The Roman Catholic Archdiocese of Atlanta et al v. Sebelius et al

Filing 108

OPINION AND ORDER that the Defendants are PERMANENTLY RESTRAINED and ENJOINED from enforcing the contraceptive mandate against Plaintiffs CENGI and Catholic Charities. IT IS FURTHER ORDERED that the Government is PERMANENTLY RESTRAINED and ENJOINE D from enforcing the requirement against CENGI and Catholic Charities to execute and deliver a self-certification form to their TPA. IT IS FURTHER ORDERED that Plaintiff CENGI and Plaintiff Catholic Charities' Motion for Summary Judgment is GR ANTED in part and DENIED in part 78 . CENGI and Catholic Charities' Motion for Summary Judgment on their RFRA claim is GRANTED. Summary Judgment on the claim that the accommodation violates the First Amendment because it places a content-based restriction on their freedom of speech is also GRANTED. The Motion for Summary Judgment on their remaining claims is DENIED. IT IS FURTHER ORDERED that the Motion for Summary Judgment filed by Plaintiffs Atlanta Archdiocese, Savannah Diocese, Archbis hop Gregory and Bishop Hartmayer is DENIED AS MOOT with respect to all claims, including claims based on the RFRA and the federal constitution, because, as the Government acknowledges, these Plaintiffs are exempt from the contraceptive mandate and th e requirements of the accommodation 78 . IT IS FURTHER ORDERED that Defendants' Motion to Dismiss or, in the alternative, for Summary Judgment regarding the Plaintiffs' claims based on the Establishment Clause, the APA, and the unconstitutional delegation of congressional authority is GRANTED 64 . IT IS FURTHER ORDERED that Plaintiffs' Motion for Preliminary Injunction is DENIED AS MOOT 57 . Signed by Judge William S. Duffey, Jr on 3/26/2014. (anc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
THE ROMAN CATHOLIC
ARCHDIOCESE OF ATLANTA, et
al.,
Plaintiffs,
v.

1:12-cv-03489-WSD

KATHLEEN SEBELIUS, in her
official capacity as Secretary, United
States Department of Health and
Human Services, et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court on the Plaintiffs’ Motion for Preliminary
Injunction [57], the Defendants’ Motion to Dismiss or, in the alternative, for
Summary Judgment [64], and the Plaintiffs’ Motion for Summary Judgment [78].

I.

BACKGROUND
A.

Facts
1.

The Plaintiffs

Plaintiff the Roman Catholic Archdiocese of Atlanta (“Atlanta
Archdiocese”) is an association of parishes and other entities located within the 69
counties of northern Georgia. Compl. at 13. Plaintiff the Most Reverend Wilton
D. Gregory is the Archbishop of the Atlanta Archdiocese (“Archbishop Gregory”).
Id. at 15. The Atlanta Archdiocese provides spiritual, educational and social
services to Catholics in northern Georgia. Id. at 16. The Atlanta Archdiocese
directly operates 18 Catholic schools. Id. Plaintiff Catholic Education of North
Georgia, Inc. (“CENGI”) executes the Atlanta Archdiocese’s educational mission
through five independent Catholic schools in the region and is separately
incorporated as a non-profit entity. Id. The Catholic schools educate nearly
12,000 students and employ more than 4,800 teachers and administrators. Id.
Plaintiff Catholic Charities of the Archdiocese of Atlanta, Inc. (“Catholic
Charities”) is a separately incorporated non-profit entity that provides social
services, including refugee resettlement advice, immigration counseling, mental
health counseling, financial literacy education, marriage counseling, and a
pregnancy support program that counsels women regarding in-home parenting

2

education, pregnancy support services, post-adoption services, and play therapy for
children. Id. at 17-18. CENGI and Catholic Charities employ and provide services
to Catholics and non-Catholics alike.1 Id.
Plaintiff the Roman Catholic Diocese of Savannah (“Savannah Diocese”) is
an association of 55 parishes and 24 missions in southern Georgia. Id. at 18-19.
Plaintiff Bishop Hartmayer carries out the spiritual, educational and social services
mission of the Savannah Diocese. Id. The Savannah Diocese provides social
services and operates 16 elementary schools, five high schools, and several
preschool programs. Id. at 19. The Catholic schools operated by the Savannah
Diocese educate nearly 5,000 students, a third of whom are not Catholics. Id.
The “sanctity of human life and the dignity of all persons” are central to the
Catholic faith. Plaintiffs’ Statement of Undisputed Material Facts and Additional
Statement of Facts at 8 (“PSMF”).2 Plaintiffs believe that “human life must be

1

The Atlanta Archdiocese, Archbishop Gregory, CENGI and Catholic Charities
are sometimes collectively referred to as the “Atlanta Plaintiffs” in this Order.
2

Despite the fact that the Court generously allowed the parties to file excess briefs,
both sides have utilized their Statement of Material Facts and/or Responses as
vehicles to rehash the same arguments raised in their briefs. The Court disregards
the parties’ Statement of Material Facts to the extent that the statements are
argumentative or contrary to the record established in this case. See LR 56.1(B),
NDGa.; Bozeman v. Per-Se Tech. Inc., 456 F. Supp. 2d 1282, 1295-97 (N.D. Ga.
2006). A party’s response to the other party’s Statement of Material Facts is also
3

respected and protected absolutely from the moment of conception.” Id. at 9. The
Catholic faith prohibits any action that “‘renders procreation impossible.’” Id.
The Church considers “‘[e]very procedure whose sole immediate effect is the
termination of pregnancy before viability [as] an abortion, which, in its moral
context, includes the interval between conception and implantation of the
embryo.’” Id. at 10. As such, Plaintiffs’ religion prohibits them from providing,
subsidizing or facilitating abortion-inducing drugs, artificial contraceptives,
sterilization services and counseling or education related to these categories of
products or services. Id. at 8.3 Artificial contraceptives and sterilization
procedures have historically been excluded from health plans sponsored by the
Atlanta Archdiocese and the Savannah Diocese. Id. at 10-11. A health insurance
plan that provides coverage for artificial contraceptives or sterilization procedures
violates the Plaintiffs’ religious beliefs. Id. at 10.

disregarded, and the facts are deemed admitted, to the extent that the response is
argumentative or contradictory to the record established in this case. Id.
3

At ¶ 20, the Plaintiffs state that “Catholic religious teaching prohibits subsidizing,
providing, and/or facilitating coverage for abortion-inducing products, sterilization
services, contraceptives, and related counseling services in the manner required by
the Mandate.” (emphasis added). PSMF at 8. This statement is the crux of the
Plaintiffs’ position in this case. The Statements of Material Facts and Responses
of both sides are riddled with argumentative and conclusory statements, and the
Court disregards them for this reason.

4

2.

The Health Plans

The Atlanta Archdiocese provides health insurance benefits to nearly 1,530
employees and their 1,070 dependants through the Roman Catholic Archdiocese of
Atlanta Group Health Plan (“Atlanta Plan”). Id. at 2. The Atlanta Plan also
provides health insurance benefits to the employees of Plaintiff CENGI and
Plaintiff Catholic Charities. Id. at 3. The Atlanta Plan is a self-insured health
insurance plan that underwrites its own risk, and directly pays health care providers
for costs incurred by its beneficiaries. Id. Meritain Health, a subsidiary of
AETNA, serves as the third party administrator (“TPA”) of the Atlanta Plan.
Compl. at 21.4 The Atlanta Plan year begins on January 1, 2014. PSMF at 4. The
Atlanta Plan excludes coverage for abortion, contraceptives unless used for noncontraceptive purposes, sterilization, and any education and counseling related to
these types of benefits. Id. at 4.
The Roman Catholic Diocese of Savannah Group Health Care Plan (the
“Savannah Plan”) is a self-insured health insurance plan that also underwrites its
own risk, and pays health care providers for costs incurred by approximately 384
people employed by the Savannah Diocese (and their 263 dependents). Id. at 6.
Meritain Health also serves as the TPA of the Savannah Plan. The Savannah Plan
4

See also http://www.meritain.com/AboutUs

5

year begins on July 1, 2014. Id. at 7. Like the Atlanta Plan, the Savannah Plan
excludes coverage for abortion, contraceptives unless used for non-contraceptive
purposes, sterilization, and any education and counseling related to these types of
benefits. Id. at 8.5
The Atlanta Plan is a “grandfathered” plan that currently is not subject to the
requirements of the Patient Protection and Affordable Care Act, Pub. L. No. 111148, 124 Stat. 119 (“ACA”). Id. at 3-4. An insurance plan is grandfathered under
the ACA only if it provides almost the same benefits at almost the same costs to its
beneficiaries. 75 Fed. Reg. at 41731. To remain grandfathered, an insurance
plan’s employer contributions cannot decrease by more than 5% of the cost of
coverage in comparison to the employer contributions made as of March, 2010.
26 C.F.R. § 54.9815-1251T(g)(1)(v). The Atlanta Plan has not increased its
employee contributions or employee deductibles in an effort to remain
grandfathered under the ACA. PSMF at 3-4. The Atlanta Plan’s coverage costs
have increased by over 14% per year since March 23, 2010, and as a result, the
Atlanta Archdiocese has absorbed millions of dollars to maintain its grandfathered
status under the ACA, and the Atlanta Archdiocese “may be unable to continue to

5

The Atlanta Plan and the Savannah Plan will sometimes be collectively referred
to as the “health plans.”

6

do so without threatening its overall solvency.” Compl. at 23-24. The Plaintiffs
expect that, in 2014, the Atlanta Plan will not be able to maintain its grandfathered
status under the ACA. Id. The Savannah Plan does not meet the ACA’s definition
of a grandfathered plan. PSMF at 6-7.
3.

The Regulations

Under Section 1001 of the ACA, group health insurance plans and health
insurance issuers are required to provide “preventive services” coverage for
women, without cost sharing, pursuant to the guidelines drawn by the Health
Resources and Services Administration (“HRSA”). Defendants’ Statement of
Material Facts at 1 (“DSMF”). The Department of Health and Human Services
(“HHS”) delegated to the Institute of Medicine (“IOM”) the responsibility to
develop recommendations that implement the ACA’s requirement to provide
“preventive services” for women. Id. at 2. The IOM recommended that under the
HRSA guidelines, “preventive services” should include “the full range of [FDA]
approved contraceptive methods, sterilization procedures, and patient education
and counseling for women with reproductive capacity.” Id. FDA approved
contraceptive methods include diaphragms, oral contraceptive pills, emergency

7

contraceptives, including Plan B and Ella6, intrauterine devices (“IUDs”) and
sterilization. Id.; Plaintiffs’ Response to Defendants’ Statement of Material Facts
at 6 (“PRDSM”). On August 1, 2011, the HRSA adopted the IOM’s guidelines.
DSMF at 3; 78 Fed. Reg. at 39870. These regulations, put in final form in the
2013 Final Rules, are popularly known as the “contraceptive mandate.”
The 2013 Final Rules exempt religious employers from the requirement to
provide “preventive services.” The Final Rules define a “religious employer” as
“an organization that is organized and operates as a nonprofit entity and is referred
to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue Code of
1986, as amended.” 45 C.F.R. § 147.131(a). There is no dispute in this matter that
“churches, their integrated auxiliaries, and conventions or associations of churches,
and the exclusively religious activities of any religious order” are exempt from the
contraceptive mandate. Id.; DRPSM at 11. The Atlanta Archdiocese and the
Savannah Diocese meet this definition and the contraceptive mandate thus does not
apply to them. The 2013 Final Rules also establish an “accommodation” for group
health plans maintained by “eligible organizations.” 45 C.F.R. § 147.131(b). An
“eligible organization” covered by a self-insured health plan qualifies for the
6

The Plaintiffs believe that Plan B and Ella are “abortifacients.” The FDA does
not define or consider these drugs as abortion-inducing products. See 62 Fed. Reg.
8610.

8

accommodation if it satisfies the following requirements:
(1) The organization opposes providing coverage for
some or all of any contraceptive services required to be
covered under § 2590.715-2713(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 (a)(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 (b) or (c) of this section
applies.
29 C.F.R. § 2590.715-2713A(a)(1)-(4).
There is no dispute in this matter that CENGI and Catholic Charities qualify
for the accommodation. The Final Rules provide that CENGI and Catholic
Charities are not required to “contract, arrange, pay, or refer for contraceptive
coverage.” 78 Fed. Reg. at 39,874. Instead, CENGI and Catholic Charities must
complete a self-certification form stating that they are an “eligible organization,”
and provide a copy of the form to their TPA. For self-insured plans, the
regulations treat the self-certification “as a designation of the third party
administrator [] as plan administrator and claims administrator for contraceptive
9

benefits pursuant to section 3(16) of ERISA.” Id. at 39,879.
The TPA for a self-insured plan is not obligated to “enter into, or remain in,
a contractual relationship with the eligible organization to provide administrative
services for the plan.” Id. When the TPA of a self-insured plan, however, enters
into a contractual relationship with a self-insured plan and receives the selfcertification form, the regulations require the TPA to provide preventive services
through the eligible organization’s self-insured plan “without cost sharing,
premium, fee, or other charge to plan participants or beneficiaries, or to the eligible
organization or its plan.” Id. at 39879-80; 29 C.F.R. § 2590.715-2713A(d).7 The
TPA is reimbursed for providing or arranging for preventive services with a
reduction of the Federally-facilitated Exchange user fees (“FFE”) that it is required
to pay.8 78 Fed. Reg. at 39,880.
A self-insured plan that fails to provide preventive services coverage for
women, or a non-exempt organization that fails to execute a self-certification form
and deliver the form to its TPA, is subject to a fine of $100 a day for each affected

7

29 C.F.R. § 2590.715-2713A(b)(2)(i)-(ii) also prohibit the TPA from “imposing a
premium, fee, or other charge, or any portion thereof, directly or indirectly, on the
eligible organization.” (emphasis added).
8

The FFE is the fee required to be paid by TPAs and insurers who participate in
the health care exchanges established by the ACA.

10

beneficiary. PSMF at 20. If an eligible organization chooses to avoid the
requirement to provide preventive services for women by cancelling its health
plan, the eligible organization is subject to an annual penalty of $2,000 per fulltime employee.9 Id.
The exemptions for religious employers were effective on August 1, 2013,
and the accommodation and its related rules went into effect for self-insured plans
on January 1, 2014. PSMF at 7.
B.

Procedural History

On August 19, 2013, the Plaintiffs filed their Second Amended and Recast
Verified Complaint (“Second Amended Complaint”) against Kathleen Sebelius, in
her official capacity as Secretary of the United States Department of Health and
Human Services (“Defendant Sebelius”), Thomas 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, the United
States Department of Health and Human Services, the United States Department of
Labor, and the United States Department of the Treasury (collectively, “the
9

The penalty can be imposed only if at least one of the eligible organization’s
“full-time employees obtains coverage through the Health Insurance Marketplace
and qualifies for a premium tax credit, and would not be liable for taxes under 26
U.S.C. § 4980D.” Defendants’ Response to the Plaintiffs’ Statement of Material
Facts and Additional Facts at 15 (“DRPSMF”).

11

Government”).10 On August 19, 2013, the Plaintiffs also filed a Motion for
Preliminary Injunction seeking to enjoin the Government from enforcing the
regulations that require the provision of coverage for preventive care.
The Second Amended Complaint alleges that the contraceptive mandate and
the accommodation violate: (1) the Religious Freedom Restoration Act of 1993
(“RFRA”); (2) the Free Exercise Clause of the First Amendment; (3) the Free
Speech Clause of the First Amendment; (4) the Establishment Clause of the First
Amendment; and (5) the Religion Clauses of the First Amendment.
With respect to the Plaintiffs’ Free Speech Claims, the Complaint alleges
that the accommodation compels them to engage in speech that enables coverage

10

On August 5, 2012, Plaintiffs filed their original Complaint against the
Government. In February 2012, the Government had adopted a different definition
of a “religious employer” under the regulations than the definition adopted in the
2013 Final Rules, and the Government issued a temporary enforcement safe harbor
for non-grandfathered group health plans provided by non-profit entities with
religious objections to contraceptive coverage that did not meet the definition of
“religious employer” under the prior regulations. During the safe harbor period,
the Government revised the regulations, amended the definition of a “religious
employer,” and established an “accommodation” for non-profit entities with
religious objections to contraceptive coverage. On July 18, 2013, in light of the
Government’s revised regulations, the Court held a teleconference where the
Government agreed to withdraw its Motion to Dismiss the Plaintiffs’ First
Amended Complaint for Lack of Jurisdiction, and the Plaintiffs agreed to file a
Second Amended Complaint. On July 22, 2013, the Government withdrew its
Motion to Dismiss the Plaintiffs’ First Amended Complaint for Lack of
Jurisdiction.

12

for artificial contraceptives, and also constitutes a content-based regulation that
impermissibly prohibits them from influencing their TPA’s decision to provide
coverage for artificial contraceptives.
The Complaint alleges that the regulations violate the Establishment Clause
because they allow the Government to favor some religious groups over others,
and thereby excessively entangle the Government in the affairs of religious groups.
With respect to Plaintiffs’ claim based on the Religion Clauses of the First
Amendment, they allege that the regulations unconstitutionally interfere with the
internal decisions of the Atlanta Archdiocese and the Savannah Diocese.
The Plaintiffs also allege that Congress unconstitutionally delegated its
legislative authority to HHS because the ACA does not contain standards for the
provision of preventive services for women. Plaintiffs allege that the regulations
regarding preventive care violate the APA because the regulations conflict with the
Weldon Amendment, which prohibits federal agencies from discriminating against
any health care entity on the basis that it does not provide coverage for abortions.
On September 23, 2013, the Government filed its Response in Opposition
to the Plaintiffs’ Motion for Preliminary Injunction. The Government also filed its
Motion to Dismiss or, in the alternative, for Summary Judgment based on the
administrative record, regarding the Plaintiffs’ claims related to the Establishment

13

Clause, the APA, and unconstitutional delegation of legislative power. On October
21, 2013, the Plaintiffs moved for Summary Judgment on all of their claims raised
in the Second Amended Complaint with the exception of the APA claim, which
now appears to be abandoned. Also on October 21, 2013, the Plaintiffs filed their
Reply to the Defendants’ Response in Opposition to the Plaintiffs’ Motion for
Preliminary Injunction. On November 18, 2013, the Government filed its
Response in Opposition to the Plaintiffs’ Motion for Summary Judgment, and its
Reply in support of its Motion to Dismiss or, in the alternative, for Summary
Judgment on the Plaintiffs’ claims related to the Establishment Clause, the APA,
and the unconstitutional delegation of legislative power. On December 4, 2013,
the Plaintiffs filed their Reply to the Government’s Response in Opposition to the
Plaintiffs’ Motion for Summary Judgment.
II.

DISCUSSION
A.

Legal Standards
1.

Injunctive Relief

A party seeking preliminary injunctive relief must produce evidence
demonstrating: (1) a substantial likelihood of success on the merits of his claims;
(2) that plaintiff will suffer irreparable injury unless an injunction is issued; (3) that
the threatened injury to plaintiff outweighs any harm the proposed injunction might

14

cause the non-moving party; and (4) that the requested injunction would not be
adverse to the public interest. Odebrecht Constr., Inc. v. Sec’y, Fla. Dep’t of
Transp., 715 F.3d 1268, 1273-74 (11th Cir. 2013). “In this Circuit, [a] preliminary
injunction is an extraordinary and drastic remedy not to be granted unless the
movant clearly established the burden of persuasion as to each of the four
prerequisites.” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc).
The movant cannot rest on allegations in his pleadings, but must present
competent evidence establishing all four requirements for injunctive relief. See id.
If the movant fails to establish one or more of the four requirements, the Court is
not required to address the others. Church v. City of Huntsville, 30 F.3d 1332,
1342 (11th Cir. 1994). The first requirement, that the movant demonstrate a
substantial likelihood of success on the merits, is considered the most important of
the four. See Odebrecht, 715 F.3d at 1274 (“Here, as in so many cases, the first
question is critical.”); Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir. 1986)
(“Ordinarily the first factor is the most important.”).
The standard for a permanent injunction is essentially the same as the
standard for a preliminary injunction, except that the movant must show actual
success on the merits of his claim. Klay v. United Healthgroup, Inc., 376 F.3d
1092, 1097 (11th Cir. 2004). That is, the movant must “establish the fact of the

15

[constitutional or statutory] violation.” Newman v. Alabama, 683 F.2d 1312, 1319
(11th Cir. 1982). “He must then demonstrate the presence of two elements:
continuing irreparable injury if the injunction does not issue, and the lack of an
adequate remedy at law.” Id.; see also Alabama v. U.S. Army Corps of Eng’rs,
424 F.3d 1117, 1127-28 (11th Cir. 2005) (listing those three requirements for
obtaining a permanent injunction).
In their Motion for Summary Judgment, the Plaintiffs converted their
Motion for a Preliminary Injunction into a request for permanent injunctive relief.
The Government does not oppose the Plaintiffs’ conversion of their Motion for
Preliminary Injunction into a request for permanent injunctive relief. Defs.’ Mem.
in Opp’n to Pls.’ Mot. for Summ. J. at 49-50. The Government argues, however,
that Plaintiffs are not entitled to permanent injunctive relief. Id. Given that there
is no dispute about the standard for injunctive relief to be applied in this matter,
and because the Court addresses the actual merits of the Plaintiffs’ statutory and
constitutional claims, the Court applies the standard for a permanent injunction.
2.

Summary Judgment

A court “shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). Parties “asserting that a fact cannot be or is

16

genuinely disputed must support that assertion by . . . citing to particular parts of
materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers, or other
materials.” Fed. R. Civ. P. 56(c)(1).
The party seeking summary judgment bears the burden of demonstrating the
absence of a genuine dispute as to any material fact. Herzog v. Castle Rock
Entm’t, 193 F.3d 1241, 1246 (11th Cir. 1999). Once the moving party has met this
burden, the non-movant must demonstrate that summary judgment is inappropriate
by designating specific facts showing a genuine issue for trial. Graham v. State
Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999). Non-moving parties
“need not present evidence in a form necessary for admission at trial; however,
[they] may not merely rest on [their] pleadings.” Id.
The Court must view all evidence in the light most favorable to the party
opposing the motion and must draw all inferences in favor of the non-movant, but
only “to the extent supportable by the record.” Garczynski v. Bradshaw, 573 F.3d
1158, 1165 (11th Cir. 2009) (quoting Scott v. Harris, 550 U.S. 372, 381 n.8
(2007)). “[C]redibility determinations, the weighing of evidence, and the drawing
of inferences from the facts are the function of the jury . . . .” Graham, 193 F.3d at

17

1282. “If the record presents factual issues, the court must not decide them; it must
deny the motion and proceed to trial.” Herzog, 193 F.3d at 1246. But, “[w]here
the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party,” summary judgment for the moving party is proper. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
B.

Analysis
1.

RFRA

On January 1, 2013, the Government moved to dismiss the Plaintiffs’
Complaint on the grounds that the Plaintiffs lacked Article III standing because
they failed to demonstrate an injury-in-fact. After the promulgation of the Final
Rules, the Plaintiffs filed an Amended Complaint, and the Government abandoned
its challenge to the Plaintiffs’ standing to assert an RFRA claim. In other “church
plan” cases around the country, the Government has belatedly argued that
plaintiffs, who provide health insurance to their employees through a self-insured,
church sponsored health care plan, do not have standing because complying with
the Final Rules does not result in the facilitation of contraceptive products and
services, and the Government has no authority to ensure that contraceptive
products and services will be provided to the beneficiaries of a church sponsored
health care plan. At least one federal court has accepted the Government’s

18

arguments and found that plaintiffs, who provide their employees with health
insurance through a self-insured, church sponsored health care plan do not have
standing to challenge the Final Rules. See Roman Catholic Archbishop of
Washington v. Sebelius, No. 13-1441, 2013 WL 6729515, at *24-26 (D.D.C. Dec.
20, 2013). The Court rejects the Government’s arguments that were raised earlier
in this case, and that were raised in other church plan cases, and the Court finds
that the Plaintiffs have Article III standing to assert an RFRA claim. A detailed
discussion of the Court’s reasoning regarding whether the Plaintiffs have
demonstrated the requirements for Article III standing to raise an RFRA challenge
can be found in Section II(B)(1)(ii) of this Order.
i.

Elements of an RFRA Claim

The Free Exercise Clause of the First Amendment provides that “Congress
shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof… ” U.S. Const., Amdt. 1 (emphasis added). In 1990, the
Supreme Court held that the Free Exercise Clause does not prohibit the
Government from burdening religious practices through neutral and generally
applicable laws. Employment Div., Dept. of Human Resources of Oregon v.
Smith, 494 U.S. 872, 879 (1990). The decision in Smith significantly impacted
previous Supreme Court precedent, particularly its decisions in Sherbert v. Verner,

19

374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972). In these cases,
the Supreme Court had held that if the Government substantially burdened
religious exercise, it was required to show that it had done so using the least
restrictive means to achieve a compelling state interest. Gonzalez v. O Centro
Espirita Beneficente Uniao Do Vegetal et al., 546 U.S. 418, 424 (2006). Smith
thus appeared to relieve the Government from having to show when it substantially
burdened the exercise of religion that it had a compelling state interest in doing so,
and had done so by the least restrictive means.
Congress responded to the decision in Smith by enacting the RFRA. In the
RFRA, Congress restored the compelling state interest and least restrictive means
requirements as stated in Sherbert and Yoder. Id. Thus under the RFRA, the
Government may “substantially burden a person’s exercise of religion” only if the
burden imposed “is in furtherance of a compelling government interest” and “is the
least restrictive means of furthering that compelling government interest.”
42 U.S.C. § 2000bb-1(a)-(b). The RFRA prohibits the Government from imposing
a substantial burden on a person’s religious practices “even if the burden results
from a rule of general applicability.” § 2000bb-1(a).

20

a.

Religious Exercise

The RFRA defines religious exercise as “any exercise of religion, whether or
not compelled by, or central to, a system of religious belief.” § 2000cc-5(7). The
plaintiff’s claimed belief “must be sincere and the practice at issue must be of a
religious nature.” Levitan v. Ashcroft, 281 F.3d 1313, 1320 (D.C. Cir. 2002).
“Because the burdened practice need not be compelled by the adherent’s religion
to merit statutory protection, [the Court] focuses not on the centrality of the
particular activity to the adherent’s religion but rather on whether the sincere
religious exercise is substantially burdened.” Kammerling v. Lapin, 553 F.3d 669,
678 (D.C. Cir. 2008).
The Government does not dispute that Plaintiffs’ sincerely held religious
beliefs prohibit them from providing, subsidizing or facilitating abortion-inducing
drugs, artificial contraceptives, sterilization services, and counseling or education
related to these categories of products or services. See Smith, 494 U.S. at 877
(defining “exercise of religion” to include “not only belief and profession but the
performance of (or abstention from) physical acts . . . ”).

21

b.

Substantial Burden
i. Standard

Under the RFRA, a substantial burden on religious exercise exists when the
Government (1) prohibits a person from “participation in conduct motivated by a
sincerely held religious belief,” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d
1114, 1138 (10th Cir. 2013) (quotation marks and citations omitted); (2) compels a
person to perform acts that violate a sincerely held religious belief, Yoder, 406
U.S. at 218; or (3) places “substantial pressure” on a person to “modify his
behavior and [] violate his [religious] beliefs,” Thomas, 450 U.S. at 717-18.
Several Circuits have determined that the contraceptive mandate, as applied
to for-profit corporations, violates the RFRA because the Government’s
requirement to provide and pay for preventive care places substantial pressure on
the companies, and their owners, to modify their behavior and violate their
sincerely held religious beliefs. See Korte v. Sebelius, 735 F.3d 654, 683 (7th Cir.
2013) (striking down the contraceptive mandate as applied to for-profit
corporations because the Government pressure on the companies to provide
contraceptive coverage and comply with the mandate forced the companies to
violate their religious beliefs or face “ruinous” fines); Gilardi v. United States
Dep’t of Health and Human Serv., 733 F.3d 1208, 1217 (D.C. Cir. 2013) (holding

22

that the Government compelled the owners of a for-profit corporation to affirm a
“repugnant belief” by requiring the owners to “meaningfully approve and endorse
the inclusion of contraceptive coverage in their company’s employer provided
plans . . . ”); Hobby Lobby, 723 F.3d at 1141 (holding that the Government placed
a substantial burden on the plaintiffs by presenting them with a Hobson’s choice of
either compromising their religious beliefs to comply with the regulations or pay
onerous fines).
The Eleventh Circuit has not addressed the meaning of a “substantial
burden” in an RFRA case, but it has addressed the meaning of a “substantial
burden” under the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”). In Midrash Sephardi, Inc. v. Town of Surfside, the Eleventh Circuit
interpreted and applied the section of the RLUIPA that provides:
No government shall impose or implement a land use
regulation in a manner that imposes a substantial burden
on the religious exercise of a person, including a
religious assembly or institution, unless the government
demonstrates that imposition of the burden on that
person, assembly, or institution—
(A) is in furtherance of a compelling governmental
interest; and
(B) is the least restrictive means of furthering that
compelling governmental interest.

23

366 F.3d 1214, 1227 (11th Cir. 2004); 42 U.S.C. § 2000cc(a)(1). 11 The RLUIPA
provides the same analytical framework used to evaluate the permissibility of a
burden on First Amendment Free Exercise rights under the RFRA,12 and Midrash
is instructive here. The court in Midrash turned to the “Supreme Court’s definition
of ‘substantial burden’ within its free exercise cases” because they were
“instructive in determining what Congress understood ‘substantial burden’ to mean
in RLUIPA.” Midrash, 366 F.3d at 1226. Reviewing the Supreme Court cases
that have considered the “substantial burden” issue in Free Exercise cases, the
court in Midrash held that “the combined import of these articulations leads us to
the conclusion that a ‘substantial burden’ must place more than an inconvenience
on religious exercise; a ‘substantial burden’ is akin to significant pressure which
directly coerces the religious adherent to conform his or her behavior accordingly.”
Id. at 1227. Our Circuit has observed that the substantial burden standard under
the RLUIPA is “almost entirely” borrowed from the RFRA. Knight v. Thompson,
11

The RLUIPA also prohibits the government from substantially burdening an
institutionalized person’s religious exercise with a generally applicable and neutral
law unless the Government shows that the burden on religious exercise is the least
restrictive means of furthering a compelling interest. 42 U.S.C. § 2000cc-1(a).
12

In 1994, the Supreme Court held that the RFRA was unconstitutional as applied
to the several States and local governments. City of Boerne v. Flores, 521 U.S.
507 (1994). Congress responded by enacting the RLUIPA to restore some of
RFRA’s protections as applied to State and local governments.

24

723 F.3d 1275, 1282 (11th Cir. 2013). “[W]hen the significance of a religious
belief is not at issue, the same definition of ‘substantial burden’ applies under the
Free Exercise Clause, RFRA and RLUIPA.” Patel v. U.S. Bureau of Prisons,
515 F.3d 807, 813 (8th Cir. 2008); see also Hobby Lobby, 723 F.3d at 1138 n.13
(“Congress intended the substantial burden tests in RFRA and RLUIPA to be
interpreted uniformly.”) (citations omitted).
The Court concludes that the Eleventh Circuit’s definition of a “substantial
burden” in Midrash is the definition that other circuits have applied and it is the
definition our circuit will apply in RFRA cases. See Korte, 735 F.3d at 683;
Gilardi 733 F.3d at 1217; Hobby Lobby, 723 F.3d at 1138. The Plaintiffs thus
must show that the requirement imposed on CENGI and Catholic Charities to
prepare the certification in the form and manner specified by the Secretary and to
then deliver it to Meritain Health is more than an inconvenience, and one which
places substantial pressure on the Plaintiffs to modify their behavior and violate
their religious beliefs.
Plaintiffs argue that a substantial burden exists whenever a person sincerely
believes that the challenged regulations violate his religious beliefs and the
Government imposes a substantial penalty for noncompliance. This standard is not
consistent with the substantial burden analysis set out in Midrash. It also ignores

25

the Supreme Court’s decision in Thomas in which the Court stated that a
substantial burden exists when the Government “puts substantial pressure on an
adherent to modify his behavior and to violate his beliefs.” 450 U.S. at 717-18
(emphasis added).
Plaintiffs also rely on a sentence from Hobby Lobby in which the Tenth
Circuit stated that “our only task is to determine whether the claimant’s belief is
sincere, and if so, whether the government has applied substantial pressure on the
claimant to violate that belief.” 723 F.3d at 1137. The statement is taken out of
context. The statement was made to address the Government’s argument that the
RFRA does not protect a plaintiff when “government coercion somehow depends
on the independent actions of third parties.” Id. The Plaintiffs also ignore that the
Tenth Circuit defined substantial burden as “‘substantial pressure on an adherent
. . . to engage in conduct contrary to a sincerely held religious belief.’” Id. at 1138
(quoting Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th Cir. 2010) (emphasis
added)). In Hobby Lobby, Gilardi and Korte, the courts were not focused on
whether the for-profit corporations and their owners were forced to modify their
behavior. In those cases, the plaintiffs were compelled to provide and pay for
contraceptive coverage, which is a self-evident modification of behavior that was
not required to be addressed. Here, the Plaintiffs are not required to directly

26

provide or pay for contraceptive coverage.
Defendants argue that this case is one where the requirement imposed on
the Plaintiffs is the simple completion of the self-certification form that is no
burden at all. This contention is an overly simplistic, conclusory view of the case,
and denies the nature of the requirement and the pressure imposed on those
required to undertake self-certification. In Kammerling, the D.C. Circuit
interpreting the RFRA held that the burden imposed on a religious practice focuses
on “whether the sincere religious belief is substantially burdened.” 535 F.3d at
678. What is required in the case here is a critical evaluation of whether the
requirements of the accommodation impose a substantial burden on these
Plaintiffs’ religious exercise. “[An] inconsequential or de minimis burden on
religious practice does not rise to [the] level of a substantial burden, [and neither]
does a burden on activity unimportant to the adherent’s religious scheme.” Id.
The Government does not contend that there is no burden on the Plaintiffs’
religious practices. It argues instead that any burden imposed by the contraceptive
mandate is not substantial, but de minimis.
The nature of burdens on the exercise of religious rights has from time to
time been addressed in other courts. For example, in Henderson v. Kennedy, the
plaintiffs objected to regulations that prohibited them from selling t-shirts on the

27

National Mall. 253 F.3d 12, 13-14 (D.C. Cir. 2011). In Mahoney v. Doe, the
plaintiffs challenged regulations that prohibited them from “chalking” the sidewalk
near the White House. 642 F.3d 1112, 1115 (D.C. Cir. 2011). In both of these
cases, the D.C. Circuit found the burden on First Amendment rights not to be
substantial because the plaintiffs could sell or write what they wanted—they just
had to comply with restrictions against doing so in certain limited, defined
locations. That is, in both Henderson and Mahoney, the D.C. Circuit found that the
regulations did not impose a substantial burden on the plaintiffs under the RFRA
because the restrictions “were one of a multitude of means” through which the
plaintiffs could exercise their religion and other alternatives were available, in fact
immediately, near the mall or the White House to the plaintiffs to sell or write what
they wanted. Henderson, 253 F.3d at 17; Mahoney, 642 F.3d at 1121. Similarly,
in Smith v. Allen, the Eleventh Circuit held that a prison facility’s decision to limit
the plaintiff’s religious practices to a secure location placed no more than an
“incidental burden” on his practice of Odinism because the plaintiff remained free
to practice his religion in a secure area. 502 F.3d 1255, 1279 (11th Cir. 2007)
(overruled on other grounds by Sossamon v. Texas, 131 S. Ct. 1651 (U.S. 2011)).
An incidental burden or a mere inconvenience to a person’s religious
exercise does not violate the RFRA. Id. The Court thus evaluates whether the

28

contraceptive mandate is merely an inconvenience or has only a de minimis impact
on the Plaintiffs’ religious exercise, or whether the burden is greater. The
Government relies on “inconsequential” and “de minimis” burden cases to assert
that all the Plaintiffs are required to do here is fill out a simple form stating their
sincerely held religious beliefs so that their employees can, from other sources, be
given the contraceptive products and services to which Plaintiffs object on
religious grounds. The Plaintiffs allege that they are compelled to modify their
behavior and engage in conduct that violates their sincerely, and historically, held
religious beliefs. The question here is whether the regulations challenged in this
case are a substantial burden or a mere de minimis imposition on Plaintiffs’
religious beliefs. The Court evaluates, on the facts of this case, whether the
regulations put “substantial pressure” on the Plaintiffs to modify their behavior and
violate their sincerely held religious beliefs. Thomas, 450 U.S. at 717-18.
ii. CENGI and Catholic Charities13
The Government describes the self-certification requirement as a “purely
administrative” act that does not compel CENGI and Catholic Charities to modify
13

The Plaintiffs do not differentiate the claims of the Atlanta Archdiocese and the
Savannah Diocese from the claims of CENGI and Catholic Charities. The Court,
however, addresses them separately because the contraceptive mandate and the
accommodation do not apply to the Diocesan Plaintiffs.

29

their behavior and thus imposes a de minimis burden on their religious exercise. In
the Government’s view, the accommodation does not impose a substantial burden
because CENGI and Catholic Charities remain free to refuse to provide
contraceptive coverage, “voice their disapproval of contraceptive use, and []
encourage [their] employees to refrain from using contraceptive services.” Defs.’
Mem. In Opp’n to Pls.’ Mot. for Summ. J. at 5-6.
The Government also alleges that the true nature of Plaintiffs’ religious
objection is directed at third parties—mainly, the employees of CENGI and
Catholic Charities who may receive contraceptive coverage from Meritain Health
free of charge. On this view of the burden, the Government argues that the
requirement to self-certify and deliver the form to a TPA is a permissible burden
that does not give rise to an RFRA violation. The Government rejects that
completion of the self-certification form compels the Plaintiffs to modify their own
behavior and violate their sincerely held religious beliefs. The Government thus
claims that Plaintiffs’ RFRA claim is indistinguishable from the plaintiffs’
objection to the actions of third parties in Bowen and Kammerling. The Court
disagrees.
Bowen v. Roy involved an application for and receipt of benefits from the
Aid to Families with Dependent Children program and the Food Stamps program.

30

476 U.S. 693 (1986). The plaintiffs specifically objected to the Government’s use
of a social security number for their younger daughter, “Little Bird of the Snow,”
on the ground that the use of the number violated their religious beliefs. Id. at 695.
The plaintiffs asserted a religious belief that “control over one’s life is essential to
spiritual purity and ‘indispensible to becoming a holy person.’” Id. at 696. The
Supreme Court found that plaintiffs’ religious beliefs were not violated by the
Government’s use of the social security number. Id. at 712. The Supreme Court
noted that its cases “have long recognized a distinction between the freedom of
individual belief, which is absolute, and the freedom of individual conduct, which
is not absolute.” Id. at 699. The Court observed that the plaintiffs’ objection was
to the government’s use of the social security number because they claimed that
the use “may harm [their] daughter’s spirit.” Id. The Court found that the
requirement to provide a social security number was “wholly neutral,” and
specifically noted that:
It does not intrude on the organization of a religious
institution or school. It may indeed confront some
applicants for benefits with choices, but in no sense does
it affirmatively compel appellees, by threat of sanctions,
to refrain from religiously motivated conduct or to
engage in conduct that they find objectionable for
religious reasons.

31

Id.14
Bowen is a different case than the one before the Court. Here, the
Government acknowledges that the contraceptive mandate infringes on religious
beliefs and has excluded churches and other faith based organizations from
providing contraceptive coverage to their employees. Recognizing that the
requirement also impacts non-exempt faith based organizations whose services are
offered as, adjacent to, or part of the operations of exempted organizations, the
Government has used the non-exempt faith-based organizations as a means of
requiring contraceptive coverage and, in doing so, has designed an allegedly de
minimis burden that it claims does not substantially burden the non-exempt
organizations’ religious beliefs. In doing so, the Government has ignored the
Supreme Court’s recognition in Bowen that the “freedom of individual religious
belief is absolute,” and at its core, the Government seeks to “affirmatively compel”
the non-exempt Plaintiffs to engage in conduct that they find objectionable for
religious reasons. Id. The Government argues that it can do so because the effort
to engage in the objectionable conduct is slight, and because the burden is
14

The Court generally noted that it was the plaintiffs who sought benefits from the
Government and who asserted that, because of certain beliefs, they should be
excused from complying with conditions that were binding on all other persons
who similarly sought the same benefits from the Government. Id. at 703. That is
not the case here.

32

permissible under the RFRA.15
Bowen, in fact, may support the Plaintiffs in this case. The majority’s
holding in Bowen was limited to the dissemination of information already in the
possession of the Government, which did not compel the plaintiffs to engage in
any action or conduct. The Supreme Court specifically held that the Government
may use and disseminate information already in its possession even if the plaintiffs
sincerely believed that the Government’s use of the information was offensive to
their sincerely held religious beliefs. Id. at 699. The plaintiffs also objected,
however, to the compulsion to provide the social security number to the
Government. Five Justices strongly suggested that the compulsion to provide the
social security number—as opposed to the objection to the number’s use by
someone else—violated the plaintiffs’ First Amendment rights. See id. at 732
(dissenting in part because “the Government failed to show that granting a
religious exemption to those who legitimately object to providing a Social Security
number will do any harm to its compelling interest in promoting welfare fraud.” )
(O’Connor, J., Brennan, J., and Marshall, J., concurring in part and dissenting in
15

The Court in Bowen also noted the distinction between governmental
compulsion and conditions relating to governmental benefits. Id. at 705. Here,
CENGI and Catholic Charities are compelled to participate in the process to
provide contraceptive coverage through a third party or be penalized for not
participating in the process.

33

part); Id. at 733 (dissenting from the Court’s opinion and judgment with respect to
both the objection to provide the social security number and the Government’s
independent use of the social security number) (White, J., dissenting); Id. at 714716 (stating that the case should be remanded to determine whether the issue was
moot, but agreeing that the Government “may not deny assistance to Little Bird of
the Snow solely because her parents’ religious convictions prevent them from
supplying the Government with a social security number for their daughter.”)
(Blackmun, J., concurring in part). Of course, the Court recognizes that the
concurring and dissenting opinions cited above are not part of Bowen’s holding.
That five Justices in Bowen were willing to find a constitutional violation when the
plaintiff was compelled to provide a social security number not only shows that the
Government’s reliance on Bowen is misplaced, but it also discredits the
Government’s defense that the requirement to sign and deliver the self-certification
form is de minimis.16
The Government’s reliance on Kammerling is equally misplaced for the
same reasons. In Kammerling, the plaintiff claimed that the taking of DNA
16

There is no objective difference between the requirement to provide a social
security number in Bowen, and the requirement to execute the self-certification
form in this case. The requirement to provide a social security number can also be
characterized as an “administrative act,” but that does not mean it is shielded from
an RFRA challenge.

34

samples from him “defile[d] God’s temple” in violation of his Free Exercise rights.
553 F.3d at 677. The D.C. Circuit considered whether the sampling requirement
violated the RFRA by putting “substantial pressure on [Kammerling] to modify his
behavior and violate his beliefs.” Id. at 678. The D.C. Circuit held that
Kammerling did not have any exercise of religion that he alleged was the subject
of the burden. Id. at 679.
In reaching this conclusion, the D.C. Circuit in Kammerling applied Bowen
to conclude that the plaintiff’s only objection was directed at the actions of a third
party, but he had no objection, on religious grounds or otherwise, to any of his own
acts being compelled by the Government. Id. at 679-80. The facts are different
here. In this case, CENGI and Catholic Charities are compelled by the Final Rules
to provide a self-certification form to their TPA—an act that they, on their own,
are required to perform independent of any third party’s act. The Final Rules
require the Plaintiffs to state their objection to the services and products that the
ACA mandates, and then require the Plaintiffs to take affirmative action that
enables a third party to provide to the Plaintiffs’ employees the very services to
which Plaintiffs have a sincerely held religious objection. The manner in which
the self-certification form is designed forces the Plaintiffs to take action in direct
contradiction to what they believe. At its core, the self-certification form requires

35

CENGI and Catholic Charities to modify their behavior when the Final Rules
compel them to sign and deliver a document that is designed by the Government to
set in motion delivery of contraceptive products and services to which they so
strenuously object.
The Final Rules “treat[]” the self-certification form as a “designation of the
third party administrator [] as plan administrator and claims administrator for
contraceptive benefits pursuant to section 3(16) of ERISA.” 78 Fed. Reg. at
39,879. The self-certification form provides notice to a TPA of its obligations
under the Final Rules. Id. The TPA’s duty to pay or arrange for contraceptive
coverage is imposed upon receipt of the self-certification form from CENGI and
Catholic Charities. Id. at 39,879-80. The Final Rules explicitly provide that the
TPA’s duty to provide contraceptive coverage arises only if the TPA enters into a
contract with a self-insured plan and the TPA receives a self-certification form
from eligible organizations such as CENGI and Catholic Charities. Id. The TPA’s
obligation to provide contraceptive coverage exists only “so long as” the
employees of Catholic Charities and CENGI remain enrolled in the Atlanta Plan.
45 CFR § 147.131(c)(2)(i)(B). In Reaching Souls v. Sebelius, the Government
conceded that the form is the vehicle by which the TPA seeks reimbursement plus
a 10% reward for providing contraceptive coverage. The Government also

36

conceded that federal reimbursement is not available without the self-certification
form. Dec. 16, 2013 Hrn’g Tr. at 96:15-18, No. 5:13-cv-1092-D,
2013 WL 6804259.
After a self-certification form is provided to the TPA, the Final Rules
impose a further unconstitutional content-based restriction on the speech of
CENGI and Catholic Charities by forbidding those required to execute a selfcertification form from seeking to influence their TPA’s decision to provide
contraceptive coverage. See Section II (B)(4) of this Order. This is an additional
restriction on CENGI and Catholic Charities that compels them to modify their
behavior and to violate their religious beliefs.
If Meritain Health refuses to provide contraceptive coverage, the plain terms
of the Final Rules require CENGI and Catholic Charities to find a TPA that is
willing to provide coverage for preventive care. Roman Catholic Archbishop of
Washington, 2013 WL 6729515, at *20 n.19 (noting that the Government’s
interpretation of the regulations would require an eligible organization “to shop
around to find a new [TPA] that will assume responsibility for the coverage or
proceed without a [TPA] and await instructions from the government on how it can

37

otherwise satisfy its obligations” if the prior TPA declines to provide contraceptive
coverage).17
If CENGI and Catholic Charities refuse to self-certify, the Government
places pressure on them to either provide contraceptive coverage on their own or
face a fine of $100 per day for each affected beneficiary. If CENGI and Catholic
Charities cancel their health plans altogether to avoid the contraceptive mandate,
they may be subject to an annual penalty of $2,000 per full-time employee.
The Court concludes that the plain terms of the Final Rules show that the
purpose and effect of the self-certification form is to enable the provision of
contraceptive coverage. The self-certification form is an integral part of the
Government’s contraceptive coverage scheme. It creates legal rights and
responsibilities, and it is a Government imposed device that pressures the Plaintiffs
into facilitating the contraceptive coverage to which they have sincerely held
religious objections. Without the self-certification form, a TPA is not authorized
to provide coverage, and a TPA cannot seek federal reimbursement plus 10% for
margin and overhead. The record here persuasively establishes the legal and
practical burden the accommodation and the certification requirement place on

17

This is another burden imposed by the Final Rules on the non-exempt Plaintiffs
to modify their behavior and to violate their religious beliefs.

38

CENGI and Catholic Charities. The accommodation thus imposes substantial
pressure on the Plaintiffs to modify their behavior and violate their religious
beliefs, including by enabling and facilitating contraceptive coverage to which they
have strong religious objections.
The Court also concludes that the accommodation places substantial
pressure on Catholic Charities and CENGI to either compromise their religious
beliefs or suffer the onerous economic consequence of adhering to what they
believe. See Korte, 735 F.3d at 682-83; Gilardi, 733 F.3d at 1218; Hobby Lobby,
723 F.3d at 1141.
The Court’s conclusion does not change even if the Government had argued,
as it did in other cases, that it has no ERISA authority to require a church plan to
contract with a TPA to provide contraceptive coverage or compel a TPA to provide
contraceptive coverage after the TPA agrees to enter into a contract with the
Plaintiffs and receives the self-certification form. It is the fact of the requirement
that is important, not whether the Government will or will not choose to enforce it.
The regulatory requirements and incentives in place here support the very
real possibility, if not probability, that a TPA will provide contraceptive coverage
voluntarily. If the TPA voluntarily complies with the contraceptive mandate,
Plaintiffs’ complicity in a scheme that results in the delivery of products and

39

services in violation of their sincerely held religious beliefs is undiminished. If the
TPA voluntarily complies with the contraceptive mandate, the legal rights and
responsibilities created by the self-certification form that are discussed in this
Order largely remain unchanged, including federal reimbursement for the TPA that
is not available without the self-certification form. If the TPA voluntarily complies
with the contraceptive mandate, the Government imposes the additional burden to
unconstitutionally prohibit the Plaintiffs from influencing the TPA to not provide
coverage that they vehemently and sincerely oppose.
The Atlanta Archdiocese has expressed its intention to remove CENGI and
Catholic Charities from the Atlanta Plan if they are required to self-certify and
provide the certification form to Meritain Health. Given that CENGI and Catholic
Charities are not going to remain on the Atlanta Plan if required to comply with the
contraceptive mandate, the burdens imposed on them by the Final Rules remain
unchanged, including the additional obligation to find a TPA that provides
contraceptive coverage once they are removed from the Atlanta Plan. See 29
C.F.R. § 2590.715-2713A(b)(1)-(4).18
The Government finally argues that even if the regulations impose more than
18

The terms of the Final Rules, when read as a whole, require CENGI and Catholic
Charities to find a TPA that will provide contraceptive coverage. See 29 C.F.R. §
2590.715-2713A(b)(1)-(4).

40

a de minimis burden on Plaintiffs’ religious exercise, the burden is indirect and too
attenuated to be substantial under the RFRA. To support this argument, the
Government claims that the ultimate decision to use artificial contraceptives rests
with the Plaintiffs’ employees, and the Plaintiffs are “further insulated” by the fact
that their TPA “will actually contract, arrange, pay and refer” for contraceptive
coverage. Defs.’ Mem. In Opp’n to Pls.’ Mot. for Prelim. Inj. at 22. Plaintiffs’
religious beliefs unequivocally forbid the facilitation of artificial contraceptives
and sterilization procedures. In United States v. Lee, the plaintiff objected to being
compelled by the Government to pay into the Social Security system because the
system allowed third parties to act inconsistently with his religious beliefs. 455
U.S. at 257 (1981). The Government responded to the plaintiff’s claims by
arguing that the “payment of social security taxes will not threaten the integrity of
the Amish religious belief or observance.” Id. The Supreme Court rejected the
Government’s rationale because “it is not within the judicial function and judicial
competence, however, to determine whether [the plaintiff] or the government has
the proper interpretation of his Amish faith; [c]ourts are not arbiters of scriptural
interpretation.” Id. (internal quotations marks omitted).
The Government’s attenuation argument requires the Court to determine
whether facilitating access to artificial contraceptives and sterilization procedures

41

violates the Plaintiffs’ religious beliefs. The Court, of course, is not authorized to
decide if the Plaintiffs have correctly interpreted their faith. To argue that it does
misunderstands the role of the Court. In Lee, the Supreme Court accepted the
Amish carpenter’s claim that payment of Social Security taxes substantially
burdened his religious exercise because the system imposed obligations on him
that allowed third parties to act inconsistently with his religious beliefs. The
plaintiff’s religious objection in Lee is indistinguishable from the Plaintiffs’
religious objection in this matter to the facilitation of artificial contraceptives that
may ultimately be used by others.
The Court rejects the Government’s argument that the burden on Plaintiffs’
religious exercise is too indirect and attenuated to be substantial under the RFRA.
See also Korte, 735 F.3d at 684 (holding that “no civil authority can decide”
whether “any complicity problem is insignificant or nonexistent.”); Gilardi, 733
F.3d at 1218 (rejecting the Government’s argument that the contraceptive mandate
only imposes an indirect burden on the owners of a profit corporation because “the
burden on religious exercise does not occur at the point of contraceptive purchase;
instead, it occurs when a company’s owners fill the basket of goods and services
that constitute a healthcare plan.”); Hobby Lobby, 723 F.3d at 1141 (stating that
“Hobby Lobby and Mardel have drawn a line at providing coverage for drugs or

42

devices they consider to induce abortions, and it is not for us to question whether
the line is reasonable.”). CENGI and Catholic Charities have shown that the selfcertification form imposes a substantial burden on their religious exercise under the
RFRA.
iii. The Diocesan Plaintiffs
There is no dispute that the Atlanta Archdiocese and the Savannah Diocese
are exempt from the contraceptive mandate as religious employers. The Plaintiffs,
however, raise two issues that arguably apply to whether the Diocesan Plaintiffs
can state a cause of action under the RFRA. First, the Plaintiffs allege that the
Atlanta Plan and the Savannah Plan will “almost certainly be required . . . to
subsidize the objectionable products and services” that are covered by the
contraceptive mandate. Second, the Plaintiffs allege that the Atlanta Plan and
Savannah Plan will be forced to expel their non-exempt affiliates if the non-exempt
affiliates are required to self-certify and deliver the certification form to their TPA.
The Plaintiffs speculate that the costs of coverage are bound to be passed
back to the church plans. They argue that the reductions in user fees offered to the
TPA, or to the ultimate provider of coverage, for participating in the Federallyfacilitated health exchange
would be established through a highly regulated and
bureaucratic process, and it appears most unlikely that the
43

reduction in user fees will fully compensate the regulated
entities for the costs and risks associated with providing
or procuring the objectionable coverage for those
religious organizations that qualify for the
“accommodation” and with complying with the Final
Rule’s regulatory framework. As a result, few if any
[TPAs] are likely to participate in this regime, and those
that do are likely to increase fees charged to self-insured
organizations.
Pls.’ Mot. for Prelim. Inj. at 25 (emphasis added). This claim is speculative at best,
and appears to be derived from an identical claim regarding self-insured
organizations described in Professor Harrington’s affidavit, attached as Exhibit A
to the Plaintiffs’ Motion for Preliminary Injunction. Professor Harrington’s
affidavit is equally speculative because it does not offer any evidence to support
the allegation that the Plaintiffs will pay for or subsidize the costs of contraceptive
coverage.19 The Plaintiffs also ignore that the Final Rules require the TPA to
provide coverage for preventive services “without cost sharing, premium, fee, or
other charge to plan participants or beneficiaries, or to the eligible organization or

19

Plaintiffs do not specify whether each non-exempt affiliate bears its own health
care costs. The Court notes that if CENGI and Catholic Charities directly pay for
the health care costs of their own employees, the Diocesan Plaintiffs cannot claim
that they will be required to pay for or subsidize contraceptive coverage because
the Diocesan Plaintiffs are exempt from the ACA. The Court also rejects the
Plaintiffs’ claim that the Final Rules require CENGI and Catholic Charities to pay
for or subsidize contraceptive coverage for the same reasons identified in this
section of the Court’s Order.

44

its plan.” 78 Fed. Reg. at 39879-80 (emphasis added). The Final Rules
specifically prohibit the TPA from “imposing a premium, fee, or other charge, or
any portion thereof, directly or indirectly, on the eligible organization.” 29 C.F.R.
§ 2590.715-2713A(b)(2)(i)-(ii) (emphasis added). To accept the Plaintiffs’
economic theories, the Court would be required to assume that the TPA may
choose to violate the law by indirectly imposing costs on the Plaintiffs for
providing contraceptive coverage, and that the Government will not enforce the
law to prevent the TPA from imposing such costs. The Court declines to assume
the facts required by these arguments.
The Diocesan Plaintiffs also claim that the Final Rules pressure them to
“expel” their non-exempt affiliates from their health plans in violation of the
RFRA. The Diocesan Plaintiffs do not allege that their religious beliefs require all
of their affiliates to be on a single health plan. In the absence of a compelled act
that violates a religious tenet, there is no substantial burden on an adherent’s
religious beliefs under the RFRA. Kammerling, 553 F.3d at 679-80. The
Diocesan Plaintiffs have failed to show any burden on their religious exercise, and
their Motion for Summary Judgment on the RFRA claim is required to be denied.

45

c.

Compelling Interest

The RFRA requires the Government to show that “the compelling interest
test is satisfied through the application of the challenged law ‘to the person’—the
particular claimant whose sincere exercise of religion is being substantially
burdened.” O Centro, 546 U.S. at 430-31 (internal citations omitted). A “broadly
formulated interest[]” that justifies the “general applicability of [a] government
mandate[]” is insufficient to show a compelling state interest under the RFRA. Id.
at 431. The Government argues that its interest in promoting public health and
providing women with equal access to health care are compelling. The Court does
not doubt that the Government’s interests are important. The Court, however, is
required to strictly “scrutinize the asserted harm of granting specific exemptions to
particular religious claimants.” Id.
The Government has not clearly explained how granting an exemption to
CENGI and Catholic Charities from the contraceptive mandate would undermine
its interests in promoting public health and providing women with equal access to
health care. The Government claims that exempting CENGI and Catholic
Charities from the contraceptive mandate would hinder its ability to effectively and
uniformly administer the requirements of the ACA. That claim is discredited by
the Government’s advocacy in other church plan cases in which it has argued that

46

plaintiffs lack standing because self-certification will not necessarily result in the
delivery of contraceptive products and services. If the Government has conceded
that it has no power, or interest, to ensure that the employees of CENGI and
Catholic Charities are provided with contraceptive coverage, then it appears
unnecessary to require CENGI and Catholic Charities to self-certify and deliver the
certification form to their TPA.20
Given the Government’s argument that the accommodation will not
necessarily result in the delivery of contraceptive coverage, the Government has
failed to explain why the non-exempt Plaintiffs are required to fill out the form. In
Little Sisters of the Poor, et al. v. Sebelius, the Solicitor General of the United
States recently stated that the purpose of the self-certification form is to “provide
for regularized, orderly means of permitting eligible individuals or entities to
declare that they intend to take advantage of them. That is what the selfcertification under the regulations accomplishes . . . .” No. 13A691, Mem. for

20

Uniform application of a law can be a compelling interest if the Government
shows that granting an exemption would seriously hinder its ability to administer a
federal program. Lee, 455 U.S. at 258. Here, the Government cannot claim that its
ability to administer the contraceptive mandate will be compromised if an
exemption is extended to CENGI and Catholic Charities because the Government
does not even expect the employees of CENGI and Catholic Charities to be
provided with contraceptive coverage in the first place. This belief doubtfully is
realistic.

47

Resp’t in Opp’n to Appl. for an Inj. Pending Appeal, 2014 WL 108374, at *33
(Jan. 3, 2014). A regularized, orderly means of allowing CENGI and Catholic
Charities to declare that they will not provide contraceptive coverage can be
accomplished without embedding them in a regulatory framework that renders
them morally complicit in a scheme to provide contraceptive coverage. This
purpose could be achieved by requiring the employees who request coverage to
self-certify that their employer is a religious nonprofit that does not provide
contraceptive coverage. It could also be achieved by requiring CENGI and
Catholic Charities to do no more than simply inform the Government that they are
non-profit organizations with religious objections to providing contraceptive
coverage without explicitly treating their objections as an authorization for a TPA
to provide coverage and seek reimbursement from the Government or designating
their written objection as an instrument that creates legal rights and
responsibilities.21 See Little Sisters of the Poor, 2014 WL 272207, at *1 (Jan. 24,
2014) (remanding to the Tenth Circuit and enjoining the Defendants from
enforcing the contraceptive mandate during the pendency of the appeal, so long as
plaintiffs submit written objections to providing contraceptive coverage based on

21

For these reasons, the Government also cannot meet its burden to show that the
accommodation is the least restrictive means of achieving its goals.

48

religious beliefs directly to Defendant Sebelius).
The Government’s interests in promoting public health and providing
women with equal access to health care also cannot be compelling because the
contraceptive mandate does not apply to the insurance plans of millions of women
in this country. “A law cannot be regarded as protecting an interest of the highest
order when it leaves appreciable damage to that supposedly vital interest
unprohibited.” O Centro, 546 U.S. at 547 (internal citations and quotation marks
omitted). Grandfathered health plans, small businesses and religious employers
are all exempt from the contraceptive mandate. The Government’s claim that it
has a compelling interest in enforcing the accommodation against CENGI and
Catholic Charities because it seeks to promote the uniform availability of
contraceptive products and services is severely undermined by the exemptions to
the contraceptive mandate that leave millions of women without coverage for
contraceptive care. See Korte, 735 F.3d at 686-87; Gilardi, 733 F.3d at 1222-23;
Hobby Lobby, 723 F.3d at 1144.
d.

Least Restrictive Means

Even if the Court assumed that the Government’s stated interests in
enforcing the accommodation against CENGI and Catholic Charities are
compelling, the Government has not demonstrated that the contraceptive mandate

49

is the “least restrictive means of furthering . . . [those] interests.” See 42 U.S.C.
§ 2000bb-1. “A statute or regulation is the least restrictive means if ‘no alternative
forms of regulation would [accomplish the compelling interest] without infringing
[religious exercise] rights.’” Kammerling, 553 F.3d at 684 (quoting Sherbert, 374
U.S. at 407). The Plaintiffs suggest that the Government could achieve its goals
without infringing their religious exercise by (1) directly providing contraceptive
coverage to the non-exempt Plaintiffs’ employees, (2) offering grants to providers
of contraceptive services to incentivize free coverage, or (3) giving tax incentives
to women who purchase contraceptive services. Pls.’ Mot. for Prelim. Inj. at 30.
The Seventh Circuit recognized as workable alternatives the options stated in (1)
and (2) above. Korte, 735 F.3d at 686. The Government argues that Plaintiffs’
proposed alternatives are not viable because HHS lacks the statutory authority to
implement them, and because the proposed alternatives are infeasible and
ineffective. HHS can request Congress to provide the requisite authority needed to
implement less restrictive means towards achieving the Government’s goals.
Roman Archdiocese of New York, 2013 WL 6579764, at *18. The Court also
finds that the Government has not offered any evidence to support its assertion that
the Plaintiffs’ proposed alternatives would be ineffective or infeasible. See also id.
at *18-19.

50

The Court concludes that there is no genuine issue of material fact regarding
whether the contraceptive mandate and its accompanying requirements in the Final
Rules impose a substantial burden on the non-exempt Plaintiffs’ religious exercise.
The Government also has failed to show that the contraceptive mandate is the least
restrictive means towards achieving a compelling state interest. CENGI’s and
Catholic Charities’ Motion for Summary Judgment is granted on their RFRA
claim, and the Government is permanently enjoined from enforcing the Final Rules
against them.
ii.

Standing

The Court now addresses the Government’s arguments regarding the
Plaintiffs’ standing to assert an RFRA claim that were raised earlier in this matter,
and the Government’s arguments that were raised in other church plan cases.
On January 1, 2013, the Government moved to dismiss the Plaintiffs’
Complaint on the grounds that the Plaintiffs lacked Article III standing. The
Government argued that the Atlanta Plaintiffs could not demonstrate an injury-infact because the health plans were grandfathered and thus exempt from the
requirements of the contraceptive mandate. The Government also argued that the
Plaintiffs could not show an injury-in-fact because the temporary enforcement safe
harbor protected the Plaintiffs until August 1, 2013, and the Government’s Final

51

Rules were subject to revision during that time.22 The Government withdrew its
Motion to Dismiss for Lack of Jurisdiction and no longer contends that the
Plaintiffs lack standing to bring their RFRA claim. The Court, however, will
address whether the Plaintiffs have adequately alleged an injury-in-fact because the
Atlanta Plan remains grandfathered and thus exempt from the ACA.23
The Government also has sought to sidestep certain important issues on
jurisdictional grounds in other church plan cases. There are, to date, at least, 20
cases around the country in which federal courts have addressed whether the
requirement imposed on non-profit eligible organizations to execute a selfcertification form pursuant to the contraceptive mandate violates the RFRA. Eight
of these cases, including this one, involve church plan plaintiffs where the
employees of non-exempt eligible organizations that qualify for the
accommodation receive health insurance through the church’s self-insured health
care plan.
22

The 2013 Final Rules are in place, and there is no further revision contemplated.

“A federal court not only has the power but also the obligation at any time to
inquire into jurisdiction whenever the possibility that jurisdiction does not exist
arises.” Johansen v. Combustion Eng'g, Inc., 170 F.3d 1320, 1328 n.4 (11th Cir.
1999). The Court has an independent duty to examine its own jurisdiction, and
“standing is perhaps the most important of [the jurisdictional] doctrines.”
Walden v. Centers for Disease Control & Prevention, 669 F.3d 1277, 1283 (11th
Cir. 2012) (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230–31 (1990)).
23

52

In a twist to the sequence of events that have unfolded in some of the other
church plan cases, the Government has belatedly argued that church plan plaintiffs
do not have standing to assert an RFRA claim. The Government’s belated
challenge to the plaintiffs’ standing to raise an RFRA claim was based on its
discovery, apparently after a careful reading of what is in the law, that it does not
have statutory authority to enforce a TPA’s obligation to provide coverage for
preventive care. The crux of the Government’s claim in these other cases is that
church plan plaintiffs have suffered no injury-in-fact for purposes of Article III
standing because the TPA of a church plan will not provide contraceptive
coverage, and if the Government has no power to compel the TPA of a church plan
to provide contraceptive coverage, no contraceptive coverage will be provided to
the beneficiaries of a church sponsored health care plan. The Government thus
reasons that Plaintiffs cannot assert an injury-in-fact for purposes of Article III
standing because the act of self-certification does not, in fact, result in the
facilitation of contraceptive products and services.
Article III of the United States Constitution provides that the judicial power
of the federal courts extends only to “cases” and “controversies.” U.S. Const. art.
III, § 2, cl. 1. It is well-settled that this limited extension of power imposes
substantive constitutional constraints on the power of federal courts to resolve legal

53

disputes. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The
doctrine of standing is a fundamental boundary of the judicial power to decide
cases and controversies. Id. “[T]he question of standing is whether the litigant is
entitled to have the court decide the merits of the dispute or of particular issues.”
Warth v. Seldin, 422 U.S. 490, 498 (1975). This is a threshold issue in every
federal case. Id. “[A] plaintiff who invokes the jurisdiction of a federal court
bears the burden to show (1) an injury-in-fact, meaning an injury that is concrete
and particularized, and actual or imminent, (2) a causal connection between the
injury and the [challenged] conduct, and (3) a likelihood that the injury will be
redressed by a favorable decision.” CAMP Legal Defense Fund, Inc. v. City of
Atlanta, 451 F.3d 1257, 1269 (11th Cir. 2006) (internal quotation marks omitted).
Standing “must be supported in the same way as any other matter on which the
plaintiff bears the burden proof,” that is, “with the manner and degree of evidence
required at the successive stages of the litigation.” Id.
The Plaintiffs allege that they cannot continue their grandfathered status
under the ACA because the Atlanta Plan’s coverage costs have increased by over
14% each year since March 23, 2010. This increase in coverage costs is alleged to
have required the Atlanta Archdiocese to incur millions of dollars in losses to
maintain its grandfathered status to avoid the requirements of the ACA. Under the

54

regulations, grandfathered status is lost if an insurance plan’s employer
contributions decrease by more than 5% of the cost of coverage in comparison to
the employer contributions made as of March, 2010. 26 C.F.R. § 54.98151251T(g)(1)(v). The Atlanta Plan’s coverage costs have increased by over 14%
per year since March 2010. The Plaintiffs assert that these increased costs will
require their employer contributions to decrease by more than 5% of the cost of
coverage in comparison to their contributions made in March, 2010. When these
additional costs for coverage cause the employer contributions to decrease, the
Atlanta Plan will lose its grandfathered status. When the Atlanta Plan is no longer
grandfathered, the Final Rules will require CENGI and Catholic Charities to
comply with the contraceptive mandate.
The Atlanta Archdiocese has maintained its grandfathered status to avoid
CENGI and Catholic Charities from having to comply with the accommodation.
When this grandfathered status is lost, as the Atlanta Plaintiffs advise the Court
that it will in 2014, CENGI and Catholic Charities will be required to comply with
the accommodation. It is well-established that economic losses caused by
regulations constitute an injury-in-fact for purposes of standing. See Planned
Parenthood Ass’n of Atlanta Area, Inc. v. Miller, 934 F.2d 1462, 1465 (11th Cir.
1991); Chiles v. Thornburgh, 865 F.2d 1197, 1209-10 (11th Cir. 1989) (finding

55

that the “economic detriment suffered by Dade County as a result of the Krome
riots and escapes is the epitome of an injury in fact.”). The Court finds that the
economic losses sustained by the Atlanta Archdiocese to protect the Atlanta Plan’s
grandfathered status to allow CENGI and Catholic Charities to avoid having to
comply with the contraceptive mandate are sufficient to show an injury-in-fact.
This economic loss—the incurred cost increases to protect the Atlanta Plan’s
grandfathered status—results solely from the Atlanta Archdiocese’s resolve to
protect CENGI and Catholic Charities from being subject to the accommodation,
including the requirement to provide a self-certification form that results in the
provision of contraceptive coverage to their employees.
That the Atlanta Plaintiffs assert the inevitable loss of their grandfathered
status because they cannot continue to incur coverage cost increases also supports
that there is an imminent, injury-in-fact for purposes of standing. CAMP, 451 F.3d
at 1269. A plaintiff has standing to bring a claim when the injury is “‘imminent—
not abstract, hypothetical, or conjectural,’ or when application of the challenged
statute is likely, or there is a credible threat of application.” America’s Health Ins.
Plans v. Hudgens, No. 13-10349, 2014 WL 563604, at *4 (11th Cir. Feb. 14, 2014)
(internal citations and quotation marks omitted). The Atlanta Plaintiffs assert that
sometime in 2014, the Atlanta Archdiocese will be unable to absorb the cost

56

increases of the Atlanta Plan and when it does it will have to adjust the amount of
its employer contributions. When these adjustments are made, CENGI and
Catholic Charities will be required to comply with the contraceptive mandate.
Even if the Atlanta Plaintiffs were not suffering an economic injury-in-fact, an
injury-in-fact is imminent. Id.
The Court finds that there is a sufficient nexus between the claimed, or
imminent, injury-in-fact, and the requirement to provide a certification form to
confer standing on the Atlanta Plaintiffs. Put another way, the economic losses
here constitute an actual or imminent injury-in-fact, causally connected to the
conduct Plaintiffs challenge in this action and the injury alleged is likely to be
redressed by a favorable outcome in this action. CAMP, 451 F.3d at 1269.
The Atlanta Archdiocese also provides insurance for the employees of
CENGI and Catholic Charities through the Atlanta Plan. The Plaintiffs allege that
the Atlanta Archdiocese must either sponsor a health care plan that provides
contraceptive coverage or expel its non-exempt affiliates from the Atlanta Plan.
The Court finds that these allegations are also sufficient to confer standing in this
action. See Roman Catholic Archdiocese of New York v. Sebelius, No. 12 Civ
2542(BMC), 2013 WL 6579764, at *7 (E.D.N.Y. Dec. 16, 2013).

57

In other church plan cases, the Government has argued that its authority to
penalize a TPA that refuses to provide coverage for preventive services derives
from ERISA. Self-insured health care plans such as the Atlanta Plan and the
Savannah Plan, however, are exempt from the requirements of ERISA because
they are “church plans.” 29 U.S.C. § 1003(b)(2). The Government has thus
claimed in these other church plan cases that it does not have authority to force a
TPA to provide contraceptive services if the TPA refuses to do so. This is so, the
Government has asserted, even though the Final Rules by their terms apply equally
to all TPAs, and irrespective of whether they are “church plans.” In these other
cases, and in this one, the Government does not assert that it will not enforce the
requirement imposed on a non-exempt entity to self-certify and provide the
certification form to the TPA.
The upshot of the Government’s argument in these other church plan cases
essentially is that it “can neither require the [TPA] of a church plan to end its
contractual relationship for failing to assume responsibility for contraceptive
services coverage nor penalize the [TPA] that assumes the responsibility if it fails
to actually provide that coverage.” Roman Catholic Archbishop of Washington v.
Sebelius, 2013 WL 6729515, at *25-26. The Final Rules, however, by their terms
state that if the TPA agrees to enter into a contractual relationship with a

58

self-insured plan after an eligible organization provides the TPA with a selfcertification form, the TPA must provide or arrange for separate payments for
preventive services. 29 C.F.R. § 2590.715-2713(A)(b)(1) (emphasis added). If the
TPA declines to provide the required coverage, the regulations require a selfinsured plan to find a TPA that is able and willing to provide the mandated
preventive services. In Roman Catholic Archbishop of Washington, the
Government admitted that the regulations impose an additional burden on a selfinsured plan to find a TPA that provides coverage for preventive care if its current
TPA refuses to do so. 2013 WL 6729515, at *21 n.19.24 The Government now
claims that self-insured church plans cannot be compelled to find another TPA if
their current TPA refuses to provide contraceptive coverage even though the
written regulations apply equally to all self-insured plans regardless of whether the
plans are sponsored by a church. See 29 C.F.R. § 2590.715-2713(A)(b).25

24

The district court observed that “the regulations do not spell this out explicitly,
but both parties agree that this is what they will entail.” Roman Catholic
Archbishop of Washington, 2013 WL 6729515, at *21 n.19.
25

The Government’s argument appears to be that a government imposed obligation
may be ignored by a citizen if there is no mechanism for the government to enforce
compliance with the written regulations. The Government also appears to claim
that a legal obligation is a not real one if it cannot be enforced. The Court rejects
both of these suggestions.

59

The Government managed to persuade one district court that execution of
the self-certification form is inconsequential and does not result in an injury-in-fact
for the purposes of Article III standing because a church plan’s TPA will not
provide contraceptive coverage, or can ignore without consequence, the
requirement to provide contraceptive coverage. Roman Catholic Archbishop of
Washington, 2013 WL 6729515, at *26-27. The Government’s argument rests on
the following flawed premises: (1) that the combined effect of all the regulations
that require CENGI and Catholic Charities to execute a self-certification form
cannot be interpreted as rendering the Plaintiffs complicit in a scheme to provide
products and services that they deem offensive to their religious beliefs; and (2)
that the TPA of a church plan will not provide coverage for artificial contraceptives
or sterilization under any circumstances or will not be subject to any enforcement
risk for not doing so.
The first prong of this premise ignores that CENGI and Catholic Charities
are required to execute, and deliver to a TPA, a self-certification form that they
believe violates their sincerely held religious beliefs, and if they do not provide the
certification form to their TPA, oppressive penalties will be imposed on them by
the Government. These undisputed facts alone are sufficient to confer standing
under federal law. Georgia Latino Alliance for Human Rights v. Governor of

60

Georgia, 691 F.3d 1250, 1257–58 (11th Cir. 2012) (noting that in “a
preenforcement, constitutional challenge to a state statute, the injury requirement
may be satisfied by establishing ‘a realistic danger of sustaining direct injury as a
result of the statute’s operation or enforcement.’”) (citations omitted); see also
Roman Catholic Archdiocese of New York, 2013 WL 6579764, at *7 (finding that
the church plan plaintiffs had Article III standing because there was no dispute that
the non-exempt plaintiffs were required to “either comply with the Mandate and
provide the objectionable coverage or self-certify that they qualify for the
accommodation.”); accord Michigan Catholic Conference v. Sebelius, No. 1:13CV-1247, 2013 WL 6838707, at *4 (W.D. Mich. Dec. 27, 2013) (ruling that the
Government’s argument regarding the injury-in-fact requirement for standing is
flawed because the Government ignores plaintiffs’ religious objection to selfcertify and deliver the form to their TPA).
The second prong of the Government’s argument is based on the
assumption that a church plan’s TPA will not provide coverage for contraceptive
services.26 While wishing does not always make it so, the Government here has
not taken a position on whether Meritain Health, the TPA of the Atlanta Plan and
26

In Roman Catholic Archbishop of Washington, the district court credited the
Government’s assumption and “inferred” that a church plan’s TPA would decline
to provide coverage. 2013 WL 6729515, at *25-26 n.22.

61

the Savannah Plan, would provide coverage for artificial contraceptives upon
receiving a self-certification form from CENGI and Catholic Charities. The
Government’s argument addressed in other church plan cases does not apply here.
On the record in this matter, there is no basis to accept the Government’s
assumption that a church plan TPA will not provide coverage for artificial
contraceptive coverage and here the Government has not, to this point, suggested
that Meritain Health will decline to provide coverage for products and services that
are offensive to Plaintiffs’ religious beliefs. Interestingly, and maybe the reason
the Government has abandoned its argument that “no church plan TPA will
provide contraceptive coverage” is the opinion in Reaching Souls Int’l, Inc. v.
Sebelius. In Reaching Souls, the court noted that Highmark—the TPA for the
largest church plan in the country—adopted a plan to carry out the accommodation
and provide contraceptive coverage. No. 5:13-cv-1092-D, 2013 WL 6804259, at
*7 (W.D. Okla. Dec. 20, 2013). It is, at the core, irrelevant whether the
Government has the authority to enforce the contraceptive mandate against a TPA
which undertakes to provide coverage for preventive care, and there is no
legitimate basis to speculate that the TPA will not provide coverage offensive to
the Plaintiffs here. That a TPA of a church plan may voluntarily comply with the
contraceptive mandate and ultimately provide contraceptive services underscores

62

the legitimacy and reality of Plaintiffs’ concern that the self-certification form
causes them to be complicit in a scheme to provide contraceptive services, devices
and products that violate their longstanding and deeply-held religious beliefs.27
The Plaintiffs have sufficiently alleged a judicially cognizable injury, which
is causally related to the burdens imposed by the Government’s Final Rules, and an
injunction issued by the Court that bars the Government from enforcing the
contraceptive mandate would redress the Plaintiffs’ alleged injury. CAMP, 451
F.3d at 1269. The Court concludes that Plaintiffs have standing to bring their
RFRA claim in this action.

27

In Reaching Souls, the Government conceded that the regulations reward TPAs
that agree to provide contraceptive services by offering full reimbursement plus
10%, but only if the TPA receives the self-certification form. Dec. 16, 2013 Hrn’g
Tr. at 96:15-18, No. 5:13-cv-1092-D, 2013 WL 6804259. Considering Highmark’s
decision to provide coverage, it is inconsistent with logic and common sense to
assume that Meritain Health, a commercial subsidiary of one of the largest
insurance companies in the United States, will refuse to provide contraceptive
coverage under all circumstances and decline the 10% premium paid by the
Government. Logic and common sense support that the Government’s promise to
pay a 10% premium on top of the TPA’s coverage costs provides a strong and
perhaps irresistible commercial incentive for the TPA to voluntarily enact plans to
carry out the accommodation and provide contraceptive coverage that is required
to benefit from the 10% premium award. Highmark’s decision also discredits the
inference that the district court adopted in Roman Catholic Archbishop of
Washington.

63

2.

Free Exercise Clause

The Free Exercise Clause of the federal constitution “does not relieve an
individual of the obligation to comply with a valid and neutral law of general
applicability on the ground that the law proscribes (or prescribes) conduct that his
religion prescribes (or proscribes).” Smith, 494 U.S. at 879 (internal citations and
quotation marks omitted). Generally applicable and neutral laws that incidentally
burden religious exercise are not subject to strict scrutiny under the Free Exercise
Clause. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,
531 (1993). A neutral and generally applicable law needs to be justified only by a
rational basis, under which it is presumed constitutional, and the plaintiff bears the
burden to show that the law is not rationally related to a legitimate government
interest. Keeton v. Anderson-Wiley, 664 F.3d 865, 879-80 (11th Cir. 2011).
A law is not neutral if “the object of [the] law is to infringe upon or restrict
practices because of their religious motivation.” Id. (quoting Church of the
Lukumi Babalu Aye, Inc., 508 U.S. at 520). A facially neutral law constitutes a
religious “gerrymander” if religious practice is singled out for discriminatory
treatment, and the object of the law is “the suppression of religion.” Primera
Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward Cnty., 450 F.3d 1295,
1309 (11th Cir. 2006).

64

A law is not generally applicable if the government selectively imposes
burdens “‘only on conduct motivated by religious belief.’” Id. (quoting Church of
the Lukumi Babalu Aye, Inc., 508 U.S. at 544-45) (emphasis added). General
applicability does not require regulations to be universally applicable. See Gillette
v. United States, 401 U.S. 437 (1971); see also Church of the Lukumi Babalu Aye,
Inc., 508 U.S. at 542-43 (observing that “all laws are selective to some extent . . .
[but] inequality results when a legislature decides that the government interests it
seeks to advance are worthy of being pursued only against conduct with a religious
motivation.”). Specific exemptions to a law that are equally available to the
adherents of a religious belief do not affect the law’s general applicability. Ungar
v. New York City Hous. Autho., 363 F. App’x 53, 56 (2d Cir. 2010).
It is not disputed that the contraceptive mandate is neutral on its face.
Plaintiffs allege that the Government enacted the regulations as “part of a
conscious political strategy to marginalize Plaintiffs’ religious views on
contraception by holding them up for ridicule on the national stage.” Pls.’ Mot. for
Prelim. Inj. at 33. To support this allegation, Plaintiffs refer to cherry-picked
statements made by Defendant Sebelius and the chief sponsor of a California
contraception statute. Plaintiffs also charge the IOM committee that drafted the
accommodation with unsupported allegations of invidious discrimination and anti-

65

Catholic bias because the committee heard from “pro-choice” groups “without
inviting any input from groups that oppose government-mandated coverage for
abortion, contraception, and sterilization.” PRDSMF at 4-5. The Plaintiffs argue
that 85% of employer health plans already provide contraceptive coverage, and
contraceptive coverage for the remaining 15% is cost-neutral, so the remaining
“‘gap’” must be “due largely to employers motivated by moral and religious
concerns.” Pls. Mot. Summ. J. at 42. The Plaintiffs thus infer that the
Government’s sole purpose in enacting the contraceptive mandate was “to squelch
the small number of religious holdouts.” Id.
Plaintiffs, however, do not offer any evidence to show that the Final Rules
were directly modeled on the California contraception law. The Final Rules were
“informed by the existing practices of some issuers and religious organizations in
the 28 States where the contraception coverage requirements already exist,
including Hawaii.” 77 Fed. Reg. at 8,728. That the Government examined the
practices of religious organizations in 28 states across the country during the
rulemaking process also shows that the Government considered the views of those
opposed to the contraceptive mandate. The Plaintiffs’ allegations of bias and
prejudice against the IOM committee are also insufficient to demonstrate hostility
towards Catholicism. The IOM committee’s hearings were open to the public and

66

all individuals and organizations were free to submit written comments as they
usually are whenever the Government drafts regulations that enact a complex
statutory scheme. DRPSMF at 5-6. The fact that the IOM committee heard from
“pro-choice” groups does not necessarily bear, in whole or in part, on the
committee members’ personal beliefs.
Plaintiffs’ argument that the Government’s sole purpose in enacting the
contraceptive mandate was “to squelch the small number of religious holdouts,”
which is based on the fact that 85% of employer plans already provide
contraception, and contraceptive coverage for the remaining 15% is cost-neutral,
misses the point. The Plaintiffs’ argument requires the Court to juxtapose
inference upon inference, and it is based on a misunderstanding of how the
contraceptive mandate works. Employers who already provide contraceptive
coverage are now required to provide such coverage without cost-sharing, whereas
they were not required to provide any coverage at all in the past, and there were no
controls on cost-sharing. The contraceptive mandate imposes new obligations on
employers that provided contraceptive coverage in the past as well.
Plaintiffs’ reference to cost-neutrality also does not make sense. The
Government’s cost-neutrality argument supposes that the cost of providing
contraceptive coverage would be offset by the costs from “improvements in

67

women’s health, healthier timing and spacing of pregnancies, and fewer unplanned
pregnancies.” 78 Fed. Reg. at 39, 877. Whether the Government’s cost-neutrality
hypothesis is credible, and whether issuers required to provide contraceptive
coverage who did not provide it in the past agree with the Government’s
hypothesis, currently is unknown. Plaintiffs assume, without the support of any
evidence, that (1) 15% of all employer health plans, with the exception of
“religious holdouts,” did not provide contraceptive coverage in the past only due to
economic reasons, (2) every employer who falls in the remaining 15% of all
employer health plans will now not have qualms with providing contraceptive
coverage because of cost-neutrality, and (3) the remaining “‘gap’” may be “due
largely to employers motivated by moral and religious concerns.” The Plaintiffs
do not present any evidence to support these assumptions or the syllogistic
reasoning that purports to support them.
Plaintiffs next point to Defendant Sebelius’s statement that “we are in a war”
without explaining the context in which the statement was made. Even when read
in context, the speech from which the statement is taken is, at most, a partisan
attack on her political opponents in Congress. Defendant Sebelius’s statement that
“forty percent of unplanned pregnancies end in those women seeking abortions,”
and the rhetorical question she posed “wouldn’t you think that people who want to

68

reduce the number of abortions would champion the cause of widely available,
widely affordable contraceptive services?” may nor may not be “insensitive”
depending on one’s perspective and political disposition. See Roman Catholic
Archbishop of Washington, 2013 WL 6729515, at *29 n.30. The statements, as a
whole, do not evidence an overt discriminatory intent or open display of prejudice.
See Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 540-42. They appear to
be what we often see today – political hyperbole, which is not germane to the legal
analysis required here.
The anecdotal evidence presented by the Plaintiffs lacks legal force and it is
based, at most, on Plaintiffs’ claims of the subjective intent of the drafters of the
Final Rules, and does not evidence the practical effects of the challenged
regulations. In Midrash, the Eleventh Circuit explained that Lukumi’s inquiry into
a law’s neutrality does not turn on whether the drafters exhibited an “invidious
intent in enacting the law.” 366 F.3d at 1234 n.16; see also Church of the Lukumi
Babalu Aye, Inc., 508 U.S. at 558 (observing that the “the First Amendment does
not refer to the purposes for which legislators enact laws, but to the effects of the
laws enacted . . . ”) (Scalia, J., concurring in part and concurring in the judgment);
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986); United States v.
O’Brien, 391 U.S. 367, 383 (1968) (refusing to consider the motives of lawmakers

69

because “it is a familiar principle of constitutional law that this Court will not
strike down an otherwise constitutional statute on the basis of an alleged illicit
motive.”).28
There is no evidence that the contraceptive mandate constitutes a
religious “gerrymander.” This is especially true considering that the only
permanent exemption to the requirement to provide, pay, arrange or refer for
contraception coverage rests with religious institutions like the Atlanta
Archdiocese and the Savannah Diocese. The Government argues that it designed
the accommodation to minimize the burdens placed on the non-exempt Plaintiffs’
religious exercise even though the Government failed to meet RFRA’s heavier
burden to justify the regulations based on a compelling state interest.
This is not a case where the “pattern of exemptions [is carefully designed] to
parallel the pattern of narrow prohibitions” targeted at Plaintiffs’ religious beliefs.
Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 537. The exemption for
grandfathered plans has a limited duration and it applies equally to religious
28

Plaintiffs rely on United States v. O’Brien to point out that Defendants’ “selfserving selection” of statements made by the sponsor of the Weldon Amendment
does not “provide evidentiary support for the underlying factual statement.”
PRDSMF at 46. Yet, Plaintiffs evade the principle of constitutional law
established in O’Brien with respect to their own “self-serving selection” of
statements made by Defendant Sebelius and the chief sponsor of a California
contraception statute.

70

employers and non-religious employers. The exemption for small businesses
applies to religious and non-religious employers alike, and small employers that
offer health care coverage are required to provide contraceptive coverage.
Plaintiffs have failed to show that the contraceptive mandate is not neutral.
Plaintiffs argue that the contraceptive mandate is not generally applicable
because it grants exemptions. Exemptions, even if there are many, do not affect
the contraceptive mandate’s general applicability. The Plaintiffs have failed to
show that the burdens of the contraceptive mandate are imposed only on them, and
the categorized exemptions to the contraceptive mandate are equally available to
the Plaintiffs on the same terms. See Primera, 450 F.3d at 1295; Ungar, 363
F. App’x at 56.
The Court concludes that Plaintiffs have failed to show that the
contraceptive mandate is not rationally related to the Government’s claimed
legitimate interest in increasing women’s access to what the Government
characterizes as preventive care. Plaintiffs’ Motion for Summary Judgment on
their Free Exercise Clause claim is required to be denied.
3.

Compelled Speech

Plaintiffs allege that the contraceptive mandate violates their free speech
rights because it compels them to facilitate counseling related to abortion-inducing

71

products, contraception and sterilization procedures.
The First Amendment prohibits the Government from “telling people what
they must say.” Rumsfeld v. Forum for Academic and Inst. Rights, Inc. (FAIR),
547 U.S. 47, 61 (2006). The First Amendment does not allow the Government to
“force one speaker to host or accommodate another speaker’s message.” Id. at 63
(internal citations omitted). The Supreme Court, however, has found compelledspeech violations only when “the complaining speaker’s own message [is] affected
by the speech it was forced to accommodate.” Id.; see also Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995)
(holding that the State violated the parade organizers’ free speech rights by
compelling them to “include among the marchers a group imparting a message the
organizers do not wish to convey.”); Pacific Gas and Elec. Co. v. Pub. Util.
Comm’n of California, 475 U.S. 1, 20-21 (1986) (holding that the forced inclusion
of a third party’s newsletter in a utility company’s billing envelope violated the
First Amendment because the newsletter interfered with the utility’s own
message). The complaining speaker’s message is affected by hosting a third
party’s speech when there is a risk that the third party’s objectionable message may
be imputed to the complaining speaker. FAIR, 547 U.S. at 63; Hurley, 515 U.S. at
575.

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The First Amendment protects inherently expressive conduct. Texas v.
Johnson, 491 U.S. 397, 406 (1989). In the absence of inherent expressiveness,
compelled speech that is incidental to the regulation of conduct does not infringe
the First Amendment. FAIR, 547 U.S. at 62.
The contraceptive mandate requires a health plan to provide patient
education and counseling for all women with reproductive capacity. Even if the
Court assumes that education and counseling are intended to encourage the use of
contraceptive services, the mere act of authorizing a TPA to provide coverage for
counseling related to contraception does not require the Plaintiffs to say anything.29
Plaintiffs also do not, and cannot, claim that providing health insurance or
contraceptive coverage is inherently expressive. See id. at 64 (rejecting association
of law schools’ argument that allowing military recruiters on campus is inherently
expressive because recruiting “lacks the expressive quality of a parade, a
newsletter, or the editorial page of a newspaper . . . ”).
To the extent that the requirement to provide or facilitate education and
counseling compels any speech, the speech is incidental to the regulation of

29

The Final Rules do not regulate the content of a patient’s communications with
her physician. The plain terms of the Final Rules are viewpoint neutral, but the
Plaintiffs insist that the counseling is intended to encourage the use of artificial
contraceptives.

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conduct, which does not infringe the Free Speech Clause. The Court also finds
that there is no credible basis to say that a doctor’s message regarding whether to
use artificial contraceptives may be imputed to the Plaintiffs given their steadfast
and longstanding opposition to contraception. Plaintiffs remain free to voice their
opposition to the use of contraceptive services as they see fit. See id. at 65
(holding that “nothing about recruiting suggests that law schools agree with any
speech by recruiters and nothing in the Solomon Amendment restricts what the law
schools may say about the military’s policies.”).30
Plaintiffs contend that the certification form compels them to engage in
speech that “triggers provision of the objectionable products and services, and
deprives them of the freedom to speak on the issue of abortion and contraception
on their own terms, outside the confines of the Government’s regulatory scheme.”
Pls. Mot. for Prelim. Inj. at 35. To support this contention, Plaintiffs rely on the
Supreme Court’s decisions in Arizona Free Enter. Club’s Freedom Club PAC v.
Bennet, — U.S. —, 131 S. Ct. 2806 (2011) and Agency for Int’l Dev. v. Alliance
for Open Society Int’l, Inc., — U.S. —, 133 S. Ct. 2321 (2013). Plaintiffs
misapply the holdings in Bennet and Agency for Int’l Dev..
30

There appears to be no prohibition that constrains the Plaintiffs from counseling
against the use of contraceptive products or services, including for religious or
moral reasons.

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In Bennet, the majority found that Arizona’s candidate matching funds
process substantially burdened a political candidate’s speech without a compelling
interest, in violation of the First Amendment. 131 S. Ct. at 2813. Under Arizona
law, a publicly-financed political candidate was entitled to matching funds from
the State for every dollar spent by an opposing, privately-funded candidate. Id.
The Arizona law also entitled the publicly-financed political candidate to matching
funds from the State for every dollar spent by independent expenditure groups on
behalf of the privately-financed candidate (or in opposition to the publiclyfinanced candidate). Id. A majority of the Supreme Court concluded that if a
privately-financed candidate or an independent expenditure group engaged in
political speech by spending campaign funds in excess of the initial funds available
to a publicly-financed candidate, the State penalized the privately-financed
candidate’s speech with a dollar for dollar cash subsidy to his publicly-financed
opponent. Id. at 2818. In the majority’s view, the cash subsidy given by the State
to the publicly-financed candidate “impose[d] an unprecedented penalty on any
candidate who robustly exercise[d] [his] First Amendment rights.” Id. (citations
and quotation marks omitted). Here, the self-certification form does not penalize
or inhibit any person’s speech. Plaintiffs do not dispute that the contents of the
self-certification form are consistent with their beliefs even if they believe that the

75

form makes them complicit in a scheme to provide contraceptive products and
services. The form does not require the Plaintiffs to adopt a particular belief or
endorse a message with which they disagree.
For these reasons, Plaintiffs’ reliance on Agency for Int’l Dev. is also
misplaced. In that case, the HHS required nongovernmental organizations that
received funds from Congress to eradicate HIV/AIDS to state, in an award
document, their opposition to prostitution and sex trafficking. 133 S. Ct. at 2326.
The plaintiffs argued that the funding condition required them “to censor their
privately funded discussions in publications, at conferences, and in other forums
about how best to prevent the spread of HIV/AIDS among prostitutes.” Id. The
Supreme Court held that the regulations required the Plaintiffs to “pledge
allegiance to the Government’s policy of eradicating prostitution” and compelled
“as a condition of federal funding the affirmation of a belief that by its nature
cannot be confined within the scope of the Government program. In so doing, it
violate[d] the First Amendment . . . .” Id. at 2332. The self-certification form does
not require the Plaintiffs to “censor their discussions.” Id. at 2326. It also does not
require the Plaintiffs to “pledge allegiance to the Government’s policy” of
increasing access to contraceptive products and services. Id. at 2332. The
compulsion to fill out a form and express statements that are consistent with

76

Plaintiffs’ beliefs is merely incidental to the regulation of conduct—the conduct at
issue here is the provision of contraceptive coverage, which is not inherently
expressive.
Plaintiffs have failed to show that the contraceptive mandate or the
accommodation compels them to speak in violation of the Free Speech Clause.
Plaintiffs’ Motion for Summary Judgment regarding their Compelled Speech claim
is required to be denied.
4.

“Gag-Order”31

29 C.F.R. § 2590.715-2713(A)(b)(1)(iii) provides that once an eligible
organization self-certifies and delivers the certification form to its TPA, “the
eligible organization must not, directly or indirectly, seek to interfere with a
[TPA’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 [TPA’s] decision to make any such arrangements.” (emphasis
added).
“Above all else, the First Amendment means that government has no power
31

This section of the Court’s order applies only to CENGI and Catholic Charities.
The Diocesan Plaintiffs cannot state a First Amendment claim because they are
entirely exempt from the ACA, and the challenged restriction on speech applies
only to “eligible organizations” that are required to self-certify and deliver the
certification form to their TPA.

77

to restrict expression because of its message, its ideas, its subject matter, or its
content.” Police Dep’t of the City of Chicago v. Mosley, 408 U.S. 92, 95 (1970).
“As a general rule, laws that by their terms distinguish favored speech from
disfavored speech on the basis of the ideas or views expressed are content-based.”
Turner Broad. Sys. Inc. v. Federal Commc’n Comm’n, 512 U.S. 622, 643 (1994).
“Content-based regulations are presumptively invalid.” R.A.V. v. City of St. Paul,
505 U.S. 377, 382 (1992). Content-based restrictions are subject to strict scrutiny,
and the Government must show that the regulation furthers a compelling interest
that is narrowly tailored to achieve that interest. Solantic, LLC v. City of Neptune
Beach, 410 F.3d 1250, 1258 (11th Cir. 2005).
The Court finds that the second half of 29 C.F.R. § 2590.7152713(A)(b)(1)(iii) is a presumptively invalid, content-based restriction on the nonexempt Plaintiffs’ right to speak. The Government has imposed a blanket ban on
CENGI and Catholic Charities prohibiting them from a wide spectrum of
communications, including merely advising or persuading a TPA to not provide
contraceptive coverage. The Government has not offered any explanation for
justifying the infringement of the non-exempt Plaintiffs’ freedom of speech. The
Government chooses to repeatedly state that the regulation only prohibits an
eligible organization from interfering with a TPA’s decision to provide

78

contraception coverage through threats or economic coercion. The First
Amendment does not protect economic threats that interfere with the rights of
others. NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969).32 Plaintiffs’ free
speech claim is based on the sweeping ban imposed by the Government that
prevents them from “directly or indirectly influencing” their TPA not to provide
contraceptive coverage. The Government does not offer any reasonable
explanation for placing such a blanket, bright-line content-based restriction on
Plaintiffs’ freedom of speech.
The Government offers the tepid defense of the ban by pointing to another
regulation, which states that “nothing in these final regulations prohibits an eligible
organization from expressing its opposition to the use of contraception.” 78 Fed.
Reg. at 39,880 n.41. The reliance on this regulatory footnote is, at best,
misleading. 29 C.F.R. § 2590.715-2713(A)(b)(1)(iii) explicitly prohibits the nonexempt Plaintiffs from expressing their opposition to the use of contraception to
their TPA. This directly violates the Plaintiffs’ free speech rights and there is no
justification for it. Plaintiffs are entitled to summary judgment on their claim that
the Final Rules unconstitutionally restrict their freedom of speech.
32

Plaintiffs, however, do not challenge the first half of 29 C.F.R. § 2590.7152713(A)(b)(1)(iii), which prohibits them from placing economic pressure on the
TPA.

79

5.

Establishment Clause

Plaintiffs argue that the religious employer exemption in the Final Rules
violates the Establishment Clause because the Government grants an exception to
“houses of worship,” “integrated auxiliaries,” and “religious orders,” but does not
exempt other religious organizations like CENGI and Catholic Charities that
“exercise their religion” through education and charity. Pls.’ Reply in support of
Motion for Summ. J. at 25. The Establishment Clause to the First Amendment
provides that “Congress shall make no law respecting an establishment of
religion.” U.S. Const. amend. I. The “clearest command of the Establishment
Clause is that one religious denomination cannot be officially preferred over
another.” Larson v. Valente, 456 U.S. 228, 244 (1982).
The religious employer exemption applies equally to all denominations and
religions that oppose contraception. Line drawing by the Government based on the
structure and purpose of religious organizations is permissible under the
Establishment Clause. Walz v. Tax Comm’n of the City of N.Y., 397 U.S. 664,
672-73 (1970) (upholding a religious exemption for property taxes because the
exemption did not “single[] out one particular church or religious group or even
churches as such; rather it has granted [an] exemption to all houses of religious
worship within a broad class of property owned by non-profit, quasi public

80

corporations.”); Droz v. Comm’r of Internal Revenue Serv., 48 F.3d 1120, 1124
(9th Cir. 1995) (upholding tax exemption because the Government can permissibly
distinguish among individuals who share identical religious beliefs).33
Plaintiffs assert that CENGI and Catholic Charities deserve special treatment
because they “exercise their religion” through education and charity. All religious
denominations, Catholic and non-Catholic alike, have educational and charitable
arms. The line drawn here is based on the structure and purpose of the religious
organization, which is permissible under the Establishment Clause, and the
religious employer exemption does not make distinctions based on religious
affiliation. It is available to all religions. Plaintiffs have failed to state a
cognizable claim based on the Establishment Clause, and their Motion for
Summary Judgment on the Establishment Clause claim is denied. The
Government’s Motion for Summary Judgment regarding the Plaintiffs’

33

Plaintiffs claim that in Colorado Christian Univ. v. Weaver, 543 F.3d 1245 (10th
Cir. 2008), the Tenth Circuit struck down a statute that discriminated against
religious organizations based on their organization and purpose. It did not. In
Weaver, the statute discriminated among religious denominations because it
favored Catholic and Methodist schools, but disfavored an evangelical Protestant
university and a Buddhist institution. Id. at 1258. The Tenth Circuit concluded
that the statute facially discriminated among religious denominations by providing
scholarships to some sectarian schools, and declining to provide scholarships to
schools that the Government deemed as “pervasively sectarian.” Id.

81

Establishment Clause claim is granted.34
6.

Internal Church Governance

Plaintiffs argue that the contraceptive mandate violates the Religion Clauses
of the First Amendment because it “splits” the Catholic Church into two different
entities—one entity exempt from the mandate and the other entity compelled to
facilitate contraceptive coverage through the accommodation. Plaintiffs also allege
that the contraceptive mandate interferes with the internal decisions of the Catholic
Church because it prevents the Atlanta Archdiocese and the Savannah Diocese
from supervising CENGI and Catholic Charities. According to the Plaintiffs, if
CENGI and Catholic Charities are required to comply with the contraceptive
mandate, the Diocesan Plaintiffs cannot ensure that all of their affiliates are
provided with health care plans that are consistent with Catholic beliefs.
34

In their Second Amended Complaint, Plaintiffs also alleged that the religious
employer exemption violates the Establishment Clause because the definition of a
religious employer in the Final Rules is based on an intrusive 14-factor test applied
by the Internal Revenue Service (“IRS”). The Government moved to dismiss this
claim in its Motion to Dismiss, or in the alternative, for Summary Judgment.
Plaintiffs did not oppose the Government’s Motion. In opposing a motion for
summary judgment, a “‘party may not rely on his pleadings to avoid judgment
against him.’” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599
(11th Cir. 1995) (quoting Ryan v. Int’l Union of Operating Eng’rs, Local 675
(11th Cir. 1990)). “Grounds alleged in the complaint but not relied upon in
summary judgment are deemed abandoned.” Id. (internal citations omitted). Here,
Plaintiffs abandoned their claim related to the 14-factor test applied by the IRS.
Defendants are thus entitled to summary judgment on Plaintiffs’ claims regarding
the 14-factor test applied by the IRS.
82

The Court agrees with the Government that this claim restates the Diocesan
Plaintiffs’ RFRA claim, and the Court is not persuaded by it for the reasons stated
in Section II(B)(1)(i)(b)(iii) of this Order. See also Roman Catholic Archdiocese
of New York, 2013 WL 6579764, at *20. The Religion Clauses of the First
Amendment prohibit the Government from interfering with the internal decisions
of a Church regarding ecclesiastical matters.35 The Plaintiffs do not provide
authority to support their claim that the decisions of a Church regarding its health
care plan are protected by the Religion Clauses. Plaintiffs do not provide such
authority because churches do not have an unfettered right to be free from
government interference.
The Religion Clauses protect from government interference in ecclesiastical
matters such as the freedom to select clergy, choose a bishop, and the resolution of
disputes between different factions of a church over control of property.
Hosanna-Tabor, 132 S. Ct. at 704-05. Plaintiffs’ reliance on Hossana-Tabor to
support their novel claims of interference in internal church decisions is misplaced.
35

The Religion Clauses of the First Amendment provide that “Congress shall make
no law respecting an establishment of religion, or prohibiting the free exercise
thereof.” U.S. Const. amend. I. “By forbidding the ‘establishment of religion’ and
guaranteeing the ‘free exercise thereof,’ the Religion Clauses ensured that the new
Federal Government—unlike the English Crown—would have no role in filling
ecclesiastical offices.” Hosanna-Tabor Evangelical Lutheran Church and School v.
Equal Emp’t Opportunity Comm’n, — U.S. —, 132 S. Ct. 694, 703 (2013).

83

In Hossana-Tabor, the Supreme Court explicitly limited its holding to bar a
minister’s employment discrimination claim against a Church that terminated her.
Id. at 710. The Supreme Court stated that “we express no view on whether the
exception bars other types of suits, including actions by employees alleging breach
of contract or tortious conduct by their religious employers.” Id. The “ministerial
exception” is a well-established principle of constitutional law that bars
employment discrimination claims brought against religious institutions by its
ministers. Gellington v. Christian Methodist Episcopal Church, Inc., 203 F.3d
1299, 1301-04 (11th Cir. 2000). It remains unclear whether such a wellestablished rule of law extends to a claim brought by a minister that falls outside
the employment discrimination context. Hossana-Tabor cannot be extended to
apply to novel theories of interference in church decisions when the boundaries of
a well-established exception for ecclesiastical matters is itself an open question left
for the future. The Court concludes that Plaintiffs’ Motion for Summary Judgment
regarding their internal church governance claim is required to be denied.
7.

Delegation of Authority

Plaintiffs argue that the ACA unconstitutionally delegates legislative power
to the HHS because the ACA does not establish any standards to “which the HHS
must adhere in determining which products and services constitute “‘preventive

84

care.’” Pls.’ Mot. for Summ. J. at 54. Congress may delegate its legislative
authority to another branch of government, so long as Congress “lay[s] down by
legislative act an intelligible principle to which the person or body authorized to
[act] is directed to conform.” Panama Refining Co. v. Ryan, 293 U.S. 388, 421
(1935). Congress has the power to delegate its authority to a federal agency under
“broad general directives.” Mistretta v. United States, 488 U.S. 361, 372 (1989)
(quoting Opp Cotton Mills, Inc. v. Administrator, Wage and Hour Div. of Dept. of
Labor, 312 U.S. 126, 145 (1941) (“In an increasingly complex society Congress
obviously could not perform its functions if it were obliged to find all the facts
subsidiary to the basic conclusions which support the defined legislative policy.”))
(emphasis added).
The Women’s Health Amendment of the ACA required the HRSA to
provide comprehensive guidelines regarding preventive care and screenings for
women. 42 U.S.C. § 300gg-13(a)(4). This “broad general directive” is
indistinguishable from the delegations of authority previously upheld by the
Supreme Court. In Yakus v. United States, 321 U.S. 414 (1944), the Supreme
Court upheld congressional delegation to an agency to fix prices in a “fair and
equitable manner,” and in Whitman v. American Trucking Ass’ns, Inc., 531 U.S.
457 (2001), the Supreme Court upheld congressional delegation to an agency to set

85

standards “requisite to protect the public health.”
Plaintiffs insist that the “mandate must fall” because the “purported standard
[in the ACA] supplies no ‘intelligible principle’ for determining what constitutes
‘preventive care’ in the first instance.” Pls.’ Reply in support of Pls.’ Mot. for
Summ. J. at 26. This is a shallow claim that contradicts the Supreme Court’s
decisions. See Whitman, 531 U.S. at 474 (explaining that “[but] even in sweeping
regulatory schemes we have never demanded, as the Court of Appeals did here,
that statutes provide a ‘determinate criterion’ for saying ‘how much [of the
regulated harm] is too much.’”); see also Mistretta, 488 U.S. at 654; Opp Cotton
Mills, Inc., 312 U.S. at 145. Plaintiffs’ proposed rule of law demands an exacting
standard to be established for agency action that misconstrues the nondelegation
doctrine. The Constitution does not require Congress to identify each element of
its broad authority with the specificity that Plaintiffs demand. The true nature of
Plaintiffs’ complaint is directed at jurisprudence related to the intelligible principle
itself. The Court, therefore, denies the Plaintiffs’ Motion for Summary Judgment
regarding the HRSA’s authority to draft recommendations concerning preventive
care for women. The Defendants’ Motion for Summary Judgment on this claim is
granted.

86

8.

Administrative Procedures Act

Plaintiffs alleged in their Complaint that the contraceptive mandate and the
accommodation violate the APA because they conflict with the Weldon
Amendment. The Weldon Amendment provides that “[n]one of the funds made
available in this Act may be made available to a Federal agency or program, or to a
State or local government, if such agency, program or government subjects any
institutional or individual health care entity to discrimination on the basis that the
health care entity does not provide, pay for, provide coverage of, or refer for
abortions.” Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F,
tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011). Plaintiffs did not raise this claim in
their Motion for Summary Judgment. Defendants moved to dismiss, and in the
alternative, moved for summary judgment on Plaintiffs’ APA claim. Plaintiffs did
not respond to Defendants’ Motion to Dismiss, and in the alternative, for Summary
Judgment on Plaintiffs’ APA claim. Defendants are entitled to summary judgment
because Plaintiffs abandoned their APA claim. See Resolution Trust Corp.,
43 F.3d at 599.
9.

The Remaining Requirements for Injunctive Relief

“The loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373

87

(1976). A violation of the RFRA also establishes irreparable injury. Hobby
Lobby, 723 F.3d at 1146. The Government’s interest in enforcing the
contraceptive mandate against the non-exempt Plaintiffs does not outweigh the
interests of the non-exempt Plaintiffs because the Government has not shown a
compelling interest that is narrowly restricted to achieve its goals. A permanent
injunction preserves the status quo whereas enforcement of the contraceptive
mandate violates the non-exempt Plaintiffs’ statutory and constitutional rights. See
Roman Catholic Archdiocese of New York, 2013 WL 6579764, at *21 (internal
citations omitted). The public’s interest is best served by enjoining regulations that
violate the RFRA and infringe on constitutional rights. Hobby Lobby, 723 F.3d at
1147.
III.

CONCLUSION
For the reasons discussed in this Order, the Court determines that the

Government is enjoined from enforcing the contraceptive mandate and the Final
Rules, including the requirement to execute a self-certification form, and deliver
the form to a TPA, against CENGI and Catholic Charities because enforcement of
the Final Rules would violate the RFRA. The Government also is enjoined from
enforcing against CENGI and Catholic Charities the requirements of 29 C.F.R.
§ 2590.715-2713(A)(b)(1)(iii), which prohibits non-exempt organizations from

88

seeking to influence their TPA’s decision regarding the provision of contraceptive
products and services, because it is an unconstitutional, content-based restriction
on CENGI’s and Catholic Charities’ right to the freedom of speech protected by
the First Amendment.
Because the Atlanta Archdiocese and the Savannah Diocese are entirely
exempt from the contraceptive mandate and the Final Rules, and the Government
does not dispute that the Diocesan Plaintiffs are not required to comply with the
requirement to execute a self-certification form and deliver the form to Meritain
Health, it is unnecessary to separately enjoin enforcement of the contraceptive
mandate and the Final Rules against the Diocesan Plaintiffs.36
Accordingly,
IT IS HEREBY ORDERED that the Defendants are PERMANENTLY
RESTRAINED and ENJOINED from enforcing the contraceptive mandate
against Plaintiffs CENGI and Catholic Charities.
IT IS FURTHER ORDERED that the Government is PERMANENTLY

36

The Savannah Diocese operates its schools and charitable mission within the
Diocese, rather than through separate entities like CENGI and Catholic Charities.
Because the Savannah Diocese is exempt from the contraceptive mandate and the
requirements to comply with the Final Rules, it is unnecessary to separately enjoin
enforcement of the contraceptive mandate and the Final Rules against these
activities of the Savannah Diocese.

89

RESTRAINED and ENJOINED from enforcing the requirement against CENGI
and Catholic Charities to execute and deliver a self-certification form to their TPA.
IT IS FURTHER ORDERED that Plaintiff CENGI and Plaintiff Catholic
Charities’ Motion for Summary Judgment is GRANTED in part and DENIED in
part [78]. CENGI and Catholic Charities’ Motion for Summary Judgment on their
RFRA claim is GRANTED. Summary Judgment on the claim that the
accommodation violates the First Amendment because it places a content-based
restriction on their freedom of speech is also GRANTED. The Motion for
Summary Judgment on their remaining claims is DENIED.
IT IS FURTHER ORDERED that the Motion for Summary Judgment filed
by Plaintiffs Atlanta Archdiocese, Savannah Diocese, Archbishop Gregory and
Bishop Hartmayer is DENIED AS MOOT with respect to all claims, including
claims based on the RFRA and the federal constitution, because, as the
Government acknowledges, these Plaintiffs are exempt from the contraceptive
mandate and the requirements of the accommodation [78].
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss or, in
the alternative, for Summary Judgment regarding the Plaintiffs’ claims based on
the Establishment Clause, the APA, and the unconstitutional delegation of
congressional authority is GRANTED [64].

90

IT IS FURTHER ORDERED that Plaintiffs’ Motion for Preliminary
Injunction is DENIED AS MOOT [57].

SO ORDERED this 26th day of March, 2014.

91