Wieland et al v. United States Department of Health and Human Services et al

Filing 86

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants Motion for Summary Judgment (ECF No. 75) is DENIED. IT IS FURTHER ORDERD that Plaintiffs Motion for Summary Judgment (ECF No. 78) is GRANTED. IT IS FURTHER ORDERED that Defendants are hereby p ermanently ENJOINED from enforcing against Plaintiffs and their health insurance issuer the statutes and regulations requiring a health insurance issuer to provide them with health insurance that includes contraceptive coverage. A separate Order will accompany this Memorandum and Order. 75 78 Signed by District Judge Jean C. Hamilton on 7/21/16. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

PAUL JOSEPH WIELAND, et al.,
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
et al.,
Defendants.

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Case No. 4:13-cv-01577-JCH

MEMORANDUM AND ORDER
This matter is before the Court on the Parties’ cross Motions for Summary Judgment.
(ECF Nos. 75, 78.) The Motions have been fully briefed and are ready for disposition.
BACKGROUND
On August 14, 2013, Plaintiffs Paul and Teresa Wieland filed this action against
Defendants challenging the so-called “contraceptive mandate” (hereinafter, the “Mandate”) of
the Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119.
The Mandate requires that group health plans and health insurance issuers provide minimum
essential coverage to women, which includes coverage for all contraceptive methods and
sterilization procedures approved by the Food and Drug Administration, without cost-sharing
requirements. See 26 U.S.C. § 4980H(a); 42 U.S.C. § 300gg-13. The statutory background is set
forth in more detail in the Court’s January 8, 2016 Order. (ECF No. 66.)
As life-long Roman Catholics, Plaintiffs oppose the use, funding, and provision of
contraceptives, sterilization, and abortifacients (collectively and hereinafter, “contraceptives”).
Plaintiffs believe that paying for or participating in a healthcare plan that includes coverage for
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contraceptives violates their sincerely-held religious beliefs, as does providing such coverage to
their three dependent daughters. Mr. Wieland serves as a State Representative in the Missouri
General Assembly. As an employment benefit, he receives health insurance coverage through
Missouri Consolidated Health Care Plan (“MCHCP”), an entity of the State. Plaintiffs pay a
portion of the insurance premiums in order to maintain coverage for themselves and their
daughters, and the State of Missouri contributes the remaining portion. Prior to August 1, 2013,
and pursuant to state law, MCHCP offered Mr. Wieland an opportunity to opt out of coverage for
contraceptives. Following the decision in Missouri Insurance Coalition v. Huff, 947 F. Supp. 2d
1014, 1020 (E.D. Mo. 2013) (finding certain portions of Mo. Rev. Stat. § 376.1119, which
required healthcare insurers to offer plans excluding coverage for contraceptives if such coverage
was contrary to enrollee’s religious beliefs, preempted by ACA), MCHCP discontinued the optout offer, and Plaintiffs were placed in a healthcare plan that includes coverage for
contraceptives.
In their Complaint Plaintiffs assert several claims under various constitutional and
statutory provisions, including the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §
2000bb et seq.

They assert that the Mandate forces them to either violate their religious

opposition to contraceptives by maintaining health insurance that includes contraceptive
coverage, or forgo health insurance altogether “under the pain of penalties.” Plaintiffs have
supported the allegations in their Complaint with declarations.

They seek a Court order

enjoining the government from enforcing the Mandate against them insofar as is forces them to
obtain health insurance that includes contraceptive coverage, and from requiring that their health
insurance issuer provide them with a healthcare plan that includes contraceptive coverage.

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On October 16, 2013, the Court dismissed Plaintiffs’ Complaint for lack of standing.
Upon remand from the Eighth Circuit, Defendants moved for dismissal pursuant to Federal Rule
of Civil Procedure 12(b)(6). The Court denied Defendants’ motion to dismiss as to Plaintiffs’
RFRA claim, but granted the motion as to all other claims set forth in the Complaint. The Parties
now move for summary judgment.
SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment shall be
granted “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.” “Where Parties file cross-motions for
summary judgment, each summary judgment motion must be evaluated independently to
determine whether a genuine issue of material fact exists and whether the movant is entitled to
judgment as a matter of law.” Jaudes v. Progressive Preferred Ins. Co., 11 F. Supp. 3d 943, 947
(E.D. Mo. 2014). The substantive law determines which facts are material, and “[o]nly disputes
over facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
The moving party bears the burden of showing the absence of a genuine issue of material
fact. See id. at 256. When a summary judgment motion is properly supported by evidence, the
burden then shifts to the non-moving party who must set forth affirmative evidence showing that
there is a genuine issue for trial. See id. at 256-57. In ruling on a motion for summary judgment,
a court is required to view the facts in the light most favorable to the non-moving party and must
give that party the benefit of all reasonable inferences that may be drawn from the record. See
Hott v. Hennepin Cnty., Minn., 260 F.3d 901, 904-05 (8th Cir. 2001) (citations omitted).

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DISCUSSION
The Parties dispute (1) whether Plaintiffs have presented sufficient evidence
demonstrating redressability in order to establish standing at the summary judgment stage, and
(2) whether Plaintiffs’ RFRA claim succeeds on the merits. The Court will address these issues
in turn.
A. Standing
To establish standing, a plaintiff must show (1) that he has suffered an “injury in fact”
that is “concrete and particularized” and “actual or imminent”; (2) that there is “a causal
connection between the injury and the conduct complained of”; and (3) that it is “likely, as
opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (quotations and citations omitted). When
“a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation (or lack
of regulation) of someone else,” redressability ordinarily “hinge[s] on the response of the
regulated (or regulable) third party to the government action,” and “it becomes the burden of the
plaintiff to adduce facts showing that those choices have been or will be made in such a manner
as to…permit redressability of injury.” Id. at 562. Plaintiffs must establish redressability “with
the manner and degree of evidence required at the successive stages of the litigation.” Id. at 562.
Defendants assert that Plaintiffs have not met their burden of showing that their alleged
injury is redressable, because they have not produced any evidence showing that the requested
injunction would result in their ability to obtain a healthcare plan from MCHCP or any other
provider that accords with their religious beliefs.

They argue that, on the contrary, the

undisputed evidence shows that it is merely speculative as to whether MCHCP would provide
such coverage.

Specifically, Defendants reference a February 2016 correspondence from

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MCHCP, in which MCHCP’s General Counsel responded to a joint inquiry from the Parties
regarding whether MCHCP would provide Plaintiffs with a contraceptive-free healthcare plan if
the Court were to enter the requested injunction. MCHCP explained that “[t]he laws which
regulate group health plans are many and the [Board of Trustees], with the advice from its
counsel, would need to study the implications of the laws, together with the injunction, in order
to make an informed decision on the question of creating and promulgating rules for the
administration of non-contraceptive plans that only one subscriber and his enrolled dependents
may access.” (ECF No. 75.2 at 12.) MCHCP concluded that “[a]t this time, it is impossible to
predict the [Board of Trustee’s] response to the injunction…” Id.
Plaintiffs respond that they are not required to provide a written commitment from
MCHCP that it will in fact provide them with a contraceptive-free plan, in part because of
MCHCP’s statutory obligation to provide one.

Plaintiffs point to Section 191.724 of the

Missouri Revised Statutes, which was not addressed in Huff, and which provides the following:
No governmental entity,…or entity acting in a governmental capacity shall
discriminate against or penalize an employee,…employer, health plan provider,
health plan sponsor,…or any other person or entity because of such
employee’s,…employer’s, health plan provider’s, health plan sponsor’s,…or
other person’s or entity’s unwillingness, based on religious beliefs or moral
convictions, to obtain or provide coverage for, pay for, [or] participate
in,…abortion, contraception or sterilization in a health plan.
Mo. Rev. Stat. § 191.724.4. Plaintiffs contend that, because MCHCP currently offers healthcare
plans that include contraceptive coverage, subsection 4 would prohibit MCHCP from
discriminating against them by refusing to offer them a contraceptive-free healthcare plan. They
also argue that, even if Section 191.724 did not exist, the requested injunction would allow them
to explore a previously non-existent market of private insurers, or, in the alternative, to avoid the

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government’s imposition of fines. They maintain that either of these alternatives would provide
redress.
In its order remanding the matter, the Eighth Circuit discussed Plaintiffs’ arguments
pertaining to Section 191.724 and concluded that it was more than merely speculative that
Plaintiffs’ injury would be redressed if they were granted the injunctive relief they seek. The
panel reasoned that “[w]ith the benefit of the requested injunction against HHS’s enforcement of
the Mandate against MCHCP, MCHCP would be assured that it could safely proceed under
section 191.724 to provide [Plaintiffs] with an opportunity to opt out of coverage for
contraceptives.” Wieland v. U.S. Dep’t Health & Human Servs., 793 F.3d 949, 957 (8th Cir.
2015).
Given the perceived effects Section 191.724 will have in the event the injunction is
issued, this Court finds that the Plaintiffs have met their burden of showing that it is likely that
their injury will be redressed by a favorable decision. With the benefit of the injunction,
Plaintiffs would at the very least be able to pursue legal recourse under Section 191.724 in an
effort to obtain a healthcare plan from MCHCP that does not include contraceptive coverage.
“[T]he practical consequence” of this “would amount to a significant increase in the likelihood
that [they] would obtain relief that directly redresses the injury suffered.” Utah v. Evans, 536
U.S. 452, 464 (2002) (State of Utah had standing to challenge census counting method that
allegedly caused it to lose Congressional Seat, even though favorable ruling on merits would
only result in change in legal status and would not immediately cause reassignment of
Congressional Seat); cf. Real Alternatives, Inc. v. Burwell, 2015 WL 8481987, at *8 (M.D. Pa.
Dec. 10, 2015) (“Plaintiffs here argue that, as in Utah, an injunction preventing the government
from enforcing the [Mandate] against Real Alternatives’ insurance provider would result in a

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change of legal status. That change would, according to Plaintiffs, greatly increase the chance
that the provider would supply insurance of the sort that complies with Plaintiffs’ beliefs.”). In
addition, “[b]efore the threatened enforcement of the Mandate, the State and MCHCP were
willing to offer [Plaintiffs] a contraceptive-free healthcare plan, which is persuasive evidence
that they would do so again if [Plaintiffs] obtain their requested relief.” Wieland, 793 F.3d at
957; cf. Real Alternatives, 2015 WL 8481987, at *8 (“given that the provider was willing to
provide the sort of insurance Plaintiffs desired before the Contraceptive Mandate was enforced,
we find Plaintiffs’ evidence persuasive”). Therefore, the Court concludes that Plaintiffs have
established standing.
The Court acknowledges Plaintiffs’ argument that that the holding in Huff should be
modified in light of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S.
Ct. 2751, 2760-61 (2014) (“The contraceptive mandate, as applied to closely held corporations,
violates RFRA”). However, Huff dealt with the legal issue of federal pre-emption under the
Supremacy Clause, which required the Court to consider the conflict that existed between the
Mandate and Missouri law; the enforceability of the Mandate was not at issue. Here, as in
Hobby Lobby, the issue before the Court is whether or not the Mandate violates RFRA, which
implicates whether or not the Mandate should be enforced as to Plaintiffs. Therefore, the Court
finds Huff distinguishable.

In any event, the Court has already found that Plaintiffs have

standing.
B. RFRA Claim
Congress enacted RFRA “in order to provide very broad protection for religious liberty.”
Hobby Lobby, 134 S. Ct. at 2760 (RFRA was enacted in response to Emp’t Div., Dep’t of Human
Res. of Or. v. Smith, 494 U.S. 872 (1990)). “[T]o ensure broad protection for religious liberty,

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RFRA provides that [the] ‘Government shall not substantially burden a person’s exercise of
religion even if the burden results from a rule of general applicability.’” Id. at 2761 (quoting §
2000bb-1(a)). “If the Government substantially burdens a person’s exercise of religion, under
the Act that person is entitled to an exemption from the rule unless the Government
‘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.’” Id. (quoting 42 U.S.C. § 2000bb-1(b)). The “exercise of religion”
protected under RFRA “involves not only belief and profession but the performance of (or
abstention from) physical acts that are engaged in for religious reasons.” Id. at 2770 (quotations
and citation omitted). In addition, RFRA protects “any exercise of religion, whether or not
compelled by, or central to, a system of religious belief,” and “mandate[s] that this concept be
construed in favor of a broad protection of religious exercise.” Id. at 2762 (quotations and
citations omitted).
“The threshold question, thus, is whether [Plaintiffs] have demonstrated that the Mandate
substantially burdens their sincere exercise of religion.” March for Life v. Burwell, 128 F. Supp.
3d 116, 128 (D.C.C. 2015) (citation omitted). Defendants argue that the Mandate does not create
a substantial burden because it does not apply to plaintiffs at all, but instead applies to group
health plans and health insurance issuers. However, under RFRA a substantial burden upon
religion exists when the government “conditions receipt of an important benefit upon conduct
proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by
religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to
violate his beliefs.” Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 717-18 (1981).
Here, the Mandate, albeit indirectly and in conjunction with the individual mandate, does just

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that: the ultimate impact is that Plaintiffs must either maintain a health insurance plan that
includes contraceptive coverage, in violation of their sincerely-held religious beliefs, or they can
forgo healthcare altogether, which will result in the imposition of significant penalties (not to
mention the potentially crippling costs of uninsured health care). As the court in March for Life
explained:
[H]ealth insurance does not exist independently of the people who purchase it.
Indeed, we commonly refer to such purchases as health plan ‘participants.’ A
participant pays premiums into a plan in exchange for coverage for his or her
future health needs. Given the nature of health insurance, employee plaintiffs do
play a role in the health care plans that provide contraceptive coverage…Even
though employee plaintiffs are not the direct objects of the Mandate, they are thus
very much burdened by it.
March for Life, 128 F. Supp. at 129 (emphasis original) (citation omitted). Furthermore, in
rejecting the government’s argument that Plaintiffs lack standing because they challenge
provisions of the ACA that do not apply to them, the Eighth Circuit recognized that “it is the
Mandate that caused the State and MCHCP to eliminate contraceptive-free healthcare plans, to
place [Plaintiffs] in a healthcare plan that included this coverage, and thus to cause injury to
[Plaintiffs].” Wieland, 793 F.3d at 955. Therefore, this Court similarly rejects Defendants’
argument that because Plaintiffs are not the direct objects of the Mandate they cannot
demonstrate that they are substantially burdened by it.
Defendants further argue that “[i]t is not a substantial burden on a person’s religion to
subscribe to a group health plan that covers services that the person will not use for religious
reasons, or that other individuals covered by the plan will elect, in the exercise of their personal
choice, to utilize.” Plaintiffs contend that Defendants’ argument is, in essence, an attack on the
sincerity of their religious beliefs, which the Supreme Court most recently in Hobby Lobby
cautioned against. This Court agrees. Defendants’ argument is, in effect, an argument that

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Plaintiffs’ religious beliefs are unreasonable. However, the sincerity of Plaintiffs’ religious
beliefs has not been disputed, and it is not for the Court “to say that [Plaintiffs’] religious beliefs
are mistaken or insubstantial.” Hobby Lobby, 134 S. Ct. at 2779 (explaining that Court’s
“narrow function…in this context is to determine whether the line drawn reflects an honest
conviction…”); see also United States v. Ali, 682 F.3d 705, 710 (8th Cir. 2012) (“the orthodoxy
and sophistication” of individual’s sincerely-held religious beliefs “are irrelevant in the RFRA
context”).
Defendants urge the Court to follow the court’s ruling in Real Alternatives. The court in
Real Alternatives found that the Mandate did not impose a substantial burden upon the employee
plaintiffs, reasoning as follows:
[T]he Contraceptive Mandate simply does not cause Plaintiffs to modify their
behavior in violation of their beliefs—arguably they have not modified any
behavior at all. They would still have maintained insurance coverage, albeit of a
different and more limited nature, regardless of the Contraceptive Mandate. Thus,
they would always have taken the same steps to maintain coverage that the
government requires them to take now, and their behavior has not been modified.
Rather, it is the behavior of a third party, the insurer that the government modifies
by requiring the insurer to provide additional services to Plaintiff.
2015 WL 8481987, at *23.
This Court disagrees that the Mandate does not cause Plaintiffs to modify their behavior
at all. The Mandate, in its current form, requires Plaintiffs to now maintain—whether through
MCHCP or another provider—a health insurance plan that includes contraceptive coverage. The
only way Plaintiffs can comply with their religious conscience is by dropping their insurance
altogether, which would result in them foregoing a valuable job benefit; in the assessment of
thousands of dollars per year in fines pursuant to the individual mandate, codified at 26 U.S.C. §
5000A; and in leaving their daughters without health insurance. Whether Plaintiffs maintain or
drop their insurance, they must modify their behavior and may not maintain health insurance
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consistent with their religious beliefs.

According to Plaintiffs, the implications of

noncompliance place “material pressure” on them to keep the insurance that violates their faith.
See Wieland, 793 F.3d at 955 (“The undeniable effect of the Mandate upon [Plaintiffs] is that
their healthcare plan must now include coverage for contraceptives.”); see also March for Life,
128 F. Supp. 3d at 131-32 (“The Mandate burdens employee plaintiffs’ religious exercise by
restricting the form in which those third parties can offer something that plaintiffs, for all intents
and purposes, must buy.”).

This is not a case of a government program with “incidental

effects…which may make it more difficult to practice certain religions,” but rather one which
has a “tendency to coerce individuals into acting contrary to their religious beliefs.” Lyng v. Nw.
Indian Cemetery Protective Ass’n, 485 U.S. 439, 450 (1988). Therefore, the Court concludes
that the Mandate imposes a substantial burden on Plaintiffs’ exercise of religion.
The question remains, however, whether the government has established a compelling
interest for which it has used the least restrictive means to further. See 42 U.S.C. § 2000bb-1(b);
Hobby Lobby, 134 S. Ct. at 2779; Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,
546 U.S. 418, 428 (2006) (government must demonstrate compelling interest test is satisfied
through application of challenged law to particular claimant whose sincere exercise of religion is
being substantially burdened). The government asserts that “Congress enacted the preventive
services coverage provision to increase access to and utilization of recommended preventative
services,” and that the government “undoubtedly has a compelling interest in having a workable
insurance system that covers a wide range of preventative health services.” (ECF No. 75.1 at 78.) This Court will assume for all intents and purposes that the government has a compelling
interest in having such a workable insurance system that covers a wide range of preventative
health services. Cf. Hobby Lobby, 134 S. Ct. at 2780 (“We find it unnecessary to adjudicate this

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issue. We will assume that the interest in guaranteeing cost-free access to the four challenged
contraceptive methods is compelling within the meaning of RFRA…”). Nevertheless, the Court
finds that the government has not met its burden of showing that “it lacks other means of
achieving its desired goal without imposing a substantial burden on the exercise of religion by
[Plaintiffs].” Id.
“The least-restrictive-means standard is exceptionally demanding.” Id. (citation omitted).
A regulation may constitute the least restrictive means of furthering the government’s
compelling interest if “no alternative forms of regulation” would accomplish that interest without
infringing on the claimant’s religious-exercise rights. Sherbert v. Verner, 374 U.S. 398, 407
(1963). “[I]f there are other, reasonable ways to achieve [the compelling interest] with a lesser
burden on…protected activity, [the government] may not choose the way of greater
interference.” Dunn v. Blumstein, 405 U.S. 330, 343 (1972). Thus, “[t]he inquiry at this stage
focuses on the context of the religious objectors, and considers[s] whether and how the
government’s compelling interest is harmed by granting specific exemptions to particular
religious claimants.” March for Life, 128 F. Supp. 3d at 131.
Defendants contend that “[i]nsurance markets could not function—either administratively
or financially—if insurers had to tailor each health plan to the specific needs and desires of each
individual plan participant and beneficiary.” They argue that, just as there would be “no viable
RFRA challenge if Congress had adopted a single-payer system in which the government
provided health coverage including preventative services to all Americans,” the fact that
“Congress chose to accomplish the same goal through the less-intrusive means of regulating the
existing system of private health insurance provides no sound basis for reaching a different
conclusion.”

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However, this Court finds that there is a critical difference between the ACA and the
various other government programs identified by Defendants, such as Medicaid and Social
Security. Here, the government does not provide the insurance at issue, and Plaintiffs are not
requesting the Court to force their insurer to do anything. Ultimately, in the wake of the
requested injunction, it would be left to the discretion of the third-party insurance providers to
determine whether or not to offer contraceptive-free plans. As the court in March for Life
recognized:
Insurance companies have every incentive to maintain a sustainable and
functioning market, and the government’s interest in the same would not be
undermined by simply making it legal for a third-party provider to offer, without
penalty, a plan consistent with plaintiffs’ religious beliefs. If, as defendants
suggest, offering an insurance plan that does not include a service or services to
which a potential purchaser objects on religious grounds would be ‘an impossible
administrative undertaking,’ insurance companies will not do it. One particular
religious accommodation may make actuarial sense, while another may not. A
company may even choose not to entertain possible changes as a matter of policy
if it deems the cost of analysis too high. Those decisions can, and should be, left
to private actors.
March for Life, 128 F. Supp. 3d at 132. Plaintiffs propose that the government could allow a
system like that in place in Missouri before the Mandate, where individuals could simply check a
box to opt out of contraceptive coverage. The Court agrees that this less restrictive alternative
would equally further the government’s interest.
In view of the foregoing, the Court concludes that the Mandate violates RFRA.
Plaintiffs’ request for injunctive relief will therefore be granted. The Court notes that its ruling
today has no effect on MCHCP’s or any other health insurance issuer’s obligation under the
Mandate to provide contraceptive coverage without cost sharing to those who do want it.

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CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment (ECF No.
75) is DENIED.
IT IS FURTHER ORDERD that Plaintiffs’ Motion for Summary Judgment (ECF No.
78) is GRANTED.
IT IS FURTHER ORDERED that Defendants are hereby permanently ENJOINED
from enforcing against Plaintiffs and their health insurance issuer the statutes and regulations
requiring a health insurance issuer to provide them with health insurance that includes
contraceptive coverage. A separate Order will accompany this Memorandum and Order.

Dated this 21st day of July, 2016.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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