This сase presents issues of first impression as to whether the Women’s Preventive Healthcare regulations under the recently enacted Patient Protection and Affordable Care Act pass muster under the First Amendment and the Religious Freedom Restoration Act of 1993. In resolving these questions we also decide whether the United States Supreme Court’s decision in Citizens United v. Federal Election Commission,
Plaintiffs, Conestoga Wood Specialties Corporation, and five of its owners, Norman Hahn, Elizabeth Hahn, Norman Le-mar Hahn, Anthony H. Hahn and Kevin Hahn, brought suit against Kathleen Sebelius in her official capacity as Secretary of the United States Department of Health and Human Services, along with other United States government officials and agencies,
Plaintiffs filed a motion for preliminary injunction on December 7, 2012, and the Court held an evidentiary hearing on January 4, 2013.
For the reasons that follow, we find that Plaintiffs have not shown that they are entitled to a preliminary injunction, and, as such, the motion will be denied.
1. FACTUAL AND PROCEDURAL BACKGROUND
A. The Affordable Care Act
The Patient Protection and Affordable Care Act (“ACA”), which was signed into law on March 23, 2010, requires employers with fifty or more full-time employees to provide their employees with a minimum level of health insurance. One aspect of
The Health Resources and Services Administration (“HRSA”) delegated the creation of guidelines on this issue to the Institute of Medicine (“IOM”). See 77 FR 8725-01 (Feb. 15, 2012). On August 1, 2011, the HRSA adopted the recommended guidelines published by the IOM, which included required coverage for “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps 109-10 (2011) (hereinafter “Closing the Gaps”); see also 76 Fed.Reg. 46621-01 (Aug. 3, 2011).
Under the regulations adopted pursuant to Women’s Preventive Healthcare, group health plans and health insurance issuers are required to provide coverage consistent with the HRSA guidelines in plan years beginning on or after August 1, 2012, unless the employer or plan is exempt. Women’s Preventive Services: Required Health Plan Coverage Guidelines, U.S. Dept, of Health and Human Svcs., http:// www.hrsa.gov/womensguidelines/ (last visited Jan. 8, 2013) (“HRSA Guidelines”). The interim final regulations and guidelines were adopted without change on April 16, 2012. 77 FR 8725-01 (Feb. 15, 2012).
Congress required coverage of Women’s Preventive Healthcare in order to address inequities in the current healthcare system, which leads “women of childbearing age [to] spend 68 percent more in out-of-pocket health care costs than men.” 155 Cong. Rec. at S12027 (daily ed. Dec. 1, 2009) (statement of Sen. Gillibrand). Studies have found “more than half of women delay[ ] or avoid[ ] preventive care because of its cost,” id. at S12028, and that unplanned pregnancies have a higher rate of health risks for both mother and child than planned pregnancies. Closing the Gaps, supra, at 103.
If an employer fails to comply with these regulations, it faces staunch penalties. Non-exempt employers who choose to exclude health coverage for abortifacient contraception face a penalty of $100 each day per offending employee. 26 U.S.C. § 4980D(b)(1). If an employer fails to provide health insurance altogether, it faces an annual penalty for each employee. See 26 U.S.C. § 4980H. Additionally, the Department of Labor and plan participants may bring suit against an employer that fails to comply with the regulations. 29 U.S.C. § 1132.
The Women’s Preventive Healthcare regulations cоntain numerous exemptions for specific subsets of employers. One such exemption is for “grandfathered” plans — “coverage provided by a group health plan ... in which an individual was enrolled as of March 23, 2010,” the date on which the ACA was enacted. 45 C.F.R. § 147.140(a). An exemption with regard to women’s contraception also exists for certain “religious employers.” A religious employer is defined as an organization meeting all of the following requirements:
(1) The inculcation of religious values is the purpose of the organization.
(2) The organization primarily employs 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 ....
Upon receiving feedback from organizations that objected to contraception coverage on religious grounds but also did not fit under the definition of “religious employer,” the Department of the Treasury, Department of Labor and Department of Health and Human Services released an advance notice of proposed amendments to the regulations. 77 FR 16501-01 (Mar. 21, 2012). The agencies gave notice of a safe harbor for certain non-profit organizations that object to the mandatory coverage of contraception. Under this safe harbor, a qualifying organization would not be subject to penalties for failing to comply with the regulations regarding Women’s Preventive Healthcare until the first plan year on or after August 1, 2013. This respite would allow the agencies time to potentially amend the definition of religious employer. Id. The safe harbor applies to organizations meeting all of the following requirements:
(1) The organization is organized and operates as a non-profit 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 maintainеd by the organization ... must provide to participants [a]n attached notice ... which states that contraceptive coverage will not be provided ....
(4)The organization self-certifies that it satisfies criteria 1-3 above....
Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Ctr. for Consumer Info. & Ins. Oversight & Ctrs. for Medicare & Medicaid Svcs. (Feb. 10, 2012), http://cciio.cms.gov/resources/files/ Files2/02102012/20120210-Preventive Services-Bulletin.pdf.
B. The Plaintiffs
Plaintiff, Conestoga Wood Specialties Corporation (“Conestoga”), is a closely-held, for-profit Pennsylvania corporation that manufactures wood cabinets and wood specialty products. It is owned and operated by Plaintiffs Norman Hahn, Elizabeth Hahn, Norman Lemar Hahn, Anthony H. Hahn, and Kevin Hahn (“the Hahns”), the founder of Conestoga, his wife and their sons, respectively.
The Hahns are practicing Mennonite Christians whose faith requires them to operate Conestoga in aсcordance with their religious beliefs and moral principles. (Id. at ¶¶ 2, 27.) Conestoga’s mission statement includes the following language: “We operate in a professional environment founded upon the highest ethical, moral, and Christian principles reflecting respect, support, and trust for our customers, our
Conestoga provides employees with a health insurance plan that covers a number of women’s preventive health expenses, such as pregnancy-related care, routine gynecological care and testing for sexually transmitted diseases. (Am. Compl. ¶ 84.) However, Conestoga’s health plan specifically excludes coverage for “contraceptive prescription drugs” and “[a]ny drugs used to abort a pregnаncy.” (Pls.’ Br., Ex. 6.)
“The Mennonite Church teaches that taking of life which includes anything that terminates a fertilized embryo is an intrinsic evil and a sin against God.” (Am. Compl. ¶ 30.) Therefore, the Hahns believe it would be sinful for them to pay for, or contribute in any way to, the use of abortifacient contraception, which they define as, any drug or device that may “terminate[ ] a fertilized embryo.” (Id. at ¶¶ 30, 32.) The Hahns specifically object to prescription plan coverage of “Plan B,” commonly known as the “morning after pill,” and “Ella,” also known as the “week after pill.”
As a for-profit corporation, Conestoga does not fit into an exemption for religious employers, nor does it fall under the safe harbor. Additionally, Conestoga’s health plan does not qualify as a grandfathered plan under 26 C.F.R. § 54.9815-1251T. Therefore, Plaintiffs are currently left to choose between providing coverage to employees for abortifacient contraception, which they contend violates their right to religious freedom, or pay significant financial penalties. Confronted with this choice, Plaintiffs filed the instant motion for preliminary injunction.
II. STANDARD OF REVIEW
“Preliminary injunctive relief is ‘an extraordinary remedy' and ‘should be granted only in limited сircumstances.’” Kos Pharm., Inc. v. Andrx Corp., 369 F.3d
In demonstrating the likelihood of success on the merits, a plaintiff need not show that it is more likely than not that he will succeed. Singer Mgmt. Consultants, Inc. v. Milgram,
We note that other courts that have decided cases with similar facts and ruled in favor of injunctive relief have generally applied a less rigorous standard. For example, in Tyndale House Publishers, Inc. v. Sebelius,
III. DISCUSSION
A. Article III Standing
As a preliminary matter, we must determine whether a “case or controversy” exists, such that this Court has jurisdiction under Article III. Lujan v. Defenders of Wildlife,
(1) that he is under a threat of suffering an injury in fact that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; (2) a causal connection between the injury and the conduct complained of; and (3) a likelihood that a favorable judicial decision will prevent or redress the injury.
Defendants assert that Plaintiffs have not satisfied the standing requirement because “[P]laintiffs cannot show that any injury purportedly caused by the preventive services coverage regulations is fairly traceable to [Defendants, as opposed to the result of [Plaintiffs’ own independent choices.” (Defs.’ Br., pp. 9-10.) Specifically, Defendants argue that Conestoga’s health insurance plan would have been exempt from the regulations as a grandfathered plan, but that Plaintiffs failed to follow the requirements of 26 C.F.R. § 54.9815-1251T. Therefore, Defendants urge that any injury is self-inflicted, and does not satisfy the requirements for Article III standing. We disagree.
Under the second prong of the test for standing, Plaintiffs must demonstrate that the injury is “fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.” Ariz. Christian Sch. Tuition Org. v. Winn, - U.S. -,
B. Likelihood of Success on the Merits
We are mindful that this case is one of many filed against the government in recent months by secular, for-profit corporations and their owners regarding the Women’s Preventive Healthcare regulations. These lawsuits, most of which have sought preliminary injunctions, present complicated issues of first impression, such as whether a corporation has free exercise protections under the First Amendment of the Constitution, and whether the Women’s Preventive Healthcare regulations create a “substantial burden” on Plaintiffs’ exercise of religion under the Religious Freedom Restoration Act (“RFRA”). Not surprisingly, courts who have considered these issues have reached different outcomes.
1. The Free Exercise Clause of the First Amendment
The Free Exercise Clause of the First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. amend. I. Plaintiffs argue that the operation of Conestoga in accordance with the Hahns’ religious beliefs constitutes the “exercise of religion” under the Free Exercise Clause, and that being forced to provide coverage for all FDA-approved contraception substantially burdens their religious beliefs.
In resolving this issue, we must, as a threshold matter, determine whether Plaintiffs have “free exercise” rights under the First Amendment. The Hahns certainly possess these rights. We conclude, however, that Conestoga, as a for-profit, secular corporation, does not.
i. Conestoga’s Free Exercise Rights
Neither the Supreme Court nor the Third Circuit have had occasion to decide whether for-profit, secular corporations possess the religious rights held by individuals. Certainly, a number of constitutional freedoms have been extended to corporations. See e.g., Citizens United v. Fed. Election Comm’n,
Plaintiffs cite to Citizens United v. Federal Election Commission,
Plaintiffs urge that the rights to free speech and free exercise of religion are inseparable, and thus Citizens United must extend to the Free Exercise Clause. (Hrg. Tr., Jan. 4, 2013, p. 27.) This argument assumes too much. Although they reside within the same constitutional amendment, these two provisions have vastly different purposes and precedents, and we decline to make the significant leap Plaintiffs ask of us without clear guidance from Congress or the Supreme Court.
Plaintiffs also urge this Court to find that Conestoga has free exercise rights by citing to cases in which religious organizations were granted free exercise protections. While religious organizations, as a means by which individuals practice religion, have been afforded free exercise rights, see Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, - U.S. -,
The purpose of the Free Exercise Clause is “to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority.” Sch. Dist. of Abington Twp. v. Schempp,
Alternatively, Plaintiffs argue that, as a closely-held corporation, with shareholders who all practice the Mennonite faith, Conestoga may act as the Hahns’ “alter-ego,” and thus assert the Hahns’ religious rights on their behalf. Plaintiffs cite to Tyndale House Publishers, Inc. v. Sebelius,
“[I]ncorporation’s basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs.” Cedric Kushner Promotions, Ltd. v. King,
Accordingly, we conclude that Conestoga cannot assert free exercise rights under the First Amendment, and therefore, cannot demonstrate a likelihood of success on the merits for a free exercise claim.
ii. Hahns’ Free Exercise Rights
Next, we must assess the Hahns’ likelihood of success on their free exercise claim. “At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
The Free Exercise Clause is not, however, violated by a “valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that [a plaintiffs] religion prescribes (or prosсribes).” Emp’t Div., Dept. of Human Res. of Or. v. Smith,
Plaintiffs first argue that the regulations are not generally applicable because they are underinclusive. Specifically, Plaintiffs point to the exemptions for grandfathered plans, small employers who may forego providing insurance without penalty and religious employers. A regulation is not generally applicable “if it is enforced against a category of religiously motivated conduct, but not against a substantial category of conduct that is not religiously motivated and that undermines the purposes of the law to at least the same degree as the covered conduct that is religiously motivated.” McTernan v. City of York,
Plaintiffs also argue that the Women’s Preventive Healthcare regulations are not neutral beсause they exclude some religious employers but not others. “A law is ‘neutral’ if it does not target religiously motivated conduct either on its face or as applied in practice.” Blackhawk v. Pennsylvania,
As Defendants can clearly demonstrate that the regulations are “rationally related to a legitimate government objective,” the regulations do not offend the Free Exercise Clause. Consequently, Plaintiffs have failed to show a likelihood of success on the merits of their free exercise claim.
2. The Religious Freedom Restoration Act
The Rеligious Freedom Restoration Act (“RFRA”) states that, “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” unless the government can demonstrate that “the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1.
Plaintiffs argue that the operation of Conestoga in accordance with the Hahns’ religious beliefs constitutes the “exercise of religion” under the RFRA, and that the Women’s Preventative Healthcare regulations imрose a substantial burden upon their religion because “it directly mandates that they violate th[eir] beliefs.” (Pls.’ Br., p. 9.) Additionally, Plaintiffs argue that Supreme Court precedent dictates that we consider only the amount of pressure applied by the government, and not interpret the confines of religious doctrine. (Id. at pp. 12-14.)
i. Conestoga’s Rights Under the RFRA
For the reasons stated supra, we agree with Defendants that Conestoga cannot exercise religion within the meaning of the RFRA.
Nonetheless, Plaintiffs persist that Conestoga is a “person” under the RFRA because the general definition of “person” found in 1 U.S.C. § 1 states, “[I]n determining the meaning of any Act of Congress, unless the context indicates otherwise ... the words ‘person’ and ‘whoever’ includes corporations.” As we have determined that a for-profit, secular corporation cannot exercise religion, this would certainly be a situation where the “context indicates otherwise.” Therefore, Conestoga cannot bring a claim under the RFRA.
We must next consider whether the Hahns have demonstrated that the regulations would substantially burden their religious exercise.
ii. Substantial Burden
The Supreme Court has not considered the issue of what constitutes a substantial burden in a case involving the Women’s Preventive Healthcare regulations. See Hobby Lobby Stores, Inc. v. Sebelius, - U.S. -,
Where the state conditions the receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by a religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.
Thomas v. Review Bd. of Ind. Emp’t Sec. Div.,
In articulating the guidelines for when religious freedoms may be infringed, the Supreme Court has also cautioned that: “every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” United States v. Lee,
The RFRA does not explain what constitutes a “substantial burden” on the exercise of religion. We have stated, however, that within the related context of the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), a “substantial burden” “exists where: 1) a follower is forced to choose between following the precepts of his religion and forfeiting benefits otherwise generally available to other inmates versus abandoning one of the precepts of his religion in order to receive a benefit; OR [sic] 2) the government puts substantial pressure on an adherent to substantially modify his behavior and to violate his beliefs.”
Norwood v. Strada,
With this general precedential background from the Supreme Court and the Third Circuit in mind, we note that the flurry of opinions recently issued in similar cases have all directly considered the “substantial burden” test as applied to the Women’s Preventive Healthcare regulations. We concur with the district court in the Western District of Oklahoma, which observed that, “[t]he present circumstances require charting a course through the ‘treacherous terrain’ at the intersection of the federal government’s duty to avoid imposing burdens on the individual’s practice of religion and the protection of competing interests.” Hobby Lobby Stores, Inc. v. Sebelius,
In Tyndale House Publishers, Inc. v. Sebelius,
Reaching a different result than Tyndale, the district court in Hobby Lobby, ruled that the plaintiffs could not establish that the regulations created a substantial burden.
Only a few weeks ago, the United States Court of Appeals for the Tenth Circuit affirmed the district court’s reasoning in Hobby Lobby, agreeing that the plaintiffs could not establish a substantial burden. The Tenth Circuit quoted the following statement by the district court with approval:
[T]he particular burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [the corporate] plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’] religion. Such an indirect and attenuated relationship appears unlikely to establish the necessary “substantial burden.”
Hobby Lobby Stores, Inc. v. Sebelius, No. 12-6294, slip op. at 7,
While we view the “substantial burden” issue to be a closer call than whether Conestoga, acting as a corporation, can exercise, religious rights, for the reasons that follow, we agree with the reasoning expressed in the Hobby Lobby opinions, and find that the Hahns have not demonstrated that these regulations constitute a substantial burden upon their religion.
First, we reject the notion expressed in Legatus v. Sebelius,
If every plaintiff were permitted to unilaterally determine that a law burdened their religious beliefs, and courts were required to assume that such burden was substantial, simply because the plaintiff
As noted previously, the Supreme Court in Lee recognized that free exercise protections are not absolute, and that, while religious beliefs are to be accommodated, “there is a point at which accommodations would ‘radically restrict the operating latitude of the legislature.’ ” Lee,
With these principles in mind, we turn to the question of how the Women’s Preventive Healthcare regulations burden the religious belief articulated by the Hahns. At the preliminary injunction hearing, Plaintiffs’ counsel emphasized that the heart of Plaintiffs’ objections are focused on the use of abortifacient contraceptives that can affect a fertilized egg. Counsel stated:
Because many of these drugs not only have some medical effect on the egg, but they also affect the lining of a woman’s uterus and thus interfere with the implantation of the egg, our concern and our clients’ deeply held religious concern, is that any fertilized egg that’s prevented from implanting, that’s aborted the morning after or a week after, any interruption of a woman’s lining of her uterus, any drug that would do that, that would be involved in that, is what they are most sincerely and deeply opposed to.
(Hrg. Tr., Jan. 4, 2013, pp. 67-68) (emphasis added). As this statement reflects, the core of the Hahns’ religious objection is the effect of particular contraceptives on a fertilized egg. Given that focus, it is worth emphasizing that the ultimate and deeply private choice to use an abortifacient contraceptive rests not with the Hahns, but with Conestoga’s employees. The fact that Conestoga’s employees are free to look outside of their insurance coverage and pay for and use any contraception, including abortifacients, through the salary they receive from Conestoga, amply illustrates this point. Autocam, No. 1:12-cv1096, slip op. at 11 (noting that plaintiffs will be “paying indirectly for the same services through wages” that their employees may choose to use “for contraception products and services”).
We also find that any burden imposed by the regulations is too attenuated to be considered substantial. A series of events must first occur before the actual use of an
The indirect nature of the burden
While compliance with the Women’s Preventive Healthcare regulations may impose some burden upon the Hahns, any such burden on their ability to freely exercise their religion would be indirect, unlike the statutes challenged in Yoder, Sherbert, Thomas and Gonzales. Importantly, Plaintiffs remain free to make their own independent dеcisions about their use or non-use of different forms of contraception, as that clearly remains a personal matter. See O’Brien v. U.S. Dept. of Health & Human Svcs.,
Conestoga’s corporate form further separates the Hahns from the requirements of the ACA, as the Women’s Preventive Healthcare regulations apply only to Conestoga, a secular corporation without free exercise rights, not the Hahns. Whatever burden the Hahns may feel from being involved with a for-profit corporation that
Finally, we understand, and have carefully considered the fact that the Hahns may be less focused on what Conestoga’s employees ultimately decide regarding the use of abortifacients, and more concerned with the burden imposed on their religion by the requirement that they provide insurance coverage that may be used to “pay for, facilitate, or otherwise support abortifacient drugs.” (Am. Compl. ¶ 82.) We respect and fully appreciate this concern, and in no way dispute or denigrate its legitimacy and its effect as a burden upon the Hahns’ religious beliefs. However, a line must be drawn delineating when the burden on a plaintiffs religious exercise becomes “substantial.” We conclude that, here, that line does not extend to the speculative “conduct of third parties with whom plaintiffs have only a commercial relationship.” Hobby Lobby, No. 12-6294, slip op. at 7 (10th Cir. Dec. 20, 2012).
3. The Establishment Clause
The “central purpose of the Establishment Clause [is] the purpose of ensuring governmental neutrality in matters of religion.” Gillette v. United States,
Plaintiffs argue that the “religious employer” exemption does both. They argue that it discriminates among religions because some organizations qualify for the exemption, while others do not. Further, they claim that the decision about whether an organization qualifies for the exemption involves excessive entanglement with religion because it requires the government to “exрlore a religious organization’s purpose in impermissible ways.” (Pls.’ Br., p. 32.)
Defendants, on the other hand, argue that the Establishment Clause does not prohibit provisions, such as the religious employer exemption, which accommodate religious organizations by excusing their compliance with certain regulations. They assert that the Establishment Clause only prohibits provisions that discriminate based upon religious denomination, not those that merely distinguish between secular and religious organizations. Further, Defendants argue that the exemption does not create excessive government entanglement with religion because the regulation does not call for an analysis of an organization’s religious tenets. They assert that the intrusiveness of the statute is particularly minimal in Plaintiffs’ case because Plaintiffs do not meet any of the criteria for the religious exemption.
We agree with Defendants, and with the other courts that have considered the issue, that the religious employer exemption does not violate the Establishment Clause. See Grote Indus., LLC v. Sebelius,
Neither does the religious employer exemption create excessive government entanglement with religion. “The tеst [for excessive government entanglement] is inescapably one of degree.” Walz, at 674,
The “entanglement” created by the religious employer exemption is minimal. The regulation requires a one-time assessment based upon minimally invasive criteria. Specifically, an organization qualifies for an exemption if its purpose is the inculcation of religious values, it primarily employs and serves persons who share the organization’s religious beliefs and it qualifies as a non-profit organization under the Internal Revenue Code. 45 C.F.R. § 147.130(a)(1)(iv)(B). This inquiry is far less invasive than other statutes the Supreme Court has previously upheld. See, e.g., Bowen v. Kendrick,
The Supreme Court has consistently recognized that “[t]here is ample room under the Establishment Clause for ‘benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.’ ” Amos,
4. The Free Speech Clause
It is well established that the First Amendment, in addition to protect
Plaintiffs argue that requiring them to purchase insurance that covers “patient education and counseling for all women with reproductive capacity,” which may include advice about abortifacients, impropеrly compels them to support speech with which they disagree. See HRSA Guidelines, supra. Defendants offer two responses: (1) the regulation concerns the provision of a health care plan, which is conduct rather than speech; and (2) the regulation is viewpoint neutral because it is silent as to the content of the education and counseling, leaving that decision instead to the patient and her doctor. Defendants emphasize that Plaintiffs remain free to discourage employees from using contraceptives which they believe to be immoral.
We agree with Defendants that Plaintiffs’ Free Speech claim has little likelihood of' success.
A similar analysis applies to the regulation challenged by Plaintiffs. The provision “affects what [Plaintiffs] must do ... not what they may or may not say.” Id. at 60,
The regulation challenged by Plaintiffs is further distinguishable from those invalidated in the Supreme Court’s compelled-speech cases because it does not advocate any particular viewpoint. See, e.g., Barnette,
IV. CONCLUSION
Plaintiffs have been unable to demonstrate a likelihood of success on the merits of their First Amendment and RFRA claims. As such, we need not decide whether Plaintiffs have demonstrated a right to relief under the other three preliminary injunction factors. Because Plaintiffs have not met their burden, Plaintiffs’ motion will be denied.
An appropriate Order follows.
ORDER
AND NOW, this 11th day of January, 2013, upon consideration of Plaintiffs’ “Motion for Preliminary Injunction” (Doc. No. 7), the response thereto, and the amicus curiae brief filed by the American Civil Liberties Union and American Civil Liberties Union of Pennsylvania in opposition to Plaintiffs’ motion (Doc. No. 38), and for the reasons stated in this Court’s accompanying Memorandum Opinion, it is hereby ORDERED that Plaintiffs’ motion is DENIED.
Notes
.The complete list of Defendants is as follows: 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; and United States Department of the Treasury.
. On December 28, 2012,
. All facts are undisputed, unless otherwise noted.
. These five members of the Hahn family possess 100% of the voting shares of Conestoga’s stock. Additional, non-voting shares are held by other members of the Hahn family. (Hrg. Tr., Jan. 4, 2013, pp. 11, 19.)
. This statement provides that:
"The Hahn family has always believed that the Bible is the inspired, infallible, and authoritative written word of God, the one and only eternal God.
Found in the Bible, Exodus 20:13(NIV) as one of the 'Ten Commandments[,]' God commands, 'You shall not murder[.]'
Found in the Bible, Psalms 139:13-16(NIV), the writer acknowledges God in how he was made and says[,] 'For you created my inmost being; you knit me together in my mother’s womb. I praise you because I am fearfully and wonderfully made; your works are wonderful, I know that full well. My frame was not hidden from you when I was made in the secret place, when I was woven together in the depths of the earth. Your eyes saw my unformed body; all the days ordained for me were written in your book before one of them came to be.’
The Hahn Family believes that human life begins at conception (at the point where an egg and sperm unite) and that it is a sacred gift from God and only God has the right to terminate human life. Therefore it is against our moral conviction to be involved in the termination of human life through abortion, suicide, euthanasia, murder, or any other acts that involve the deliberate taking of human life.”
. We note that Defendants dо not agree that Plan B or Ella can cause the termination of a fertilized egg. However, Defendants agree that it is Plaintiffs' belief that these drugs can have an abortifacient effect. (Hrg. Tr., Jan. 4, 2013, p. 69.)
. Compare Korte v. Sebelius,
. We recognize that a number of courts that have considered this issue have cited Citizens United for the proposition that secular corporations may have free exercise rights. See Korte v. Sebelius,
. In determining whether an organization constitutes a "religious organization,” courts weigh the following factors: "(1) whether the entity operates for a profitf;] (2) whether it produces a secular productf;] (3) whether the entity’s articles of incorporation or other pertinent documents state a religious purposed] (4) whether it is owned, affiliated with or financially supported by a formаlly religious entity such as a church or synagogue[;] (5) whether a formally religious entity participates in the management ...[;] (6) whether the entity holds itself out to the public as secular or sectarian^] (7) whether the entity regularly includes prayer or other forms of worship in its activities[;] (8) whether it includes religious instruction in its curriculum ...[;] and whether its membership is made up by coreligionists.” LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n,
Conestoga, as a for-profit company, creating a secular product, with no formal ties to a church or other religious group, clearly does not meet the definition of a religious organization.
. Plaintiffs also cite to Legatus v. Sebelius,
. We further note that the facts in the present case are distinguishable from the facts in Tyndale. The Tyndale court relied on the plaintiff's unique corporate structure in reaching its decision. Tyndale House Publishers, Inc. is a Christian, faith-based book publisher that holds weekly chapel service for its employees and is 96.5% owned by a reli
Conestoga, on the other hand, has none of these characteristics. We do not doubt that the Hahns’ religious convictions have influenced the manner in which they operate Conestoga. (See Exs. 1-5.) However, the substantial overlap of faith and business found in Tyndale is simply not present here.
. The Supreme Court has held that the RFRA exceeds Congress’s power under Section 5 of the Fourteenth Amendment, and is therefore unconstitutional as applied to the states. City of Boerne v. Flores,
. When conducting an analysis under the RFRA, courts generally look to free exercise cases decided prior to Employment Div., Dept. of Human Resources of Or. v. Smith,
. The term "slippery slope,” a commonly used legal phrase, means “a cоurse of action that seems to lead inevitably from one action or result to another with unintended consequences.” Merriam—Webster Online Dictionary, http://www.merriam-websler.com/ dictionary/slippery%20slope (last visited Jan. 9, 2013). This definition aptly describes what would occur were we to follow the reasoning in Legatus.
. Relying on the Supreme Court's statement in Thomas v. Review Bd. of Ind. Emp’t Sec. Div., that "[w]hile the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial,”
. The Tyndale court also considered it a "crucial distinction” that the plaintiff was self-insured as this fact removed one of the "degrees” of separation. Tyndale,
. We also note that, as with Plaintiffs’ Establishment Clause claim, every other court to consider the issue has found that it is unlikely that the regulations violate the right to free speech. See Grote Indus., LLC v. Sebelius,