Catholic Diocese of Beaumont et al v. Sebelius et al
Filing
33
MEMORANDUM AND ORDER that pltfs are entitled to a permanent injunction. The Government is enjoined from applying or enforcing the regulations that require the Plaintiffs, their health plans, TPAs, or issuers, to provide or execute the self-certifica tion forms that enable or require the TPA or issuer to provide health insurance coverage for Plaintiff's employees for FDA-approved contraceptives, emergency contraceptives, products, or services under the requirements imposed in 42 U.S.C. 67; 300gg-13(a) (4), Pub. L. 11-148, § 1563(e)-(f), as well as the application of the penalties found in 26 U.S.C. §§ 4980D & 4980H, and 29 U.S.C. § 1132. Further ordered that all currently pending motions are denied as moot. A final judgment will be forthcoming. Signed by Judge Ron Clark on 1/2/14. (tkd, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
CATHOLIC DIOCESE OF BEAUMONT
AND CATHOLIC CHARITIES OF
SOUTHEAST TEXAS, INC.
Plaintiffs,
v.
KATHLEEN SEBELIUS, SECRETARY,
U.S. DEPT. OF HEALTH AND HUMAN
SERVICES, ET AL.
Defendants.
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CIVIL ACTION No. 1:13-cv-709
JUDGE RON CLARK
MEMORANDUM AND ORDER
Plaintiffs, the Catholic Diocese of Beaumont and Catholic Charities of Southeast Texas,
Inc., filed suit against Defendants United States Departments of Health and Human Services,
Labor, and Treasury, seeking an injunction against enforcement of a portion of the Patient
Protection and Affordable Care Act that requires employers to provide their employees with a
health plan that covers all FDA-approved contraceptive methods, sterilization procedures, and
patient education and counseling (“contraceptive services”). The Government asserts that
Plaintiffs lack standing, and alternatively failed to show a violation of the Religious Freedom
Restoration Act, a violation of their Free Exercise rights, or a violation of their Free Speech
rights.
This case is one of many similar cases brought by religious organizations across the
country. Some district courts have found for the plaintiffs,1 while others have found for the
1
See e.g., E. Tex. Baptist Univ. v. Sebelius, No. 4-12-cv-3009, at *42-43 (S.D. Tex. Dec. 27,
2013); Southern Nazarene University v. Sebelius, No. 13-cv-1015-F (W.D. Okla. Dec. 23, 2013);
Geneva College v. Sebelius, No. 12-cv-00207 (W.D. Pa. Dec. 23 2013); Legatus v. Sebelius, No.
12-cv-12061 (E.D. Mich. Dec. 20, 2013); Roman Catholic Archbishop of Washington v.
Government.2 As detailed below, this court’s analysis and conclusions are in line with those of
the Honorable Lee H. Rosenthal in in E. Tex. Baptist Univ. v. Sebelius, No. 4-12-cv-3009, at
*42-43 (S.D. Tex. Dec. 27, 2013), the Honorable Brian M. Cogan in Roman Catholic
Archdiocese of New York v. Sebelius, No. 12-cv-2542, 2013 WL 6579764 (E.D.N.Y. Dec. 16,
2013) and the Honorable Arthur J. Schwab in Zubik v. Sebelius, No. 13-cv-01459 (W.D. Pa.
Nov. 21, 2013).
Requiring the head of a religious organization to sign a putatively correct statement of
religious belief, which the Government has defined to authorize a third party to take an action
that is contrary to those religious beliefs, imposes a substantial burden on the free exercise of
religion. That conclusion is not changed by the Government’s argument that, at present, it does
not have the power to compel the third party to act. The court finds that Plaintiffs have
demonstrated that they have standing and have met their burden for issuance of a permanent
injunction.
Sebelius, No. 13-cv- (D.D.C. Dec. 20, 2013) (enjoining mandate on “compelled silence”
argument; but otherwise denying injunctive relief), emergency motion for expedited briefing for
injunction filed Dec. 23 2013, No. 13-5371 (D.C. Cir.); Reaching Souls Int’l v. Sebelius, No. 13cv-01092 (W.D. Okla. Dec. 20, 2013); Reaching Souls Int’l, Inc. v. Sebelius, No. 5:13-cv-1092
(W.D. Ok. Dec. 20, 2013); Roman Catholic Archdiocese of New York v. Sebelius, No. 12-cv2542, 2013 WL 6579764 (E.D.N.Y. Dec. 16, 2013) (holding that the accommodation violates
RFRA and enjoining the mandate); Persico v. Sebelius, No. 13-cv-00303 (W.D. Pa. Nov. 21,
2013); Zubik v. Sebelius, No. 13-cv-01459 (W.D. Pa. Nov. 21, 2013).
2
See, e.g., Catholic Diocese of Nashville v. Sebelius, No. 3:13-cv-1303 (M.D. Tenn. Dec. 26,
2013); University of Notre Dame v.Sebelius, No. 13-cv-01276 (N.D. Ind. Dec. 20. 2013),
emergency motion for injunction filed Dec. 23, 2013, No 13-3853 (7th Cir.); Priests for Life v.
U.S. Dep’t of Health & Human Servs., No. 13-cv-1261, 2013 WL 6672400 (D.D.C. Dec. 19,
2013) (holding that the accommodation does not create a RFRA substantial burden), emergency
motion for injunction filed Dec. 20, 2013, No. 13- 5368 (D.C. Cir.).
2
I.
Background
Plaintiffs filed suit on December 10, 2013. Because of the January 1, 2014 deadline the
court ordered early consultation by counsel on the issues. With input from counsel at the
management conference, the court entered an expedited briefing schedule and set a hearing for
December 30, 2013. Defendants moved for dismissal or in the alternative, for summary
judgment. The Government filed the administrative record, and the court has reviewed those
portions designated by counsel in the pleadings and papers on file. The parties have also filed
“Parties Stipulated Preliminary Findings.” [Doc. # 26].
At the hearing Plaintiffs presented witnesses, live and by deposition, and the court heard
argument of counsel. The parties agreed that the record had been fully developed and only
questions of law existed. The parties also agreed at the hearing that they did not object to the
court consolidating that hearing with a trial on the merits, and making a final determination as to
matters raised by Defendants’ motion to dismiss or alternatively for summary judgment and
Plaintiffs’ request for an injunction based on the record before the court. [Transcript of Hearing
on December 30, 2013 (Tr.) pp. 75-77].3 See Fed. R. Civ. P. 65(a)(2).
The court did not scour the administrative record in a search for facts that support either
party, but it has considered the portions that have been specifically referenced by the parties in
their motions and briefing. Doddy v. Oxy USA, Inc., 101 F.3d 448, 463 (5th Cir. 1996) (citations
omitted). The Government argues that the court should limit its review of the facts to the
administrative record, and presumably the stipulated facts. Since Plaintiffs are alleging
interference with important constitutional rights, the court will consider the evidence presented
3
A final, certified transcript has not been prepared, so the page numbers in this Memorandum
Order are those of a rough transcript. They may differ from those of any final transcript that is
prepared.
3
by Plaintiffs. See McNary v. Haitian Refugee Ctr., 498 U.S. 479, 493-94, 111 S. Ct. 888, 896-97
(1991).
The facts pertinent to this case are virtually uncontroverted, and very similar to the facts
in all of the other opinions the court has seen so far. To save space the court will adopt the
Parties Stipulated Preliminary Findings [Doc # 26] as findings of fact of the court. The court
also finds that the statements concerning the religious beliefs of Catholics (including Plaintiffs)
the teachings of the Catholic Church, and the role that Plaintiff Catholic Charities plays in the
ministry of Plaintiff Roman Catholic Diocese of Beaumont, set out in the “Declaration of Bishop
Curtis J Guillory, S.V.D., D.D.” [Doc # 3-1] factually set out the sincere religious beliefs of
Plaintiffs and their respective members. [Bishop Guillory, Tr. p. 4]. The court sustains the
Government’s objection to those statements that express Bishop Guillory’s opinions as to the
legal effect of, or proper legal interpretation of, the regulations and statutes in question, at
paragraphs 15, 17, 19, 21, and the first sentence of 22, and will not consider those as facts.
A. Findings of Fact as to Plaintiffs’ Sincere Religious Beliefs
In summary, Plaintiffs are both entities affiliated with the Roman Catholic Church. In
their complaint and motion for preliminary injunction, they allege that the contraceptive mandate
forces them to choose between violating central elements of their religious faith and paying
substantial financial penalties. For nearly two thousand years the Catholic Church “has taught
that life is sacred from conception to death and any – whether it’s medicine or instruments that
would prevent life, we consider morally wrong.” [Bishop Guillory, Tr. pp. 5-6].
The Church also teaches that material cooperation with evil is also morally wrong.
“Material cooperation with evil is like in this particular case, for instance, we for instance as copayers with the insurance would be cooperating in what we think is morally wrong. In other
4
words, it's cooperating in -- into something that we consider evil, or morally evil; and we are a
part of that. We are a participant in that action or that program. And that's what we call material
cooperation.” [Bishop Guillory, Tr. p. 9]. Defendants do not challenge that Plaintiffs have a
sincerely held religious belief that all forms of contraceptives and abortifacients are morally
wrong.
B. Findings of Fact as to Catholic Diocese of Beaumont
The Catholic Diocese of Beaumont (“Diocese”) is a non-profit organization that
encompasses forty-four parishes and seven missions located in the greater Beaumont area. The
Diocese employs over 950 people, approximately 370 of whom are currently eligible for health
plan benefits offered through the Diocese. The Diocese carries out a tripartite mission of
spiritual, educational, and social service. Its spiritual ministry is carried out through its parishes.
Its educational ministry is conducted through its schools and religious education programs. The
Diocese operates three parish schools and two diocesan schools which serve approximately
1,088 students.
Consistent with Church teachings on social justice, the Diocese provides a self-insured
health plan to employees working at least thirty hours per week. The plan is offered through the
Christian Brothers Employee Benefit Trust. Consistent with Catholic teaching, the Trust health
plan does not cover abortifacients, sterilization, or contraception.4 Dropping coverage for
Catholic Charities so the Bishop would not have to sign the self-certification form would violate
the sincerely held religious belief that employee health care is a right, and should be provided.
4
Though generally not covered by the Trust plan, contraceptives may be covered when provided
for medically necessary, non-contraceptive purposes that have been approved by the Trust.
5
C. Findings of Fact as to Catholic Charities of Southeast Texas, Inc.
Catholic Charities of Southeast Texas, Inc. (“Catholic Charities”) is a faith-driven nonprofit that provides services to approximately 6,000 individuals annually. Catholic Charities has
ten full-time and seven part-time employees who are offered health insurance through the
Diocese.
Catholic Charities participates in the Catholic charitable mission of aiding those in need,
including feeding the poor, helping immigrants, and providing counseling. [Bishop Guillory, Tr.
p. 11]. Bishop Guillory has the primary responsibility for determining whether programs
administered by Catholic Charities comport with Catholic teachings and principles, and as such,
it is an entity of the Catholic Diocese of Beaumont. [Bishop Guillory, Tr. pp. 11-12]. The
Diocese contributes almost a third of the budget of Catholic Charities. The self-certification
form at issue in this dispute would have to be signed either by Bishop Guillory or by another
person with his approval. [Bishop Guillory, Tr. p. 22]. If the form were not prepared or
coverage for Catholic Charities were dropped, the resulting fines would impose a heavy financial
burden on Plaintiffs. [Bishop Guillory, Tr. p. 20]; [Sherlock, Tr. pp. 33-34].
D. The Statutory and Regulatory History
The now familiar statutory and regulatory history is outlined in the “Parties Stipulated
Preliminary Findings” and is set out in detail in E. Tex. Baptist Univ. v. Sebelius, No. 4-12-cv3009, (S.D. Tex. Dec. 27, 2013), Roman Catholic Archdiocese of New York v. Sebelius, No. 12cv-2542, (E.D.N.Y. Dec. 16, 2013), and Zubik v. Sebelius, No. 13-cv-01459 (Pa. Nov. 21, 2013).
In brief, Congress enacted the Patient Protection and Affordable Care Act (ACA) as well as the
Health Care and Education Reconciliation Act in March 2010. This was followed by more than
three years of rule making.
6
The ACA requires that group health insurance plans cover certain preventative medical
services without cost-sharing, such as a copayment or a deductible. Pursuant to regulations
subsequently issued, the preventative services that must be covered include contraception,
sterilization, and related counseling (the “Mandate”). There was a good deal of concern over the
impact of the law and regulations on the religious beliefs and practices of various faith groups
and several proposals for some kind of religious exemption were published and amended. Some
600,000 comments were received during the process.
The Final Rules purport to accommodate religious objections to the Mandate in two
ways. First, the Final Rules revised the definition of “religious employers,” who are entirely
exempt from the Mandate. The Final Rules define “religious employer” as a non-profit referred
to in § 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code, which in turn refers to churches,
their integrated auxiliaries, associations of churches, and the exclusively religious activities of
religious orders. 78 Fed. Reg. at 39,874. The Diocese meets this definition and is thus exempt
from the contraceptive mandate. Catholic Charities is not exempt. This is true even though
Catholic Charities participates in the Diocese’s health plan, because non-exempt entities cannot
avail themselves of the religious employer exemption unless they “independently meet the
definition of religious employer.” Id. at 39,886.
The Final Rules provide for an “accommodation” for “eligible organizations” that do not
meet the definition of “religious employer.” An “eligible organization” is one that satisfies the
following criteria:
(1) The organization opposes providing coverage for some or all of any contraceptive
services required to be covered under § 147.130(a)(1)(iv) on account of religious
objections.
(2) The organization is organized and operates as a nonprofit entity.
7
(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. The
self-certification must be executed by a person authorized to make the certification on
behalf of the organization, and must be maintained in a manner consistent with the
record retention requirements under section 107 of the Employee Retirement Income
Security Act of 1974.
45 C.F.R. § 147.131(b).
There is no dispute that Catholic Charities would qualify for this accommodation if the
self-certification form is signed. The Final Rules state that an eligible organization is not
required to “contract, arrange, pay, or refer for contraceptive coverage” as to which it has
religious objections. 78 Fed. Reg. at 39,874. Instead, the eligible organization must complete a
self-certification form stating that it is an eligible organization, and provide a copy of that form
to its issuer or, where an eligible organization self-insures, as do all plaintiffs here, to their TPA.
The TPA is then required to provide or arrange for payments for contraceptive services, a
requirement imposed through the Department of Labor’s ERISA enforcement authority. See id.
at 39,879-39,880. The self-certification “will be treated as a designation of the third party
administrator(s) as plan administrator and claims administrator for contraceptive benefits
pursuant to section 3(16) of ERISA.” Id. at 39,879. The TPA is required to provide these
services “without cost sharing premium, fee, or other charge to plan participants or beneficiaries,
or to the eligible organization or its plan.” Id. at 39,879-80. The TPA may seek reimbursement
for such payments through adjustments to its Federally-Facilitated Exchange (“FFE”) user fees.
Id. at 39,882.
8
II.
Legal Standard for Injunctions
“It is well-established that the party seeking a permanent injunction must demonstrate:
‘(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary
damages, are inadequate to compensate for that injury; (3) that, considering the balance of
hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the
public interest would not be disserved by a permanent injunction. The decision to grant or deny
permanent injunctive relief is an act of equitable discretion by the district court, reviewable on
appeal for abuse of discretion.’” Abraham v. Alpha Chi Omega, 708 F.3d 614, 626-27 (5th Cir.
2013) (quoting eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 126 S. Ct. 1837, 1839
(2006)).
III.
Analysis
A. Article III Standing
Defendants have argued that Plaintiffs lack Article III standing, asserting that the
government has no ability to enforce the contraceptive mandate because the health plan in
question is a church plan not governed by ERISA. As discussed in detail by Judges Rosenthal
and Cogan, the injury to the religious organizations relates to the submission of the selfcertification form, not to whether a TPA may or may not be penalized for not providing
contraceptive coverage. E. Tex. Baptist Univ. v. Sebelius, No. 4-12-cv-3009, at *23 (S.D. Tex.
Dec. 27, 2013). Indeed, the existence of a regulatory loophole cannot obviate Plaintiffs’
standing. Id. “This alleged spiritual complicity is independent of whether the scheme actually
succeeds at providing contraceptive coverage.” Roman Catholic Archdiocese of N.Y. v. Sebelius, No.
1-12-cv-2542 (E.D.N.Y. Dec. 16, 2013).
9
Furthermore, the federal regulations governing Defendant Department of Labor, and
those governing Defendant Department of the Treasury provide:
(iii) The eligible organization must not directly or indirectly, seek to interfere with
a third party administrator’s arrangements to provide or arrange separate payments for
contraceptive services for participants or beneficiaries, and must not, directly or
indirectly, seek to influence the third party administrator’s decision to make any such
arrangement.
Compare 26 C.F.R. §54.9815-2713A(b)(iii), relating to Department of Treasury, Internal
Revenue Service, and the exact same language in 29 C.F.R. §2590.715-2713A(b)(iii), relating to
Department of Labor.
Mr. Sherlock, President of the Board of Plaintiff Catholic Charities, testified that he has
already contacted insurers and plan providers to determine whether any would offer coverage if
Plaintiffs did not provide a self-certification. [Mr. Sherlock, Tr. pp. 27-29]. What stronger way
is there to influence a provider of goods and services than shopping your requirements to
competitors? A rule that prevents plaintiffs from comparison shopping, and negotiating, for an
acceptable policy on favorable terms is a burden.
Plaintiffs’ injury is sufficient for the requirements of Article III standing.
B. First Amendment- Free Exercise of Religion
Prior to 1990, First Amendment jurisprudence relied on a compelling-interest test. See
Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526 (1972); Sherbert v. Verner, 374 U.S. 398, 83 S.
Ct. 1790 (1963). In 1990, the Supreme Court held that the “Free Exercise Clause of the First
Amendment d[id] not prohibit governments from burdening religious practices through generally
applicable laws.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418,
424, 126 S. Ct. 1211, 1216 (2006) (describing Emp’t Div., Dep’t of Human Resources of Ore. v.
Smith, 494 U.S. 872, 110 S. Ct. 1595 (1990)). In Smith, the Supreme Court also held that “the
10
Constitution does not require judges to engage in a case-by-case assessment of the religious
burdens imposed by facially constitutional laws.” Gonzales, 546 U.S. at 424, 126 S. Ct. at 1216
(citing Smith, 494 U.S. at 883-90, 110 S. Ct. at 1602-06).
In response to Smith, Congress sought to restore the compelling-interest test by the
passages of the Religious Freedom Restoration Act of 1993 (“RFRA”) in 1993. 42 U.S.C. §
2000bb, et seq. “[T]he Federal Government may not, as a statutory matter, substantially burden
a person’s exercise of religion, ‘even if the burden results from a rule of general applicability’
unless the government can satisfy the compelling-interest test.” O Centro, 546 U.S. at 424, 126
S. Ct. at 1216 (quoting § 2000bb-1(a)).
The threshold inquiry under RFRA is whether the Government’s regulation substantially
burdens the exercise of a sincerely held religious belief. See Diaz v. Collins, 114 F.3d 69, 71
(5th Cir. 1997). Defendants do not dispute Plaintiffs have a sincerely held religious belief that
contraception and abortion is morally wrong; therefore, the only question that remains in this
inquiry is whether the ACA substantially burdens that belief. If the court finds a substantial
burden, the Government must then show that the burden “is in furtherance of a compelling
governmental interest” and that it “is the least restrictive means of furthering that compelling
governmental interest.” 42 U.S.C. § 2000bb-1(b).
1. Substantial Burden
As ably discussed at length by Judge Rosenthal, Fifth Circuit case law uses a subjective
standard for determining the presence of a substantial burden. So long as Plaintiffs are compelled
or pressured by punitive fines to act or refrain from action, and that action or inaction is
religiously offensive to them, a substantial burden exists. See E. Tex. Baptist Univ. v. Sebelius,
No. 4-12-cv-3009, at *26-40 (S.D. Tex. Dec. 27, 2013).
11
RFRA does not expressly define “substantial burden.” See Hicks v. Garner, 69 F.3d 22,
26 n. 22 (5th Cir. 1995). The analysis of substantial burdens under RFRA is based on the preSmith cases Yoder and Sherbert.
In Yoder, the plaintiffs were Old Order Amish and Conservative Amish Mennonites who
refused to enroll their fourteen- and fifteen-year-old children in public or private school, in
violation of Wisconsin’s compulsory education requirements, arguing that school attendance
endangered the children’s salvation. Yoder, 406 U.S. at 207-209, 92 S. Ct. at 1529-30. The
Supreme Court in Yoder held that the
impact of the compulsory-attendance law on respondents’ practice of the Amish
religion [wa]s not only severe, but inescapable, for the Wisconsin law
affirmatively compels them, under threat of criminal sanction, to perform acts
undeniably at odds with fundamental tenets of their religious beliefs. . . . [The
compulsory-attendance law] carries with it precisely the kind of objective danger
to the free exercise of religion that the First Amendment was designed to prevent.
. . . [It] carries with it a very real threat of undermining the Amish community and
religious practice as they exist today; they must either abandon belief and be
assimilated into society at large, or be forced to migrate to some other and more
tolerant region.
Yoder, 406 U.S. at 218, 92 S. Ct. at 1534-35.
In Sherbert, the plaintiff was a Seventh-Day Adventist who refused to work on her
Sabbath, Saturday, and was denied unemployment benefits because of that. Sherbert, 374 U.S.
at 399-401, 83 S. Ct. at 1791-92. The Supreme Court held that
not only is it apparent that appellant’s declared ineligibility for benefits derives
solely from the practice of her religion, but the pressure upon her to forego that
practice is unmistakable. The ruling forces her to choose between following the
precepts of her religion and forfeiting benefits, on the one hand, and abandoning
one of the precepts of her religion in order to accept work, on the other hand.
12
Governmental imposition of such a choice puts the same kind of burden upon the
free exercise of religion as would a fine imposed against appellant for her
Saturday worship.
Sherbert, 374 U.S. at 404, 83 S. Ct. at 1794.
“Under RFRA, a ‘substantial burden’ is imposed only when individuals are forced to
choose between following the tenets of their religion and receiving a governmental benefit
(Sherbert) or coerced to act contrary to their religious beliefs by threat of civil or criminal
sanctions (Yoder).” Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1069, 1069-70 (9th Cir.
2008) (en banc). The Fifth Circuit has explained government action substantially burdens a
religious belief when it “truly pressures the adherent to significantly modify his religious
behavior and significantly violate his religious beliefs,” in the RLUIPA context. Moussazadeh v.
Tex. Dept. of Criminal Justice, 703 F.3d 781, 793 (quoting Adkins v. Kaspar, 393 F.3d 559, 570
(5th Cir. 2004)). Even indirect compulsion that infringes upon free exercise can be substantial.
See Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 718, 101 S. Ct. 1425, 1432
(1981).
Defendants have argued that any burden the ACA places on Plaintiffs is de minimis.
Plaintiffs aver that it is not. District courts are split on this matter, with authority supporting both
positions. Compare University of Notre Dame v.Sebelius, No. 13-cv-01276 (N.D. Ind. Dec. 20.
2013) (holding de minimus burden) with E. Tex. Baptist Univ. v. Sebelius, No. 4-12-cv-3009
(S.D. Tex. Dec. 27, 2013) (finding substantial burden exists).
So just what is being required of the Bishop in this case? According to the Government
he need only sign EBSA Form 700, which contains a true statement of his, and the Church’s,
objection to contraceptive services. But, the regulations provide that “the self-certification will
be treated as a designation of the third party administrator(s) as plan administrator and claims
13
administrator for contraceptive benefits . . . .” 78 FR 39879 (emphasis added). The rule drafters
have chosen to be their own lexicographers, and the Government is bound by that choice. Like
Humpty Dumpty, politicians may ascribe varied nuances of meaning and intent to their
statements.5 Judicial interpretation of federal regulations requires a more consistent, plain
meaning approach. See U.S. v. Woods, ___ U.S. ___, 134 S. Ct. 557, 566-67 (2013).
The Government responds: “we have no power to actually compel the third party
administrator provide the coverage so there is no burden.” If the IRS and the Department of
Labor are truly helpless hothouse flowers in this dispute, then why did the Government not
accept this court’s invitation to agree to a limited extension of Plaintiffs’ deadlines to avoid the
necessity of preparing for, and presenting, this case during a holiday season. See Doc # 5, p. 2,
par. 3. Based on their docket sheets, there were, at the same time, cases around the country
requiring the immediate attention of counsel for the Government, Mr. Humphries. See also
Archdiocese of New York, p 11-12 (belated assertion of powerlessness argument), East Tex.
Baptist University, p. 24, n.4 (why must form be signed now if it is meaningless?)
More importantly, given the history behind the adoption the First Amendment, can the
court accept either the Government’s de minimus argument or its assertion of powerlessness?
Nobody would argue today that requiring any person of faith to sign a Test Act oath would be a
de minimus burden on the exercise of religious beliefs.6 Would the result be different if such an
5
“When I use a word” said Humpty Dumpty, in rather a scornful tone “it means just what I
choose it to mean-neither more nor less.” Lewis Carroll, Through the Looking-Glass, 1872.
6
See An Act for Preventing Dangers Which May Happen from Popish Recusants, 1672, 25 Car.
II, c. 2, § 7 (Eng.) (commonly referred to as the Test Act of 1673) (averment of disbelief in
transubstantiation); N.C. Const. of 1776, art. XXXII (“That no person, who shall deny the being
of God or the truth of the Protestant religion, or the divine authority either of the Old or New
Testaments, or who shall hold religious principles incompatible with the freedom and safety of
14
oath was worded to comport with the signer’s personal belief, but another statute or regulation
provided that it would be “treated as” the opposite? After all, once the oath is signed the
Government would have no way of knowing what the person truly believed.
Submitting the self-certification affidavit is not simply espousing a belief that Plaintiffs
hold. It is defined as an authorization for the TPA to provide coverage. It enables the exact
harm that Plaintiffs seek to avoid, harm that Plaintiffs find religiously forbidden. If Plaintiffs
choose to follow the course they believe their faith dictates, they face fines that all parties agree
are onerous. The Diocese could dump Catholic Charities from its health plan, but this runs afoul
of Church teachings on social justice and the rights of employees. This “Hobson’s Choice” is a
quintessential “substantial burden” on the free exercise of religious belief, prohibited by RFRA.
2. Compelling Interest
The RFRA states that “Government may substantially burden a person’s exercise of
religion only if it demonstrates that application of the burden to the person . . . is the least
restrictive means of furthering [a] compelling governmental interest.” 42 U.S.C. § 2000bb–1(b).
“RFRA requires the Government to demonstrate that the compelling interest test is satisfied
through application of the challenged law ‘to the person’ — the particular claimant whose
sincere exercise of religion is being substantially burdened.” O Centro, 546 U.S. at 431-32.
Defendants propose two compelling interests: the promotion of public health and
provision of equal access for women to healthcare. As stated by Judge Cogan, the Government’s
position that Christian Brothers could not be “required” or “mandated” to provide coverage for
contraceptive services “fatally undermines any claim that imposing the Mandate on these
the State, shall be capable of holding any office or place of trust or profit in the civil department
within this State.”)
15
plaintiffs serves a compelling governmental interest. Roman Catholic Archdiocese of New York
v. Sebelius, No. 12-cv-2542, at *33 (E.D.N.Y. Dec. 16, 2013).
On the other hand, if the objectives are simply assumed to be compelling, Defendants
have failed to establish that this is the least restrictive means to achieve them. Indeed, several
other district court opinions have provided a myriad of less restrictive alternatives. See E. Tex.
Baptist Univ. v. Sebelius, No. 4-12-cv-3009, at *42-43 (S.D. Tex. Dec. 27, 2013) (discussing
various less restrictive alternatives proposed by other courts). Defendants therefore fail to meet
their burden.
C. The APA
Plaintiffs pled claims under the Administrative Procedures Act (APA). Plaintiff’s
proposed conclusions of law make no mention of the APA, and at the hearing, which Plaintiffs
agreed could be consolidated with the trial, the issue was not raised. The Government’s
proposed conclusions of law included the somewhat circular analysis: “The regulations do not
violate the Administrative Procedure Act because the regulations are in accordance with federal
law.” Nobody has asserted that the rulemaking process, or the procedures used for adopting the
contested regulation violated the law, but the court has found that the regulations themselves
violate Plaintiff’s rights. That conclusion does not depend on an analysis of the APA. To make
clear that the court is entering a final judgment, Plaintiff’s APA claim is dismissed.
IV.
Conclusion
Plaintiffs are entitled to a permanent injunction. To re- state the Order signed on
December 31, 2013 [Doc. # 32], the Government is enjoined from applying or enforcing the
regulations that require the Plaintiffs, their health plans, TPAs, or issuers, to provide or execute
the self-certification forms that enable or require the TPA or issuer to provide health insurance
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coverage for Plaintiff’s employees for FDA-approved contraceptives, emergency contraceptives,
products, or services under the requirements imposed in 42 U.S.C. § 300gg-13(a)(4), Pub. L. 11148, § 1563(e)-(f), as well as the application of the penalties found in 26 U.S.C. §§ 4980D &
4980H, and 29 U.S.C. § 1132.”
IT IS FURTHER ORDERED that all currently pending motions are DENIED as MOOT.
A final judgment consistent with the Memorandum and Order shall be forthcoming.
So ORDERED and SIGNED this 2 day of January, 2014.
___________________________________
Ron Clark, United States District Judge
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