPARTMENT OF THE
TREASURY,
Defendants.
OPINION AND ORDER
This matter comes before the Court on Plaintiffs' Motion for
Preliminary Injunction (Doc. #20) and Plaintiffs’ Request for Oral
Argument (Doc. #22), both filed on November 5, 2014.

Defendants

filed an Opposition (Doc. #29) on November 19, 2014, to which
plaintiffs

filed

a

Reply

(Doc.

#35)

on

December

18,

2014.

Defendants filed a Surreply (Doc. #37) on January 9, 2015, and
plaintiffs filed a Notice of Supplemental Authority (Doc. #40) on
January 21, 2015.
2015.

The Court heard oral arguments on January 23,

For the reasons stated below, the motion is granted in part

and denied in part.
I.
On

October

Alliance

3,

2014,

Foundation,

Inc.

plaintiffs
(doing

Christian
business

and

as

Missionary

Shell

Point

Retirement Community)(Shell Point), The Alliance Community for
Retirement Living, Inc. (Alliance Community), The Alliance Home of
Carlisle,

Pennsylvania

(doing

business

as

Chapel

Pointe

at

Carlisle)(Chapel Pointe), Town and Country Manor of The Christian
and

Missionary

Alliance

(Town

- 2 -

&

Country

Manor),

Simpson

University, and Crown College (collectively plaintiffs) filed a
Complaint and Request for Injunctive Relief (Doc. #1) challenging
certain

regulations

issued

under

the

Patient

Protection

and

Affordable Care Act (the Affordable Care Act, ACA, or PPACA) that
require them to directly or indirectly provide insurance coverage
to their employees which include abortifacient drugs, devices, or
services.

Plaintiffs are either religious nonprofit retirement

communities affiliated with The Christian and Missionary Alliance
religious denomination (CMA) or religious nonprofit colleges and
universities affiliated with CMA.

None of the plaintiffs are

exempt from the ACA or its regulations.

Defendants are the

Secretary of the United States Department of Health and Human
Services (HHS), the Secretary of the United States Department of
Labor (DOL), the Secretary of the United States Department of
Treasury (Treasury), and the Treasury (collectively defendants or
the United States).
In their six-count Complaint, plaintiffs assert that forced
compliance with the regulations is a violation of the Religious
Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-1 (Count One),
and a violation of their rights under both the First and/or Fifth
Amendments of the United States Constitution (Counts Two-Six).

- 3 -

(Doc. #1.)

Plaintiffs’ request for a preliminary injunction is

premised only on the RFRA claim.

(Doc. #20, p. 27.)

1

II.
The Affordable Care Act was enacted on March 23, 2010, and
amended the Employee Retirement Income Security Act of 1974 (ERISA)
to establish new requirements for group health plans and insurers.
Among many other things, the Affordable Care Act requires employers
with 50 or more full-time employees to offer employee health-care
plans which provide certain additional minimum levels of coverage
to plan participants and beneficiaries.
&(c)(2), 5000A(f)(2).

26 U.S.C. §§ 4980H(a)

All of the plaintiff entities satisfy the

minimum number of employees requirement.

(Doc. #21, p. 7 ¶ 15,

p. 13, ¶ 16, p. 18, ¶ 15, p. 23, ¶ 16, p. 29, ¶ 16, p. 35, ¶ 16.)
As relevant to this case, these minimum levels require providing
coverage for certain “preventive care” without cost to the insured.
“[W]ith

respect

preventive

care

to
and

women,”

this

screenings

.

includes

“such

.

provided

.

as

additional
for

in

comprehensive guidelines supported by the Health Resources and
Services Administration [HRSA]”.

42 U.S.C. § 300gg–13(a)(4).

Congress did not itself specify what types of preventative
care must be covered, but authorized HRSA 2, a component of HHS, to

1The

page numbers refer to those created by CM/ECF at the
upper right hand corner of the filed document.
2

Health Resources and Services Administration (HRSA).

- 4 -

make that decision.
Ct.

2751,

2762

Burrell v. Hobby Lobby Stores, Inc., 134 S.

(2014).

In

due

course

HHS

published

final

regulations requiring that the “preventative care and services”
required by the ACA included “all [FDA] approved contraceptive
methods,

sterilization

counseling

for

all

procedures,

women

with

and

patient

reproductive

education
capacity”

and
(the

Contraception Mandate). 45 C.F.R. § 147.130(a)(1)(iv). 3 Many of
these FDA approved methods, procedures, and the education violate
plaintiffs’ sincerely held religious beliefs.
Noncompliance with the Contraception Mandate is punished by
steep financial penalties and other civil remedies. For example,
an organization which fails to provide the mandated coverage risks
a tax penalty of $100 per day per employee.
(b)(1).

If

an

employer

discontinues

26 U.S.C. § 4980D(a),

offering

a

health

plan

altogether, the penalty is $2,000 per year, per employee. 26 U.S.C.
§

4980H(a),

(c).

In

addition,

noncomplying

employers

face

potential enforcement actions by the Secretary of Labor and plan
participants and beneficiaries under ERISA. 29 U.S.C. §§ 1132,
1185d.
Certain employers who would otherwise be subject to the
Contraception Mandate, however, are exempt from the Contraception

3Similar

requirements are imposed by the Department of Labor,
29 C.F.R. § 2590.715-2713(a(1)(ii), and the Department of
Treasury, 26 C.F.R. § 54.9815-2713(a)(1)(iv). For simplicity, the
Court refers only to the HHS regulations.

- 5 -

Mandate.

Health plans in existence when the ACA was adopted are

“grandfathered”

and

minimums—including

do

not

the

need

to

contraception

comply

with

the

mandate—unless

coverage
the

plan

sponsor makes certain changes to the terms of the plan. 42 U.S.C.
§ 18011. Additionally, effective July 2013, “religious employers”
(i.e.,

formal

churches

and

religious

orders

organized

and

operating as nonprofit entities under the Internal Revenue Code)
are

exempt

147.131(a). 4

from

the

Contraception

Mandate.

45

C.F.R.

§

None of the plaintiff entities fall within either of

these categories.
Also
obtain

effective

an

July

2013,

“accommodation”

Contraception Mandate.

a

to

non-exempt
avoid

organization

compliance

with

may
the

An accommodation is available to any

organization meeting the following criteria:

(1) it opposes

providing coverage for some or all contraceptive services required
by the ACA on account of religious objections, (2) it is organized
and operated as a nonprofit entity, and (3) it holds itself out as
a

religious

organization.

45

C.F.R.

§

147.131(b)(1)-(3).

Further, to avail itself of this accommodation, the organization
must self-certify that it meets the three criteria. 45 C.F.R. §
147.131(b)(4).

The

Supreme

Court

4At

has

stated

that

this

oral argument, counsel for plaintiffs suggested for the
first time that labor unions were also exempted. No support for
this assertion has been provided.

- 6 -

accommodation “effectively exempted” such organizations from the
contraceptive mandate.
The

ACA

Hobby Lobby, 134 S. Ct. at 2763.

regulation

originally

required

that

self-

certification be “in a form and manner specified by the Secretary.”
45

C.F.R.

§

147.131(b)(4).

Self-certification

involved

employer filling out the “EBSA Form 700—Certification.”
§ 147.131(b)(4).
on

account

of

the

45 C.F.R.

In this short form, the employer certifies that,
religious

objections,

the

organization

opposes

providing coverage for some or all of any contraceptive services
that would otherwise be required to be covered; the organization
is

and

the

organization holds itself out as a religious organization.

Id.

See

organized

also

EBSA

and

operates

Form

700.

as

The

a

nonprofit

form

also

entity;

provided

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

contraceptive coverage requirement.”
Where

there

is

an

with

respect

to

the

EBSA Form 700.

accommodation,

the

ACA

requires

insurers/third party administrators to pay for the contraceptive
coverage for the organizations which are accommodated.

45 C.F.R.

§§ 147.131(c)(2)(i)(B) & (ii); 29 C.F.R. § 2590.715–2713A(b)(3).
Form 700 thus alerts the insurers/third party administrators that
the employer is not going to pay, and therefore they will have to

- 7 -

pay.

When an insurer receives notice that one of its clients has

invoked

an

accommodation,

contraceptive

coverage

from

the
the

issuer

must

employer's

then

plan

exclude

and

provide

separate payments for contraceptive services for plan participants
without imposing any cost-sharing requirements on the eligible
organization, its insurance plan, or its employee beneficiaries.
45

C.F.R.

§

147.131(c).

For

a

self-insured

religious

organizations choosing to invoke an accommodation, the third-party
administrator

of

payments

contraceptive

for

the

organization

must

services”

“provide

for

the

or

arrange

organization's

employees without imposing any cost-sharing requirements on the
eligible

organization,

its

insurance

plan,

or

its

employee

beneficiaries. 26 CFR § 54.9815–2713A(b)(2).
Despite the regulation’s required use of a proscribed form,
the Supreme Court has dispensed with that requirement in connection
with the issuance of a preliminary injunction.

On January 24,

2014, Little Sisters of the Poor Home For The Aged, Denver v. Colo
v. Sebelius, 134 S. Ct. 1022 (2014), stated:
If
the
employer
applicants
inform
the
Secretary of Health and Human Services in
writing that they are non-profit organizations
that hold themselves out as religious and have
religious objections to providing coverage for
contraceptive services, the respondents are
enjoined from enforcing against the applicants
the challenged provisions of the Patient
Protection and Affordable Care Act and related
regulations pending final disposition of the
appeal by the United States Court of Appeals

- 8 -

for the Tenth Circuit. To meet the condition
for injunction pending appeal, applicants need
not use the form prescribed by the Government
and need not send copies to third-party
administrators.
Similarly, in Wheaton College v. Burwell, 134 S. Ct. 2806 (2014),
the Court stated:
If the applicant informs the Secretary of
Health and Human Services in writing that it
is a non-profit organization that holds itself
out as religious and has religious objections
to
providing
coverage
for
contraceptive
services, the respondents are enjoined from
enforcing against the applicant the challenged
provisions of the Patient Protection and
Affordable Care Act and related regulations
pending final disposition of appellate review.
To meet the condition for injunction pending
appeal, the applicant need not use the form
prescribed by the Government, EBSA Form 700,
and need not send copies to health insurance
issuers or third-party administrators.
Id. at 2807.
In light of Wheaton College, on August 27, 2014, HHS provided
an alternative notice mechanism to the EBSA Form 700 for invoking
the accommodation.

Coverage of Certain Preventative Services

Under the Affordable Care Act, 79 Fed. Reg. 51092-01 (Aug. 27,
2014).

This allows an entity seeking an accommodation to notify

only the HHS of its decision, not its insurer or administrator.
The organization is not required to use any particular form, but
the organization is required to set forth the basis for its
eligibility, the type of plan, and the contact information for the
insurer/administrator.

45 C.F.R. § 147.131(c)(1)(ii).

- 9 -

If the

notice is sent only to the government agency, the government will
make necessary communications with the insurers/administrators to
arrange for the coverage required by the ACA.

Id.

III.
Plaintiffs assert that their sincerely held religious beliefs
preclude them from complying with the Contraception Mandate or
participating in the accommodation process.

Plaintiffs seek a

preliminary injunction to enjoin enforcement of the Contraception
Mandate and its regulations, including the accommodation process.
Plaintiffs also seek to enjoin the imposition of any fine, penalty,
or

tax

for

failing

accommodation.

to

provide

such

coverage

or

to

seek

an

As noted earlier, the basis for injunctive relief

is solely the RFRA.
A federal court has inherent authority to issue an injunction
to remedy a violation of statutory or constitutional rights.

Klay

v. United Healthgroup, Inc., 376 F.3d 1092, 1097 (11th Cir. 2004).
“The purpose of the preliminary injunction is to preserve the
positions of the parties as best we can until a trial on the merits
may be held.”
2011)(citation

Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th Cir.
omitted).

However,

“injunctive

relief

is

an

extraordinary remedy that may only be awarded upon a clear showing
that the plaintiff is entitled to such relief.”

Winter v. NRDC,

Inc., 555 U.S. 7, 22 (2008)(citing Mazurek v. Armstrong, 520 U.S.
968,

972

(1997)(per

curiam)).

As

- 10 -

the

Eleventh

Circuit

has

similarly stated, “a preliminary injunction is an extraordinary
and drastic remedy not to be granted unless the movant clearly
establishes ‘the burden of persuasion’ as to each of the four
prerequisites.”

Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir.

2000)(en banc) (quoting All Care Nursing Serv., Inc. v. Bethesda
Mem’l Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir. 1989)).
The four elements which must be established by the party
seeking an injunction have been phrased slightly differently.

The

Supreme Court has held that “[a] plaintiff seeking a preliminary
injunction must establish that he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the absence
of preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public interest.”
555

U.S.

at

20

(citations

omitted).

In

Winter,

comparison,

the

traditional statement in the Eleventh Circuit is that in order to
obtain a preliminary injunction, the movant must demonstrate “(1)
a substantial likelihood of success on the merits of the underlying
case, (2) the movant will [likely] suffer irreparable harm in the
absence of an injunction, (3) the harm suffered by the movant in
the absence of an injunction would exceed the harm suffered by the
opposing party if the injunction is issued, and (4) an injunction
would not disserve the public interest.”

Odebrecht Constr. v.

Sec’y, Fla. DOT, 715 F.3d 1268, 1273-74 (11th Cir. 2013)(emphasis
added)(citations omitted).

At oral argument both sides agreed

- 11 -

that there is not a material difference in the requirements,
despite the different verbiage.

The Court also agrees.

A. Substantial Likelihood of Success on the Merits
Plaintiffs assert that they are likely to succeed on the
merits because enforcement of the Contraception Mandate and the
accommodation process violates the RFRA.

(Doc. #20, pp. 28-34.)

The Court agrees in part.
“Congress enacted RFRA . . . in order to provide very broad
protection for religious liberty.” Hobby Lobby Stores, Inc., 134
S. Ct. at 2760. The statute provides that the “Government 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).

Plaintiffs bear the burden of showing that the

Government has substantially burdened their exercise of religion.
Davila v. Gladden, No. 13-10739,
*3

(11th

Cir.

Jan.

9,

2015).

F.3d
If

, 2015 WL 127364, at

plaintiffs

show

that

the

government’s action substantially burdens a person's exercise of
religion, the government must “demonstrate[ ] 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.” § 2000bb–1(b).
(1)

Exercise of Religion

To violate the RFRA, the government must impose a substantial
burden of the exercise of religion.

- 12 -

Gonzales v. O Centro Espirita

Beneficente

Uniao

do

Vegetal,

546

U.S.

418,

428

(2006).

Plaintiffs assert that the exercise of religion in this case is
their

refusal

to

provide

insurance

coverage

for

those

contraceptives that may harm or kill a fertilized egg, or to
transfer authority to a third party to do the same.
p. 29.)

(Doc. #20,

The Court agrees that plaintiffs have established that

this constitutes an exercise of religion.
(2)

Sincerely Held Religious Beliefs

The government does not dispute that the beliefs of all
plaintiffs about their exercise of religion are sincerely held.
The Court agrees.

It is not for the Court to say that plaintiffs’

religious beliefs are mistaken or insubstantial, but only “whether
the line drawn [between conduct that is and is not permitted under
one's religion] reflects an honest conviction.”
Stores, Inc., 134 S. Ct. at 2779.
of

the

believe

preliminary
that

injunction

complying

with

The Court finds, for purposes

only,
the

Hobby Lobby

that

plaintiffs

Contraception

honestly

Mandate

and

participating in the accommodation process would violate their
religious beliefs and principles.
(3)

Substantial Burden on Exercise of Religion

The Court must determine whether plaintiffs’ exercise of
religion – i.e., refusing to provide the type of insurance coverage
at issue – was substantially burdened by the Contraception Mandate
and/or the accommodation process of the ACA.

- 13 -

Plaintiffs’ exercise

of their religious beliefs is “substantially burdened” “if the
regulation requires participation in an activity prohibited by
religion.”

Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d

1214, 1227 (11th Cir. 2004).

This requires something more than

an incidental effect or inconvenience.
at *4.

Davila, 2015 WL 127364,

Rather, “the governmental action must significantly hamper

one's religious practice.” Smith v. Allen, 502 F.3d 1255, 1277
(11th Cir. 2007), abrogated on other grounds by Sossamon v. Texas,
131 S. Ct. 1651 (2011).

See also Adkins v. Kaspar, 393 F.3d 559,

570 (5th Cir. 2004) (“[A] government action or regulation creates
a

‘substantial

pressures

the

burden’

on

a

religious

exercise

adherent

to

significantly

modify

if
his

it

truly

religious

behavior and significantly violates his religious beliefs.”).

As

the Supreme Court stated, a court looks to “whether the HHS imposes
a substantial burden on the ability of the objecting parties to
conduct business in accordance with their religious beliefs.”
Hobby Lobby Stores, Inc., 134 S. Ct. at 2778.
The

Court

finds

that

compliance

with

the

Contraception

Mandate does impose a substantial burden on plaintiffs’ religious
exercise.

The government, through the Contraception Mandate,

requires plaintiffs to provide a type of health care insurance
coverage to employees which their sincerely held religious beliefs
firmly prohibit.

Substantial penalties may be assessed by the

government for non-compliance.

As in Hobby Lobby Stores, Inc.,

- 14 -

134 S. Ct. at 2775, the Court has little trouble in concluding
that the Contraception Mandate does impose a substantial burden on
plaintiffs’ exercise of religion.
The government, however, provides what appears at first blush
to be a simple and expedient way for plaintiffs to opt-out of the
offending
Plaintiffs

obligations
argue,

imposed

however,

by

that

the

the

Contraception

accommodation

Mandate.

process

itself a substantial burden on their exercise of religion.
is

a

separate

and

distinct

question

from

the

impact

of

is

This
the

Contraception Mandate, and the answer is not as simple.
The Court finds that the portion of the accommodation process
which requires plaintiffs to self-certify their eligibility for
the accommodation and provide that written self-certification to
the HHS does not substantially burden plaintiffs’ exercise of
religion.

This notice requirement is short, simple, and merely

obligates the organization to certify that it meets the eligibility
requirements for the accommodation.

None of the elements for

eligibility

invade

for

the

accommodation

privacy;

indeed,

plaintiffs proudly tell the world of their religious beliefs, but
decline to agree to tell the HHS that they satisfy the three basic
eligibility requirements.

This notification need not be on a

government-issued form.
While

the

Court

finds

that

notice

to

the

HHS

does

not

substantially burden plaintiffs’ exercise of religion, the Court

- 15 -

reaches the opposite conclusion as to the portion of the government
form which requires identification of and the contact information
for

plaintiffs’

administrator.

insurance

carrier

and/or

third

party

As discussed earlier, when plaintiffs invoke the

accommodation, their female employees will still be eligible for
the contraceptive coverage, but coverage will not be paid for by
plaintiffs.

Compelling plaintiffs to identify their providers or

administrators to the HHS clearly facilitates the government’s
ability to implement contraceptive coverage for plaintiffs’ female
employees.
such

While plaintiffs cannot preclude the government from

implementation,

the

identification

requirement

compels

plaintiffs to become excessively entangled in the process of
providing

coverage

for

services

religious beliefs prohibit.

which

their

sincerely

held

This is not to say that the government

cannot take any legitimate steps to determine the identity of the
insurers and administrators, or that the non-party insurers and
administrators cannot take any steps they feel are required.
After all, plaintiffs have no ability to compel the government or
their insurers/administrators to follow their religious beliefs.
But for the purpose of determining whether a requirement imposes
a substantial burden on religious exercise, the Court draws the
line

after

notification

of

eligibility

identification of an insurer/administrator.

- 16 -

but

before

compelled

The Court need not get drawn into the “trigger” argument
discussed in some cases.
submission

of

the

Several courts have found that the

self-certification

form

does

not

“trigger”

contraceptive coverage, but rather it is federal law that requires
the coverage and triggered the obligation.

Univ. of Notre Dame

v. Sebelius, 743 F.3d 547, 553-557 (7th Cir. 2014), petition for
cert.

filed,

No.

14-392

(Oct.

3,

2014);

Michigan

Catholic

Conference & Catholic Family Servs. v. Burwell, 755 F.3d 372, 387
(6th Cir. 2014), petition for cert. filed, No. 14-701 (Dec. 12,
2014); Priests For Life v. United States HHS, 772 F.3d 229, 252
(D.C. Cir. 2014).

A concurring Eleventh Circuit opinion, which

pre-dated the final rule allowing an alternative form of notice,
found this position to be “Rubbish.”

Eternal Word Television

Network, Inc. v. Sec’y, United States HHS, 756 F.3d 1339, 1347
(11th Cir. 2014) (“Even if the form alone does not “trigger”
coverage —whatever that means—it is undeniable that the United
States has compelled the Network to participate in the mandate
scheme by requiring the Network not only to sign but also to
deliver the form to its third-party administrator of its health
insurance plan.”)

Whatever the trigger for coverage, plaintiffs

must provide notice of eligibility to the HHS but need not provide
identifying information as to the insurers/administrators.
As

other

precondition

courts
the

have

done,

preliminary

the

Court

injunction

- 17 -

will

upon

therefore
plaintiffs’

notification to the HHS of their eligibility for the accommodation.
Nothing precludes the government from using that information, and
any other information it may legitimately obtain, to enforce
compliance with the law.

Notice need not be on a government form

and a copy need not be provided to the insurer/administrator.
(4)

Compelling Governmental Interest

Once a plaintiffs show that their exercise of religion is
substantially burdened, the Government must demonstrate that its
challenged actions are in furtherance of a compelling governmental
interest.

Davila, 2015 WL 127364, at *4.

particular

policies

governmental
formulated

are

interest,

interests

in

courts

In evaluating whether

furtherance
should

justifying

the

“look[
general

of
]

a

compelling

beyond

broadly

applicability

of

government mandates and scrutinize[ ] the asserted harm of granting
specific exemptions to particular religious claimants.” Gonzales
v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418,
431 (2006).
The United States argues that it has a compelling government
interest “in safeguarding public health and ensuring that women
have equal access to health care.”

Coverage of Certain Preventive

Services Under the Affordable Care Act, 78 Fed. Reg. 39870-01,
39872 (July 2, 2013).

The Court finds this is a compelling

governmental interest under the facts and circumstances of this
particular case.

See, e.g., Hobby Lobby Stores, Inc., 134 S. Ct.

- 18 -

at

2780.

The

Court

rejects

plaintiffs’

argument

that

the

existence of multiple exemptions demonstrates that the government
interest is not compelling.
problem

in

one

fell

swoop

The government need not remedy a
in

order

for

its

interest

to

be

compelling.
(5)

Least Restrictive Means

Even if the government has shown a compelling governmental
interest justifying the burden on plaintiffs’ religious exercise,
it must show that the regulations are the least restrictive means
for

furthering

that

interest.

“The

standard is exceptionally demanding.”
134 S. Ct. at 2780.

least-restrictive-means
Hobby Lobby Stores, Inc.,

Although “cost may be an important factor in

the least-restrictive-means analysis, but [ ] RFRA [ ] may in some
circumstances require the Government to expend additional funds to
accommodate citizens' religious beliefs.” Id. at 2781.
The Court finds that for preliminary injunction purposes the
government has not established that the Contraceptive Mandate and
current

notice

requirements

are

the

least

available to achieve its compelling interest.

restrictive

means

However, the Court

further finds that the self-certification notice requirement, as
limited

above,

Accordingly,

is

the

least

while

the

notice

restrictive
requirement

means
is

available.

proper,

identification of insurer/administrator requirement is not.

- 19 -

the

B. Irreparable Harm or Injury
“A showing of irreparable injury is the sine qua non of
injunctive relief.”
“[I]t

is

Siegel, 234 F.3d at 1176 (citation omitted).

well

established

for

even

freedoms,
constitutes

minimal

irreparable

Trussville, 458

F.3d

that

1261,

the

periods

loss
of

injury.”

(11th

marks and citation omitted).

First

time,

KH

1271–72

of

unquestionably

Outdoor,
Cir.

Amendment

LLC

v.

2006)(quotation

The Court rejects the government’s

argument that plaintiffs have unduly delayed the filing of their
Complaint, which is indicative that they have and will not suffer
irreparable harm or injury.

The Court finds no undue delay, and

in any event, the delay in this case is simply not indicative of
a

lack

of

irreparable

harm

to

plaintiffs.

Plaintiffs

have

established the existence of an irreparable injury.
C. Balancing Harms and Public Interest
Plaintiffs must also establish that the threatened injury to
them outweighs the harm a preliminary injunction may cause to the
defendant and that an injunction would not harm or do a disservice
to

the

public

interest.

Siegel, 234

F.3d

at

1176.

The

preliminary injunction the Court will issue will impose at least
inconvenience to the government in the bureaucratic implementation
of the ACA.

Determining the identity of the insurer/administrator

will undoubtedly be more difficult if plaintiffs are not compelled
to provide this information.

On the other hand, “even a temporary

- 20 -

infringement of First Amendment rights constitutes a serious and
substantial injury,” and neither the government nor the public
have any legitimate interest in enforcing an unconstitutional
statute or regulation.

KH Outdoor, 458 F.3d at 1272.

The Court

finds that both factors favor issuance of a preliminary injunction.
D. Bond
Rule 65(c) of the Federal Rules of Civil Procedure provides
that a court “may issue a preliminary injunction . . . 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).

“[B]efore a court may issue a preliminary injunction, a bond must
be posted, but it is well-established that “the amount of security
required by the rule is a matter within the discretion of the trial
court and the court may elect to require no security at all.”
BellSouth Telecomms., Inc. v. MCImetro Access Transmission Servs.,
LLC, 425 F.3d 964, 971 (11th Cir. 2005) (citations omitted).

The

Court directs that any plaintiff complying with the pre-condition
for this preliminary injunction post a $100 bond with the Clerk of
the Court.
Accordingly, it is hereby
ORDERED:
1. Plaintiffs’ Request for Oral Argument (Doc. #22) is GRANTED
and oral arguments were conducted on January 23, 2015.

- 21 -

2. Plaintiffs' Motion for Preliminary Injunction (Doc. #20)
is GRANTED IN PART AND DENIED IN PART as follows:
(i)

If a plaintiff informs the Secretary of Health and
Human

Services

in

writing

that

it

(1)

opposes

providing coverage for some or all contraceptive
services

required

by

the

ACA

on

account

of

religious objections, (2) is organized and operated
as a nonprofit entity, and (3) holds itself out as
a religious organization, defendants are enjoined
from enforcing against that plaintiff challenged
provisions of the Patient Protection and Affordable
Care Act and related regulations.
condition

for

this

preliminary

To meet the
injunction,

a

plaintiff need not use the form prescribed by the
Government and need not identify or send copies to
its insurer/third-party administrator.
(ii)

Bond of $100 must be posted with the Clerk of the
Court

by

each

plaintiff

who

qualifies

for

the

preliminary injunction.
(iii)

Nothing in this Opinion and Order precludes the
Government

or

its

agencies

from

relaying

any

accommodation notice or taking other lawful steps
to facilitate implementation of full contraceptive
coverage under the ACA.

- 22 -

(iv)

Nothing in this Opinion and Order directs non-party
insurers/administrators to do or refrain from doing
anything.

3. The parties shall comply with the deadlines set forth in
the December 19, 2014 Order (Doc. #36) for responding to
the Complaint and for the filing of a Case Management
Report.
DONE and ORDERED at Fort Myers, Florida, this
February, 2015.

Copies:
Counsel of Record

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3rd

day of