Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ________________________________
)
PRIESTS FOR LIFE, et al., )
)
Plaintiffs, )
) v. ) Civil Action No. 13-1261 (EGS) )
UNITED STATES DEPARTMENT OF )
HEALTH AND HUMAN SERVICES, )
et al. )
)
Defendants. )
________________________________ )
MEMORANDUM OPINION
This case presents one of many challenges to the
contraceptive services mandate of the Affordable Care Act
(“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010). A number of
circuits, including the District of Columbia Circuit, have
examined the mandate’s requirements regarding contraceptive
coverage for employees of for-profit companies; that issue is
now pending before the Supreme Court. See
Hobby Lobby Stores,
Inc. v. Sebelius
,
The instant case presents a different issue: the obligations, vel non , of non-profit religious organizations to provide contraceptive coverage under the mandate. These organizations are eligible for an accommodation to the mandate; specifically, they are not required to provide contraceptive coverage to their employees if they object to doing so on religious grounds. Under the regulations, an employer in this situation can self-certify to its health insurance issuer that it has a religious objection to providing coverage for contraceptive services as part of its health insurance plan. Once the issuer receives the self-certification, the non-profit organization is exempt from the mandate. The organization’s employees will receive coverage for contraceptive services, but that coverage will be provided directly through the issuer. The coverage is excluded from the employer’s plan of benefits, and the issuer assumes the full costs of coverage; it is prohibited from charging any co-payments, deductibles, fees, premium hikes or other costs to the organization or its employees.
Priests for Life, a non-profit organization which takes a “vocal and active role in the pro-life movement,” Complaint ¶ 73, and three of its employees have filed this lawsuit objecting to the accommodation to the mandate. They allege that the self- certification Priests for Life must provide to its issuer violates their rights under the Religious Freedom Restoration *3 Act, 42 U.S.C. §§ 2000bb, et seq. (“RFRA”), and the First and Fifth Amendments to the Constitution.
The Supreme Court has made clear that religious exercise is
impermissibly burdened when government action compels
individuals “to perform acts undeniably at odds with fundamental
tenets of their religious beliefs.”
Wisconsin v. Yoder
, 406
U.S. 205, 218 (1972). At the same time, acts of third parties,
which do not cause adherents to act in violation of their
religious beliefs, do not constitute an impermissible burden.
Kaemmerling v. Lappin,
Plaintiffs here do not allege that the self-certification itself violates their religious beliefs. To the contrary, the certification states that Priests for Life is opposed to providing contraceptive coverage, which is consistent with those beliefs. Indeed, during oral argument, plaintiffs stated that they have no religious objection to filling out the self- *4 certification; it is the issuer’s subsequent provision of coverage to which they object. But filling out the form is all that the ACA requires of the plaintiffs in this case.
There is no doubt that the plaintiffs find the statute’s
requirement that the issuer provide contraceptive coverage
profoundly opposed to their religious scruples. But the
issuer’s provision of coverage is just that -- an entirely third
party act. The
issuer’s
provision of coverage does not require
plaintiffs
to “perform acts” at odds with their beliefs.
Yoder
,
Pending before the Court is the plaintiffs’ motion for summary judgment and the defendants’ cross motion to dismiss or in the alternative for summary judgment. Upon consideration of the motions, the oppositions and replies thereto, the Amicus Curiae brief of the American Civil Liberties Union, the entire record, and for the reasons explained below, defendants’ motion to dismiss is GRANTED; accordingly, the parties’ motions for summary judgment are hereby DENIED AS MOOT .
I. BACKGROUND
Priests for Life is a non-profit corporation incorporated in the State of New York, and Father Frank Pavone, Alveda King, and Janet Morana are among its employees. Compl. ¶¶ 6-11. “A *5 deep devotion to the Catholic faith is central to the mission of Priests for Life.” Compl. ¶ 85. Its mission is to “unite and encourage all clergy to give special emphasis to the life issues in their ministry . . . [and] to help them take a more vocal and active role in the pro-life movement.” Compl. ¶ 73.
Accordingly, “contraception, sterilization, abortifacients [1] and abortion . . . are immoral and antithetical to Priests for Life’s religious mission.” Id . Priests for Life provides health insurance for its employees. Compl. ¶ 93. The next plan year will commence on January 1, 2014. Compl. ¶ 101.
Plaintiffs’ claims arise out of certain regulations promulgated in connection with the ACA. The Act requires all group health plans and health insurance issuers that offer non- grandfathered group or individual health coverage to provide coverage for certain preventive services without cost-sharing, including, for “women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [(“HRSA”)].” 42 U.S.C. § 300gg-13(a)(4). The HRSA, an agency within the Department of Health and Human Services (“HHS”), commissioned the Institute of Medicine (“IOM”) to conduct a *6 study on preventive services. On August 1, 2011, HRSA adopted IOM’s recommendation to include “all Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines (“HRSA Guidelines”), available at http://www.hrsa.gov/womensguidelines/ (last visited Dec. 17, 2013).
Several exemptions and safe-harbor provisions excuse certain employers from providing group health plans that cover women’s preventive services as defined by HHS regulations. First, the mandate does not apply to certain “grandfathered” health plans in which individuals were enrolled on March 23, 2010, the date the ACA was enacted. 75 Fed. Reg. 34,538 (June 17, 2010). Second, certain “religious employers” are excluded from the mandate. See, e.g. , 76 Fed. Reg. 46,621 (Aug. 3, 2011); 45 C.F.R. § 147.130(a)(1)(iv)(A). On June 28, 2013, the government issued final rules on contraceptive coverage and religious organizations; the rules became effective August 1, 2013. 78 Fed. Reg. 39,870 (July 2, 2013). These regulations are the subject of this case.
Under the final regulations, a “religious employer” exempt from the contraceptive services mandate is “an organization that is organized and operates as a nonprofit entity and is referred *7 to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue Code,” which refers to churches, their integrated auxiliaries, and conventions or associations of churches, and the exclusively religious activities of any religious order. 45 C.F.R. § 147.131(a). Non-profit organizations which do not qualify for this exemption may, however, qualify for an accommodation with respect to the contraceptive coverage requirement if they are “eligible organizations” under the regulations. An “eligible organization” must satisfy 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 non- profit entity.
(3) The organization holds itself out as a religious organization.
(4) The organization self-certifies, in the form and manner specified by the Secretary, that it satisfies the criteria in paragraphs (1) through (3), and makes such self-certification available for examination upon request by the first day of the first plan year to which the accommodation applies.
45 C.F.R. § 147.131(b);
see also
Once an eligible organization provides a copy of a self-
certification to its issuer, which provides coverage in
connection with the group health plan, the organization is
relieved of its obligation “to contract, arrange, pay or refer
for contraceptive coverage” to which it has religious
*8
objections.
*9 The parties agree that Priests for Life does not qualify for an exemption to the contraceptive services mandate. The grandfathered plans provision does not protect the organization because the current health insurance plan has made changes since 2010, including an increase in the percentage cost-sharing requirement. See Decl. of Fr. Pavone, ECF No. 7-1, at ¶ 5. Priests for Life also does not satisfy the definition of “religious employer” and is not eligible for an exemption on that ground. Id. at ¶ 3. Finally, the parties agree that Priests for Life would qualify as an “eligible organization,” entitled to the accommodation, if it completes the self- certification form. Compl. ¶ 6.
Priests for Life states that completing the self- certification form will require it to violate its sincerely held religious beliefs because “the government mandate forces Priests for Life to provide the means and mechanism by which contraception, sterilization and abortifacients are provided to its employees. . . . There is no logical or moral distinction between the [] contraceptive services mandate . . . and the “accommodation[.]” . . . Priests for Life [is] still paying an insurer to provide [its] employees with access to a product [] that violates [its] religious convictions.” Compl. ¶¶ 69-70, Plaintiffs’ free exercise of religion. Gilardi , 733 F.3d at 1216-19.
see also id. ¶ 105 (“Priests for Life objects to being forced by the government to purchase a health care plan that provides its employees with access to contraceptives, sterilization and abortifacients, all of which are prohibited by its religious convictions. This is true whether the immoral services are paid for directly, indirectly, or even not at all by Priests for Life.”).
On September 19, 2013, plaintiffs moved for a preliminary injunction as to all counts of the Complaint. On September 25, 2013, the parties agreed to consolidate the preliminary injunction motion with the merits under Federal Rule of Civil Procedure 65(a)(2). Thereafter, plaintiffs filed a motion for summary judgment and defendants filed a cross motion to dismiss or in the alternative for summary judgment. Toward the end of the briefing schedule set by the Court, the D.C. Circuit issued its decision in Gilardi , addressing religious freedom claims arising from different regulations under the ACA’s contraceptive services mandate. Following Gilardi , the Court ordered the parties to file supplemental briefs addressing its impact on this case. The Court heard oral argument on the parties’ cross motions on December 9, 2013. The motions are ripe for determination by the Court.
II. STANDARD OF REVIEW
A. Motion to Dismiss
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) “tests the legal sufficiency of a complaint.”
Browning
v. Clinton
,
When ruling on a Rule 12(b)(6) motion, the court may
consider “the facts alleged in the complaint, documents attached
as exhibits or incorporated by reference in the complaint, and
matters about which the Court may take judicial notice.”
Gustave-Schmidt v. Chao
,
B. Motion for Summary Judgment
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The party seeking summary judgment bears the
“initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, which
it believes demonstrate the absence of a genuine issue of
material fact.”
Celotex Corp. v. Catrett,
III. DISCUSSION
A. Standing
The parties do not dispute that Priests for Life, a non- profit religious organization, has standing to advance all of its constitutional and statutory claims. See, e.g. , Jimmy Swaggart Ministries v. Bd. of Equalization of Cal. , 493 U.S. 378, 381, 384 (1990); EEOC v. Catholic Univ. of Am. , 83 F.3d 455, 467-70 (D.C. Cir. 1996). The Court, therefore, has jurisdiction to hear and decide the issues presented by this case. Rumsfeld v. Forum for Acad. & Inst’l Rights, Inc. , 547 U.S. 47, 52 n.2 (2006) (“[T]he presence of one party with standing is sufficient to satisfy Article III’s case-or- controversy requirement.”).
While the defendants challenge standing of the individual
plaintiffs, they acknowledge that the individual plaintiffs’
claims are identical to Priests for Life’s claims.
See
Defs.’
Combined Mot. to Dismiss or for Summ. J and Opp’n to Pls.’ Mot.
(hereinafter “Defs.’ Mot.”) at 13, n.8. At oral argument, the
*14
parties agreed that it is unnecessary for the Court to address
the standing of the individual plaintiffs.
See, e.g.
,
Chamber of
Commerce v. EPA
,
B. The RFRA
The Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb- 1, provides that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).” Subsection (b) provides that “[g]overnment may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person is (1) in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
Congress enacted the RFRA in response to the Supreme
Court’s decision in
Employment Division, Department of Human
Services of Oregon v. Smith
,
In order to state a prima facie case under RFRA, and thus
to survive a motion to dismiss, plaintiffs must allege a
substantial burden on their religious exercise. The statute
defines “religious exercise” broadly, as “any exercise of
religion, whether or not compelled by, or central to, a system
of religious belief.” 42 U.S.C. §§ 2000bb-2(4); 2000cc-5. The
RFRA does not define “substantial burden,” but because the RFRA
intends to restore
Sherbert
and
Yoder
, those cases are
instructive in determining the meaning of that term. In
Sherbert
, plaintiff’s exercise of her religion was impermissibly
burdened when plaintiff was forced “to choose between following
the precepts of her religion,” resting and not working on the
Sabbath and forfeiting certain unemployment benefits as a
result, or “abandoning one of the precepts of her religion in
*16
order to accept work.”
This Circuit also recently addressed the issue of substantial burden in the context of a RFRA challenge to the ACA in Gilardi. The Gilardi brothers are the two owners of closely held for-profit companies. Their companies are not eligible for the accommodations available to Priests for Life; the regulations require such companies to provide contraceptive coverage for the participants and beneficiaries in their group health plans. The Gilardis challenged the provisions of the contraceptive mandate which would have required them to directly provide contraceptive coverage to their employees, claiming it substantially burdened their religious beliefs opposing contraception. The Circuit agreed, finding that “the burden on religious exercise . . . occurs when a company’s owners fill the basket of goods and services that constitute a healthcare plan. In other words, the Gilardis are burdened when they are pressured to choose between violating their religious beliefs in managing their selected plan or paying onerous penalties.” 733 *17 F.3d at 1217. “The contraceptive mandate,” as applied to companies not eligible for the accommodations, “demands that owners like the Gilardis meaningfully approve and endorse the inclusion of contraceptive coverage in their companies’ employer-provided plans.” Id. at 1217-18.
Unlike the Gilardis, Priests for Life is eligible for the accommodations to the mandate, and therefore is not required to provide contraceptive services to its employees. To take advantage of the accommodations, Priests for Life will be required to provide its insurer with a self-certification form stating that it is a religious, non-profit organization which opposes providing coverage for some or all of any contraceptive services required to be covered by the mandate. 78 Fed. Reg. at 39,874, 39,892. [3] Plaintiffs argue that the self-certification *18 substantially burdens their exercise of religion because the accommodations require Priests for Life to “promote, facilitate and cooperate in the government’s immoral objective to increase the use of contraceptive services in direct violation of Plaintiffs’ sincerely held religious beliefs.” Pls.’ Mot. at 1. “[B]ecause Priests for Life provides its employees with a health care plan, the government mandate forces Priests for Life to provide the means and mechanism by which contraception, sterilization, and abortifacients (and related education and counseling) are provided to its employees (and beneficiaries), which is unacceptable to Plaintiffs because it violates their sincerely held religious beliefs.” Id. at 9. “This is true whether the immoral services are paid for directly, indirectly, or even not at all by Priests for Life.” Id . at 15. In sum, Plaintiffs alleges they are pressured to choose between violating their religious beliefs by “support[ing] and provid[ing] access to” the services provided under the contraception mandate, or “leaving the health care insurance market altogether.” Id. at 16.
savings to the insurer by its provision of such coverage. Pls.’
Mot. at 9, n.6, 10, n.7. The plain language of the regulations,
however, prohibits insurers from passing along any costs of
contraceptive coverage to eligible organizations such as Priests
for Life, whether through cost-sharing, premiums, fees, or other
charges.
Defendants do not question the sincerity of Plaintiffs’
religious beliefs, but they do dispute whether the
accommodations impose a substantial burden on the exercise of
those beliefs. Defendants argue that the regulations impose no
more than a
de minimis
burden on Plaintiffs’ religious exercise
because the regulations “do not require Priests for Life to
“modify [its] religious behavior in any way.”” Defs.’ Mot. at 15
(quoting
Kaemmerling v. Lappin,
A substantial burden exists when government action puts
“substantial pressure on an adherent to modify his behavior and
violate his beliefs.”
Gilardi
,
In
Kaemmerling
, a federal prisoner claimed that the
statutorily mandated collection and use of his DNA for purposes
of a national law enforcement database substantially burdened
his free exercise rights. Kaemmerling alleged that the
collection, storage, and use of his DNA violated his sincerely
held religious beliefs. The D.C. Circuit “accept[ed] as true
the factual allegations that Kaemmerling’s beliefs are sincere
and of a religious nature,”
Kaemmerling does not allege facts sufficient to state a substantial burden . . . because he cannot identify any “exercise” which is the subject of the burden to which he objects. The extraction and storage of DNA information are entirely the activities of the FBI, in which Kaemmerling plays no role and which occur after the [prison] has taken his fluid or tissue sample (to which he does not object). The government’s extraction, analysis, and storage of Kaemmerling’s DNA information does not call for Kaemmerling to modify his religious behavior in any way – it involves no action or forbearance on his part, nor does it otherwise interfere with any religious act in which he engages. Although the government’s activities with his fluid or tissue sample after the [prison] takes it may offend Kaemmerling’s religious beliefs, they cannot be said to hamper his religious exercise because they do not “pressure [him] to modify his behavior and to violate his beliefs.” Thomas v. Review Bd. ,450 U.S. 707 , 718 (1981). Kaemmerling alleges no religious observance that the DNA Act impedes, or acts in violation of his religious beliefs that it pressures him to perform. Religious exercise necessarily involves an action or practice, as in Sherbert , where the denial of unemployment benefits “impede[d] the observance” of the plaintiff's religion by pressuring her to work on Saturday in violation of the tenets of her religion,374 U.S. at 404 , or in Yoder , where the compulsory education law compelled the Amish to “perform acts undeniably at odds with fundamental tenets of their religious beliefs,”406 U.S. at 218 . Kaemmerling, in contrast, alleges that the DNA Act’s requirement that the federal government collect and store his DNA information requires the government to act in ways that violate his religious beliefs, but he suggests no way in which these governmental acts pressure him to modify his own behavior in any way that would violate his beliefs. See Appellant's Br. at 21 (describing alleged substantial burden as “knowing [his] strongly held beliefs had been violated by a[n] unholy act of an oppressive regime”).
Never to our knowledge has the Court interpreted the First Amendment to require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family. The Free Exercise clause simply cannot be understood to require the Government to conduct its own internal affairs in ways *23 that comport with the religious beliefs of particular citizens. . . . [A]ppellees may not demand that the Government join in their chosen religious preferences by refraining from using a number to identify their daughter.
Id.
at 699-700. Other Supreme Court decisions have similarly
rejected free exercise challenges to laws which would not
require a plaintiff to modify his own behavior, but would permit
a third party to engage in behavior to which the plaintiff
objects on religious grounds. In
Lyng
, the Court rejected
Native American tribes’ challenge to government building roads
and harvesting timber on national forest land used by the tribes
for religious purposes. The Court explained “government
programs, which may make it more difficult to practice certain
religions but which have no tendency to coerce individuals into
acting contrary to their religious beliefs,” do not violate the
First Amendment.
In this case, the Court does not doubt the sincerity of
Plaintiffs’ beliefs, nor does it doubt that condemnation of
contraception is central to their exercise of the Catholic
religion. “It is not within the judicial ken to question the
centrality of particular beliefs or practices to a faith, or the
*24
validity of particular litigants’ interpretation of those
creeds.”
Hernandez v. Comm’r of Internal Revenue Serv.
, 490
U.S. 680, 699 (1989). However, to prevail under the substantial
burden test Plaintiffs must show more than a governmental action
that violates their sincerely held religious beliefs; they must
show that the governmental action forces Priests for Life,
itself, to modify its own behavior in violation of those
beliefs.
Kaemmerling
,
Priests for Life attempts to distinguish Kaemmerling on the grounds that Mr. Kaemmerling did not object to the government taking his fluid, hair, or tissue samples; he only objected to the subsequent extraction and storage of his DNA. Priests for Life claims that in this case, “the coverage for the morally objectionable contraceptive coverage will occur only because Priests for Life has played an active role in purchasing a healthcare plan and then authorizing the issuer of its plan through “self-certification” to provide the objectionable coverage directly to its plan participants and beneficiaries (a role that is prohibited by Plaintiffs’ religion) and thereby cooperating with and thus facilitating the government’s illicit objective “to increase access to and utilization of” contraceptive services (cooperation that is prohibited by Plaintiffs’ religion).” Pls.’ Combined Opp’n to Govt’s Mot./Reply in Support of Pls.’ Mot. (hereinafter “Pls.’ Opp’n/Reply”) at 23 (emphasis in original). The Court does not find this distinction to be meaningful. The governmental action in Kaemmerling could not have occurred without the plaintiff *26 playing an active role by providing a blood sample.
Nevertheless, the court rejected claims that his action
constituted a substantial burden because the action did not
,
in
and of itself, violate plaintiff’s religious beliefs. The fact
that government action thereafter was deeply offensive to his
beliefs did not give rise to a RFRA claim.
See Kaemmerling
, 553
F.3d at 679 (plaintiff’s knowledge that his “strongly held
beliefs had been violated by a[n] unholy act of an oppressive
regime” was not enough to violate the RFRA because the
government’s actions do not “pressure him to modify his own
behavior in any way that would violate his beliefs.”);
see also
Bowen
,
In this case, Plaintiffs assert an objection to a single
requirement the regulations impose on Priests for Life directly:
completing a self-certification form stating that it is a non-
profit religious organization which objects to providing
contraceptive services coverage. Pls.’ Mot. at 7. However,
during oral argument Plaintiffs conceded that they have no
*27
religious objection to the self-certification form, in and of
itself. Rather, Plaintiffs’ act under the accommodations
becomes burdensome only when it is characterized as
“cooperating” with or providing “authorization” for “the
government’s illicit goal of increasing access to and
utilization of contraceptive services.” Pls.’ Opp’n/Reply at
23. But no matter how religiously offensive the statutory or
regulatory objective may be, the law does not violate RFRA
unless it coerces individuals into acting contrary to their
religious beliefs.
See Lyng
,
Plaintiffs’ reliance on
Sherbert
,
Yoder
, and
Thomas
is
unavailing. Pls.’ Mot. at 21. Plaintiffs argue that these
cases, particularly
Thomas
, established that the impact of a
“substantial burden” need not be direct.
Id.
at 20. In each of
these cases, however, the burdens of the governmental action –
denial of unemployment benefits for refusal to work on the
Sabbath or in an armaments factory, threatened criminal
prosecution for refusing to send children to school – all fell
*28
directly upon the plaintiffs’ participation in or abstention
from a specific religious practice. That is not the case here;
once again, the only action required of Priests for Life under
the accommodations is
consistent
with its beliefs. It is only
the independent actions of third parties which result in the
availability of contraceptive services.
See Conestoga Wood
Specialties Corp. v. Sebelius
,
This Circuit’s recent decision in
Gilardi
does not alter
the analysis. In
Gilardi
, the plaintiffs themselves (through
*29
their companies) had to provide contraceptive coverage for the
participants and beneficiaries of their plan. The Circuit
explained that the Gilardis were substantially burdened when
they had to place contraceptive coverage into “the basket of
goods and services that constitute [their companies’] healthcare
plan.”
Gilardi
,
For the foregoing reasons, the Court finds that Plaintiffs have not stated a prima facie case under RFRA because they have not alleged a substantial burden on their religious exercise. Therefore, Count II of the Complaint will be dismissed for failure to state a claim.
C. The Free Exercise Clause
The First Amendment provides that Congress shall make no
law “prohibiting the free exercise” of religion.
Hosanna-Tabor
Evangelical Lutheran Church and School v. E.E.O.C.
, 132 S.Ct.
694, 702 (2012). The right of free exercise protected by the
First Amendment “does not relieve an individual of the
obligation to comply with a valid and neutral law of general
applicability on the ground that the law proscribes (or
prescribes) conduct that his religion prescribes (or
proscribes).”
Employment Div. v. Smith
,
This Court agrees with the vast majority of courts which
have considered the issue and found that the contraceptive
services regulations are neutral and generally applicable, and
*31
accordingly have rejected Free Exercise Clause challenges.
See
Defs.’ Mot. at 32 n.5 (citing, e.g.,
MK Chambers Co. v. U.S.
Dep’t of Health & Human Servs.
, U.S. Dist. LEXIS 47887, *13-15
Case No. 13-11379 (E.D. Mich. Apr. 3, 2013);
Conestoga
, 917 F.
Supp. 2d at 409-10;
Autocam Corp. v. Sebelius
, 2012 U.S. Dist.
LEXIS 184093, *23, Case No. 12-1906 (W.D. Mich., Dec. 24, 2012),
aff’d
Plaintiffs do not dispute that the regulations’ stated purpose is secular: to promote public health and gender equality. Nevertheless, they argue that the mandate, and its accommodations, is not neutral because it was “designed to target employers who refuse to provide contraceptive services to their employees based on the employers’ religious beliefs.” Pls.’ Mot. for Prelim. Inj. 23-24. They cite the exemption for “religious employers” as defined by 45 C.F.R. § 147.131(a), which applies only to houses of worship and their integrated auxiliaries, but not to other religious organizations, and argue that the exemption divides religious objectors into favored and *32 disfavored groups without any secular purpose. Pls.’ Mot. at 24.
As several other courts considering the issue have found,
“carving out an exemption for defined religious entities does
not make a law nonneutral as to others.”
Hobby Lobby
, 870 F.
Supp. 2d at 1289 (W.D. Okl. 2012). In other words, the neutral
purpose of the regulations – to make contraceptive coverage
available to women – is not altered because the legislature
chose to exempt some religious institutions and not others. On
the contrary, “the religious employer exemption presents a
strong argument in favor of neutrality, demonstrating that the
“object of the law” was not to “infringe upon or restrict
practices because of their religious motivation.””
O’Brien v.
U.S. Dep’t of Health & Human Servs.
,
Plaintiffs argue that a statement in the Overview of the Final Regulations authorizing the religious employer exemption from the mandate reveals a discriminatory intent toward all employers which oppose contraceptive coverage and which do not qualify for the exemption.
A group health plan . . . qualifies for the [religious employer] exemption if, among other qualifications, the plan is established and maintained by an employer that primarily employs persons who share the religious tenets of that organization . . . . Employers that do not primarily employ employees who share the religious tenets of the organization are more likely to employ individuals who have no religious objection to the use of contraceptive services and therefore are more likely to use contraceptives. Including these employers within the scope of the exemption would subject their employees to the religious views of the employer, limiting access to contraceptives, and thereby inhibiting the use of contraceptive services and the benefits of preventive care.
Pls.’ Mot. at 5, 24 (
quoting
77 Fed. Reg. 8724, 8728). For the
reasons just discussed, this comment lacks significance in the
context of a Free Exercise Clause claim. It merely explains
that the regulations confer the special benefit of an exemption
only for those religious organizations that are essentially
houses of worship and their integrated auxiliaries, and who
therefore may be permitted to give employment preference to
members of their own religion.
See, e.g.
, 42 U.S.C. § 2000e-
1(a). That benefit, as discussed above, “is justifiable as a
*34
legislative accommodation--an effort to alleviate a
governmentally imposed burden on religious exercise.”
Catholic
Charities of Sacramento, Inc. v. Superior Court
,
Plaintiffs also claim that the law is not one of general
applicability because “Congress has permitted exemptions from
the requirements of the Act,” including those for grandfathered
plans and certain religious employers. Pls.’ Mot. at 24. The
existence of categorical exemptions, however, does not mean that
the law does not apply generally.
See, e.g., United States v.
Lee
,
Accordingly, the Court concludes that the regulations, and the accommodations, do not violate the Free Exercise Clause. Therefore, Count I of the Complaint will be dismissed for failure to state a claim.
D. Freedom of Speech and Expressive Association Plaintiffs next argue that the accommodation to the contraceptive services mandate violates their right to Free Speech and Expressive Association under the First Amendment. They claim the accommodation compels speech, in violation of their deeply held religious beliefs, by requiring them to complete the self-certification form, which then leads to Priests for Life’s insurer providing contraceptive coverage. Pls.’ Mot. at 31. They claim the same requirement violates their right to associate, which they do for the purpose of expressing a “message that rejects the promotion and use of contraceptive services.” Id. at 29.
As Defendants point out, “every court to review a Free
Speech challenge to the prior contraceptive-coverage regulations
has rejected it.” Defs.’ Mot. at 35 (citing, e.g.,
MK Chambers
Co.
,
A similar analysis applies to this case. The regulations
regarding contraceptive coverage, including the accommodation,
place no limits on what Plaintiffs may say; they remain free to
oppose contraceptive coverage for all people and in all forms.
Rather, the accommodation regulates conduct; specifically, the
conduct of Priests for Life’s insurance provider. And like the
law schools in
FAIR
, the only speech the accommodations require
of Priests for Life is incidental to the regulation of conduct.
Priests for Life’s speech in this case is its self-certification
that it opposes contraceptive coverage. This speech is
*38
necessary only because it is attendant to the regulation of
conduct, specifically, the insurance company’s provision of
contraceptive services. Indeed, the speech at issue in this
case is even farther from a First Amendment violation than the
speech in
FAIR
; in that case, the speech was incidental to the
law schools’ conduct, while in this case the speech is
incidental to the conduct of a wholly separate entity. And in
any event, the speech at issue here is in
accordance
with
Priests for Life’s religious beliefs, not fundamentally opposed
to it.
Cf. West Virginia Bd. of Ed. v. Barnette,
Plaintiffs argue strenuously in their motion that because
opposition to contraception is a fundamental part of their
organizational message, any provision of contraceptive coverage
by any other party must necessarily interfere with that message
and therefore be considered compelled speech. See Pls.’ Mot. at
28-32. But this is not the test for compelled speech in
violation of the First Amendment. As the Court held in
FAIR
,
one speaker who is forced to host another speaker’s message may
only assert a compelled-speech violation when the message it is
*39
forced to host is “inherently expressive.”
FAIR
, 547 U.S. at
64. For example, the “expressive nature of a parade” was a key
part of the holding in
Hurley v. Irish-American Gay, Lesbian,
and Bisexual Group of Boston, Inc.
,
presence on campus does not violate a law school’s right to associate, regardless of how repugnant the law school considers the recruiter’s message.” Id. at 69-70.
As in FAIR , the regulations and accommodations do not violate Plaintiffs’ right to associate. The regulations and accommodations in no way restrict Priests for Life’s members, employees, and donors from associating to express their opposition to contraception. Nothing about the regulations or the accommodations force Plaintiffs to accept members or employees it does not desire, nor do they make group membership less desirable as in Socialist Workers ’74 or in Healy . Like the plaintiffs in FAIR , there can be no doubt that Plaintiffs find the content of the regulations repugnant to their religious beliefs. See Compl. at ¶¶ 87-8, 90 (explaining its beliefs that access to contraception “harms women,” is “gravely immoral,” and “a grave sin.”). However, the fact that a third party provides contraceptive coverage to Priests for Life’s employees, separate from Priests for Life or its employer-sponsored health plan, does not affect the group’s ability to express its message under the First Amendment, and therefore does not violate its associational rights.
The government has not compelled plaintiffs to speak, nor has it violated their rights to expressive association. Accordingly, Count III of the Complaint will be dismissed.
E. Establishment Clause and Equal Protection Clause
The Establishment Clause prohibits the government from
showing a preference for any religious denomination over
another.
Larson v. Valente
,
*43 Plaintiffs do not address this authority. The crux of their argument rests on a statement in the Overview of the Final Regulations authorizing the religious employer exemption from the mandate, which states in relevant part:
A group health plan . . . qualifies for the [religious employer] exemption if, among other qualifications, the plan is established and maintained by an employer that primarily employs persons who share the religious tenets of that organization . . . . Employers that do not primarily employ employees who share the religious tenets of the organization are more likely to employ individuals who have no religious objection to the use of contraceptive services and therefore are more likely to use contraceptives. Including these employers within the scope of the exemption would subject their employees to the religious views of the employer, limiting access to contraceptives, and thereby inhibiting the use of contraceptive services and the benefits of preventive care.
Pls.’ Mot. at 35 (
quoting
taxes property of religious organizations used exclusively for
religious worship);
Droz v. Comm’r of IRS
,
Plaintiffs’ Equal Protection claim is identical to its
other First Amendment Claims: they claim the regulations,
religious employer exemption and accommodation impinge on
Priests for Life’s fundamental right to free exercise of
religion, freedom of speech and expressive association. Pls.’
Mot. at 33. The Court has already rejected these underlying
claims, however. “Where a plaintiff’s First Amendment free
exercise claim has failed, the Supreme Court has applied only
rational basis scrutiny in its subsequent review of an equal
protection fundamental right to religious free exercise claim
based on the same facts.”
Wirzburger v. Galvin
,
The Plaintiffs have failed to state a claim under the Establishment Clause or the Equal Protection Clause. Therefore, Counts IV and V will be dismissed.
IV. CONCLUSION
For the foregoing reasons, the defendants’ motion to dismiss all counts of Plaintiffs’ Complaint is GRANTED ; accordingly, the parties’ cross motions for summary judgment are DENIED AS MOOT. An appropriate Order accompanies this Memorandum Opinion.
Signed: Emmet G. Sullivan
United States District Judge
December 19, 2013
Notes
[1] Plaintiffs use the word “abortifacient” to refer to drugs such as Plan B and Ella that they allege cause abortions. See, e.g. , Compl. ¶ 37. Plaintiffs do not allege that the regulations will require them to provide insurance coverage for the medical procedure of abortion.
[2] During the initial briefing, the parties stated that if Priests for Life refused the accommodation, it could be fined $100 per employee per day. 26 U.S.C. § 4980D. At oral argument, however, the government informed the court that the ACA imposes an independent obligation on insurers to sell policies which comply with the law, including, e.g. , coverage for contraceptive services. See Defs.’ Suppl. Mem. at 1-4 [ECF No. 31], citing 42 U.S.C. §§ 300gg-13; 300gg-22; 76 Fed. Reg. 46,621, 623 (Aug. 3, 2011). This does not alter the analysis, however. Under the statute and regulations, if Priests for Life refuses the accommodation, it would then be placed in the position of providing contraceptive services to its employees as part of its plan of benefits, and paying for such services. As this Circuit held in Gilardi , this arrangement would substantially burden
[3] In addition, Priests for Life claims that it will be required to “identify its employees to its insurer for the distinct purpose of enabling and facilitating the government’s objective of promoting the use of contraceptive services;” Pls.’ Mot. for Prelim. Inj. at 7 (hereinafter “Pls.’ Mot.”); and “coordinate with its insurer when adding or removing employees and beneficiaries from its health care plan to ensure that these individuals receive coverage for contraceptive services,” id. at 8. Plaintiffs provide no support for their claim that the challenged regulations require either of these things, and admitted at oral argument that Priests for Life must “identify” its employees to its insurer and “coordinate” with its insurer in order to provide its current health care plan to its employees. Priests for Life also suggests, without support, that it will ultimately have to bear the costs of the contraceptive services mandate, because the insurance companies will somehow find a way to either raise premiums to cover the cost of such coverage, or fail to lower premiums to reflect the
[4] Other Circuits have also emphasized the requirement that an adherent be pressured to modify his own conduct in order to show a substantial burden on religious exercise. See, e.g. , Navajo Nation v. U.S. Forest Serv. ,535 F.3d 1058 , 1067 (9th Cir. 2008) (en banc) (to establish a substantial burden under RFRA, governmental action must “coerce the Plaintiffs to act contrary to their religious beliefs under the threat of sanctions, [or] condition a governmental benefit upon conduct that would violate their religious beliefs.”); Civil Liberties for Urban Believers v. City of Chicago ,342 F.3d 752 , 761 (7th Cir. 2003) (“within the meaning of RFRA, a substantial burden on religious exercise is one that forces adherents of a religion to refrain from religiously motivated conduct, inhibits or constrains conduct or expression that manifests a central tenet of a person’s religious beliefs, or compels conduct or expression that is contrary to these beliefs.”) (internal citation omitted).
[5] For this reason,
inter alia
, the Court is not persuaded by the
rationale articulated in two recent cases that a plaintiff can
meet his burden of establishing that the accommodation creates a
“substantial burden” upon his exercise of religion simply
because he claims it to be so.
See Roman Catholic Archdiocese
of N.Y. v. Sebelius
, No. 12-2542,
[6] The Court is not persuaded by the rationale in
Archdiocese
of N.Y.
, which states that completing the self-certification
form, itself, amounts to a substantial burden on the plaintiffs’
exercise of religion, because if they do not complete the form,
they are subject to penalties or other forms of government
coercion.
See, Roman Catholic Archdiocese of N.Y.
, 2013 U.S.
Dist. LEXIS 176432, *32 (stating that RFRA’s “substantial
burden” test is met by a finding that plaintiffs face
“substantial pressure” to comply with the law.) The Court
agrees with the reasoning of
Kaemmerling
, which, in the Court’s
view, correctly interpreted
Sherbert
,
Yoder
and
Thomas
to hold
that even a threat of criminal sanction did not amount to a
substantial burden when it did not impact plaintiff’s religious
exercise.
Kaemmerling
,
[7] Priests for Life also argues that the ACA’s requirement that contraceptive coverage include patient education and counseling for women constitutes prohibited speech because it advocates a particular viewpoint or content. See Pls.’ Opp’n/Reply at 28. This Court agrees with the Conestoga court, which considered and rejected the same argument, explaining, “[w]hile the regulations mandate that [insurance companies] provide coverage for “education and counseling for women with reproductive capacity,” which may include information about the contraceptives which Plaintiffs believe to be immoral, they are silent with respect to the content of the counseling given to a patient by her doctor. . . . As such, it cannot be said that Plaintiffs are being required to [host] the advocacy of a viewpoint with which they disagree. Plaintiffs’ concern that a doctor may, in some instances, provide advice to a patient that differs from [plaintiffs’] religious beliefs is not one
[8] Plaintiffs claim that under Larson , the government is prohibited from making other distinctions among types of religious institutions, in addition to denominational preferences. Pls.’ Opp’n/Reply at 31-32. Plaintiffs misread Larson . The Larson court invalidated the statute at issue not because it distinguished between different types of organizations based on their structure or purpose, but rather because it “was drafted with the explicit intention of including