Weingartz Supply Company et al v. Sebelius et al
Filing
39
ORDER granting 13 Plaintiff Daniel Weingartz and Weingartz Supply Company's Motion for Preliminary Injunction and Denying without prejudice Plaintiff Legatus's Motion for Preliminary Injunction.. Signed by District Judge Robert H. Cleland. (LWag)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LEGATUS, et al.,
Plaintiffs,
v.
Case No. 12-12061
KATHLEEN SEBELIUS, et al.,
Defendants.
/
ORDER GRANTING PLAINTIFFS DANIEL WEINGARTZ’S AND WEINGARTZ
SUPPLY COMPANY’S MOTION FOR PRELIMINARY INJUNCTION
AND
DENYING WITHOUT PREJUDICE PLAINTIFF LEGATUS’S MOTION FOR
PRELIMINARY INJUNCTION
Plaintiffs Legatus, Daniel Weingartz, and Weingartz Supply Company, all
adherents to the tenets of Roman Catholicism, move for a preliminary injunction under
the Religious Freedom Restoration Act. They each seek to enjoin the Government from
enforcing the provision of the Patient Protection and Affordable Care Act that requires
all group health plans, other than those that are “grandfathered” and exempt, to provide
the full range of FDA-approved contraceptive methods without cost sharing.
The motion has been fully briefed, and a hearing was held on September 28,
2012. For the following reasons, the preliminary injunction is granted as to Daniel
Weingartz and Weingartz Supply Company and denied without prejudice as to Legatus.
I. BACKGROUND
The Patient Protection and Affordable Care Act (“ACA”) requires all group health
plans and health insurance issuers that offer non-grandfathered group or individual
health coverage to provide coverage to women without cost sharing that includes
“preventive care and screenings . . . as provided for in the comprehensive guidelines
supported by the Health Resources and Services Administration [‘HRSA’].” 42 U.S.C.
§ 300gg-13(a)(4). “Without cost sharing” in this context means free of cost to the
patient.
The Government issued interim final regulations implementing this preventive
services coverage provision on July 19, 2010, requiring a group health plan or health
insurance issuer offering non-grandfathered health coverage to provide, without cost
sharing, the recommended preventive services for plan years beginning on or after one
year from the date the recommendation is issued (“HRSA Mandate”). 75. Fed. Reg.
41,728–41,729.
The HRSA enlisted the Institute of Medicine (“IOM”), an independent, non-profit
organization established under the National Academy of Sciences, to develop
recommendations for the HRSA guidelines. See Institute of Medicine, Clinical Services
for Women: Closing the Gaps 2 (2011) (“IOM Rep.”). The IOM issued a report that
recommended the HRSA guidelines include, among other things, “the full range of Food
and Drug Administration [‘FDA’]-approved contraceptive methods, sterilization
procedures, and patient and education counseling for women with reproductive
capacity.” Id. at 10. FDA-approved contraceptive methods, in turn, are found to include
oral contraceptives, “emergency contraceptive” abortifacients (such as “Plan B” and
“Ella”), and intrauterine devices. FDA, Birth Control Guide 10–12, 16–20 (2012),
available at http:// www.fda.gov/ ForConsumers/ ByAudience/ ForWomen/ ucm118465.
On August 1, 2011, the HRSA adopted the IOM’s recommendations in full. See HRSA,
2
Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://
www.hrsa.gov/ womensguidelines/ (last visited Oct. 10, 2012). On that same date,
Health and Human Services, the Department of Health, and the Department of Labor
issued an amendment to the interim final rule that allowed the HRSA to exempt
“religious employers” from covering contraceptive services. 76 Fed. Reg. 46,623. A
religious employer was defined as one that:
(1) [h]as the inculcation of religious values as its purpose; (2) primarily
employs persons who share its religious tenets; (3) primarily serves persons
who share its religious tenets; and (4) is a non-profit organization under
section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the [Internal
Revenue] Code.
Id. The HRSA so exempted organizations that qualified as a religious employer. 77
Fed. Reg. 8,727. Consequently, the HRSA Mandate for non-exempted and nongrandfathered plans would take effect for plan years beginning on or after August 1,
2012. See 76 Fed. Reg. 46,621.
After allowing for public comment, the Government in February 2012 adopted in
final regulations the definition of “religious employer” as described in the amended
interim final regulations. 77 Fed. Reg. 8,727. At that same time, a temporary
enforcement safe harbor was created to develop and propose changes to the final
regulations for the purpose of satisfying two goals: “providing contraceptive coverage
without cost-sharing to individuals who want it and accommodating non-exempted, nonprofit organizations’ religious objections to covering contraceptive services.” Id. The
temporary safe harbor is in effect until the first plan year that begins on or after August
1, 2013. Department of Health and Human Services, Guidance on the Temporary
3
Enforcement Safe Harbor 3 (Aug. 15, 2012), available at http:// cciio.cms.gov/
resources/ files/ prev-services-guidance-08152012.pdf. The Government explained:
Neither employers, nor group health plans, nor group health insurance
issuers will be subject to any enforcement action by the Departments for
failing to cover some or all of the recommended contraceptive services
without cost sharing in non-exempted, non-grandfathered group health plans
established or maintained by an organization . . . meeting all of the following
criteria:
(1) The organization is organized and operates as a non-profit entity.
(2) From February 10, 2012 onward, the group health plan established
or maintained by the organization has consistently not provided all or the
same subset of the contraceptive coverage otherwise required at any point,
consistent with any applicable State law, because of the religious beliefs of
the organization.
(3) [T]he group health plan established or maintained by the
organization (or another entity on behalf of the plan, such as a health
insurance issuer or third-party administrator) provides to plan participants a
prescribed notice indicating that some or all contraceptive coverage will not
be provided under the plan for the first plan year beginning on or after August
1, 2012.
(4) The organization self-certifies that it satisfies criteria 1-3 above,
and documents its self-certification in accordance with procedures detailed
herein.
Id.
In accordance with the temporary safe harbor, the Government on March 21,
2012, began the process to amend the final regulations by issuing an Advance Notice of
Proposed Rulemaking (“ANPRM”). 77 Fed. Reg. 16,503. The ANPRM “present[ed]
questions and ideas,” as well as solicited comment, “on how to provide women access
to the important preventive services at issue without cost sharing while accommodating
religious liberty interests.” Id. The Government has received comments and has
asserted that it will publish a notice of proposed rulemaking, followed by additional
public comment. Id. The Government offers that amendments will be finalized before
the end of the temporary enforcement safe harbor on August 1, 2013. Id.
4
Plaintiff Legatus is a non-profit organization whose mission is “[t]o study, live and
spread the Catholic faith in our business, professional and personal lives.” (Pls.’ Compl.
¶¶ 23–24, Dkt. # 1.) Legatus is comprised of more than 4,000 members including
individuals and professional organizations. (Id. ¶¶ 26–27.) Plaintiff Daniel Weingartz
(“Weingartz”) is the president of Plaintiff Weingartz Supply Company (“Weingartz
Supply Co.”), a secular, for-profit, family owned and operated corporation that sells
outdoor power equipment and employs over 170 employees. (Decl. Daniel Weingartz
¶¶ 3–4, Dkt. # 13-3.) Weingartz is a practicing Catholic and active member of Legatus.
(Id. ¶¶ 7, 9.) It is contrary to Catholic doctrine to use, pay for, or support the use of
contraception. (Id. ¶ 15.) In accordance with his religious beliefs, Weingartz designed a
health insurance policy for the employees of Weingartz Supply Co. to specifically
exclude contraception. (Pls.’ Compl. ¶ 45, Dkt. # 1.) Legatus engineered a similar
health insurance policy that excludes contraception for its employees in observance of
Catholic teaching. (Id. ¶ 37.) Plaintiffs argue that the HRSA Mandate, which forces
them to choose between providing health insurance that includes contraception without
cost-sharing or incurring a financial penalty,1 substantially burdens their free exercise of
religion. (Id. ¶ 89.) Under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C.
1
If an employer with at least 51 full-time employees does not offer health care
coverage to its employees, then beginning in 2014 the employer is assessed an annual
penalty of $2,000 multiplied by the number of full-time employees minus 30. Hinda
Chaikind & Chris L. Peterson, Summary of Potential Employer Penalties Under the
Patient Protection and Affordable Care Act (PPACA), Congressional Research Service
(2010), available at http:// www.shrm.org/ hrdisciplines/ benefits/ Documents/
EmployerPenalties.pdf.
5
§ 2000bb, Plaintiffs seek a preliminary injunction to prohibit the Government from
enforcing the HRSA Mandate against them.
II. STANDARD
Plaintiffs bring their preliminary injunction motion under RFRA and not the Free
Exercise Clause of the First Amendment.2 However, because RFRA and the Free
Exercise Clause both seek to protect the same liberty interest—the free practice of
one’s religion—the court will take into account the jurisprudence of preliminary
injunctions concerning First Amendment rights in deciding the present motion.
A preliminary injunction “is an extraordinary remedy which should be granted only
if the movant carries his or her burden of proving that the circumstances clearly demand
it.” Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir.
2002). Courts should consider: “(1) the likelihood that the movant will succeed on the
merits; (2) whether the movant will suffer irreparable harm without the injunction; (3) the
probability that granting the injunction will cause substantial harm to others; and (4)
whether the public interest will be advanced by issuing the injunction.” Jones v. Caruso,
569 F.3d 258, 265 (6th Cir. 2009). “These factors are not prerequisites but are factors
that are to be balanced against each other.” Overstreet, 305 F.3d at 573. But “when a
party seeks a preliminary injunction on the basis of a potential violation of the First
Amendment, the likelihood of success on the merits often will be the determinative
factor.” Jones, 569 F.3d at 265. In sum, “because the questions of harm to the parties
2
The Free Exercise Clause states, “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. Const.
amend. I.
6
and the public interest cannot be addressed properly in the First Amendment context
without first determining if there is a constitutional violation, the crucial inquiry often is . .
. whether the [regulation] at issue is likely to be found constitutional.” Connection
Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998).
III. DISCUSSION
A. Standing
As an initial matter, the court must determine whether Plaintiffs have standing to
seek a preliminary injunction under RFRA enjoining the enforcement of the HRSA
Mandate. It is beyond question that Weingartz, as an individual, does. See 42 U.S.C. §
2000bb-1(a). The court will address in turn whether Weingartz Supply Co. and Legatus
have standing.
In order to establish standing, three elements must be present: (1) the plaintiff
suffered an “injury in fact,” (2) there is a causal connection between the injury and the
conduct complained of, and (3) it must be “likely” that the injury will be “redressed by a
favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). An
“injury in fact” is “an invasion of a legally protected interest which is (a) concrete or
particularized and (b) actual or imminent, not conjectural or hypothetical.” Id. at 560
(internal citations omitted).
1. Weingartz Supply Co.
Weingartz Supply Co. is a secular, for-profit company that sells outdoor power
equipment. Weingartz Supply Co. asserts, without contradiction, that it is a “family
owned and operated business,” (Pls.’ Compl. ¶ 74, Dkt. # 1.), led by Daniel Weingartz
as its president, (Id. ¶ 41).
7
Neither the Supreme Court nor the Sixth Circuit has held that a for-profit
corporation can assert its own rights under the Free Exercise Clause. The text of RFRA
extends its protections only to individuals, not corporations. See 42 U.S.C. § 2000bb1(a) (“Government shall not substantially burden a person’s exercise of religion . . . .”)
(emphasis added). However, at least one Circuit has held that “a corporation has
standing to assert the free exercise rights of its owners” when that corporation is closely
held and “‘merely the instrument through and by which [the plaintiffs] exercise their
religious beliefs.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1120 (9th Cir. 2009)
(quoting EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 619 (9th Cir. 1988); see
also Townley, 859 F.2d at 620 (holding that a corporation “present[ed] no rights of its
own different from or greater than its owners’ rights,” “is an extension of the beliefs of
[its owners], and for all purposes, the beliefs of [its owners] are the beliefs and tenets of
the [corporation],” and that the corporation had standing to assert its owners’ Free
Exercise rights). Further, the Supreme Court has famously recognized that First
Amendment free-speech protection extends directly to corporations. Citizens United v.
Fed. Election Comm’n, 558 U.S. 310, 130 S. Ct. 876, 900 (2010) (“The Court has . . .
rejected the argument that political speech of corporations or other associations should
be treated differently under the First Amendment simply because such associations are
not ‘natural persons.’”). It appears to the court that, although it is first impression for this
Circuit, a strong case for standing, at least on a Stormans pass-through instrumentality
theory, is sustainable.
Weingartz Supply Co. was founded as a family business and remains a closely
held family corporation. Accordingly, the court need not, and does not, decide whether
8
Weingartz Supply Co., as a for-profit business, has an independant First Amendment
right to free exercise of religion. For the purposes of the pending motion, however,
Weingartz Supply Co. may exercise standing in order to assert the free exercise rights
of its president, Daniel Weingartz, being identified as “his company.” (Pls.’ Compl. ¶ 45,
Dkt. # 1.)
2. Legatus
The Government argues that Legatus has not suffered an injury in fact because
the injury, at this time, is attenuated and speculative. Under the temporary safe harbor,
the Government asserts that it will not take any enforcement action against nonexempted, non-grandfathered health group plans that fail to cover some or all of the
recommended contraceptive services if the plan is sponsored by an organization that
meets four criteria:
(1) The organization is organized and operates as a non-profit entity.
(2) From February 10, 2012 onward, the group health plan established
or maintained by the organization has consistently not provided all or the
same subset of the contraceptive coverage otherwise required at any point,
consistent with any applicable State law, because of the religious beliefs of
the organization.
(3) [T]he group health plan established or maintained by the
organization (or another entity on behalf of the plan, such as a health
insurance issuer or third-party administrator) provides to plan participants a
prescribed notice indicating that some or all contraceptive coverage will not
be provided under the plan for the first plan year beginning on or after August
1, 2012.
(4) The organization self-certifies that it satisfies criteria 1-3 above,
and documents its self-certification in accordance with procedures detailed
herein.
Department of Health and Human Services, Guidance on the Temporary Enforcement
Safe Harbor 3 (Aug. 15, 2012), available at http:// cciio.cms.gov/ resources/ files/ prev-
9
services-guidance-08152012.pdf. The safe harbor is in effect until the first plan year
that begins on or after August 1, 2013.
During the safe harbor period, the Government argues that it intends to amend
the preventive services coverage regulations to accomplish the very purpose that
Legatus brings its suit—to accommodate, presumably by exemption, non-exempt, nongrandfathered religious organizations’ religious objections to covering contraceptive
services. The Government began this process in March 2012 when it published the
ANPRM.
Legatus, as a non-profit organization that has not provided contraceptive
coverage from February 10, 2012, onward, qualifies for the safe harbor protection.
Consequently, Legatus asks the court to enjoin the Government from enforcing a rule
that is not yet finalized, which would, essentially, require the court to issue an advisory
opinion. Laird v. Tatum, 408 U.S. 1, 14 (1972) (“[T]he federal courts established
pursuant to Article III of the Constitution do not render advisory opinions.”) (citations
omitted). Legatus argues that it has suffered a concrete injury because the
Government’s promise of future rulemaking is non-binding, and the HRSA Mandate
could be enforced against them at any time. However, there is no evidence to suggest
that the Government will abruptly quit the amendment process and enforce the HRSA
Mandate against Legatus. Furthermore, the Government’s actions are entitled to a
good faith presumption. See Sossamon v. Lone Star State of Tex., 560 F.3d 316, 325
(5th Cir. 2009) (“Without evidence to the contrary, we assume that formally announced
changes to official governmental policy are not mere litigation posturing.”); Comcast
Corp. v. F.C.C., 526 F.3d 763, 762 n.2 (D.C. Cir. 2008) (“We must presume an agency
10
acts in good faith . . . .”) (citations omitted). Other courts deciding this identical issue
have found that non-profit organizations protected under the safe harbor do not have
standing because their injury is conjectural. Wheaton Coll. v. Sebelius, No. 12-1169,
2012 WL 3637162, at *7 (D.D.C. Aug. 24, 2012) (denying standing because the
preventive coverage rule pertaining to organizations that qualify for the temporary safe
harbor is being amended and thus plaintiffs’ injuries were hypothetical); Belmont Abbey
Coll. v. Sebelius, No. 11-1989, 2012 WL 2914417, at *10 (D.D.C. July 18, 2012)
(“Because an amendment to the final rule that may vitiate the threatened injury is not
only promised but underway, the injuries alleged by Plaintiff are not ‘certainly
impending.’”) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)).
Moreover, in the event that the Government acts in a way inimical to the rights
Legatus seeks to protect—acts which the court presently views as doubtful—Legatus is
not constrained from approaching the court with its concerns at that time. But as the
case is presently situated, the court is not persuaded that Legatus has standing to bring
its claim.3
3
Legatus, in a footnote in its reply brief, alternatively seeks associational standing
if the court denies it Article III standing. (Pls.’ Reply Def.’s Opp’n Pls.’ Mot. Prelim. Inj.
at 15 n.6, Dkt. # 19.) “An association has standing to bring suit on behalf of its
members when: “(a) its members would otherwise have standing to sue in their own
right; (b) the interests it seeks to protect are germane to the organization’s purpose; and
(c) neither the claim asserted nor the relief requested requires the participation of
individual members in the lawsuit.” Hunt v. Wash. State Apple Adver. Comm’n, 432
U.S. 333, 343 (1977). Plaintiffs have failed to provide sufficient facts about Legatus’s
members and companies to establish that the members would have standing to sue in
their own right or that their participation in this lawsuit is not required. Legatus is
comprised of 4,000 members from over 2,100 companies. It unknown which of the
2,100 organizations are non-profit or for-profit companies, religiously-based or secular,
closely held or not, or whether the organization qualifies for the temporary safe
harbor—all of which affect each organization’s standing. While the court accepts that
11
B. Likelihood of Success on the Merits
RFRA states, “Government may substantially burden a person’s exercise of
religion only if it demonstrates that application of the burden to the person (1) is in
furtherance of a compelling governmental interest; and (2) is the least restrictive means
of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1.
1. Substantial Burden
Catholicism teaches that it is a sin to use, provide, or otherwise support
contraception. (Pls.’ Compl. ¶¶ 56, 85 Dkt. # 1.) Weingartz, as a Catholic, asserts that
having Weingartz Supply Co. provide or participate in health insurance that includes the
FDA-approved contraceptive methods violates his sincerely-held religious beliefs. The
HRSA Mandate requires Weingartz Supply Co., as an employer with more than fifty fulltime employees, to offer health insurance. If Weingartz Supply Co. chooses not to
provide coverage in order to avoid the HRSA Mandate, then beginning in 2014
Weingartz Supply Co. will incur an annual penalty equal to $2,000 multiplied by the
number of Weingartz Supply Co.’s full-time employees minus 30.4 Plaintiffs therefore
assert that the HRSA Mandate substantially burdens Weingartz’s exercise of religion.
Catholic doctrine prohibits the use of contraception, the court does not know if every
Legatus member adheres, strictly or otherwise, to that principle, nor does the court
know how any possible differences in adherence might affect the formula used to
determine associational standing. Accordingly, Legatus is denied associational
standing.
4
Hinda Chaikind & Chris L. Peterson, Summary of Potential Employer Penalties
Under the Patient Protection and Affordable Care Act (PPACA), Congressional
Research Service (2010), available at http:// www.shrm.org/ hrdisciplines/ benefits/
Documents/ EmployerPenalties.pdf.
12
The Supreme Court has held that “putting substantial pressure on an adherent to
modify his behavior and to violate his beliefs” substantially burdens a person’s exercise
of religion. Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981). “It
is not within the judicial function and judicial competence to inquire” whether a party is
correctly understanding his religious doctrine as “[c]ourts are not arbiters of scriptural
interpretation.” Id. at 716. Accordingly, courts often simply assume that a law
substantially burdens a person’s exercise of religion when that person so claims. See,
e.g., U.S. v. Lee, 455 U.S. 252, 257 (1982) (“We therefore accept appellee’s contention
that both payment and receipt of social security benefits is forbidden by the Amish
faith.”); May v. Baldwin, 109 F.3d 557, 563 (9th Cir. 1997) (“[W]e will assume that
undoing May’s dreadlocks imposes a substantial burden on his exercise of
Rastafarianism.”); Hamilton v. Schriro, 74 F.3d 1545, 1552 (8th Cir. 1996) (“[W]e
assume that the regulations and policies at issue in the present case substantially
burden Hamilton’s exercise of his religion.”).
Accordingly, and similarly, the court assumes that the Weingartz Plaintiffs are
likely to show at trial that the HRSA Mandate substantially burdens the observance of
the tenets of Catholicism.
2. Compelling Government Interest
The Government may substantially burden a person’s exercise of religion “only if
it demonstrates that application of the burden to the person is in furtherance of a
compelling governmental interest.” 42 U.S.C. § 2000bb-1(b)(1). The phrase
“compelling interest” has been described differently by courts over time, but it has a
core. The Supreme Court has described compelling interests as those “of the highest
13
order,” Church of the Lukumi Bablu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546
(1993); “only those interests of the highest order and those not otherwise served,”
Wisconsin v. Yoder, 406 U.S. 205, 215 (1972); “an overriding governmental interest,”
U.S. v. Lee, 455 U.S. 252, 258 (1982); and “the gravest abuses, endangering
paramount interests,” Thomas v. Collins, 323 U.S. 516, 530 (1945) (discussing the
freedoms of speech and assembly).
At other times, the Supreme Court, the Sixth Circuit, and other circuit courts have
referred to “a compelling state interest” as though it either defines itself or needs no
further elaboration. See, e.g., Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2738
(2011) (citing R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 395 (1992)); Sherbert v.
Verner, 374 U.S. 398, 406 (1963); Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d
487, 498 (10th Cir. 1998); S. Ridge Baptist Church v. Indus. Comm’n, 911 F.2d 1203,
1206 (6th Cir. 1990).
The theme that emerges is the identification of “overriding,” “paramount”
governmental interests of the very “highest order.” Interests of a lesser magnitude,
those that are not paramount, including those that are otherwise served, cannot be
considered “compelling.”
The Government advances two interests furthered by the HRSA Mandate. First,
the Government has an interest in promoting public health generally. Courts have
assumed, sometimes without deciding, that the improvement of public health is, at least
in some instances, a compelling interest. Regents of Univ. of Cal. v. Bakke, 438 U.S.
265, 310 (1978) (“It may be assumed that in some situations a State’s interest in
facilitating the health care of its citizens is sufficiently compelling to support the use of a
14
suspect classification.”); Buchwald, 159 F.3d at 498 (citing Bakke to conclude that
“public health is a compelling government interest”); Mead v. Holder, 766 F. Supp. 2d
16, 43 (D.D.C. 2011) (“The Government clearly has a compelling interest in
safeguarding the public health by regulating the health care and insurance markets.”);
(Dickerson v. Stuart, 877 F. Supp. 1556, 1559 (M.D. Fla. 1995) (“The State of Florida
has a compelling interest in the health of expectant mothers and the safe delivery of
newborn babies.”).
Here, the Government, relying upon the IOM Report, argues that “a lack of
contraceptive use has proven to have negative health consequences for both women
and a developing fetus.” (Defs.’ Opp’n Pls.’ Mot. Prelim. at 25, Dkt. # 14.) Passing
quickly by the somewhat odd implication by the Government that the use of
contraception could somehow have a beneficial impact on a “developing fetus” that
contraceptive use is itself designed to avoid, the court understands the Government to
argue that “women experiencing an unintended pregnancy may not immediately be
aware that they are pregnant; their entry into prenatal care may be delayed, they may
not be motivated to discontinue behaviors that present risks for the developing fetus;
and they may experience depression, anxiety, or other conditions.” IOM Rep. at 103.
The ability to control pregnancy spacing is also important, the Government argues,
because short interpregnancy intervals are “associated with low birth weight,
prematurity, and small-for-gestational-age births.” Id.
The Government’s second interest is to “further[] gender equality,” (Defs.’ Opp’n
Pls.’ Mot. Prelim. at 26, Dkt. # 14), in two ways. First, the Government argues that
providing cost-free access to pregnancy prevention services, devices, and care
15
eliminates gender-based disparity in health care costs. Women of reproductive age
spend sixty-eight percent more in out-of-pocket health care costs than men. Ann Kurth
et al., Reproductive and Sexual Health Benefits in Private Health Insurance Plans in
Washington State, 33 Fam. Plan. Persp. 153, 153 (2001) (citing Women’s Research
and Education Institute, Women’s Health Insurance Costs and Experiences 1–8
(1994)).
The Government asserts that when health insurance plans impose cost-sharing
for pregnancy-avoidance preventive care—in truth, the court adds, for care of any
kind—the costs of such care can become a financial barrier that discourages or
prevents access to it. In the present circumstance, the Government argues that
imposing costs of any kind serves to inhibit women from accessing and utilizing
contraceptive methods. IOM Rep. at 109. The Government further argues that by
eliminating cost-sharing for preventive care, and by better enabling women to decide
whether or when to have children, the Government’s aim to “advance gender equality”
is served. Women who control their reproductive functions are better able to make
informed decisions regarding their careers and family. It appears that the availability of
oral contraception played an important role in increasing the presence of women in the
workforce, bringing them into more direct economic competition with men, and
eventually improving women’s wages. Martha J. Bailey et al., The Opt-In Revolution?
Contraception and the Gender Gap in Wages, 4 Am. Econ. J.: Applied Econ. 225
(2012). Female enrollment in graduate programs such as law, medical, and dental
schools also increased, causally related to the availability of oral contraception,
according to some researchers. Claudia Goldin & Lawrence F. Katz, The Power of the
16
Pill: Oral Contraceptives and Women’s Career and Marriage Decisions, 110 J. of Pol.
Econ. 730 (2002). Another researcher concluded:
Women’s equal freedom of intimate association and liberty to invest in life
plans on equal terms with men—plans for education, employment, or family
that can span years—require that contraception be treated as a routine
health benefit and not excluded from public or private health insurance
coverage. Women cannot participate in society, learn, earn, govern, and
thrive equally without the ability to determine whether and when to become
mothers.
Cornelia T.L. Pillard, Our Other Reproductive Choices: Equality in Sex Education,
Contraceptive Access, and Work-Family Policy, 56 Emory L.J. 941, 976 (2007).
The Supreme Court has echoed this sentiment, saying that “[t]he ability of
women to participate equally in the economic and social life of the Nation has been
facilitated by their ability to control their reproductive lives.” Planned Parenthood of Se.
Pa. v. Casey, 505 U.S. 833, 835 (1992).
Plaintiffs claim these interests are “tenuous” and “generic.” (Pls.’ Reply Def.’s
Opp’n Pls.’ Mot. Prelim. Inj. at 7–8, n.2, Dkt. # 19.) Plaintiffs argue that the known
negative medical side effects of oral contraception outweigh the positive health benefits
provided by the full-range of FDA-approved contraceptive methods. Plaintiffs also cite
the IOM Report, which notes that “research is limited” for some outcomes of unintended
pregnancies, as evidence that reducing the number of unintended pregnancies is not a
compelling interest. IOM Rep. at 103. Plaintiffs further argue that the interest of
promoting gender equality in the workforce is not “compelling” because many other
federal laws, such as the Pregnancy Disability Act, 42 U.S.C. § 2000e(k), and the
Family Medical Leave Act, 42 U.S.C. § 12631, already protect women from workplace
discrimination. However, it does not appear that those laws improve or even address
17
the Government’s stated goal of improving women’s ability to decide whether and when
to have children. Plaintiffs do not contest that women of child-bearing age spend
significantly more than men on out-of-pocket health care costs.
Plaintiffs further argue that none of the Government’s proposed interests can be
considered compelling because the HRSA Mandate does not apply to grandfathered
plans. A health plan is considered grandfathered if an individual was enrolled in the
plan on March 23, 2010, the date on which the ACA was enacted. 75 Fed. Reg.
34,540. About 193 million health plans were in existence on March 23, 2010, and
presumably qualified as grandfathered. Id. Such plans were required to comply with
some, but not all, of the ACA’s health care reform provisions. Id. Health plans that lose
their grandfathered status are subject to the HRSA Mandate. Id. at 34,540–34,541.
The Government estimates that between 39% and 69% of health plans will lose their
grandfathered status by the end of 2013. Id. at 34,552. Plaintiffs assert that the
Government undermined its compelling interests by not enforcing the HRSA Mandate
against all health plans immediately when the ACA was enacted.
The Government responds that the ACA was “designed to ease the transition of
the healthcare industry into the reforms established by the [ACA] by allowing for gradual
implementation of reforms through a reasonable grandfathering rule.” Id. at 34,541. “In
making grandfathered health plans subject to some but not all of the health reforms
contained in the [ACA], the statute balances its objective of preserving the ability to
maintain existing coverage with the goals of expanding access to and improving the
quality of health coverage.” Id. at 34,540. Gradually implementing the ACA’s health
care provisions, instead of enforcing the entire law against all plans at the same time,
18
does not appear to be indicative of how important the Government considers the
interests of regulating public health and furthering gender equality. Instead, the
grandfathering rule seems to be a reasonable plan for instituting an incredibly complex
health care law while balancing competing interests. To find the Government’s interests
other than compelling only because of the grandfathering rule would perversely
encourage Congress in the future to require immediate and draconian enforcement of
all provisions of similar laws, without regard to pragmatic considerations, simply in order
to preserve “compelling interest” status.
There is a significant dispute, but the Government seems at least capable of
persuading, to some level of satisfaction, that the HRSA Mandate promotes one, and
perhaps both, interests and that each interest may be compelling. Even so, the
Government is also required to “demonstrate that the compelling interest test is satisfied
through application of the challenged law ‘to the person’—the particular claimant whose
sincere exercise of religion is being substantially burdened.” Gonzales v. O Centro
Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430–31 (2006). The court must
look “beyond broadly formulated interests justifying the general applicability of
government mandates and scrutinize[] the asserted harm of granting specific
exemptions to particular religious claimants.” Id. at 431. Plaintiffs argue that because
religious non-profit organizations are exempt from the HRSA Mandate, granting an
additional exemption to Weingartz Supply Co. and its 170 employees would not result in
an appreciable harm to its interests.
The Government responds that the HRSA Mandate must apply to Weingartz
Supply Co. because it is the only way to ensure that Weingartz Supply Co.’s employees
19
and their dependents receive without cost the full range of FDA-approved contraceptive
methods. The Government argues that providing a religious exemption to a secular,
for-profit company would open the door for owners of other secular businesses to
request religious exemptions to federal laws under RFRA, thereby essentially imposing
the owners’ religious beliefs on their employees who may not share their owners’
convictions.
The Government further argues the slippery slope: allowing the exemption would
widen enormously, it says, the scope of RFRA’s protection, providing owners of secular,
for-profit companies the power currently reserved for religious organizations under Title
VII to claim religion-grounded exceptions to federal laws. See 42 U.S.C. § 2000e-1(a)
(“This subchapter shall not apply to . . . a religious corporation, association, educational
institution, or society with respect to the employment of individuals of a particular
religion to perform work connected with the carrying on by such corporation,
association, educational institution, or society of its activities.”). Granting an exemption
to Weingartz Supply Co. would, of course, affect only its 170 employees and their
dependents. Considering this in the context of a United States population of more than
311 million, an exemption for a few hundred seems a minuscule hindrance to whatever
interest, compelling or otherwise, the Government may seek to advance. But owners of
other secular, for-profit companies could perhaps qualify for equivalent exemptions,
serving to undermine various interests the Government presently seeks to advance.
While Plaintiffs argue generally that contraceptive services and products are
widely available for little if any cost, it remains unproven and unclear to the court at this
early stage of the case; i.e., how can Weingartz Supply Co.’s employees alternatively
20
acquire, without cost-sharing, the full range of FDA-approved contraceptive methods in
the absence of the HRSA Mandate? Cf. Wisconsin v. Yoder, 406 U.S. 205, 224–25
(1972) (holding that the Government’s interest in compulsory school attendance through
age sixteen, which substantially burdened the Amish practice of declining to send their
children to formal education after eighth grade, failed the compelling interest test
because the Amish continued to provide vocational education for their children in their
adolescent years). If, consistent with Yoder, Plaintiffs were to prevail on their alternate
means argument, they would overwhelm, or at least greatly reduce, the impact of the
Government’s compelling interest argument. The court has no doubt that every level of
Government has an interest in promoting public health as a general matter, but remains
uncertain that the Government will be able to prove a compelling interest in promoting
the specific interests at issue in this litigation.
3. Least Restrictive Means
If the Government meets the compelling interest test, it next would be required to
then prove that it has chosen “the least restrictive means” of furthering that interest. 42
U.S.C. § 20000bb-1(b)(2). What constitutes the “least restrictive means” and how it is
determined is subject to significant debate. The Supreme Court has held that statutes
fail the least restrictive means test when they are “overbroad” or “underinclusive.” See
Church of the Lukumi Bablu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993). The
Government argues that the HRSA Mandate is neither overbroad nor underinclusive
because it appropriately balances what the Government posits as the competing
interests at stake: allowing exemption for non-profit religious organizations while
21
requiring secular, for-profit companies to abide by the HRSA Mandate. As the Supreme
Court explained in United States v. Lee:
Congress and the courts have been sensitive to the needs flowing
from the Free Exercise Clause, but every person cannot be shielded from all
the burdens incident to exercising every aspect of the right to practice
religious beliefs. When followers of a particular sect enter into commercial
activity as a matter of choice, the limits they accept on their own conduct as
a matter of conscience and faith are not to be superimposed on the statutory
schemes which are binding on others in that activity.
455 U.S. 252, 261 (1982).
The Sixth Circuit describes the least restrictive means test as “the extent to which
accommodation of the [plaintiff] would impede the state’s objectives,” and explains that
“[w]hether the state has made this showing depends on a comparison of the cost to the
government of altering its activity to allow the religious practice to continue unimpeded
versus the cost to the religious interest imposed by the government activity.” S. Ridge
Baptist Church v. Indus. Comm’n, 911 F.2d 1203, 1206 (6th Cir. 1990). Granting
Weingartz Supply Co. an exemption would impede marginally the Government’s
interests. However, it is unclear whether the “cost” to the Government of being required
to honor an exemption—a cost expressed in terms of its inability not to prohibit some
behavior, but to affirmatively require an employer to provide cost-free access to
contraception—is greater than the spiritual “cost” to the Weingartz Plaintiffs were the
HRSA Mandate to be fully enforced. The cost to Plaintiffs appears provably substantial.
The cost to the Government appears provably small in the context of this single case,
but a larger cost might be found somewhere downstream, along the imagined slippery
slope.
22
The Tenth Circuit has extensively discussed the inherent difficulty of the least
restrictive means test:
[T]he notion that the government must prove that it has used the “least
restrictive means,” or that “no alternative forms of regulation” would suffice
to serve its interests, is an odd creature. On its face, it requires the
government to prove a negative—that no matter how long one were to sit and
think about the question, one could never come up with an alternative
regulation that adequately serves the compelling interest while imposing a
lesser burden on religion. This is a formidable task. . . . In the abstract, such
a thing can never be proven conclusively; the ingenuity of the human mind,
especially if freed from the practical constraints of policymaking and politics,
is infinite.
Thus, a number of courts that have considered the least restrictive
means question . . . have held that the government should not be required
“to refute every conceivable option in order to satisfy the least restrictive
means prong of RFRA.” Hamilton v. Schriro, 74 F.3d 1545, 1556 (8th Cir.
1996) (characterizing such a requirement as a “herculean burden”); accord
Fowler v. Crawford, 534 F.3d 931, 940 (8th Cir. 2008) (considering the
identical language of the Religious Land Use and Institutionalized Persons
Act (“RLUIPA”)); Spratt v. R.I. Dep’t of Corr., 482 F.3d 33, 41 n.11 (1st Cir.
2007) (RLUIPA claim); May v. Baldwin, 109 F.3d 557, 563 (9th Cir. 1997)
(RFRA claim). Not requiring the government to do the impossible—refute
each and every conceivable alternative regulation scheme—ensures that
scrutiny of federal laws under RFRA is not “strict in theory, but fatal in fact.”
Thus the government’s burden is two-fold: it must support its choice of
regulation, and it must refute the alternative schemes offered by the
challenger, but it must do both through the evidence presented in the record.
United States v. Wilgus, 638 F.3d 1274, 1288–89 (10th Cir. 2011) (internal citations
omitted). The Wilgus test effectively exempts the Government from being required to
affirmatively prove what the statute requires, i.e., that it has employed “the least
restrictive means of furthering [its] compelling governmental interest,” 42 U.S.C.
§ 2000bb-1(b)(2), casting the burden on a plaintiff to offer “alternative schemes” which
then are subject to being refuted, with evidence, by the Government. The Government
argues that Wilgus strikes an appropriate balance between retaining some burden on
23
the Government without requiring it “to do the impossible.” Neither the Supreme Court
nor the Sixth Circuit has adopted Wilgus.
Plaintiffs have thus far proposed two alternatives to the HRSA Mandate: (1)
women may obtain contraceptive needs at community health centers; or (2) the
Government should directly provide women with preventive care through an
administrative agency. The Government argues that neither is feasible. More than half
(57%) of publicly funded health centers cannot provide certain contraceptive methods
due to the high cost, Jennifer J. Frost, et al., Variation in Service Delivery Practices
Among Clinics Providing Publicly Funded Family Planning Services in 2010,
Guttmacher Institute 43 (2012), available at http:// www.guttmacher.org/ pubs/
clinic-survey-2010.pdf, meaning women would be unable to obtain free access to “the
full range of FDA-approved contraceptive methods,” depending on their local health
center’s financial situation. Community centers also do not provide free contraception
to all women. Instead, these centers typically implement a sliding scale fee program, in
which a patient’s fee is determined by her annual income, household size, and desired
treatment. See, e.g., Sliding Scale Services, Mt. Baker Planned Parenthood, http://
www.plannedparenthood.org/ mbpp/ files/ mt-baker/
Family_Planning_Sliding_Scale_Service.pdf (last visited Oct. 11, 2012). The court
engaged the Government in some preliminary discussion at oral argument about such
costs being made refundable by the well-known scheme of credits offered through the
existing Internal Revenue System, but no definitive response or analysis has thus far
been presented.
24
Plaintiffs’ alternative prospect of establishing a separate agency whose purpose
would be to provide contraception to women raises a host of administrative and
logistical problems, well pointed-out by the Government’s response, and does not
appear practical.
Analyzing the least restrictive means under the Supreme Court, Sixth Circuit, and
Tenth Circuit tests, it appears to the court possible, but not strongly so, that the
Government may meet its burden at trial.
Neither Plaintiffs nor the Government have shown a strong likelihood of success
on the merits.
C. Irreparable Harm to Plaintiff
Will Plaintiffs suffer irreparable harm if an injunction is not granted? Violation of a
First Amendment right in itself constitutes irreparable harm. Elrod v. Burns, 427 U.S.
347, 373 (1976) (“The loss of First Amendment freedoms, for even minimal periods of
time, unquestionably constitutes irreparable injury.”). When First Amendment freedoms
are at risk, the irreparable harm factor “merges” with the likelihood of success, such that
if the plaintiff shows he is likely to succeed on the merits, he has simultaneously proven
he will suffer an irreparable harm. See McNeilly v. Land, 684 F.3d 611, 620–21 (6th Cir.
2012) (“Once a probability of success on the merits was shown, irreparable harm
followed. . . . Because [the plaintiff] does not have a likelihood of success on the merits,
. . . his argument that he is irreparably harmed by the deprivation of his First
Amendment rights also fails.”); Connection Distributing Co. v. Reno, 154 F.3d 281, 288
(6th Cir. 1998) (“Thus, to the extent that [the plaintiff] can establish a substantial
likelihood of success on the merits of its First Amendment claim, it also has established
25
the possibility of irreparable harm as a result of the deprivation of the claimed free
speech rights.”).
The possibility that the Government will be able to convince the court of either
the compelling nature of the interests it seeks to advance, or that the means it has
chosen are the least restrictive, is negatively correlated with Plaintiffs’ likelihood of
success on the merits. As the court concluded in the preceding section, Plaintiffs have
made some showing, but not strongly so, of a likelihood of success on the merits, and
the Government has made some showing, but not strongly so, of advancing a
“compelling” interest by the “least restrictive means.” The potential for harm to Plaintiffs
exists, and with the showing Plaintiffs have made thus far of being able to convincingly
prove their case at trial, it is properly characterized as irreparable.
D. Impact on Public Interest
“The public as a whole has a significant interest in ensuring equal protection of
the laws and protection of First Amendment liberties.” Jones v. Caruso, 569 F.3d 258,
278 (6th Cir. 2009). Similar to the irreparable harm analysis, therefore, “the
determination of where the public interest lies also is dependent on a determination of
the likelihood of success on the merits of the First Amendment challenge because it is
always in the public interest to prevent the violation of a party’s constitutional rights.”
Connection Distributing Co., 154 F.3d at 288; see also McNeilly, 684 F.3d at 621
(“Given the failure to show a substantial likelihood of success on the merits of [the
plaintiff’s] claim that the contribution limits are unconstitutional, the district court’s
conclusion that ‘the [adverse] effect on the public and the public interest’ from enjoining
the enforcement of the statute . . . ‘would be very significant’ is also proper.”).
26
A preliminary injunction would serve the public interest to the extent that each
party has made some showing of a likelihood of success on the merits, as described in
section C above.
E. Balancing of Harm
Finally, the court must balance the harm to Plaintiffs if the injunction were denied
with the harm to the Government if the injunction is granted. The purpose of the
balance of harms test is
to underscore the flexibility which traditionally has characterized the law of
equity. It permits the district court, in its discretion, to grant a preliminary
injunction even where the plaintiff fails to show a strong or substantial
probability of ultimate success on the merits of his claim, but where he at
least shows serious questions going to the merits and irreparable harm which
decidedly outweighs any potential harm to the defendant if the injunction is
issued.
Jones v. Caruso, 569 F.3d at 277 (quoting Friendship Materials, Inc. v. Mich. Brick, Inc.,
679 F.2d 100, 104 (6th Cir. 1982)) (emphasis added).
The court began the motion hearing by observing that this case will continue
regardless of whether a preliminary injunction is granted, to which both parties agreed.
Due to the legal and factual issues involved, a discovery schedule of at least 90 to 120
days will be required, after which a trial must be held (unless dispositive motion practice
occurred, which would require its own, separate time line of a number of months). No
ruling on the merits can occur, therefore, until well after January 1, 2013, the date on
which Weingartz and Weingartz Supply Co. will be required to abide by the HRSA
Mandate absent an injunction.
The fact that a ruling on the merits will unquestionably occur after January 1,
2013, is significant. Denying Plaintiffs a preliminary injunction will effectively grant the
27
Government a default success on the merits—at least until Weingartz Supply Co. can
change its health insurance policy to exclude contraception if Weingartz were to
succeed at trial. As already discussed, Plaintiffs have shown some, but not a strong
likelihood of success on the merits. The Government is in a similar position with respect
to proof of compelling interest and least restrictive means, about both of which there
remain serious but unanswered questions. Furthermore, the court reiterates that “[t]he
loss of First Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).
The Government will suffer some, but comparatively minimal harm if the
injunction is granted. Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir.
1998) (noting that “the government presumably would be substantially harmed if
enforcement of a constitutional law . . . were enjoined”).
The harm in delaying the implementation of a statute that may later be deemed
constitutional must yield to the risk presented here of substantially infringing the sincere
exercise of religious beliefs. The balance of harms tips strongly in Plaintiffs’ favor. A
preliminary injunction is warranted.
IV. CONCLUSION
IT IS ORDERED that “Plaintiffs’ Motion for a Preliminary Injunction” [Dkt. # 13] is
GRANTED with respect to Daniel Weingartz and Weingartz Supply Company and
DENIED WITHOUT PREJUDICE with respect to Legatus.
Plaintiffs are DIRECTED to submit forthwith a form of Preliminary Injunction
consistent with this Opinion.
28
The Government is DIRECTED to file a brief statement describing the status of
the amendment process for final regulations occurring under the temporary enforcement
safe harbor not later than the first Monday of each month.
The court will set a scheduling conference by separate order.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: October 31, 2012
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, October 31, 2012, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
(313) 234-5522
S:\Cleland\JUDGE'S DESK\C1 ORDERS\12-12061.LEGATUS.Grant.Prelim.Inj.wpd
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