GENEVA COLLEGE v. SEBELIUS et al

Filing 114

MEMORANDUM OPINION re: 105 Second MOTION for Preliminary Injunction filed by GENEVA COLLEGE. Signed by Chief Judge Joy Flowers Conti on 12/23/2013. (ten)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

GENEVA COLLEGE; WAYNE L.
HEPLER; THE SENECA HARDWOOD
LUMBER COMPANY, INC., a
Pennsylvania Corporation; WLH
ENTERPRISES, a Pennsylvania Sole
Proprietorship of Wayne L. Hepler; and
CARRIE E. KOLESAR
Plaintiffs,

v.

KATHLEEN SEBELIUS
in her official capacity as Secretary of the
United States Department of Health and
Human Services, HILDA SOLIS
in her official capacity as Secretary of the
United States Department of Labor,
TIMOTHY GEITHNER
in his official capacity as Secretary of the
United States Department of the Treasury,
UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
UNITED STATES DEPARTMENT OF
LABOR, UNITED STATES
DEPARTMENT OF THE TREASURY
Defendants

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Case No. 12-0207

FINDINGS OF FACT AND CONCLUSIONS OF LAW
CONTI, Chief District Judge
Pending before the court is the Second Motion for Preliminary Injunction (ECF
No. 105), and brief in support and reply brief, (ECF No. 106 and 111), filed by plaintiff Geneva
College (“Geneva”), and the response in opposition, (ECF No. 107), filed by defendants
Kathleen Sebelius, Hilda Solis, Timothy Geithner, the United States Department of Health and

Human Services (“HHS”), the United States Department of Labor, and the United States
Department of the Treasury (collectively, “defendants”).
Geneva seeks an order protecting it from complying with the requirement that it
include coverage for certain preventative services as part of the health insurance it provides to its
employees. Geneva objects specifically to the requirement that it provide insurance coverage for
abortifacient products such as ella, Plan B, and intrauterine devices (collectively, the “objected to
services”).
For purposes of the present motion, Geneva argues that the law requiring it to
provide insurance coverage for the objected to services, 42 U.S.C. § 300gg-13(a)(4) (referred to
generally as the “Mandate”), violates the Religious Freedom Restoration Act of 1993, 42 U.S.C.
§ 2000bb-1 (the “RFRA”). Under the RFRA, the government may not “substantially burden” a
person’s exercise of religion, unless the burden: (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(a) and (b).
Geneva advised the court that it does not desire an evidentiary hearing or oral
argument on the instant motion and intends to proceed on the record and briefing that is presently
before the court. (ECF No. 105 at 2.) Defendants did not object to proceeding in this manner.
As it did with respect to both of the prior motions for preliminary injunctive relief, the court will
proceed without an evidentiary hearing or oral argument. Williams v. Curtiss-Wright Corp., 681
F.2d 161, 163 (3d Cir. 1982) (noting that “[i]t has long been recognized that a preliminary
injunction may issue on the basis of affidavits and other written evidence, without a hearing, if
the evidence submitted by both sides does not leave unresolved any relevant factual issue”).

2

Geneva indicated that the court must rule on its motion no later than December
31, 2013, so that it may continue to contract for its employee health insurance plan for the 201415 plan year, which is scheduled to begin on January 1, 2014. The matter is ripe for disposition.

I.

Procedural Background
The court previously issued findings of fact and conclusions of law, and entered

orders preliminarily enjoining defendants from enforcing the Mandate against the Hepler
plaintiffs, (ECF Nos. 83 and 84), and against Geneva with respect to its student health insurance
plan, (ECF Nos. 91 and 92), in part because plaintiffs established a likelihood of success on the
merits with respect to their RFRA claims. Geneva College v. Sebelius, 941 F.Supp.2d 672, 68086 (W.D. Pa. 2013) (Hepler injunction); Geneva College v. Sebelius, -- F.Supp.2d --, 2013 WL
3071481, at *10-11 (W.D. Pa. Jun. 18, 2013) (Geneva student plan injunction).1
Since the court entered those two preliminary injunction orders three significant
events occurred: (1) defendants filed interlocutory appeals in the Court of Appeals for the Third
Circuit from both preliminary injunction orders. Geneva College, et al. v. Secretary United States
Department of Health and Human Services, et al., Nos. 13-2814 and 13-3536 (3d Cir. 2013); (2)
the relevant federal agencies issued rules finalizing the self-certification procedure to be
followed by religious-based organizations which object to providing coverage for certain
preventative services, such as contraceptives and abortion-inducing drugs or devices (the “Final
Rules”). Coverage of Certain Preventative Services Under the Affordable Care Act, 78 FED.

The court also issued lengthy memorandum opinions with respect to defendants’ motion to
dismiss, (ECF No. 74), and Geneva’s motion for reconsideration, (ECF No. 86), which not only
addressed foundational issues, such as standing and ripeness, but also substantively analyzed the
substantial burden and compelling interest elements of plaintiffs’ RFRA claims. (ECF No. 74 at
36-43); Geneva College v. Sebelius, 929 F.Supp.2d 402, 430-35 (W.D. Pa. 2013).
1

3

REG. 39,870-39,899 (Jul. 2, 2013), available at 2013 WL 3294256; and (3) the United States
Supreme Court granted certiorari in two cases in which for-profit, secular closely-held
corporations alleged that the Mandate violates the RFRA. Conestoga Wood Specialties Corp. v.
Sebelius, No. 13-356, 2013 WL 5297800 (U.S. Nov. 26, 2013), and Sebelius v. Hobby Lobby
Stores, Inc., No. 13-354, 2013 WL 5297798 (U.S. Nov. 26, 2013).
A. The Interlocutory Appeals
Defendants’ interlocutory appeals from this court’s orders preliminarily enjoining
enforcement of the Mandate against the Helper plaintiffs and Geneva’s student health insurance
plan are pending before the Court of Appeals for the Third Circuit at Appeal Numbers 13-2814
(Hepler injunction) and 13-3536 (Geneva student plan injunction). Geneva College, et al. v.
Secretary United States Department of Health and Human Services, et al., Appeal Nos. 13-2814
and 13-3536 (3d Cir. 2013). The court of appeals consolidated the cases.
The Hepler plaintiffs recently filed a motion in the court of appeals asking that
their case be held in abeyance pending the Supreme Court’s decision in Conestoga Wood.
(Appeal No. 13-2814, Doc. 003111466403 at 1.) Geneva did not file a companion motion, but
did not object to also holding its case in abeyance. (Id. at 2-3.) In response, defendants argued
that the appellate court should immediately vacate the Hepler injunction pursuant to the court of
appeals’ controlling decision in Conestoga Wood Specialties Corp. v. Sebelius, 724 F.3d 377 (3d
Cir. 2013), which held that a for-profit, secular, closely-held corporation could not assert a
RFRA challenge to the Mandate. (Appeal No. 13-2814, Doc. 003111472846 ¶ 1.) With respect
to the appeal from the Geneva injunction, defendants suggested that the appellate court hold the
matter in abeyance for ninety days so that any appeal resulting from this court’s disposition of
the instant motion could be consolidated with the already-pending appeal concerning Geneva’s

4

student plan. (Id. ¶ 2.) The Hepler plaintiff’s motion was referred to a motions panel of the
court of appeals on December 11, 2013. (Appeal No. 13-2814, at Doc. 003111478999).
Although opening briefs were due January 13, 2014, briefing is stayed pending disposition of
this motion. (Id.)
Although neither party addresses this court’s ability to decide the instant motion
while these appeals are pending, the court independently examined the scope of its jurisdiction
under these circumstances. An interlocutory appeal does not divest the district court of
jurisdiction. United States v. Price, 688 F.2d 204, 215 (3d Cir. 1982) (citing 16 CHARLES ALAN
WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 3921.2 (2d ed. 1995)).
This court retains the ability to proceed with those matters not involved in the appeal. New York
State Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1350 (2d Cir. 1989). The two preliminary
injunction orders subject to appeal do not address application of the Final Rules to Geneva’s
employee health plan. For this reason, the present motion raises novel issues and this court
retains jurisdiction to decide the instant motion.
B. The Final Rules
This summer, various federal agencies issued the Final Rules implementing the
Mandate. Coverage of Certain Preventative Services Under the Affordable Care Act, 78 FED.
REG. at 39,870 (Jul. 2, 2013), available at 2013 WL 3294256. The Final Rules were issued on
June 28, 2013, published in the Federal Register on July 2, 2013, and became effective on
August 1, 2013. 78 FED. REG. at 39,870; (ECF No. 98 ¶ 145.) The Final Rules include two
concessions for religious-based employers that object to providing coverage for the contraceptive
services and devices required by the Mandate: (1) an absolute exemption for certain religious
employers, such as churches and their related auxiliaries and associations; and (2) a self-

5

certification accommodation for nonprofit organizations that hold themselves out as a religious
organization. 78 FED. REG. at 39,873-78.
Under the latter accommodation, if a nonprofit, religious organization, objects to
providing contraceptive services due to a religious objection, it can execute a self-certification
form, which notifies its insurance carrier that the organization refuses to provide coverage for
certain preventative services, such as the objected to services. 78 FED. REG. at 39,874-75; 45
C.F.R. § 147.131(b). Upon receipt of a self-certification form, the insurer must offer the
objected to services to employees without direct or indirect cost to the employee or the
organization. 78 FED. REG. at 39,875-77; 45 C.F.R. § 147.131(c)(2)(ii) and (d). This process is
referred to herein as the “eligible organization accommodation” or the “self-certification
process.”2
Plaintiffs filed a second amended complaint on October 18, 2013, which added
allegations relating to the Final Rules, including, specifically, the eligible organization
accommodation’s self-certification process. (ECF No. 98 ¶¶ 145-82.)
C. Supreme Court Appeals and Recent Case Law
In November 2013, the United States Supreme Court granted two petitions for a
writ of certiorari in cases filed by for-profit, secular, closely-held corporations seeking to prevent
enforcement of the Mandate against company health plans on the basis of the owners’ religious
beliefs. Conestoga Wood Specialties Corp. v. Sebelius, No. 13-356, 2013 WL 5297800 (U.S.
Nov. 26, 2013), and Sebelius v. Hobby Lobby Stores, Inc., No. 13-354, 2013 WL 5297798 (U.S.

This accommodation is also reflected in the Treasury Department’s regulations, 78 FED. REG. at
39,892, 26 C.F.R. § 54.9815-2713A, and the Labor Department’s regulations, 78 FED. REG. at
39,894-95, 29 C.F.R. § 2590.713-2715A. The court refers only to the amended regulations of
the Department of Health and Human Services. 78 FED. REG. at 39,896-97, 45 C.F.R. §
147.131(c)(2)(ii) and (d).
2

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Nov. 26, 2013). In Conestoga Wood the Court of Appeals for the Third Circuit held that
Conestoga Wood Specialties could not assert a RFRA claim because corporations have no First
Amendment free exercise rights, and the rights of the individual owners could not pass through
to the corporation. Conestoga Wood Specialties Corp. v. Sebelius, 724 F.3d 377 (3d Cir. 2013).
In contrast, in Hobby Lobby, the Court of Appeals for the Tenth Circuit held that corporations
have First Amendment free exercise rights, and, as a result, Hobby Lobby could assert a RFRA
claim. The court of appeals went on to conclude that the Mandate imposed a substantial burden
on the corporation’s free exercise rights, which could not be justified by any compelling state
interest. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013). The Supreme
Court consolidated the Conestoga Wood and Hobby Lobby appeals. The publicly available
docket does not reflect a briefing schedule, although customary Supreme Court procedure would
dictate that the parties’ opening merits briefs be filed in mid-January and mid-February, with
petitioner’s reply brief due in mid-March. The Supreme Court docket does reflect that amicus
curiae briefs, in support of any party, must be filed by January 28, 2014. It does not appear that
the Supreme Court will hear oral argument on these cases before the March 2014 sitting.
Three other courts of appeals have recently ruled on the same, or very similar,
issues as were decided in Conestoga Wood and Hobby Lobby:
(1) In Autocam Corp. v. Sebelius, the Court of Appeals for the Sixth Circuit held that a
for-profit, secular, closely-held corporation could not assert a RFRA challenge to the
Mandate because it was not a “person” within the meaning of the statute. Autocam
Corp. v. Sebelius, 730 F.3d 618, 625-26 (6th Cir. Sep. 17, 2013). In reaching this
holding, the court emphasized that the free exercise rights of “religious entities” are
different than those of for-profit, secular corporations. Id. at 627. The Court of

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Appeals for the Third Circuit made this same distinction. Conestoga Wood, 724 F.3d
at 385-86, discussed, infra p. 21.
(2) In Gilardi v. United States Department of Health and Human Services, the Court of
Appeals for the District of Columbia Circuit held that a for-profit, secular, closely-held
corporation did not possess free exercise rights, and could not assert a RFRA claim,
but that the owners of the corporation unquestionably possessed such individual rights
and could assert them under the RFRA. Gilardi v. United States Department of Health
and Human Services, 733 F.3d 1208, 1212-16 (D.C. Cir. Nov. 1, 2013). The court of
appeals concluded that the Mandate substantially burdened the owners’ religious
exercise, and could not survive the compelling government interest/least restrictive
means test set forth in the RFRA. Id. at 1216-24.
(3) In Korte v. Sebelius, the Court of Appeals for the Seventh Circuit held that for-profit,
secular, closely-held corporations were “persons” within the statutory language of the
RFRA. Korte v. Sebelius, 735 F.3d 654, 673-82 (7th Cir. Nov. 8, 2013). The
appellate court concluded that the Mandate substantially burdened the plaintiffs’
exercise of religion and failed the RFRA’s compelling government interest/least
restrictive means test. Id. at 682-87.
Although the Supreme Court will address a RFRA challenge to the Mandate,
neither of the cases under consideration, nor any of the appellate decisions set forth above,
involve a nonprofit, religious organization’s challenge to the eligible organization
accommodation and its self-certification process. The court is unaware of any court of appeals to
have considered such a challenge. Three federal district courts have considered such a challenge
to date. Two of those courts held that the eligible organization accommodation’s self-

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certification process violates the RFRA. The Roman Catholic Archdiocese of New York v.
Sebelius, -- F.Supp.2d --, No. 12-2541, 2013 WL 6579764 (E.D.N.Y. Dec. 16, 2013); Zubik v.
Sebelius, -- F.Supp.2d --, Nos. 13-1459 (Pitts.) and 13-303 (Erie), 2013 WL 6118696 (W.D. Pa.
Nov. 21, 2013) (J. Schwab). The other district court held that the accommodation did not violate
the RFRA, or any Constitutional provision. Priests for Life, et al. v. United States Dep’t of
Health and Human Services, -- F.Supp.2d --, No. 13-1261, 2013 WL 6672400 (D.D.C. Dec. 19,
2013).

II.

FINDINGS OF FACT3
Geneva is a nonprofit institution of higher learning established in Beaver Falls,

Pennsylvania, in 1848 by the Reformed Presbyterian Church of North America (“RPCNA”).
(ECF Nos. 91 at 3; 98 ¶¶ 12, 25.) Geneva’s mission is “to glorify God by educating and
ministering to a diverse community of students in order to develop servant-leaders who will
transform society for the kingdom of Christ.” (ECF Nos. 91 at 3; 98 ¶ 25.) This mission is
central to Geneva’s institutional identity and activities. (ECF Nos. 91 at 3; 98 ¶¶ 27-29.) Geneva
offers a traditional liberal arts and sciences curriculum as well as student programs and services
that are rooted in the Christian faith. (ECF Nos. 91 at 3-4; 98 ¶ 26.) Pursuant to its mission and
goals, Geneva has historically promoted a diverse student population and has opposed
institutions (such as slavery) that it finds inimical to its beliefs. (ECF Nos. 91 at 4; 98 ¶¶ 36-37.)
Geneva is governed by a board of corporators and a board of trustees. (ECF Nos.
91 at 4; 98 ¶¶ 30, 33.) Members of the board of corporators must be members of the RPCNA
The findings of fact contained herein are derived from the court’s previous findings of fact,
(ECF Nos. 83 and 91), as well as the allegations of the second amended complaint (ECF No. 98).
Because the factual background has not changed, many of the factual findings are identical to
those made with respect to Geneva’s previous preliminary injunction motion.
3

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and members of the board of trustees must be members of either the RPCNA or some other
Reformed or Evangelical Christian congregation. (Id.) Geneva’s faculty, staff, and
administration are drawn from among those who profess faith in Christ and who otherwise agree
with the college’s Christian convictions. (ECF Nos. 91 at 4; 98 ¶ 34.) Geneva has approximately
350 employees, about 280 of which are full-time. (ECF No. 98 ¶ 39.) There are approximately
95 full-time faculty members. (Id.) Geneva does not require its students to profess a particular
faith, but it does give enrollment priority to Evangelical Christians and requires all students to
live by standards of Christian morality. (ECF Nos. 91 at 4; 98 ¶ 35.)
Geneva and the RPCNA firmly believe “that the procurement, participation in,
facilitation of, or payment for abortion [including the use of what it alleges are abortion-causing
drugs like Plan B and ella] violates the Commandment against murder.” (ECF Nos. 91 at 4; 98 ¶
45.) Geneva identifies several texts, including the Ten Commandments, Scripture, the
articulated statements of the RPCNA, and the Westminster Larger Catechism in support of its
view that human life begins at the moment of fertilization, and that any destruction of a human
life thereafter constitutes murder. (ECF Nos. 91 at 4; 98 ¶¶ 40-46.) Geneva’s Student Handbook
expressly provides that abortion “will not be tolerated.” (ECF Nos. 91 at 4; 98 ¶ 51.) In
furtherance of its views on abortion, Geneva’s students and staff participate in a host of pro-life
activities both on and off campus. (ECF Nos. 91 at 4; 98 ¶¶ 47-50.)
Geneva provides health insurance coverage to its employees and makes health
insurance coverage available to its students. (ECF Nos. 91 at 5; 98 ¶ 52.) Geneva considers
providing health care to its employees to be part of its religious duty. (ECF No. 98 ¶ 52.)
Geneva’s contract for employee health coverage states that it excludes “[a]ny drugs used to abort
a pregnancy.” (ECF No. 98 ¶ 54.) The next plan year for the employee health plan is scheduled

10

to begin on January 1, 2014. (Id. ¶ 53.) Although Geneva is permitted to exclude morally
objectionable abortion-inducing drugs and devices from its current employee health insurance
plan under the Temporary Enforcement Safe Harbor provision, that provision will expire with
respect to Geneva’s employee plan when the new plan year commences on January 1, 2014.
(ECF No. 106 at 1 n.1); 78 FED. REG. 39,870, 39,872.
Without the relief requested, Geneva will be forced to choose between: (a)
violating its religious convictions by acquiescing to a government requirement that it facilitate
access to abortion-inducing drugs and devices; and (b) violating its religious convictions by
cancelling all health care coverage for its employees. (ECF No. 111 at 1.) Geneva’s religious
convictions forbid it from participating in providing free access to the objected to services
through its employee health care plan. (ECF No. 98 ¶ 186.) Geneva has a religious duty to
provide for the well-being of its employees and their families. (Id. at ¶¶ 52, 183-84.) Because
Geneva has more than 50 full-time employees, it is required under the ACA to provide health
insurance to its employees or incur substantial penalties, or be subject to legal action. (ECF No.
98 ¶ 39, 109-10); 26 US.C. §§ 4980D(b)(1) and H(c)(1); 29 U.S.C. § 1132; 42 U.S.C. § 18011.
Dropping its employee health insurance plan would not only violate Geneva’s religious duty to
provide for its employee’s well-being, but also subject Geneva to crippling penalties and place
Geneva at a severe competitive disadvantage in its efforts to recruit and retain employees. (ECF
No. 98 ¶¶ 9, 52, 109, 183-84, 187, 197.)

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III.

CONCLUSIONS OF LAW
A.

The Relevant Statutes and Regulations Concerning the Objected to Services
1.

The Patient Protection and Affordable Care Act of 2010

On March 23, 2010, the Patient Protection and Affordable Care Act of 2010, Pub.
L. No. 111-148, 124 Stat. 119 (Mar. 23, 2010) (“ACA”), became law and an overhaul of the
nation’s healthcare system began. Section 1001 of the ACA includes specific measures related
to preventive care for women, and provides in part:
(a) In general
A group health plan and a health insurance issuer offering group or
individual health insurance coverage shall, at a minimum provide
coverage for and shall not impose any cost sharing requirements for—
***
(4) with respect to women, such additional preventive
care and screenings not described in paragraph (1) as
provided for in comprehensive guidelines supported
by the Health Resources and Services Administration
[“HRSA”] for purposes of this paragraph.
42 U.S.C. § 300gg-13 (the “preventive care provision”). Because the ACA did not specifically
identify which preventive care services would have to be provided without cost sharing, further
rulemaking was necessary.
2.

Preventive Care Services and Interim Final Rules

On July 19, 2010, defendants (the Departments of Health and Human Services,
Labor, and Treasury) issued interim Final Rules implementing the preventive care provision.
Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of
Preventive Services Under the ACA (the “first interim Final Rules”), 75 FED. REG. 41,726 (Jul.
19, 2010). The first interim Final Rules required all group health plans and health insurance

12

issuers offering nongrandfathered4 group or individual health coverage to cover, without costsharing, the preventive care services outlined in 42 U.S.C. § 300gg-13. Id. at 41,728. The first
interim Final Rules directed the HHS, in conjunction with the Institute of Medicine (“IOM”), to
determine what preventive services are necessary and beneficial for women’s health and wellbeing. Id. The IOM was to report its findings to the Health Resources and Services
Administration (“HRSA”), which was to issue the necessary guidelines. The report issued by the
IOM5 on July 19, 2011, recommended that the HRSA guidelines include, inter alia: “[t]he full
range of Food and Drug Administration [(“FDA”)]-approved contraceptive methods, sterilization
procedures, and patient education and counseling for women with reproductive capacity.” IOM
Report at 10. FDA-approved contraceptive methods include the objected to services, such as the
drugs ella and Plan B, as well as intrauterine devices.
3.

HRSA Guidelines

On August 1, 2011, the HRSA adopted guidelines pursuant to the IOM
recommendations6 and on August 3, 2011, again issued interim Final Rules (the “second interim
Final Rules”). Group Health Plans and Health Insurance Issuers Relating to Coverage of
Preventive Services Under the ACA, 76 FED. REG. 46,621 (Aug. 3, 2011). The second interim
Final Rules carved out an exemption allowing certain religious employers to avoid providing
4

The preventive services provisions do not apply to health plans that are grandfathered. A plan is
grandfathered if: (1) at least one person was enrolled on March 23, 2010; (2) the plan
continuously covered at least one individual since that date; (3) the plan provides annual notice
of its grandfathered status; and (4) the plan has not been subject to significant changes as
outlined in the regulations. See 42 U.S.C. § 18011; 26 C.F.R. §§54.9815-1251T(a), (g); 29
C.F.R. §§ 2590.715-1251(a), (g); 45 C.F.R. §§ 147.140(a), (g). There is no dispute that
Geneva’s employee health plan is not entitled to grandfather status.
5
INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS, available at
http://www.iom.edu/Reports/2011/Clinical-Preventive-Services-for-Women-Closing-theGaps.aspx (last visited Dec. 19, 2013) (“IOM Report”).
6
The HRSA guidelines are available at http://www.hrsa.gov/womensguidelines/ (last visited
Dec. 19, 2013).
13

insurance coverage for the objected to services. 76 FED. REG. at 46,626 (codified at 45 C.F.R. §
147.130(a)(1)(iv)(B)). The “religious employer exemption” defines religious organizations as
those employers that meet the following criteria:
(1) The inculcation of religious values is the purpose of the organization;
(2) The organization primarily employs persons who share the religious tenets of the
organization;
(3) The organization serves primarily persons who share the religious tenets of the
organization;
(4) The organization is a nonprofit organization as described in section 6033(a)(1) and
section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.
The sections of the Internal Revenue Code cited in subsection (4) define nonprofit organizations
as “churches, their integrated auxiliaries, and conventions or associations of churches,” and “the
exclusively religious activities of any religious order” that are exempt from taxation pursuant to
26 U.S.C. § 501(a).
4.

Temporary Enforcement Safe Harbor Provision

After allowing the public and interested groups to comment on the second interim
Final Rules, defendants adopted the definition of religious employer contained in those
regulations without change on February 15, 2012. Group Health Plans and Health Issuers
Relating to Coverage of Preventive Services Under the ACA, 77 FED. REG. 8,725, 8,727-28
(Feb. 15, 2012). These regulations contained a temporary enforcement safe harbor provision for
nongrandfathered plans that do not qualify for the religious employer exemption. Id. HHS issued

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supplemental guidance (“HHS Guidance”) with respect to the safe harbor provision.7 The safe
harbor provision provides that defendants will not take any enforcement action against an
employer, a group health plan, or a group health insurance issuer with respect to nonexempt,
nongrandfathered group health plans that fail to cover some or all of the recommended
preventive services “until the first plan year that begins on or after August 1, 2013.” HHS
Guidance, at 3. To qualify for the safe harbor provision, an organization must meet the
following four criteria:
(1) The organization is organized and operates as a nonprofit entity.
(2) From February 10, 2012 onward, contraceptive coverage has not been
provided at any point by the group health plan established or maintained by the
organization, 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 thirdparty administrator) must provide [notice] to participants . . . which states that
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 the procedures detailed
[elsewhere in the HHS Guidance].
HHS Guidance, at 3.

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HHS, Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Group
Health Plans and Group Health Insurance Issuers with Respect to the Requirement to Cover
Contraceptive Services Without Cost Sharing (reissued bulletin), at 3 (Feb. 10, 2012), available
at http://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/preventiveservices-guidance-6-28-2013.pdf (last visited Dec. 19, 2013).
15

5.

Advance Notice of Proposed Rulemaking

Following the adoption of the regulations and the HHS Guidance in February
2012, defendants issued an Advance Notice of Proposed Rulemaking (“ANPRM”) on March 21,
2012. Certain Preventive Services Under the ACA, 77 FED. REG. 16,501 (Mar. 21, 2012). The
ANPRM sought additional public comments and set forth “questions and ideas” on how to best
provide women with access to contraceptive services without cost-sharing, while
accommodating the religious liberty concerns articulated by nonexempt religious organizations.
Id. at 16,503. By its own terms, the ANPRM aimed to “protect . . . religious organizations from
having to contract, arrange, or pay for contraceptive coverage.” Id. The ANPRM provided a
ninety-day comment period ending June 19, 2012. Id.
6.

Updated Guidance

The HHS updated its guidance bulletin (the “Updated HHS Guidance”) on August
15, 2012 by clarifying three points: “(1) that the safe harbor is also available to nonprofit
organizations with religious objections to some but not all contraceptive coverage . . .; (2) that
group health plans that took some action to try to exclude or limit contraceptive coverage that
was not successful as of February 10, 2012, are not for that reason precluded from eligibility for
the safe harbor . . .; and (3) that the safe harbor may be invoked without prejudice by nonprofit
organizations that are uncertain whether they qualify for the religious employer exemption.”8
The safe harbor was aimed at providing an additional year—until the first plan year beginning on

8

Department of Health and Human Services, Revised Guidance on the Temporary Enforcement
Safe Harbor for Certain Employers, Group Health Plans and Group Health Insurance Issuers
with Respect to the Requirement to Cover Contraceptive Services Without Cost Sharing, at n.1,
available at
http://wayback.archive-it.org/2744/20130514175209/http://cciio.cms.gov/resources/files/prevservices-guidance-08152012.pdf (last visited Dec. 19, 2013) (“updated HHS Guidance”).
16

or after August 1, 2013—for health plans and health insurance issuers to comply with the
preventive care requirement. Updated HHS Guidance at 3.
7.

Proposed Rules

On February 6, 2013, defendants issued proposed rules (the “proposed rules”)
broadening the universe of organizations eligible for an exemption from the contraceptive
requirement. Coverage of Certain Preventive Services under the Affordable Care Act, 78 FED.
REG. 8,456, 8,462 (Feb. 6, 2013). In the proposed rules, defendants recommended an
accommodation for religious organizations that object to providing contraceptive coverage. The
proposed rules exclude from the contraceptive requirement those organizations that meet certain
criteria:
(1) The organization opposes providing coverage for some or all of the
contraceptive services required to be covered under [the Final Rules] on
account of religious objections;
(2) The organization is organized and operates as a nonprofit entity;
(3) The organization holds itself out as a religious organization; and
(4) The organization self-certifies that it satisfies the first three criteria.
78 FED. REG. at 8,462. In an effort to also accommodate those plan beneficiaries who may not
share the beliefs of the organizations claiming the accommodation, the proposed rules also set
forth possible ways “to provide women with contraceptive coverage without cost sharing and to
protect eligible organizations from having to contract, arrange, pay, or refer for contraceptive
coverage to which they object on religious grounds.” Id. at 8,462-64.

17

8.

Final Rules

On June 28, 2013, the pertinent federal agencies issued the Final Rules. 78 FED.
REG. at 39,870-39,899. The Final Rules modify the language used to define an exempt
“religious employer” to be “an organization that is organized and operates as a nonprofit entity
and is referred to in § 6033(a)(3)(A)(1) or (iii) of the Internal Revenue Code of 1986, as
amended.” 78 FED. REG. at 39,874; 45 C.F.R. § 147.131(a). Because the Internal Revenue Code
sections list churches, their integrated auxiliaries, and conventions or associations of churches,
and the exclusively religious activities of any religious order, the new language used did not
change the substance of the exemption. 26 U.S.C. § 6033(a)(3)(A)(i) and (iii). These employers
are absolutely exempt from the Mandate.
The Final Rules include the same accommodation for “eligible organizations” that
originally appeared in the February 6, 2013 proposed rules, and make it applicable to all group
health plans for plan years beginning on or after January 1, 2014. 78 FED. REG. at 8,462, 38,872,
39,874-75; 45 C.F.R. § 147.131(b). The Final Rules utilize the same four criteria set forth in the
proposed rules to determine whether an entity qualifies as an “eligible organization,” thus
allowing it to take advantage of the “self-certification” work-around:
(1) The organization opposes providing coverage for some or all of any
contraceptive services required to be covered under s 147.130(a)(1)(iv) on
account of religious objections.
(2) The organization is organized and operates as a nonprofit entity.
(3) The organization holds itself out as a religious organization.
(4) The organization self-certifies, in a form and manner specified by the
Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this
section, and makes such self-certification available for examination upon request
by the first day of the first plan year to which the accommodation in paragraph (c)
of this section applies…..

18

45 C.F.R. § 147.131(b). A self-certification form must be signed by an authorized representative
of the organization and provided to the organization’s insurer. Id. at § 147.131(b)(4). Upon
receipt of the self-certification form, the group health insurer must notify plan participants of the
availability of separate payments for any contraceptive services required to be covered under §
147.130(a)(1)(iv). Id. at § 147.131(d). Such payments are to be made without any cost-sharing
requirements or premium, fee, or other charge to the eligible organization, the group health plan,
or the plan participants or beneficiaries. Id. at § 147.131(c)(2); 78 FED. REG. at 39,879-80.
B.

Claims Presented in the Second Amended Complaint
Geneva avers that the Final Rules’ self-certification requirement substantially

burdens its religious exercise by requiring it to act as the “sole trigger” of access to the objected
to services. (ECF No. 98 ¶¶ 139, 159-60, 167, 174, 179, 181-82, 186, 188-90.) According to
Geneva, under the self-certification accommodation, Geneva is the “central cog” in the
government’s scheme to expand access to the objected to services, against its conscience and
religious beliefs. (Id. ¶ 140.) Geneva asserts that it would play a central role in facilitating free
access to the objected to services by coordinating notices with and providing employee
information to its insurer. (Id. ¶¶ 160, 162, 164-65, 167.) Geneva argues that the Final Rules
burden its employee recruitment and retention efforts by putting it at a competitive disadvantage
were it to choose not to offer health insurance, rather than violate its beliefs by participating in
the self-certification process. (Id. ¶¶ 187.) Geneva avers that eliminating health care coverage
entirely would result in the imposition of significant monetary penalties, and would, itself,
violate its religious duty to provide for the well-being of its employees and their families. (ECF
No. 98 ¶¶ 52, 109-10, 183.)

19

C.

Preliminary Injunction Standard
The court considers four factors in determining whether to grant a preliminary

injunction. A party seeking a preliminary injunction must show: “(1) a likelihood of success on
the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting
preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the
public interest favors such relief.” Kos Pharmaceuticals, Inc. v. Andrx Corp., 369 F.3d 700, 708
(3d Cir. 2004) (citing Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir. 1999)).
Although a party seeking preliminary injunctive relief must make “a clear
showing that [it] is entitled to such relief,” Winter v. Natural Res. Defense Council, Inc., 555
U.S. 7, 22 (2008), demonstrating a likelihood of success on the merits requires only that the party
“prove a prima facie case, not a certainty that he or she will win.” Highmark, Inc. v. UPMC
Health Plan, Inc., 276 F.3d 160, 173 (3d Cir. 2001) (citing 11A CHARLES ALAN WRIGHT &
ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2948.3 (2d ed. 1995)).
1.

Likelihood of Success on the Merits
a.

Geneva’s Claim Pursuant to the RFRA

Pursuant to the RFRA, the government may not “substantially burden a person’s
exercise of religion, ‘even if the burden results from a rule of general applicability.’” Gonzales v.
O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418, 424 (2006) (quoting 42 U.S.C. §
2000bb-1(a)). The government may, however, substantially burden the exercise of religion if the
burden: “(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(b).
Geneva bears the initial burden under the RFRA of establishing that application of the Mandate
would substantially burden a sincere religious exercise. O Centro, 546 U.S. at 426.

20

Before proceeding the court must consider the effect, if any, that the Court of
Appeals for the Third Circuit’s precedential decision in Conestoga Wood has on the court’s
substantive analysis of Geneva’s RFRA claim. Conestoga Wood, 724 F.3d 377 (3d Cir. 2013).
Although the court of appeals’ decision was issued more than three months before the first brief
on the instant motion was filed, neither party cited to it. Defendants cite only to the district court
opinion in that case. (ECF No. 107 at 4-5.)
To reiterate, in Conestoga Wood, the Court of Appeals for the Third Circuit held
that a for-profit, secular, closely-held corporation could not assert a RFRA claim because courts
have not historically provided First Amendment free exercise protection to corporations.
Conestoga Wood, 724 F.3d at 384. In doing so, the court explicitly distinguished the “rights of
religious organizations.” Id. at 385-86. The holding in Conestoga Wood applies, by its own
language, only to certain for-profit, secular, closely-held corporations,9 which the court
distinguished from “religious organizations.” The appellate court did not decide on which side
of the ledger nonprofit, non-secular corporations would fall. For this reason, Conestoga Wood
does not conclusively bar this court’s consideration of Geneva’s RFRA claim.
Given that defendants presuppose Geneva’s right to bring a claim pursuant the
RFRA in this case, and given that the eligible employer accommodation is premised on this same
fundamental presumption, the court will proceed with a substantive analysis of Geneva’s claim.
Korte, 735 F.3d at 674-75 (noting that the religious employer exemption and self-certification

9

This court previously noted the limited scope of the holding in Conestoga Wood in denying
defendants’ motion for an indicative ruling. Geneva College v. Sebelius, No. 12-207, 2013 WL
5704948 (W.D. Pa. Oct. 18, 2013). This court found that the court of appeals’ decision in
Conestoga Wood did not require that the Hepler injunction be vacated because the corporate
structure of the Hepler corporate plaintiffs differed from Conestoga Wood Specialties Corp., and
because Conestoga did not consider claims brought by individual family member-employees. Id.
at *2.
21

accommodation assume that certain religious organizations have free exercise rights, but noting
that the lines drawn by the government are “nowhere to be found in the text of RFRA,” and
recognizing that the government analogizes these exemptions and accommodations to
exemptions for religious employers under the Americans with Disabilities Act, 42 U.S.C. §
12113(d)(1)-(2), and Title VII, 42 U.S.C. § 2000e-2).
i.

Substantial Burden

Under the RFRA, exercise of religion is defined as “any exercise of religion,
whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000bb-2
(citing 42 U.S.C. § 2000cc-5). The Supreme Court has cautioned courts to be reluctant to
“dissect religious beliefs” when engaging in a substantial burden analysis. Thomas v. Review
Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 715 (1981). As the court acknowledged in its
previous orders and factual and legal findings, a court must tread lightly when considering
whether the mandate’s requirements substantially burden Geneva’s exercise of religion. (ECF
Nos. 83 at 12 and 91 at 12-13); Geneva College, 2013 WL 3071481, at *7; Geneva College, 941
F.Supp.2d at 681. The court’s role is not to decide whether the commands of one’s faith have
been correctly perceived; instead, it is enough that a claimant has an “honest conviction” that
what the government is requiring, prohibiting, or pressuring him to do conflicts with his religion.
Korte, 735 F.3d at 683 (quoting Thomas, 450 U.S. at 716). Two appellate courts considering the
exact Mandate at issue in this case explained that a court must assess the intensity of the coercion
and pressure from the government, not the merit of the belief. Korte, 735 F.3d at 683; Hobby
Lobby, 723 F.3d at 1137.

22

A challenged law substantially burdens Geneva’s free exercise of religion if it
compels Geneva “to perform acts undeniably at odds with fundamental tenets of their religious
beliefs.” Wisconsin v. Yoder, 406 U.S. 205, 218 (1972). A substantial burden also exists where
a law “put[s] substantial pressure on an adherent to modify his behavior and violate his beliefs.”
Thomas, 450 U.S. at 718. Even “onerous” financial costs can rise to the level of a substantial
burden. See Jimmy Swaggart Ministries v. Bd. of Equalization of Cal., 493 U.S. 378, 392 (1990)
(declining to find a substantial burden, but recognizing that one could exist under certain
circumstances). The courts of appeals to reach the merits of RFRA challenges to the Mandate
specifically found that the substantial fines and penalties imposed upon an entity that either
refuses to offer health care coverage to its employees at all, or refuses to provide coverage for the
mandated preventative services constitutes a substantial burden. Korte, 735 F.3d at 683-84;
Gilardi, 733 F.3d at 1217-18; Hobby Lobby, 723 F.3d at 1140-41.10
Defendants do not question the sincerity of Geneva’s religious beliefs, but they do
dispute whether the Mandate and the Final Rules impose a substantial burden on the exercise of
those beliefs. Defendants argue that the Final Rules’ self-certification accommodation does not
substantially burden Geneva’s exercise of religion because it requires Geneva to do no more than
submit a form informing its insurer that it refuses to provide coverage to its employees for
contraceptive services and ensures that Geneva is not responsible for contracting, arranging,
paying, or referring for such coverage. (ECF No. 109 at 11.) Defendants contend that Geneva
10

In Priests for Life, the district court explained, based on targeted supplemental briefing
submitted by the government after oral argument, that if an eligible organization refuses to take
advantage of the self-certification accommodation process, its insurer has an independent legal
obligation under the ACA to include the objected to services in the organization’s group policy.
Priests for Life, 2013 WL 66722400, at * 3 n.2. In other words, an eligible organization’s refusal
to complete the self-certification process does not result in a $100 per employee, per day fine for
failing to provide coverage for the objected to services; it results in the organization actually
paying, through its group health insurance policy, for the objected to services. Id.
23

need not modify its behavior in any way under the Final Rules because Geneva would notify its
insurer of this refusal before the ACA became law. (Id. at 11, 19.) Defendants assert that the
self-certification accommodation “require[s] virtually nothing of Geneva” making any burden on
Geneva de minimus, and that, in any event, any burden on Geneva’s free exercise rights is too
attenuated to qualify as substantial. (Id. at 11, 18.)
Geneva argues that this court’s prior rulings with respect to the Hepler plaintiffs’
motion for a preliminary injunction and Geneva’s motion for a preliminary injunction concerning
its student health plan dictate that Geneva’s instant motion be granted. (ECF No. 106 at 1, 2.)
Geneva emphasizes that this court previously rejected defendants’ attenuation argument and
ruled that the self-certification accommodation, which at the time was only a proposal, did not
eliminate the Mandate’s substantial burden on Geneva’s religious desire to avoid complicity in
grave moral evil. (Id. at 2, 7; ECF No. 111 at 8); Geneva College, 2013 WL 3071481, at *7-9.
Geneva explains that under the Final Rules it is forced to become the “central cog” in
“facilitating access” to the objected to services because the services only become available to its
employees if Geneva: (1) offers a health insurance plan to its employees, as it is now required by
law to do; and (2) submits the self-certification form to its insurer, which itself, by law, requires
that the objected to services will be provided to employees. (ECF No. 106 at 5-6.)11
In its reply brief, Geneva responds directly to defendants’ claim that Geneva is
required to do no more than it did before the Mandate became law, i.e, notify an insurer of its
refusal to provide coverage for the objected to services. Geneva convincingly explains that the

According to briefing filed by the government in Priests for Life, under the ACA, Geneva’s
employees will obtain insurance coverage for the objected to services so long as Geneva offers a
health insurance plan to its employees, because if Geneva refuses to execute a self-certification
form, then Geneva’s insurer is required, by law, to include the objected to services in the group
plan, at Geneva’s expense. See supra note 10.
11

24

consequence of its prior notification was that its employees could not obtain coverage for the
objected to services, while the consequence of the Final Rules’ self-certification notification is
that its employees must be provided access to the objected to services. See Archdiocese of N.Y.,
2013 WL 6579764, at *14 & n.11 (noting that the self-certification form transforms a voluntary
act that plaintiffs believe to be consistent with their religious beliefs into a compelled act that
they believe forbidden); Zubik, 2013 WL 6118696, at *25 (analogizing that a person might be
willing to provide a neighbor with a knife to cut meat, but not to commit murder). The purpose
for which the notification is provided, and the compulsion to file it, makes all the difference.12
Geneva is correct that, under the authority of Thomas, this court previously
rejected defendants’ recurrent argument that the burden in the present case is too attenuated to be
substantial. Geneva College, 2013 WL 3071481, at *9. Defendants identified no change in
factual or legal circumstances that would compel a different result here. The court is again
convinced by Geneva’s well-founded argument that its submission of the self-certification form
is not too attenuated from the provision of the objected to services. Instead, it is the necessary
stimulus behind their provision. See Korte, 735 F.3d at 684-85 (rejecting attenuation argument);
Gilardi, 733 F.3d at 1217-18 (same); Hobby Lobby, 723 F.3d at 1189-90 (same). Courts should
not undertake to dissect religious beliefs and second-guess where an objector draws the line
For this reason, the court respectfully disagrees with the district court’s conclusion, in Priests
for Life, that the self-certification process cannot substantially burden an eligible organization’s
religious exercise because it “need not do anything more than it did prior to the promulgation of
the challenged regulations – this is, to inform its issuer that it objects to providing contraceptive
coverage.” Priests for Life, 2013 WL 6672400, at *7. Prior to the ACA, the result of that
notification was that employees could not obtain insurance coverage for the objected to services.
After the ACA, the result of that notification is that employees must be provided insurance
coverage for those same services. Under the ACA, Geneva has two choices: (1) provide
insurance coverage to its employees, which will result in coverage for the objected to services; or
(2) refuse to provide insurance coverage for its employees, which will result in fines, harm to its
employees’ well-being, and competitive disadvantages. Both options require Geneva to act
contrary to its religious duties and beliefs. See supra p. 11.
12

25

when analyzing substantial burden questions. Hobby Lobby, 723 F.3d at 1141. Here, Geneva
draws the line at providing health insurance to its employees that includes coverage for the
objected to services. The Mandate forces Geneva to facilitate access to the objected to services
through the self-certification process. The court previously found that this is a not a line that the
government can compel Geneva to cross. The court makes the same finding again.
In granting preliminary injunctive relief to the Hepler plaintiffs and to Geneva
with respect to its student plan, this court explained how the Supreme Court’s decisions in
Yoder, Sherbert and Thomas supported a finding that the Mandate, including the selfcertification accommodation, imposed a substantial burden under the RFRA. As it was under the
proposed rules, under the Final Rules, Geneva is faced with having to choose between violating
its deeply held religious beliefs and terminating its employee health insurance coverage entirely
in order to avoid the ACA’s regulatory scheme, which it alleges also burdens its religious duty to
care for the well-being of its employees, and will, in any event, result in substantial fines. (ECF
No. 98 ¶¶ 109-10, 183.); Thomas, 450 U.S. at 718. Like in Yoder, Geneva will suffer a severe,
direct financial hardship if forced to drop its employee health plan because of the fines that
would be imposed on it. Geneva will also suffer indirect hardship in that a burden would be
placed on its efforts to recruit and retain employees if it fails to offer health insurance at all.
(ECF No. 98 ¶ 187); see Jimmy Swaggart Ministries, 493 U.S. at 392. These burdens are
substantial.
The court concludes, again, that Geneva demonstrated that it is likely to succeed
on the merits with respect to the substantial burden issue.

26

ii.

Compelling Government Interest/Least Restrictive Means

Because Geneva demonstrated that it is likely to succeed in showing that the
Mandate’s and the Final Rules’ requirements impose a substantial burden on its exercise of
religion, the court must determine whether these requirements serve “interests of the highest
order.” Yoder, 406 U.S. at 215. The government bears the burden of demonstrating a compelling
interest at this stage, since “the burdens at the preliminary injunction stage track the burdens at
trial.” O Centro, 546 U.S. at 429-30 (analyzing the applicable burdens under the RFRA).
Defendants assert that the Mandate and the self-certification accommodation of the Final Rules
advance the compelling government interest in safeguarding public health and ensuring that
women have equal access to health care. (ECF. No. 109 at 15.) These can be compelling
governmental interests. (ECF No. 91 at 16-17.) Defendants concede, however, as they must, that
this court previously concluded that a previous version of the regulations, which furthered the
same governmental interests, did not satisfy strict scrutiny “[i]n light of the myriad exemptions”
applicable to the Mandate. (Id. at 17-19.) Defendants, therefore, relegate their arguments in this
regard to a footnote “merely to preserve them for appeal.” (ECF No. 109 at 27 n.11.)
Given defendants’ concession, and given that they failed to identify any factual or
legal distinctions between the current circumstances and the court’s prior rulings, defendants
cannot establish that the Mandate and the Final Rules serve a compelling governmental interest.
In particular, even though this deficiency in their position was identified in this court’s prior
rulings, defendants still fail to show how exempting Geneva from the mandate will “seriously
compromise [the government’s] ability to administer the program,” particularly where
defendants have exempted religious employers and are actively trying to exempt entities like
Geneva. O Centro, 546 U.S. at 435. The “myriad exemptions” to the Mandate’s requirements

27

still exist and demonstrate that the requirement is “woefully underinclusive” and therefore does
not serve a compelling government interest. Republican Party of Minn. v. White, 536 U.S. 765,
780 (2002).
2.

Irreparable Harm to Geneva

Irreparable harm is an injury that cannot be adequately compensated at a later date
in the ordinary course of litigation. The Supreme Court has held, and defendants concede, that
“[t]he loss of First Amendment freedoms,” or a violation of the RFRA, “for even minimal
periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373
(1976). This is particularly true when Geneva made a strong showing that is likely to succeed on
the merits of its RFRA claim. See Trefelner v. Burrell Sch. Dist., 655 F.Supp.2d 581, 596 (W.D.
Pa. 2009) (citing 11A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 2948.1 (2d ed. 1995)).
As demonstrated by the discussion above, the court concludes that because
coverage must be obtained by January 1, 2014, Geneva will be irreparably harmed if it is forced
either to forgo providing employee health insurance coverage or to violate its sincerely held
religious beliefs by contracting for coverage that requires it to facilitate the provision of the
objected to services to its employees. Although the fines imposed on Geneva should it chose to
cancel its employee health insurance entirely could be compensable by monetary relief, the
detrimental effect on Geneva’s recruitment and retention of employees by doing so, not to
mention on the health and well-being of its employees, would be irreparable. This factor weighs
strongly in favor of granting the requested relief.

28

3.

Irreparable Harm to Defendants

Defendants will suffer little, if any, harm should the requested relief be granted.
Defendants have already granted significant exemptions to the Mandate. The requested relief in
the present case will maintain the status quo until the statutory and constitutional questions raised
by Geneva and other similarly-situated individuals and entities can be resolved. Kos Pharms.,
369 F.3d at 708 (citing Opticians Ass’n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 197
(3d Cir. 1990)). In that vein, although the court already found that the court of appeals’ decision
in Conestoga Wood does not control this case, the Supreme Court’s imminent consideration of
that case, and Hobby Lobby, could provide guidance to this court and to the Court of Appeals for
the Third Circuit on some of the relevant questions to be answered on the merits.
As noted in the court’s prior decisions, defendants, in other cases involving
challenges to the Mandate, have acquiesced to the imposition of injunctive relief. (ECF No. 91 at
20.) Defendants cannot claim irreparable harm in this case while acquiescing to preliminary
injunctive relief in other cases. In light of these considerations, defendants stand to suffer little
harm and this factor weighs strongly in favor of granting the requested relief.
4.

Public Interest

The public interest will likewise benefit if the court grants the requested relief,
because “[t]here is a strong public interest in protecting fundamental First Amendment rights.”
Trefelner, 655 F.Supp.2d at 598. That strong interest includes fundamental religious rights
codified by statute in the RFRA. Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001). “‘As
a practical matter, if a plaintiff demonstrates both a likelihood of success on the merits and
irreparable injury, it almost always will be the case that the public interest will favor the
plaintiff.’” Ramsey v. City of Pittsburgh, 764 F.Supp.2d 728, 734-35 (W.D. Pa. 2011) (citing

29

Am. Tel. and Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 n.8 (3d Cir.
1994)).
Apart from the broader policy reasons for granting Geneva's requested relief,
pragmatic concerns dictate the same outcome. Forcing Geneva to drop its employee health
insurance out of fear that the Final Rules, which Geneva asserts violate its religious beliefs, will
impose a substantial burden on its employees, and their dependents, who rely upon employerprovided health insurance. (ECF No. 91 at 22.) This consideration, along with the public interest
in preserving religious liberties, leads this factor to weigh heavily in favor of granting the
requested relief.

5.

Balancing Harms

Geneva showed that it is likely to succeed on the merits of its RFRA claim; that it
will suffer irreparable harm absent injunctive relief; and that the public interest favors granting
injunctive relief. In light of the exemptions granted and the position taken by defendants in other
similar cases, the harm to defendants is not significant. These showings lead the court to
conclude that the balance of the factors weighs heavily in favor of granting the requested relief.

IV.

CONCLUSION
For the reasons set forth herein, Geneva's motion for a preliminary injunction will

be GRANTED. An appropriate order will follow.

December 23,2013

BY THE COURT:
:'\

/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States

30