Catholic Benefits Association LCA et al v. Sebelius et al

Filing 68

ORDER granting in part and denying in part 4 Motion for Preliminary Injunction, as more fully set out. Signed by Honorable David L. Russell on 6/4/14. (jw)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
THE CATHOLIC BENEFITS
ASSOCIATION LCA, et al.,
Plaintiffs,
v.
KATHLEEN SEBELIUS, in her official
capacity as Secretary, United States
Department of Health and Human
Services, et al.,
Defendants.

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Case No. CIV-14-240-R

ORDER
Before the Court is Plaintiffs’ Motion for Preliminary Injunction. Doc. No. 4.
Defendants have filed their response to this motion, and Plaintiffs have filed their reply to
Defendants’ response. The American Civil Liberties Union has also filed an amicus brief
opposing Plaintiffs’ motion. On May 8, 2014, the Court heard oral argument pertaining to
the issues raised by the parties’ briefs. Following oral argument, the Court granted
Defendants time in which to file a supplemental brief concerning a particular issue that
was raised by Plaintiffs for the first time in their reply brief. Having considered all of the
above, as well as the relevant legal authority that is developing across the country,
Plaintiffs’ motion is DENIED in part, and GRANTED in part.
This motion stems from an action challenging a provision of the Affordable Care
Act (ACA)1 and the regulations issued under it, which mandate that certain employers
1

The ACA is comprised of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119
(2010), and the Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010).

provide health coverage for contraceptives to their employees, or face crippling fines for
failing to do so. Plaintiffs are a number of entities that readily identify with the Catholic
Church and adhere to its teachings, and they assert that the contraceptive mandate
violates their sincerely held religious beliefs. Plaintiffs have brought this action against
Kathleen Sebelius, Secretary of the United States Department of Health and Human
Services,2 along with other government officials and agencies, advancing a number of
statutory and constitutional challenges to the contraceptive mandate. In the present
motion, Plaintiffs seek a preliminary injunction against Defendants’ collective ability to
enforce the contraceptive mandate against them, basing their motion upon the Religious
Freedom Restoration Act (RFRA) and the Establishment Clause. Plaintiffs also seek
preliminary injunctive relief extending beyond the named parties in order to protect a
putative class of similarly situated entities.
I. Background
Plaintiffs are The Catholic Benefits Association LCA (CBA), The Catholic
Insurance Company (CIC), The Roman Catholic Archdiocese of Oklahoma City
(Archdiocese of Oklahoma City), Catholic Charities of the Archdiocese of Oklahoma
City, Inc. (Catholic Charities), All Saints Catholic School, Inc. (All Saints), Archbishop
William E. Lori, Roman Catholic Archdiocese of Baltimore and His Successors in Office
(Archdiocese of Baltimore), The Cathedral Foundation, Inc. d/b/a/ Catholic Review
Media (Catholic Review Media), Villa St. Francis Catholic Care Center, Inc. (Villa St.
2

While Kathleen Sebelius has resigned as Secretary of the Department of Health and Human Services, her substitute
has not yet been named. The Court will substitute the successor as a defendant once the successor has been named.
See Fed. R. Civ. P. 25(d).
2

Francis), and Good Will Publishers, Inc. (Good Will Publishers). Plaintiffs are heavily
associated with the Catholic Church, and they adhere to Catholic teachings regarding
contraception, abortion, and sterilization, which counsel against the use of any artificial
interference with the creation and nurture of new life. Therefore, Plaintiffs all religiously
object to contraception, abortion-inducing drugs and devices, surgical abortion,
sterilization, and related counseling.
Under 42 U.S.C. § 300gg-13(a)(4), certain employer health plans must cover
“preventive care and screenings” for women. Based upon the guidelines adopted by the
Health Resources and Services Administration, “preventive care” includes “[a]ll Food
and Drug Administration approved contraceptive methods, sterilization procedures, and
patient education and counseling for all women with reproductive capacity.”3 Health
Resources & Services Administration, “Women’s Preventive Services Guidelines,”
www.hrsa.gov/womensguidelines (last visited June 3, 2014). If an employer subject to
the contraceptive mandate fails to provide the required contraceptive coverage in its
health plan, then the employer faces fines of $100 per day per employee, or in other
words, up to $36,500 per year per employee. See 26 U.S.C. § 4980D(b)(1). Further, if the
employer fails to provide any health plan whatsoever to its employees, the employer
faces fines of $2,000 per year per full time employee (less 30 employees). Id. §
4980H(a), (c)(1).

3

FDA-approved contraceptive methods include the so-called morning after pill, also known as Plan B, the so-called
week after pill, also known as Ella, and intra uterine devices. See Food & Drug Administration, “Birth Control:
Medicines to Help You,” www.fda.gov/forconsumers/byaudience/forwomen/freepublications/ucm313215.htm (last
visited June 3, 2014).
3

The regulations issued under the contraceptive mandate operate to exempt certain
employers, as well as provide an accommodation for other non-exempt employers. Under
45 C.F.R. § 147.131(a), “religious employers” are exempted from the contraceptive
mandate. For purposes of the regulations, “religious employer” is narrowly defined as a
nonprofit entity referred to in 26 U.S.C. § 6033(a)(3)(A)(i) or (iii). See 45 C.F.R. §
147.131(a); 78 Fed. Reg. 39,870, 39,874. The groups referred to in 26 U.S.C. §
6033(a)(3)(A)(i) and (iii) include “churches, their integrated auxiliaries, and conventions
or associations of churches,” and “the exclusively religious activities of any religious
order.”
The regulations further provide for an accommodation for certain non-exempt
employers who do not want to provide coverage for the required contraceptive services
based upon religious objections. A non-exempt employer is eligible for this so-called
accommodation if it satisfies the following requirements: (1) it opposes providing
coverage for some or all of the required contraceptive services due to religious
objections; (2) it is a nonprofit entity; (3) it “holds itself out as a religious organization;”
and (4) it “self-certifies, in a form and manner specified by the Secretaries of Health and
Human Services and Labor, that it satisfies the [previous three] criteria.” 26 C.F.R. §
54.9815-2713A(a); 29 C.F.R. § 2590.715-2713A(a); 45 C.F.R. § 147.131(b); 78 Fed.
Reg. at 39,874.
In order to meet this last requirement, self-certification, an employer must execute
and deliver EBSA Form 700 to its issuer, or if the employer has a self-insured health
plan, to its third-party administrator (TPA). 26 C.F.R. § 54.9815-2713A(b)-(c); 29 C.F.R.
4

§ 2590.715-2713A(b)-(c); 45 C.F.R. § 147.131(c); 78 Fed. Reg. at 39,878-79. If a
nonprofit religious employer executes and delivers EBSA Form 700 to its issuer or TPA,
the issuer or TPA must then provide notice to the employer’s employees of the
availability of contraceptive services free of charge, as well as provide contraceptive
services to these employees. 26 C.F.R. § 54.9815-2713A(b)-(d); 29 C.F.R. § 2590.7152713A(b)-(d); 45 C.F.R. § 147.131(c)-(d); 78 Fed. Reg. at 39,878-80.
Based upon the differences in their characteristics, as well as the way the
exemption and the accommodation work, Plaintiffs in this case can be divided into
several groups. First, both the CBA and the CIC are not directly regulated by the
contraceptive mandate. The CBA is an Oklahoma nonprofit limited cooperative
association, which was organized in relevant part to assist Catholic employers in
providing health benefits to their respective employees in a manner consistent with
Catholic values. The CBA incorporated the CIC, an Oklahoma for-profit insurance
company, whose purpose is to provide stop loss insurance to members of the CBA in a
manner consistent with Catholic values.
The remaining Plaintiffs are employers that are members of the CBA. These
Plaintiffs all either sponsor or participate in health plans that provide medical benefits to
their employees, and with one exception,4 none of their health plans provide coverage for
any contraceptive services. Certain Plaintiffs, classified by the Court as Group I
Plaintiffs, meet the “religious employer” definition in the regulations and are exempted
4

Good Will Publishers’ health plan currently provides coverage for certain contraceptive services. This is for two
reasons: (1) the state in which Good Will Publishers is incorporated, North Carolina, separately requires employer
health plans to cover certain contraceptives; and (2) the contraceptive mandate in the ACA has already taken effect
against Good Will Publishers.
5

from the contraceptive mandate. The Group I Plaintiffs include the Archdiocese of
Oklahoma City and the Archdiocese of Baltimore.5 Other Plaintiffs, classified by the
Court as Group II Plaintiffs, qualify for the accommodation as nonprofit religious
organizations that object to providing coverage for contraceptive services in their health
plans based upon their religious views. The Group II Plaintiffs include Catholic Charities,
All Saints, Catholic Review Media, and Villa St. Francis. Finally, Good Will Publishers,
classified by the Court as the Group III Plaintiff, is a for-profit corporation, and it neither
fits into the exemption nor qualifies for the accommodation.
Plaintiffs collectively assert that the Court should enter a preliminary injunction in
this case, because the challenged provisions of the ACA violate their rights under RFRA
and the Establishment Clause. In response, Defendants argue that a preliminary
injunction in this case would be improper both because certain Plaintiffs lack
constitutional standing, and also because Plaintiffs cannot establish the various
requirements for obtaining a preliminary injunction.
II. Standing
Defendants first assert that three of the Plaintiffs—Good Will Publishers, the
CBA, and the CIC—lack constitutional standing. “[T]he irreducible constitutional
minimum of standing contains three elements.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992). “[A] plaintiff must show an injury that is [1] concrete, particularized,
and actual or imminent; [2] fairly traceable to the challenged action; and [3] redressable
5

As part of their religious beliefs, these Group I Plaintiffs provide self-insured health plans for employers located in
the regions of the country to which they minister, and other Plaintiffs in this case participate in these health plans.
Namely, Catholic Charities and All Saints participate in the Archdiocese of Oklahoma City’s self-insured health
plan, and Catholic Review Media participates in the Archdiocese of Baltimore’s self-insured health plan.
6

by a favorable ruling.” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1126 (10th
Cir. 2013) (quotation omitted) (internal quotation marks omitted).
Defendants argue that Good Will Publishers lacks standing due to its inability to
show that a favorable ruling would redress its purported injury, as it is governed by a
separate North Carolina law that requires its health plan to cover certain contraceptives.
But the Court disagrees. Standing doctrine does not require “complete redressability.”
Consumer Data Indus. Ass’n v. King, 678 F.3d 898, 902 (10th Cir. 2012) (citation
omitted). In other words, “a plaintiff need show only that a favorable decision would
redress ‘an injury,’ not ‘every injury.’” Id. (quoting Larson v. Valente, 456 U.S. 228, 243
n.15 (1982)).
Here, the challenged federal law requires that Good Will Publishers’ health plan
provide coverage for emergency contraception, such as Plan B and Ella, whereas the
North Carolina law appears that it does not require such coverage. See N.C. Gen. Stat. §
58-3-178(c)(4); Guttmacher Institute, “State Policies in Brief: Emergency Contraception”
(updated June 1, 2014), www.guttmacher.org/statecenter/spibs/spib_EC.pdf (last visited
June 3, 2014) (indicating in a chart that North Carolina law excludes emergency
contraception from its contraceptive coverage mandate). Because the federal law is thus
more onerous than the state law, and because Catholic teaching condemns emergency
contraception in stronger terms than it does other forms of contraception, See Doc. No. 1,
at 30; Doc. No. 48, at 9 n.1, a favorable ruling in this case would redress an injury to
Good Will Publishers that it does not face under the North Carolina law. That is, a
favorable decision would relieve Good Will Publishers’ problem to some extent, and this
7

is all that the law requires. See King, 678 F.3d at 903 (citing Massachusetts v. EPA, 549
U.S. 497, 526 (2007)). Accordingly, Good Will Publishers has standing to sue in this
case.6
Next, Defendants argue that the CBA lacks associational standing to sue on behalf
of its members. “Even in the absence of injury to itself, an association may have standing
solely as the representative of its members.” Warth v. Seldin, 422 U.S. 490, 511 (1975)
(citation omitted). The Supreme Court has determined that an association possesses
standing to sue on behalf of its members when: “[1] its members would otherwise have
standing to sue in their own right; [2] the interests it seeks to protect are germane to the
organization’s purpose; and [3] 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).
Here, the first two prongs of the Hunt test are clearly met,7 and Defendants
essentially concede this by only challenging whether the CBA meets the third prong of
this test. Concerning the third prong of the Hunt test, Defendants rely heavily on Harris
v. McRae, 448 U.S. 297, 321 (1980), in arguing that a RFRA claim requires individual
participation. Similarly, Defendants contend that “the availability of preliminary

6

Defendants concede that if Good Will Publishers has constitutional standing, then the Court is bound by the Tenth
Circuit’s decision in Hobby Lobby in finding that it is likely to succeed on its RFRA claim. See Doc. No. 29, at 21
n.8. In accordance with the Court’s analysis concerning the remaining requirements for obtaining a preliminary
injunction, the Court will find that Good Will Publishers is entitled to preliminary injunctive relief.
7
Defendants have only challenged whether one of the CBA’s named members in this suit, Good Will Publishers,
has standing. And the Court has already determined that Good Will Publishers does have standing to sue in this case.
Moreover, the interests that the CBA is seeking to protect are germane to the organization’s purpose. Contraceptives
violate Catholic teachings, the CBA was organized for the express purpose of supporting Catholic employers in
providing health benefits to their employees in a manner consistent with Catholic teachings, and the CBA is seeking
to challenge a law requiring its members’ health plans to provide coverage for contraceptive services.
8

injunctive relief on any claim turns on questions of irreparable harm, the balance of
equities, and the public interest, . . . all of which may very well vary from employer to
employer and circumstance to circumstance.” Doc. No. 29, at 20.
Notwithstanding Defendants’ arguments, the Court finds that the CBA possesses
associational standing to pursue its members’ claims. To begin with, Defendants’
argument that Harris dictates that all RFRA claims require individual participation is
unpersuasive. In Harris, the organization seeking to establish associational standing
conceded to the Supreme Court that its membership held a diversity of religious views
concerning what was at stake in the case. See 448 U.S. at 320-21. And this diversity of
views no doubt impacted the Supreme Court’s determination that the participation of the
individual members of the organization was required in order to properly resolve their
diverging free exercise claims. See id. at 321.
It follows that the basis for associational standing was much more tenuous in
Harris than the basis for it in this case. Here, it is abundantly clear that all of the CBA’s
members abide by Catholic conviction that contraceptives violate their conscience, and
Defendants do not contend otherwise. Because the CBA’s members are so uniform in
their beliefs—particularly their beliefs that contraceptives are objectionable—the Court
finds that the CBA can properly present its members’ claims in this case such that the
participation of the individual members of the CBA is not required.
Additionally, Defendants’ argument that the preliminary injunction factors
prohibit associational standing is unavailing, as it contradicts Supreme Court precedent.
The CBA is seeking an injunction on its members’ behalf, and this is the type of relief
9

where “it can reasonably be supposed that the remedy, if granted, will inure to the benefit
of those members of the association actually injured.” Warth, 422 U.S. at 515. This
means that the type of relief requested does not require the participation of individual
members. See United Food & Commercial Workers Union Local 751 v. Brown Group,
Inc., 517 U.S. 544, 546 (1996) (“Relying on Warth . . . , Hunt held that ‘individual
participation’ is not normally necessary when an association seeks prospective or
injunctive relief for its members . . . .”). Therefore, the Court finds that the CBA
possesses associational standing to sue in this case.
Finally, Defendants assert that the CIC lacks standing because the challenged
regulations do not apply to the CIC.8 Plaintiffs acknowledge that the challenged
regulations do not specifically apply to the CIC. But Plaintiffs still argue that the CIC has
standing in this case, because the challenged regulations apply to entities with which the
CIC contracts, and the regulations negatively affect these entities. Plaintiffs cite several
cases in support of their position, including Columbia Broad. Sys. v. United States, 316
U.S. 407, 422-23 (1942), and Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925).
In spite of Plaintiffs’ arguments, the Court finds that the CIC does not have
standing in this case. While it is true that standing is not precluded when a plaintiff
challenges government action that does not directly regulate that plaintiff, establishing
standing in this scenario is “substantially more difficult.” See Lujan, 504 U.S. at 562
(citations omitted). With this in mind, there is no question that the challenged provisions
8

In their response brief, Defendants made several arguments concerning the CIC’s third-party or associational
standing. But in reply, Plaintiffs asserted that the CIC only seeks standing in its own right. Thus, the Court will
focus upon whether the CIC itself possesses standing to sue.
10

of the ACA do not regulate the CIC, but instead regulate entities with which the CIC does
business. Of particular importance to the Court, the regulated entities with which the CIC
contracts—that is, the members of the CBA—are also a part of this suit. Therefore, there
is no need for the CIC to be a part of this suit. At oral argument, Plaintiffs even conceded
that if the Court were to grant relief to the Group II Plaintiffs (and presumably the Group
III Plaintiff as well), “[i]t would take care of a lot of [the CIC’s] problem.”
Additionally, the Court fails to see how the CIC’s alleged injury—that the
challenged regulations prevent it from doing the business for which it was formed—could
possibly be redressed by a favorable ruling for the CIC. Indeed, Plaintiffs’ statements at
oral argument compound the Court’s confusion. In answering the Court’s question
regarding what relief would be afforded the CIC by a favorable ruling, Plaintiffs stated
that part of the relief they sought “is that the parties that . . . enter contractual
relationships with [the CIC] need to know that they’re not risking their character as a
lawful actor by doing business with [the CIC].” The Court finds it entirely too speculative
that any favorable ruling for the CIC would accomplish this.9 See Lujan, 504 U.S. at 561.
For these reasons, the CIC does not have standing to sue in this case.
Having decided that both Good Will Publishers and the CBA possess standing to
sue in this case, and that the CIC lacks standing to sue in this case, the Court next turns to
Plaintiffs’ request for preliminary injunction.
9

Indeed, if the Court enjoined Defendants from enforcing the challenged provisions of the ACA against the CIC
(even though these provisions do not apply to the CIC in the first place), then this would not prohibit Defendants
from enforcing the challenged provisions of the ACA against the customers of the CIC that are directly regulated by
these challenged provisions. Based upon Plaintiffs’ request for relief, it appears that the CIC is nothing more than a
“concerned bystander” attempting to vindicate its value interests, and this is improper. See Hollingsworth v. Perry,
133 S. Ct. 2652, 2663 (2013).
11

III. Preliminary Injunction
In order to prevail on their Motion for Preliminary Injunction, Plaintiffs must
show: “(1) a likelihood of success on the merits; (2) a likely threat of irreparable harm to
the movant[s]; (3) the harm alleged by the movant[s] outweighs any harm to the nonmoving party; and (4) an injunction is in the public interest.” Hobby Lobby, 723 F.3d at
1128 (citing Winter v. NRDC, 555 U.S. 7, 20 (2008)). Plaintiffs have sought a
preliminary injunction based upon their claims under both RFRA and the Establishment
Clause, and the Court will address their likelihood of success on the merits for both of
these claims in turn.
A. Likelihood of Success on the Merits under RFRA
Under RFRA, the federal government is prohibited from substantially burdening a
person’s exercise of religion, unless the government can demonstrate “that the application
of the burden to the person is the least restrictive means of furthering a compelling
governmental interest.” Reaching Souls Intern., Inc. v. Sebelius, No. CIV-13-1092-D,
2013 WL 6804259, at *6 (W.D. Okla. Dec. 20, 2013) (citing 42 U.S.C. § 2000bb-1).
Therefore, in order to establish a claim under RFRA, a plaintiff must first show “that the
government substantially burdens a sincere religious exercise.” Hobby Lobby, 723 F.3d at
1125-26 (citation omitted). If the plaintiff can establish this, then the burden shifts to the
government “to show 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.’” Id. at 1126 (quoting Gonzales v. O Centro
Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 420 (2006)) (internal quotation
12

marks omitted). Notably, even at the preliminary injunction stage, RFRA’s burdenshifting approach applies. Id. (citing Gonzales, 546 U.S. at 429).
In this case, Defendants do not challenge whether Plaintiffs possess sincere
religious beliefs or whether Plaintiffs’ opposition to the contraceptive mandate is a
religious exercise. Additionally, Defendants concede that this Court is bound by Hobby
Lobby in determining that the federal government cannot satisfy the compelling interest
test. See Doc. No. 29, at 26-27. Therefore, Plaintiffs’ likelihood of success on the merits
with regard to their RFRA claim turns on whether Plaintiffs can establish a substantial
burden on their religious exercise under RFRA. And because Plaintiffs’ arguments
concerning a substantial burden on their religious exercise necessarily differ based upon
the way the challenged provisions operate against them, the Court will examine the
claims of both the Group I and Group II Plaintiffs separately.10
Under RFRA, an act by the government imposes a substantial burden on religious
exercise if it “(1) requires participation in an activity prohibited by a sincerely held
religious belief, (2) prevents participation in conduct motivated by a sincerely held
religious belief, or (3) places substantial pressure on an adherent . . . to engage in conduct
contrary to a sincerely held religious belief.” Hobby Lobby, 723 F.3d at 1138 (quoting
Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th Cir. 2010)) (internal quotation marks
omitted).

10

As explained supra at page 8 n. 6, with regard to the Group III Plaintiff, Good Will Publishers, the Court is bound
by the Tenth Circuit’s decision in Hobby Lobby, meaning the Court need not analyze the likelihood of success of
Good Will Publishers’ RFRA claim.
13

1. Group I Plaintiffs
Plaintiffs acknowledge that the Group I Plaintiffs, the Archdiocese of Oklahoma
City and the Archdiocese of Baltimore, are wholly exempt from the contraceptive
mandate. But Plaintiffs still assert that the “Group I Members are burdened because they
must either sponsor health plans that include [contraceptive] coverage, expel the nonexempt ministries from their plans, or drop their plans altogether.” Doc. No. 5, at 20. This
is so, Plaintiffs argue, because the contraceptive mandate “directly interferes with Group
I Members’ health arrangements, in which non-exempt employers (Group II Members)
often participate.” Doc. No. 5, at 20. The Court understands Plaintiffs’ position to be that
although the Group I Plaintiffs are exempt from the provisions they challenge, the Group
I Plaintiffs’ religious exercise in providing non-exempt Catholic employers with access to
their self-insured health plans is still substantially burdened by the provisions’ effect on
these non-exempt employers.
Of at least six cases to have considered the question of whether an employer
exempted from the contraceptive mandate can still establish a substantial burden under
RFRA, three courts have sided with the plaintiffs,11 and three have sided with the
defendants.12 Even though it appears to be a close question, this Court is unpersuaded that
the challenged provisions of the ACA impose a substantial burden on the Group I

11

See Catholic Diocese of Beaumont v. Sebelius, No. 1:13-CV-709, --- F. Supp. 2d ----, 2014 WL 31652, at *8 (E.D.
Tex. Jan. 2, 2014); Diocese of Fort Wayne-S. Bend, Inc. v. Sebelius, No. 1:12-CV-159 JD, --- F. Supp. 2d ----, 2013
WL 6843012, at *14 (N.D. Ind. Dec. 27, 2013); Zubik v. Sebelius, Nos. 13-CV-1459, 13-CV-0303 Erie, --- F. Supp.
2d ----, 2013 WL 6118696, at *25-27 (W.D. Pa. Nov. 21, 2013).
12
See Roman Catholic Archdiocese of Atlanta v. Sebelius, No. 1:12-CV-03489-WSD, 2014 WL 1256373, at *16
(N.D. Ga. Mar. 26, 2014); Catholic Diocese of Nashville v. Sebelius, No. 3:13-01303, 2013 WL 6834375, at *5
(M.D. Tenn. Dec. 26, 2013); Roman Catholic Archdiocese of N.Y. v. Sebelius, No. 12 Civ. 2542(BMC), --- F. Supp.
2d ----, 2013 WL 6579764, at *15 (E.D.N.Y. Dec. 16, 2013).
14

Plaintiffs’ religious exercise. This is because the challenged provisions ask nothing of
these exempted Plaintiffs. See Catholic Diocese of Nashville, 2013 WL 6834375, at *5
(“As for the Plaintiffs that are entirely exempt from contraceptive coverage, . . . the
regulations do not place any burden, much less a substantial one, on the exercise of their
religious beliefs.”); Roman Catholic Archdiocese of N.Y., 2013 WL 6579764, at *15
(“That the non-exempt plaintiffs must either provide coverage or complete the selfcertification cannot be a burden on the exempt plaintiffs’ religion.”). The Court’s view is
bolstered by the fact that the remainder of the Court’s opinion will explain why the
Group II and Group III Plaintiffs—the non-exempt employers that participate in the
Group I Plaintiffs’ health plans—are entitled to relief.
2. Group II Plaintiffs
As for the Group II Plaintiffs, Catholic Charities, All Saints, Catholic Review
Media, and Villa St. Francis, these Plaintiffs qualify for the accommodation. Yet
Plaintiffs contend that their religious exercise is still substantially burdened by the
challenged provisions—particularly the accommodation—and the Court agrees. While
Plaintiffs believe in the Catholic teaching that their ministries should include the
provision of health care to their employees, whenever possible, Plaintiffs also believe in
the Catholic teaching that any artificial interference with the creation and nurture of new
life is wrong. Thus, it would be contrary to this belief for Plaintiffs to provide health
benefits to their employees that include coverage for contraception, abortion-inducing
drugs and devices, surgical abortion, sterilization, and related counseling. Furthermore,
Plaintiffs believe that executing EBSA Form 700 in an effort to take advantage of the so15

called accommodation makes them “the central cog” in the provision of the contraceptive
services to which they religiously object. Consequently, if Plaintiffs were to complete and
deliver the self-certification to their issuers or TPAs, it would violate their sincere
religious beliefs concerning contraception.
With this in mind, under the challenged regulations, these Group II Plaintiffs have
four options from which they can choose: (1) directly provide contraceptive coverage to
their employees; (2) refuse to provide the coverage and face severe monetary penalties;
(3) completely drop their employees’ health plans and face monetary penalties for doing
so; or (4) self-certify that they qualify for the accommodation by filling out EBSA Form
700. In other words, Plaintiffs can choose from either violating their sincerely held
religious beliefs in a variety of ways, or facing severe monetary penalties that would
quite likely ruin them. Without question, then, the challenged provisions of the ACA
present these Plaintiffs with a “Hobson’s choice,” meaning that Plaintiffs have
established a substantial burden under RFRA. See Hobby Lobby, 723 F.3d at 1141;
Abdulhaseeb, 600 F.3d at 1317; see also S. Nazarene Univ. v. Sebelius, No. CIV-131015-F, 2013 WL 6804265, at *8 (W.D. Okla. Dec. 23, 2013).
Defendants’ arguments do not compel a different conclusion. Defendants
downplay the importance of executing EBSA Form 700, as well as maintain that any
burden imposed by the challenged regulations is indirect and too attenuated to be
substantial. But the Court’s inquiry is focused upon how the plaintiffs themselves
measure their degree of complicity in an immoral act, not whether a reasonable observer
would consider the plaintiffs complicit in such an act. See Hobby Lobby, 723 F.3d at
16

1142; S. Nazarene Univ., 2013 WL 6804265, at *8; Reaching Souls, 2013 WL 6804259,
at *7-8. Here, Plaintiffs sincerely believe that in executing the form and providing it to
their issuers or TPAs, they play a central role in the provision of contraceptive services to
their employees—something Plaintiffs find morally repugnant. This is where the Court’s
inquiry ends, as it is not the Court’s role to say Plaintiffs’ religious beliefs are mistaken.
See Roman Catholic Archdiocese of N.Y., 2013 WL 6579764, at *14 (citations omitted).
Finally, the Court would be remiss if it failed to mention its awareness that the vast
majority of courts that have considered this issue have sided with the plaintiffs, including
two decisions from judges sitting in this Court.13 See Univ. of Notre Dame v. Sebelius,
743 F.3d 547, 564 n.1 (7th Cir. 2014) (Flaum, J., dissenting) (collecting cases); The
Becket

Fund

for

Religious

Liberty,

“HHS

Mandate

Information

Central,”

www.becketfund.org/hhsinformationcentral (last visited June 3, 2014).
B. Likelihood of Success on the Merits under the Establishment Clause
Because the Court has found that the Group II Plaintiffs have shown a likelihood
of success on the merits under RFRA, and because Defendants concede that the Group III
Plaintiff has shown a likelihood of success on the merits under RFRA based upon the
Tenth Circuit’s decision in Hobby Lobby, the Court declines to address the Group II and
Group III Plaintiffs’ claim under the Establishment Clause. See Lyng v. Nw. Indian

13

The case law regarding this issue is quickly developing. By the Court’s count, nonprofit plaintiffs in twenty-two
of twenty-three cases have received preliminary injunctions from either a district court or court of appeals. That is,
only one nonprofit plaintiff has been denied preliminary injunctive relief from both a district court and court of
appeals. See Univ. of Notre Dame v. Sebelius, 743 F.3d 547 (7th Cir. 2014). Currently, one other group of nonprofit
plaintiffs is facing this possibility, as a district court denied their request for preliminary injunction within the past
few weeks. See Diocese of Cheyenne v. Sebelius, No. 14-CV-21-SWS, --- F. Supp. 2d ----, 2014 WL 1911873 (D.
Wyo. May 13, 2014). This group of plaintiffs has since filed a motion for injunction pending appeal with the Tenth
Circuit, which is yet to be decided.
17

Cemetary Protective Ass’n, 485 U.S. 439, 445 (1988). And with regard to the Group I
Plaintiffs, the Court finds that their Establishment Clause claim fails for the same reason
that their RFRA claim fails—it is undisputed that they are exempted from the
contraceptive mandate, and thus they cannot claim to be harmed by it. See Roman
Catholic Archdiocese of N.Y., 2013 WL 6579764, at *20.
C. Remaining Requirements for Preliminary Injunction
As the Court previously found, the Group II and Group III Plaintiffs have
established a likely RFRA violation.14 With regard to the remaining requirements for a
preliminary injunction, “establishing a likely RFRA violation satisfies the irreparable
harm factor.” Hobby Lobby, 723 F.3d at 1146 (citations omitted). Additionally, the Court
finds that the harm to these Plaintiffs outweighs any harm to Defendants’ interest in
enforcing the challenged regulations. Defendants contend that there is inherent harm in
prohibiting them from enforcing the challenged regulations against these Plaintiffs. Yet
Defendants have already exempted health plans covering millions of others, including
those plans of many religious organizations. This brings into question how tangible the
harm could possibly be by the Court’s entry of a preliminary injunction in Plaintiffs’
favor. By comparison, the harm posed to these Plaintiffs absent relief is quite tangible—
they will either face severe monetary penalties or be required to violate their religious
beliefs. And finally, because of the legal uncertainty presented by the contraceptive
mandate in light of both the Tenth Circuit’s decision in Hobby Lobby, as well as the
numerous courts to have weighed in on the issues presented by the accommodation, the
14

Once again, Defendants have conceded that the Tenth Circuit’s decision in Hobby Lobby dictates that the Group
III Plaintiff has established a likely RFRA violation. See Doc. No. 29, at 21 n. 8.
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Court finds that the public interest lies in preserving the status quo, meaning that
Defendants should not be allowed to enforce the challenged regulations against these
Plaintiffs until their claims are resolved.
In summary, the Court finds that the Group I Plaintiffs are not entitled to any relief
due to the fact that they are wholly exempted from the contraceptive mandate. That said,
the Group II and Group III Plaintiffs are entitled to a preliminary injunction based upon
their RFRA claims.
D. Extension Beyond Named Plaintiffs
Because Plaintiffs are attempting to certify a class in this case, they have requested
that the Court extend preliminary relief beyond the named parties in order to protect a
putative class of entities similarly situated to the named parties. With respect to this,
Plaintiffs and Defendants agree that it would be proper for the Court to extend any
preliminary injunctive relief beyond the named Plaintiffs without first ruling on the
motion for class certification. Plaintiffs and Defendants disagree, however, as to the
scope of this extended relief. Plaintiffs argue that the Court should grant relief to all
present and future members of the CBA, while Defendants argue that the Court should
grant relief only to the present members of the CBA, with certain additional limitations
placed upon the entitlement to relief of those present members of the CBA that fit within
Group III (entities that are neither exempt from the contraceptive mandate nor qualify for
the accommodation).
Having considered the parties’ arguments, the Court will extend preliminary relief
to all present members of the CBA that fit within Groups II and III. That is, current
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members of the CBA that either qualify for the accommodation as nonprofit religious
employers, or bear the full weight of the contraceptive mandate as non-exempt employers
that do not qualify for the accommodation, are entitled to preliminary relief. Granting
relief to all future members of the CBA that fit within Groups II and III would upset the
status quo, and it is too difficult for the Court to presently determine whether these future
members are entitled to relief.15 Similarly, the Court sees no reason why it should
complicate current Group III members’ entitlement to preliminary relief by limiting how
far the relief to current Group III members extends. Accordingly, the Court will extend
preliminary injunctive relief to all current Group II and Group III members of the CBA.16
IV. Conclusion
Based upon the foregoing, Plaintiffs’ Motion for Preliminary Injunction is
DENIED in part, and GRANTED in part. Good Will Publishers and the CBA possess
constitutional standing to sue in this case, and the CIC lacks standing to sue in this case.
Additionally, while the Group I members of the CBA are not entitled to preliminary
injunctive relief, the Group II and Group III members of the CBA are entitled to
preliminary injunctive relief based upon their RFRA claims, and this relief will extend to
all current Group II and Group III members of the CBA.

15

In arguing that all future members of the CBA should fall within the scope of the preliminary injunction,
Plaintiffs’ reliance on Judge DeGiusti’s Order in Reaching Souls is misplaced. In Reaching Souls, the parties fully
agreed with respect to the scope of the preliminary injunction. See 2013 WL 6804259, at *1 (noting that
“Defendants ‘do not object to the scope of the resulting preliminary injunction including the named plaintiffs as well
as any members of the class plaintiffs have proposed in their complaint’”). And here, the parties clearly disagree as
to the scope of the preliminary injunction, rendering Reaching Souls unconvincing on this point.
16
It is worth noting that all current Group II and Group III members of the CBA were required to meet certain tests
in order to be eligible for membership in the CBA, as set out in the CBA’s Articles of Organization and Bylaws. See
Doc. No. 1, at 24-25 & Exs. A-B. The Court is satisfied that these tests have ensured the uniformity of belief among
the current Group II and Group III members to which this preliminary relief will extend.
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PRELIMINARY INJUNCTION
Defendants, their agents, officers, and employees, and all others in active concert
or participation with them, are hereby ENJOINED AND RESTRAINED from any effort
to apply or enforce, as to current members of the Catholic Benefits Association LCA who
either qualify for the accommodation (Group II members), as defined by 26 C.F.R. §
54.9815-2713A(a), 29 C.F.R. § 2590.715-2713A(a), and 45 C.F.R. § 147.131(b), or
neither qualify for the “religious employers” exemption nor qualify for the
accommodation (Group III members), the substantive requirements at issue in this case
that are imposed by 42 U.S.C. § 300gg-13(a)(4) and its related regulations, including any
penalties, fines and assessments for noncompliance with these provisions, until further
order of the Court.
IT IS SO ORDERED this 4th day of June, 2014.

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