United States District Court, District of Columbia
Eric S. Dreiband, Noel John Francisco, Jeffrey Albert McSorley, Jones Day, Washington, DC, for Plaintiff.
Jacek Pruski, U.S. Department of Justice, Washington, DC, for Defendant.
AMY BERMAN JACKSON, District Judge.
This is one in a long line of cases challenging regulations issued by the Department of Health and Human Services (" HHS" ; " Department" ) pursuant to provisions of the Patient Protection and Affordable Care Act (" Act" ), 42 U.S.C. § 300gg-13(a)(4) (2010). The regulations in question implement the requirement under the Act that group health plans and health insurance issuers offering group or individual health insurance provide coverage for " preventative care" for women. Defendants moved to dismiss the case for lack of jurisdiction on August 6, 2012, arguing that plaintiffs lack standing and that the case is not ripe for decision. Defs.' Mot. to Dismiss [Dkt. # 19]. On November 2, 2012, this Court stayed the case pending an anticipated ruling by the D.C. Circuit in the consolidated appeal of two cases substantially similar to this one that had been dismissed by other courts in this district on standing and ripeness grounds. Minute Entry (Nov. 2, 2012), citing Wheaton Coll. v. Sebelius, 887 F.Supp.2d 102 (D.D.C.2012); Belmont Abbey Coll. v. Sebelius, 878 F.Supp.2d 25 (D.D.C.2012). The D.C. Circuit has now ruled. Wheaton Coll. v. Sebelius (" Wheaton Order" ), 703 F.3d 551 (D.C.Cir.2012). In a three-page per curiam Order, the court found that the plaintiffs had proper standing to bring their claims, but that the controversy was not ripe for decision. Id. The court ordered the cases to be held in abeyance subject to regular status reports. Id. at 552-53. Plaintiffs and defendants in this case have each filed a five-page brief addressing the applicability of the circuit court's decision to this case. Upon consideration of the two briefs, as well as the motion to dismiss and the pleadings responsive to it, the Court will grant defendants' motion to dismiss because plaintiffs' claims are not ripe.
Plaintiffs are five Catholic non-profit organizations. Compl. [Dkt. # 1] ¶ 2. According to the complaint filed in this case, plaintiffs each provide services to residents
of the greater Washington, D.C. community, without regard to the residents' religious affiliations. Id. Plaintiffs oppose the use of abortion, sterilization, and contraceptives on religious grounds. Id. ¶ 4. Accordingly, although all of the plaintiffs offer health insurance plans to their employees, none of the plans cover those types of preventative services for women. Id. ¶¶ 44-46, 56, 64, 74, 86, 90.
As explained in the D.C. Circuit's Order in Wheaton College, the government defendants issued a set of interim final rules on July 2010 under the Affordable Care Act, 42 U.S.C. § 300gg-13(a)(4), which required group health plans and health insurance issuers to cover " preventative care and screening[s]" for women in accordance with guidelines that were to be issued by HHS at a later date, unless the issuers were grandfathered or otherwise exempt. 75 Fed.Reg. 41,726, 41,726 (July 19, 2010); see Compl. ¶¶ 106-107; see also Wheaton Order, at 551-52. On August 1, 2011, HHS issued guidelines requiring coverage of all " FDA approved contraceptive[s]." HRSA, Women's Preventative Services: Required Health Plan Coverage Guidelines, available at http:// www. hrsa. gov/ womens guidelines/ (last visited Jan. 24, 2013). A later Amended Interim Final Rule issued by HHS authorized an exemption for certain religious organizations with religious objections to contraception. 76 Fed.Reg. 46,621, 46,623 (Aug. 3, 2011). In February 2012, the government adopted in final regulations the definition of religious employer contained in the amended interim final rules, but it also created a temporary enforcement safe harbor for plans sponsored by certain non-profit organizations with religious objections to contraceptive coverage that do not qualify for the religious employer exemption. 77 Fed.Reg. 8725, 8727 (Feb. 15, 2012). The safe harbor will be in effect until the first plan year that begins on or after August 1, 2013. HHS, Guidance on the Temporary Enforcement Safe Harbor, at 3 (Feb. 10, 2012), available at http:// cciio. cms. gov/ resources/ files/ Files 2/ 02102012/ 20120210- Preventive- Services- Bulletin. pdf. The supplemental information published in the Federal Register accompanying the final regulations stated that during the effective period of the safe harbor, HHS planned to develop and propose changes to the final regulations " that would meet two goals— providing contraceptive coverage without cost-sharing to individuals who want it and accommodating non-exempted non-profit organizations' religious objections to covering contraceptive services [.]" Id. There is no dispute that all of the plaintiffs in this case are covered by the safe harbor, if not by the religious employer exemption. See Compl. ¶ 130. Since the plan years for all plaintiffs begin on January 1, Compl. ¶¶ 48, 87, they will be protected by the safe harbor until January 1, 2014.
Plaintiffs filed a nine-count complaint in this Court on May 21, 2012, challenging the requirement that they provide coverage for abortion, sterilization, and contraceptive services. Defendants moved to dismiss the case on ripeness and standing grounds.
STANDARD OF REVIEW
The plaintiff bears the burden of establishing jurisdiction by a ...