The opinion of the court was delivered by: James E. Boasberg United States District Judge
Under the Patient Protection and Affordable Care Act of 2010, employers are required to offer group health-insurance plans that cover certain forms of preventive care without charging a co-payment. For example, the Act mandates that group health plans pay in full for all FDA-approved contraceptive services sought by plan participants, including sterilization procedures, emergency oral contraception (such as the "morning-after" pill), and counseling for women of reproductive age. The Departments of Health and Human Services, Treasury, and Labor subsequently issued regulations to that effect, while simultaneously carving out a narrow exemption to the contraceptive-coverage requirement for religious organizations that meet specific criteria.
Plaintiff Belmont Abbey is a Benedictine college in North Carolina that shares the Catholic Church's view that contraception, sterilization, and abortion are "grave sins." See Am. Compl., ¶¶ 24-25. Belmont alleges that it would violate its strongly held religious beliefs to sponsor any health-insurance plan that pays for these services. Believing it is ineligible for an exemption, Belmont contends that it is required by law to comply with the contraceptive-coverage mandate.
On November 10, 2011, the Abbey filed the instant suit alleging that this mandate violates the First Amendment, the Administrative Procedure Act, and the Religious Freedom Restoration Act. Instead of addressing the merits of such claims, Defendants have now moved to dismiss the action for lack of subject-matter jurisdiction. Because the government has indicated its intention to amend the regulations to better take into account religious objections and because Plaintiff is protected in the interim by a safe-harbor provision, the Court agrees that Belmont's injury is too speculative to confer standing and that the case is also not ripe for decision. Dismissal without prejudice is thus appropriate.
A. Statutory and Regulatory Background
The Patient Protection and Affordable Care Act (ACA), Pub. L. No. 111-148, 124 Stat. 119, enacted in March 2010, requires group health plans to provide women with "preventive care and screenings" at no charge to the patient. See 42 U.S.C. § 300gg-13(a)(4); see also 155 Cong. Rec. S12019, S12025, S12261, S12271. Specifically, the ACA mandates that non-grandfathered group health plans and health-insurance issuers cover without "impos[ing] any cost sharing requirements . such additional preventive care and screenings [for women] . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [HRSA] for purposes of this paragraph." 42 U.S.C. § 300gg-13(a)(4).
The Department of Health and Human Services commissioned the Institute of Medicine (IOM), a private health-policy organization, to develop recommendations for the HRSA guidelines. See http://www.iom.edu/Reports/2011/Clinical-Preventive-Services-for-Women- Closing-the-Gaps.aspx. After consulting with a committee of experts, IOM published a report suggesting specific preventive health measures to be included in the guidelines. Id. Among other things, IOM proposed that insurance plans be required to cover "[t]he full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity." Id. at 3; Clinical Preventive Services for Women: Closing the Gaps at 10, 165. This would include emergency contraceptives such as Plan B and ulipristal, commonly known as the morning-after pill and the week-after pill, respectively. See www.fda.gov/forconsumers/byaudience/forwomen/ucm118465.htm.
HRSA adopted IOM's recommendations in full, see http://www.hrsa.gov/womensguidelines, and on August 1, 2011, HHS, the Department of Labor, and the Department of Treasury promulgated an interim final rule requiring "group health plan[s] and . health insurance issuer[s] offering group or individual insurance coverage [to] provide benefits for and prohibit the imposition of cost-sharing with respect to" the preventive services for women included in HRSA's guidelines. See 76 Fed. Reg. 46621; 45 C.F.R. § 147.130; see also http://www.iom.edu/Reports/2011/Clinical-Preventive-Services-for-Women-Closing-theGaps/Action-Taken.aspx. Thus, according to the regulation, all plans and policies, unless grandfathered or otherwise exempt, must cover contraceptive services for plan years beginning on or after August 1, 2012. See 76 Fed. Reg. 46621-01.
To account for organizations that might have religious objections to contraception, the interim final rule authorized HRSA to release certain employers from the requirements concerning coverage for contraceptives. See 76 Fed. Reg. 46621-01, 46623 (issued on August 1, 2011, and published August 3, 2011); 45 C.F.R. §§ 147.130(a)(1)(iv)(A)-(B). Only employers that meet all of the following criteria would be eligible for an exemption:
(1) The inculcation of religious values is the purpose of the organization.
(2) The organization primarily employs persons who share the religious tenets of the organization.
(3) The organization serves primarily persons who share the religious tenets of the organization.
(4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.
45 C.F.R. §§ 147.130(a)(1)(iv)(B)(1)-(4) (HHS); see also 26 C.F.R. § 54.9815-2713T (Treasury); 29 CFR § 2590.715-2713 (Labor). The IRS code sections in the regulation, furthermore, refer to "churches, their integrated auxiliaries, and conventions or associations of churches" and "the exclusively religious activities of any religious order." See Internal Revenue Code 6033(a)(3)(A)(i), (iii). The HRSA used the discretion conferred by the regulation to exempt group health plans sponsored by organizations that satisfy these criteria from the contraceptive-services coverage requirement. See 77 Fed. Reg. 8725-01. The parties agree that Belmont is not exempted under this provision because it employs and serves many individuals who do not share its religious values and because it is not a church and does not otherwise qualify as an organization described in the relevant sections of the IRS Code.
Upon issuing the interim final rule, the Departments requested comments, specifically regarding the definition of religious employer in the regulation. Id. at 8726. Over 200,000 comments were submitted from groups and individuals ranging from religiously affiliated institutions to women's rights organizations to concerned citizens. Id. Some commenters urged the Departments to expand the definition of religious employer to include religiously affiliated educational institutions, health care organizations, and charities, while others recommended that the exemption be removed from the regulation altogether. Id. at 8726-27.
After considering these alternatives and others, the Departments decided to leave the exemption unchanged, while also creating a one-year enforcement "safe harbor" for "certain non-exempted, non-profit organizations with religious objections to covering contraceptive services." Id. at 8728. In guidance issued by HHS on February 10, 2012, the Department stated that, during the safe-harbor period, employers, group health plans, and group health-insurance issuers would not "be subject to any enforcement action by the Departments for failing to cover recommended contraceptive services without cost sharing in non-exempted, non-grandfathered group health plans." See Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Group Health Plans and Group Health Insurance Issuers with Respect to the Requirement to Cover Contraceptive Services Without Cost Sharing Under Section 2713 of the Public Health Service Act, Section 715(a)(1) of the Employee Retirement Income Security Act, and Section 9815(a)(1) of the Internal Revenue Code at 3, available at http://cciio.cms.gov/resources/files/Files2/02102012/20120210-Preventive-Services-Bulletin.pdf (last visited July 10, 2012) ["Guidance"]. The safe harbor will remain in effect "until the first plan year that begins on or after August 1, 2013," and Treasury and Labor have agreed to abide by it as well. Id. at 2-3.
When HHS, Labor, and Treasury issued their final rule in February of 2012, they announced their intention to develop alternative means of providing contraceptive services free of charge to employees of non-exempt, non-grandfathered organizations with religious objections to contraceptive coverage. See 77 Fed. Reg. 8728 (published Feb. 15, 2012). Specifically, the final regulation stated that the Departments "plan to initiate a rulemaking to require issuers to offer insurance without contraception coverage to such an employer (or plan sponsor) and simultaneously to offer contraceptive coverage directly to the employer's plan participants (and their beneficiaries) who desire it, with no cost-sharing." Id. The Departments indicated that they would work with stakeholders to propose and finalize this policy before the expiration of the enforcement safe harbor. Id. at 8728-29.
Indeed, on March 21, 2012, the Departments issued an Advance Notice of Proposed Rulemaking (ANPRM) formally declaring their intention to amend the final regulations and soliciting input from interested parties and the public. The ANPRM presents questions and ideas about how to "accommodat[e] non-exempt, non-profit religious organizations' religious objections to covering contraceptive services," while "assuring that participants and beneficiaries covered under such organizations' plans receive contraceptive coverage without cost sharing."
77 Fed. Reg. 16503. After the 90-day comment period on the ANPRM, the Departments will publish a Notice of Proposed Rulemaking, which will afford the public another opportunity for comment before amended final regulations are issued. Id.
According to its Amended Complaint, Belmont Abbey College is a private Catholic college founded by Benedictine monks in North Carolina in 1876. See Am. Compl., ¶ 12. The teachings of the Catholic Church remain central to its purpose. Id., ¶ 23. The College's mission statement is inspired by St. Benedict's desire "'that in all things God may be glorified,'" and Benedictine monks not only serve on the College's Board of Trustees but also provide the institution with significant financial support. Id., ...