The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Wheaton College, a Christian liberal arts college located in Wheaton, Illinois, has sued, claiming that regulations defendants issued pursuant to the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (March 23, 2010), violates the First Amendment, the Administrative Procedure Act, and the Religious Freedom Restoration Act. (Complaint, July 18, 2012 [Dkt. No. 1] ("Compl.") ¶¶ 1--2, 6--8.) The regulations require covered employers to offer group health insurance plans that provide women with certain forms of preventive care, including all FDA-approved forms of contraception, without cost sharing. Wheaton argues that it cannot offer health plans that cover emergency contraceptives, namely Plan B (levonorgestrel, or the "morning-after pill") and Ella (ulipristal, or the "week-after pill"), consistent with its religious beliefs.
Wheaton moved for a preliminary injunction on August 1, 2012. (Motion for Preliminary Injunction, August 1, 2012 [Dkt. No. 4] ("Pl. Mot.").) On August 10, defendants moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), arguing that Wheaton lacks standing and that its claims are not ripe. (Defendants' Motion to Dismiss, August 10, 2012 [Dkt. No. 17]
("Def. Mot.").) Wheaton opposed defendants' motion (August 16, 2012 [Dkt. No. 18] ("Pl. Opp'n")), defendants filed a reply in further support thereof (August 20, 2012 [Dkt. No. 19] ("Def. Reply")), and the Court heard oral argument. (8/23 Tr.) Based on this record, the Court concludes that, in light of concrete steps defendants are taking to address Wheaton's concerns, including their commitment not to enforce the challenged regulations against Wheaton while accommodations are being negotiated, Wheaton has not alleged a concrete and imminent injury and that its claims are not fit for judicial review. For the reasons stated, the Court will grant defendants' motion to dismiss.
This action is one of twenty-six lawsuits challenging the Affordable Care Act's preventive services regulations with regard to their requirements involving contraception.*fn1 In recent decisions granting the federal defendants' motion to dismiss on standing and ripeness grounds in two of these cases, Judges Urbom and Boasberg described the relevant statutory and regulatory background in detail. See Nebraska ex rel. Bruning v. U.S. Dep't of Health & Human Servs., --- F. Supp. 2d ----, 2012 WL 2913402, at *2--5 (D. Neb. 2012) (Urbom, J.); Belmont Abbey College v. Sebelius, --- F. Supp. 2d ----, 2012 WL 2914417, at *1--3 (D.D.C. 2012) (Boasberg, J.). In summary, the Affordable Care Act ("ACA") "requires group health plans to provide women with 'preventive care and screenings' at no charge to the patient." Id. at *1 (quoting 42 U.S.C. § 300gg-13(a)(4)). While certain health plans are grandfathered,*fn2 the rest must, "with respect to women," cover "such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration" ("HRSA") without imposing any cost sharing requirements. Id. § 300gg-13(a)(4).
The guidelines subsequently adopted by HRSA require insurance plans to cover, inter alia, all "contraceptive methods," including Plan B and Ella, "sterilization procedures, and patient education and counseling for all women with reproductive capacity" that are approved by the FDA. Women's Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines/ (last visited August 24, 2012); see Belmont Abbey College, 2012 WL 2914417, at *1--2 (citing FDA Birth Control Guide, http://www.fda.gov/forconsumers/byaudience/forwomen/ucm118465.htm (last visited August 24, 2012)). Defendants promulgated an interim final rule, effective August 1, 2011, "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." Id. at *2 (alterations in the original) (quoting Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the ACA, 76 Fed. Reg. 46,621, 46,622--23 (August 3, 2011) (interim final rules with request for comments); citing 45 C.F.R. § 147.130).
Responding to comments received about a prior interim rule, defendants
acknowledged "the effect on the religious beliefs of certain religious
employers if coverage of contraceptive services were required," and
granted HRSA the authority "to exempt certain religious employers from
[its] Guidelines where contraceptive services are concerned." 76 Fed.
Reg. at 46,623. The interim final rule provided a definition for
"religious employers" that included houses of worship
but did not include institutions like Wheaton College.*fn3
(See Compl. ¶¶ 105--110; Def. Mot. at 7--
Defendants requested comments on the interim final rule and specifically on its definition of "religious employer." 76 Fed. Reg. at 46,623. In response to the more than 200,000 comments defendants received, defendants published final regulations adopting the definition of "religious employer" in the interim final rule and simultaneously establishing a temporary enforcement safe harbor for non-profit employers that did not meet that definition's criteria but that professed religious objections to providing coverage for contraceptives. Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the ACA, 77 Fed. Reg. 8,725, 8,725--8,729 (February 15, 2012) (final rules). Defendants stated that "[b]efore the end of the temporary enforcement safe harbor," they would "work with stakeholders to develop alternative ways of providing contraceptive coverage without cost sharing with respect to non-exempted, non-profit religious organizations with religious objections to such coverage." Id. at 8,728.
Defendants have announced that, during the temporary enforcement safe harbor, the government will not take any enforcement action against any employer, group health plan, or group health insurance issuer with respect to a non-grandfathered plan that fails to cover some or all recommended contraceptive services and that is sponsored by an organization that meets the following criteria:
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 [s]tate law, because of the religious beliefs of the organization.
3. . . . [T]he group health plan established or maintained by the organization (or another entity on behalf of the plan, such as a health insurance issuer or third-party administrator) must provide [notice] to participants . . . stat[ing] that contraceptive coverage will not be provided ...