United States District Court, D. Columbia.
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For PRIESTS FOR LIFE, FATHER FRANK PAVONE, ALVEDA KING, JANET MORANA, Plaintiffs: David Eliezer Yerushalmi, LEAD ATTORNEY, American Freedom Law Center, Washington, D.C.; Robert J. Muise, AMERICAN FREEDOM LAW CENTER, Ann Arbor, MI.
For UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, KATHLEEN SEBELIUS, in her official capacity as Secretary, U.S. Department of Health & Human Services, UNITED STATES DEPARTMENT OF THE TREASURY, JACOB J. LEW, in his official capacity as Secretary, U.S. Department of the Treasury, UNITED STATES DEPARTMENT OF LABOR, THOMAS E. PEREZ, in his official capacity as Secretary, U.S. Department of Labor, Defendants: Benjamin Leon Berwick, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC.
For AMERICAN CIVIL LIBERTIES UNION, Amicus: Daniel Mach, LEAD ATTORNEY, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Washington, DC.
Emmet G. Sullivan,
United States District Judge.
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, 723 F.3d 1114, (10th Cir. 2013) (en banc), cert. granted, 134 S.Ct. 678, 187 L.Ed.2d 544, (U.S. Nov. 26, 2013) (Case No. 13-354); Conestoga Wood Specialties Corp. v. Sebelius, 724 F.3d 377 (3d Cir. 2013), cert. granted, 134 S.Ct. 678, 187 L.Ed.2d 544, (U.S. Nov. 26, 2013) (No. 13-354); see also, e.g., Gilardi v. United States Dep't of Health and Human Services, 733 F.3d 1208, 407 U.S.App. D.C. 30 (D.C. Cir. 2013).
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 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, 92 S.Ct. 1526, 32 L.Ed.2d 15 (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, 553 F.3d 669, 678, 384 U.S.App. D.C. 240 (D.C. Cir. 2008). The right to religious freedom " simply cannot be understood to require the Government to conduct its  affairs in ways that comport with the religious beliefs of particular citizens." Bowen v. Roy, 476 U.S. 693, 699, 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986). Religious freedom is protected " in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government." Lyng v. N'west Indian Cemetery Protective Assn., 485 U.S. 439, 451, 108 S.Ct.
1319, 99 L.Ed.2d 534 (1988) (citations omitted).
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- 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, 406 U.S. at 218. Accordingly, the accommodations to the contraceptive services mandate do not violate their religious rights.
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.
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 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  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 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 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 nonprofit 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 78 Fed. Reg. at 39,874-75.
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 objections. 78 Fed. Reg. at 39,874. The group health plan issuer which receives the self-certification form must (1) exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan, and (2) provide separate payments for any contraceptive services required to be covered for plan participants and beneficiaries. The issuer may not impose any cost-sharing requirements (such as a copayment, coinsurance or a deductible) on plan participants or beneficiaries. 78 Fed. Reg. at 39,896. Likewise, the issuer is prohibited from imposing any premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization or the group health plan. Id. Failure to self-certify or otherwise comply with the mandate will result
in Priests for Life's issuer including contraceptive services within Priests for Life's healthcare policy, and charging the ...