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Roman Catholic Archbishop of Washington v. Sebelius

United States District Court, D. Columbia

December 20, 2013

ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON, et al., Plaintiffs,
v.
KATHLEEN SEBELIUS, Secretary, U.S. Department of Health and Human Services, et al., Defendants

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For ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON, CONSORTIUM OF CATHOLIC ACADEMIES OF THE ARCHDIOCESE OF WASHINGTON, INC., ARCHBISHOP CARROLL HIGH SCHOOL, INC., DON BOSCO CRISTO REY HIGH SCHOOL OF THE ARCHDIOCESE OF WASHINGTON, INC., MARY OF NAZARETH ROMAN CATHOLIC ELEMENTARY SCHOOL, INC., CATHOLIC CHARITIES OF THE ARCHDIOCESE OF WASHINGTON, INC., VICTORY HOUSING, INC., CATHOLIC INFORMATION CENTER, INC., CATHOLIC UNIVERSITY OF AMERICA, THOMAS AQUINAS COLLEGE, Plaintiffs: David Timothy Raimer, Eric S. Dreiband, Noel John Francisco, LEAD ATTORNEYS, JONES DAY, Washington, DC.

For KATHLEEN SEBELIUS, THOMAS E. PEREZ, JACOB J. LEW, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF THE TREASURY, Defendants: Jacek Pruski, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC.

For AMERICAN CIVIL LIBERTIES UNION, Amicus: Daniel Mach, LEAD ATTORNEY, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Washington, DC.

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MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge.

This case concerns the requirements imposed on certain employers under the Affordable Care Act to offer healthcare plans to their employees that provide cost-free coverage for contraceptive services. Plaintiffs the Roman Catholic Archbishop of Washington (" the Archdiocese" ), the Consortium of Catholic Academies of the

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Archdiocese of Washington, Inc., Archbishop Carroll High School, Inc., Don Bosco Cristo Rey High School of the Archdiocese of Washington, Inc., Mary of Nazareth Roman Catholic Elementary School, Inc., Catholic Charities of the Archdiocese of Washington, Inc., Victory Housing, Inc., the Catholic Information Center, Inc., Catholic University of America, and Thomas Aquinas College have filed this case against defendants Kathleen Sebelius, the Secretary of Health and Human Services; Thomas Perez, the Secretary of Labor; Jacob Lew, the Secretary of the Treasury; the U.S. Department of Health and Human Services; the U.S. Department of Labor; and the U.S. Department of the Treasury. In their complaint, plaintiffs allege that the contraceptive mandate violates the Religious Freedom Restoration Act (" RFRA" ) as applied to them, as well as the Free Exercise Clause, the Free Speech Clause, and the Establishment Clause of the First Amendment to the U.S. Constitution. Compl. ¶ ¶ 237-312 [Dkt. # 1]. They also assert that defendants violated the Administrative Procedure Act and advanced an erroneous interpretation of the religious employer exemption to the mandate when they adopted the contraceptive mandate in its final form. Id. ¶ ¶ 313-39.

Plaintiffs filed a motion for preliminary injunction in light of the impending January 1, 2014 contraceptive mandate enforcement date. Pls.' Mot. for Prelim. Inj. [Dkt. # 6]. Pursuant to Federal Rule of Civil Procedure 65(a)(2), this Court consolidated the motion with the merits on September 26, 2013. Defendants filed a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and to dismiss plaintiffs' Establishment Clause count under Federal Rule of Civil Procedure 12(b)(1). Defs.' Mot. to Dismiss or, in the alt., for Summ. J. (" Defs.' Mot." ) [Dkt. # 26]; Defs.' Mem. in Supp. of Mot. to Dismiss or, in the alt., for Summ. J. (" Defs.' Mem." ) [Dkt. # 26-1]. They also moved, in the alternative, for summary judgment under Federal Rule of Civil Procedure 56. Defs.' Mot. at 1; Defs.' Mem. at 9. Plaintiffs then filed a cross-motion for summary judgment. Pls.' Opp. & Cross-Mot. for Summ. J. (" Pls.' Opp. & Cross-Mot." ) [Dkt. # 27-1]. The case has been fully briefed, and the Court held oral argument on November 22, 2013.

For the reasons stated below, the Court will grant defendants' motion for summary judgment with respect to Catholic University's RFRA claim in Count I, and all of the plaintiffs' Free Exercise claims in Count II, compelled speech claims in Count III, denominational preference claims in Count V, internal church governance claims in Count VI, and APA contrary to law claims in Count VII.[1] The Court will also grant defendants' motion to dismiss the RFRA claims in Count I that are advanced by those plaintiffs who are covered under the Archdiocese's healthcare plan, and all of the plaintiffs' Establishment Clause challenges to the IRS factors in Count V and APA erroneous interpretation claims in Count VIII for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Finally, the Court will grant Thomas Aquinas College's cross-motion for summary judgment on its RFRA claim in Count I, and all of

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the plaintiffs' cross-motions for summary judgment on their Free Speech claims asserted in Count IV.

Plaintiffs allege that the contraceptive mandate burdens their religious exercise because it requires them " to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization procedures, and related counseling, in a manner that is directly contrary to their religious beliefs." Compl. ¶ 241. This is practically identical to the claim that the Archdiocese and four of the other plaintiffs advanced in the suit they filed in this Court in May of 2012. See Roman Catholic Archbishop of Washington v. Sebelius, No. 12-0815, Compl. ¶ 181 [Dkt. # 1] (" The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or facilitate practices and speech that are contrary to their religious beliefs." ). Plaintiffs' religious beliefs remain the same, but in the interim, the law has changed. Defendants have created an accommodation for the specific purpose of alleviating the burden that the mandate imposes on religious organizations that are not entirely exempt. And in the case of all but one of the plaintiffs -- the self-insured Thomas Aquinas College -- the Court finds that the law no longer requires plaintiffs to provide, pay for, or facilitate access to contraception. Thus, it does not require plaintiffs to " modify [their] behavior and to violate [their] beliefs," as the Supreme Court defined an unacceptable burden more than thirty years ago in Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 718, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981), or to " meaningfully approve and endorse the inclusion of contraceptive coverage" in their plans, as the D.C. Circuit described the burden in the context of the mandate without the accommodation just last month. Gilardi v. U.S. Dep't of Health & Human Servs., 733 F.3d 1208, 1217, 407 U.S.App.D.C. 30 (2013).

Religious organizations like Catholic University -- that offer health insurance to their employees through an insured group plan -- may avail themselves of the accommodation simply by memorializing their objection to the mandate in writing. The insurer is obligated under the rules to exclude the coverage from the University's plan and to provide and pay for the coverage itself, and therefore, as the Court explains in detail below, Catholic University has no grounds for a RFRA claim. Plaintiffs contend that the act of self-certifying -- an act that consists of nothing more than plaintiffs' reiteration of their already public objection to participation in the requirements of the mandate -- is a substantial burden on the exercise of their religion in and of itself. But that argument so blurs the demarcation between whet RFRA prohibits -- that is, governmental pressure to modify one's own behavior in a way that would violate one's own beliefs - and what would be an impermissible effort to require others to conduct their affairs in conformance with plaintiffs' beliefs, that it obscures the distinction entirely. RFRA was enacted to shield religious adherents from governmental interference with their own religious exercise and to protect them from being required to perform odious acts themselves. Plaintiffs articulate this distinction clearly: " Plaintiffs simply invoke RFRA to vindicate the principle that the Government may not force them, in their own conduct, to take actions that violate their religious conscience." Pls.' Mem. in Supp. of Mot. for Prelim. Inj. (" Pls.' Mot." ) at 20 [Dkt # 6-1]. Since the rules that apply in the insured group plan context do not involve that compulsion, they survive the RFRA challenge. RFRA is not a mechanism to advance a generalized objection to a governmental policy choice, even if it is one sincerely based upon religion.

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But Thomas Aquinas College is covered by the set of regulations directed towards religious organizations that are self-insured, and unlike all of the other plaintiffs with self-insured plans, Thomas Aquinas College does not offer its employees coverage through a plan offered by the church, which cannot be compelled to comply with the mandate. In the case of a self-insured entity like Thomas Aquinas, the newly enacted regulations fall short of the mark. Since the accommodation imposes a duty upon the religious organization to contract with a willing third-party administrator that will arrange for the payments for contraceptives, they compel the organization to take affirmative steps -- to do something -- that is in conflict with the tenets of its faith. And therefore, defendants are enjoined from enforcing the mandate against Thomas Aquinas College.

RFRA involves the application of a more lenient standard than the one that applies under the First Amendment, though, and all of the plaintiffs have failed to establish any violation of the Free Exercise Clause. The contraceptive coverage law is neutral and generally applicable to all employers, and it does not target religion. Nothing about the regulatory scheme violates the Establishment Clause either. The fact that the Archdiocese, a church, is completely exempt, while the educational and charitable organizations must seek relief through the accommodation does not constitute unlawful discrimination among denominations, and it does not entangle the government in religious affairs.

With one important exception, the law also passes muster under the Free Speech Clause of the First Amendment. The fact that counseling is included within the set of services to be offered, and the requirement that a religious organization certify its objection to providing contraceptive services to be eligible for the accommodation do not violate the Constitution. But defendants cannot lawfully prohibit a self-insured religious organization from seeking to influence -- directly or indirectly -- a third-party administrator's decision on whether to remain in a contractual relationship with a plan. That is a content-based restriction on expression that is not justified by the government's proffered interest.

Finally, the Court finds that defendants did not violate the Administrative Procedure Act, that the accommodation and the exemption do not lead to unlawful interference with internal church governance, and that there is no plaintiff that can allege an injury arising out of the challenged interpretation of how the accommodation is to be applied.

BACKGROUND

I. Statutory and Regulatory Background

A. The Affordable Care Act

In March 2010, Congress enacted the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), and the Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010), which together make up the Affordable Care Act (" ACA" ). 78 Fed. Reg. 39870-01, 39870 (July 2, 2013). The ACA made changes to the existing Public Health Service Act and incorporated those changes into the Employee Retirement Income Security Act (" ERISA" ) and the Internal Revenue Code. Id.

Two changes made by the ACA are pertinent to this case. The first change is the requirement that employers with more than fifty full-time employees must provide their employees with a health insurance plan that complies with the ACA's minimum essential coverage requirements. 26 U.S.C. § 4980H (2012); see also 42 U.S.C. § 300gg-13 (2012).

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Failure to comply with this provision -- often referred to as the " employer mandate" -- results in substantial penalties. See 26 U.S.C. § 4980H.

The second pertinent change relates to the " essential minimum coverage" that must be offered by an employer's plan. The ACA provides that all insurance plans must cover " preventive care," and specifically, that they " shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for . . . (1) evidence-based items or services that have in effect a rating of 'A' or 'B' in the current recommendations of the United States Preventive Services Task Force," and " (4) with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration," an agency within the U.S. Department of Health and Human Services (" HHS" ). 42 U.S.C. § 300gg-13(a)(1), (4).

B. The Contraceptive Mandate

Pursuant to its delegated authority under ACA section 300gg-13(a)(4), HHS requested that the Institute of Medicine (" IOM" ) -- an organization established by the National Academy of Sciences and funded by Congress -- provide recommendations to HHS regarding " what preventive services are necessary for women's health and well-being and should be considered in the development of comprehensive guidelines for preventive services of women." Inst. of Med., Clinical Preventive Services for Women: Closing the Gaps (" IOM Report" ) iv, 2, AR 289, 300. After convening a sixteen-member committee, IOM proposed numerous recommendations regarding what preventive services should be covered and how HHS could continue to keep the list up-to-date. See generally id. The recommendation most relevant to this case was IOM's suggestion that the definition of " preventive health services" include " the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity" (collectively, " contraceptive services" ), which includes diaphragms, oral contraceptive pills, emergency contraceptives, and intrauterine devices. Id. at 10, 105, AR 308, 403. After reviewing IOM's recommendations, defendants ultimately adopted the suggestion that the preventive services for which coverage would be required be defined to include all Food and Drug and Administration (" FDA" ) approved contraceptive services. 78 Fed. Reg. at 39870. That regulation is commonly referred to as " the contraceptive mandate."

In promulgating the initial contraceptive mandate, defendants recognized the potential religious implications and authorized the creation of a religious employer exemption to the contraceptive mandate's requirements. 45 C.F.R. § 147.131(a) (2013); see also 78 Fed. Reg. at 39871, 39896. An organization that satisfies the definition of a religious employer derived from the Internal Revenue Code is wholly exempt from the requirement to cover contraceptive services.[2] 45 C.F.R. § 147.131(a);

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78 Fed. Reg. at 39871, 39896. All other employers, including religious organizations that did not meet the definition of a religious employer, were required to comply with the requirements of the contraceptive mandate if they provided a health insurance plan to their employees, regardless of whether they provided the plan voluntarily or because they were subject to the employer mandate.

Religious organizations that did not qualify for the exemption voiced their strong objection to the coverage requirements. In response to their concerns, HHS, the Department of Labor, and the Department of the Treasury (collectively, " the Departments" ) " issued guidance establishing a temporary safe harbor from enforcement of the contraceptive coverage requirement by the Departments for group health plans established or maintained by certain nonprofit organizations with religious objections to contraceptive coverage." 78 Fed. Reg. at 39871. During that safe harbor, the Departments published an advance notice of proposed rulemaking that solicited comments on how to achieve the goal of ensuring " more women broad access to recommended preventive services, including contraceptive services, without cost sharing, while simultaneously protecting certain additional nonprofit religious organizations with religious objections to contraceptive coverage." Id. At the end of the comment period, the Departments published proposed regulations at 78 Fed. Reg. 8456 that created what has come to be known as " the accommodation." 78 Fed. Reg. 8456, 8462 (Feb. 6, 2013); see also 29 C.F.R. § 2590.715-2713A (2013). On July 2, 2013, the Departments adopted the final version of that accommodation, which is available to all " eligible organizations." See 78 Fed. Reg. at 39870-01, 39874; s ee also 29 C.F.R. § 2590.715-2713A.

An organization is considered an " eligible organization" for purposes of the accommodation if it satisfies all of the following requirements:

(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered under § 2590.715-2713(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 a form and manner specified by the Secretary, that it satisfies the criteria in paragraphs (a)(1) through (3) of this section, and makes such self-certification available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (b) or (c) of this section applies.

29 C.F.R. § 2590.715-2713A(a)(1)-(4).

The accommodation then specifies two sets of means by which the employees of an eligible organization will obtain coverage for contraceptive services based upon whether the organization offers health insurance to its employees through a self-insured health plan or a group insured health plan. See id. § 2590.715-2713A(b)-(c).

In the group insured context, an eligible organization satisfies its obligations under the contraceptive mandate by providing its insurance issuer (" insurer" ) with a self-certification

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form. Id. § 2590.715-2713A(c)(1). At that point, the statutory duty to provide the organization's employees with cost-free contraceptive services coverage automatically shifts to the insurer. Id. § 2590.715-2713A(c)(2); s ee also 78 Fed. Reg. at 39876. The insurer cannot decline to provide that coverage on the self-certifying organization's behalf, and the insurer must expressly exclude contraceptive services coverage from the self-certifying organization's plan. 29 C.F.R. § 2590.715-2713A(c)(2)(i); s ee also 78 Fed. Reg. at 39876. Furthermore, the insurer is expressly prohibited from passing on the costs of covering contraceptive services to either the self-certifying organization or that organization's employees. 29 C.F.R. § 2590.715-2713A(c)(2)(ii); s ee also 78 Fed. Reg. at 39876.

If an eligible organization is self-insured, the organization that objects to providing contraceptive coverage on religious grounds must provide its " third party administrator that will process claims for any contraceptive services required to be covered . . . with a copy of the self-certification described in paragraph (a)(4) of this section." 29 C.F.R. § 2590.715-2713A(b)(1)(ii). If the third-party administrator agrees to remain in its contractual relationship with the organization or its plan, the self-certifying organization has met its obligation under the contraceptive mandate. Id. § 2590.715-2713A(b)(1); s ee also 78 Fed. Reg. at 39879. It is the third-party administrator that must then provide or arrange payments for contraceptive services without " imposing a premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization." 29 C.F.R. § 2590.715-2713A(b)(2)(i)-(ii).[3]

The third-party administrator becomes a " plan administrator" under ERISA for purposes of providing the contraceptive coverage, see id. § 2510.3-16(b), and it provides the coverage through the eligible organization's self-insured plan. See id. § 2590.715-2713A(b).

But a third-party administrator is permitted to decline to assume responsibility for providing contraceptive services coverage on behalf of a self-certifying organization by cancelling its contract with the eligible organization and declining to serve as that organization's third-party administrator. Id. § 2590.715-2713A(b)(2); s ee also 78 Fed. Reg. at 39879.[4] If the contract is cancelled, the self-certifying organization must either provide the self-certification form to its newly hired third-party administrator, see 29 C.F.R. § 2590.715-2713A(b), or notify the government that it will no longer use a third-party administrator and await further instruction on how it may comply with the contraceptive mandate's requirements. 78 Fed. Reg. at 39880-81.[5]

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Regardless of whether a self-certifying organization utilizes an insurer or a third-party administrator, the accommodation requires that notice of the availability of separate payments for contraceptive services be provided to plan participants and beneficiaries contemporaneous with, " but separate from, any application materials distributed in connection with enrollment (or re-enrollment) in [the organization's] group health coverage." 29 C.F.R. § 2590.715-2713A(d). The accommodation relieves a self-certifying religious organization of any responsibility to provide or pay for contraceptive services coverage itself.

II. Procedural and Factual Background

Plaintiffs in this case consist of the Archdiocese, several charitable organizations that are affiliated with the Catholic Church -- Catholic Academies, Archbishop Carroll, Don Bosco, Mary of Nazareth, Catholic Charities, Victory Housing, and the Catholic Information Center -- and two Catholic institutions of higher education: Catholic University of America and Thomas Aquinas College. Compl. ¶ ¶ 2, 16-25, 59, 66, 74, 83, 90, 98, 107. They challenge the contraceptive mandate under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., several provisions of the First Amendment to the U.S. Constitution, and the Administrative Procedure Act, 5 U.S.C. § 501 et seq., and they argue that the accommodation does not remedy those violations. Compl. ¶ ¶ 237-339. Pending before this Court are defendants' motion to dismiss, or in the alternative, for summary judgment and plaintiffs' cross-motion for summary judgment. For purposes of deciding this case, the Court will adopt the following undisputed material facts.

The Archdiocese employs approximately 1,825 full-time employees, Supplemental Aff. of the Archdiocese (" Supp. Aff. Archdiocese" ), Ex. A to Pls.' Reply ¶ 4 [Dkt. # 33-1], and operates a self-insured health plan that is " recognized under the Employee Retirement Income Security Act as a 'church plan.'" Pls.' Statement of Material Facts (" Pls.' SOF" ), Ex. 2 to Pls.' Opp. & Cross-Mot. ¶ 2 [Dkt. # 27-2]. The plan is currently administered by a third-party administrator, National Capital Administrative Services, Inc. Id. Although separately incorporated, Catholic Academies, Archbishop Carroll, Don Bosco, Mary of Nazareth, Catholic Charities, Victory Housing, and the Catholic Information Center are affiliated with the Archdiocese, and they offer their employees health insurance coverage through the Archdiocese's self-insured health plan. Id. ¶ 5.

Catholic Academies, Archbishop Carroll, Mary of Nazareth, Catholic Charities, and Victory Housing all employ over fifty full-time employees. Supplemental Aff. of CCA (" Supp. Aff. CCA" ), Ex. B to Pls.' Reply ¶ 4 [Dkt. # 33-2]; Supplemental Aff. of ACHS (" Supp. Aff. ACHS" ), Ex. C to Pls.' Reply ¶ 4 [Dkt. # 33-3]; Supplemental Aff. of Mary of Nazareth (" Supp. Aff. Mary of Nazareth" ), Ex. E to Pls.' Reply ¶ 4 [Dkt. # 33-5]; Supplemental Aff. of Catholic Charities (" Supp. Aff. Catholic Charities" ), Ex. F to Pls.' Reply ¶ 4 [Dkt. # 33-6]; Supplemental Aff. of Victory Housing (" Supp. Aff. Victory Housing" ), Ex. G to Pls.' Reply ¶ 4 [Dkt. # 33-7]. Don Bosco and the Catholic Information Center employ less than fifty full-time employees. Supplemental Aff. of Don Bosco (" Supp. Aff. Don Bosco" ), Ex. D to Pls.' Reply ¶ 4 [Dkt. # 33-4]; Supplemental Aff. of the CIC (" Supp. Aff. CIC" ), Ex. H to Pls.' Reply ¶ 4 [Dkt. # 33-8].

The remaining two plaintiffs -- Catholic University and Thomas Aquinas -- also employ over fifty full-time employees. Supplemental Aff. of CUA (" Supp. Aff. CUA" ), Ex. I to Pls.' Reply ¶ 5 [Dkt. # 33-9];

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Supplemental Aff. of TAC (" Supp. Aff. TAC" ), Ex. J to Pls.' Reply ¶ 5 [Dkt. # 33-10]. Catholic University participates in a group insured plan by offering its students a health insurance plan through AETNA and its employees a health insurance plan through United Healthcare. Pls.' SOF ¶ ¶ 29, 31. Thomas Aquinas is self-insured; it offers its employees a health insurance plan through the RETA trust, a self-insurance trust set up by the Catholic bishops of California, and the trust is administered by a third-party administrator, Benefit Allocation Systems. Id. ¶ 36. The College's self-insured plan is not a church plan under ERISA. Supp. Aff. TAC ¶ 6.

None of the plaintiffs' health insurance plans qualify for the grandfathered plan exception to the ACA. Pls.' SOF ¶ ¶ 3, 33, 38. The Archdiocese has identified itself to be covered by the religious employer exemption, Aff. of Archdiocese, Ex. A to Pls.' Mot. ¶ 18 [Dkt. # 6-2], but the remaining plaintiffs have stated that they do not qualify for that exemption. Pls.' SOF ¶ ¶ 9, 12, 15, 18, 21, 24, 27, 34, 39. They are, however, eligible for the accommodation to the contraceptive mandate. Compl. ¶ 10.

" Plaintiffs are all religious entities that are part of, and/or adhere to the teachings and philosophies of, the Roman Catholic Church." Pls.' SOF ¶ 40. Consequently, they all subscribe to the Roman Catholic belief that it is immoral to engage in conduct that artificially interferes with conception or terminates an existing pregnancy, which includes, but is not limited to, abortion, sterilization, emergency contraception, and other contraceptive products. Id. ¶ ¶ 41, 45-46. It is a tenet of plaintiffs' faith that they not only refrain from using contraception themselves, but that they may not morally assist another in accessing those services. Id. ¶ 48. As a result, plaintiffs have " historically excluded coverage for abortion, contraceptives (except when used for non-contraceptive purposes), sterilization, and related education and counseling" from their health insurance plans, id. ¶ 6; see also Aff. of CUA, Ex. I to Pls.' Mot. ¶ 15 [Dkt. # 6-10]; Aff. of TAC, Ex. J to Pls.' Mot. ¶ 13 [Dkt. # 6-11], and they contend that compliance with the contraceptive mandate, even as it has been modified, would violate their religious belief.

STANDARD OF REVIEW

I. Federal Rule of Civil Procedure 12(b)(1)

Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited jurisdiction and the law presumes that " a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448, 361 U.S.App.D.C. 6 (D.C. Cir. 2004) (" As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction." ). " [B]ecause subject-matter jurisdiction is 'an Art[icle] III as well as a statutory requirement . . . no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971, 358 U.S.App.D.C. 56 (D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982).

" To state a case or controversy under Article III, a plaintiff must establish standing." Ariz. Christian Sch. Tuition Org. v. Winn, 131 S.Ct. 1436, 1442,

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179 L.Ed.2d 523 (2011); see also Lujan, 504 U.S. at 560. Standing is a necessary predicate to any exercise of federal jurisdiction, and if it is lacking, then the dispute is not a proper case or controversy under Article III, and federal courts have no subject-matter jurisdiction to decide the case. Dominguez v. UAL Corp., 666 F.3d 1359, 1361, 399 U.S.App.D.C. 92 (D.C. Cir. 2012). To establish constitutional standing, a plaintiff must demonstrate: (1) that he has suffered an " injury in fact" ; (2) that the injury is " fairly traceable" to the challenged action of the defendant; and (3) that it is " likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Lujan, 504 U.S. at 560-61 (internal quotation marks omitted); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Failure to demonstrate even one of the three requirements will defeat subject-matter jurisdiction. See Lujan, 504 U.S. at 561.

When considering a motion to dismiss for lack of jurisdiction for standing, unlike when deciding a motion to dismiss under Rule 12(b)(6), the court " is not limited to the allegations of the complaint." Hohri v. United States, 782 F.2d 227, 241, 251 U.S.App.D.C. 145 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Rather, " a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197, 297 U.S.App.D.C. 406 (D.C. Cir. 1992); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253, 365 U.S.App.D.C. 270 (D.C. Cir. 2005).

II. Federal Rule of Civil Procedure 56

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, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted).

To defeat summary judgment, the nonmoving party must " designate specific facts showing that there is a genuine issue for trial." Id. at 324 (internal quotation marks omitted). The existence of a nongenuine, nonmaterial factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is " genuine" only if a reasonable fact-finder could find for the nonmoving party, and a fact is only " material" if it is capable of affecting the outcome of the litigation. Id. at 248; see also Laningham v. U.S. Navy, 813 F.2d 1236, 1241, 259 U.S.App.D.C. 115 (D.C. Cir. 1987). In assessing a party's motion, the court must " view the facts and draw reasonable inferences 'in the light most favorable to the party opposing the summary judgment motion.'" Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam).

ANALYSIS

I. Plaintiffs' Religious Freedom Restoration Act claims.

The central claim in this case is Count I: plaintiffs' claim that the contraceptive

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mandate violates the Religious Freedom Restoration Act (" RFRA" ), 42 U.S.C. § 2000bb et seq., because it " requires Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization procedures, and related counseling, in a manner that is directly contrary to their religious beliefs." Compl. ¶ 241. It is undisputed that the Church itself -- the Archdiocese -- is completely exempt from the requirement, and therefore, it is not joined in Count I. It is also part of the background of this case that defendants delayed implementation of the mandate for a year and engaged in a rulemaking process in an effort to address the objections raised by other religious organizations and to alleviate the burden that they identified. Thus, the question presented in this case is whether the accommodation promulgated in July 2013 achieves that aim or whether the mandate, as it has now been modified, imposes a substantial burden on plaintiffs' free exercise of religion.

RFRA provides that the government shall not " substantially burden a person's exercise of religion" unless it can demonstrate that application of the burden to the person: " (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000bb-1(a)-(b).[6] The prohibition applies even if the burden results from a rule of general applicability. Id. § 2000bb-1(a). To successfully mount a RFRA challenge and subject government action to strict scrutiny, a plaintiff must meet the initial burden of establishing that the government has substantially burdened his religious exercise. Henderson v. Stanton, 76 F.Supp.2d 10, 14 (D.D.C. 1999). Only if that predicate has been established will the onus then shift to the government to show that the law or regulation is the least restrictive means to further a compelling interest. 42 U.S.C. § § 2000bb-1(b), 2000bb-2(3).

Plaintiffs have averred that it is a central tenet of their faith that life begins at the moment of conception, and that their religion therefore requires that " they may not provide, pay for, and/or facilitate access to" contraceptive services. Pls.' Mot. at 19; see also Pls.' SOF ¶ ¶ 42-43; Aff. of CCA, Ex. B to Pls.' Mot. ¶ ¶ 7-8 [Dkt. # 6-3]; Aff. of ACHS, Ex. C to Pls.' Mot. ¶ ¶ 7-8 [Dkt. # 6-4]; Aff. of Don Bosco, Ex. D to Pls.' Mot. ¶ ¶ 7-8 [Dkt. # 6-5]; Aff. of Mary of Nazareth, Ex. E to Pls.' Mot. ¶ ¶ 7-8 [Dkt. # 6-6]; Aff. of Catholic Charities, Ex. F to Pls.' Mot. ¶ ¶ 7-8 [Dkt. # 6-7]; Aff. of Victory Housing, Ex. G to Pls.' Mot. ¶ ¶ 7-8 [Dkt. # 6-8]; Aff. of CIC, Ex. H to Pls.' Mot. ¶ ¶ 7-8 [Dkt. # 6-9]; Aff. of CUA ¶ ¶ 13-14; Aff. of TAC ¶ ¶ 11-12. The government does not contest the sincerity of these beliefs. See Defs.' Combined Mem. in Opp. to Pls.' Cross-Mot. for Summ. J. & Reply in Supp. of Defs.' Mot. to Dismiss, or in the alt., for Summ. J. (" Defs.' Opp. & Reply" ) at 4, 7-20 [Dkt. # 31]; see also Defs.' Resp. to Pls.' SOF ¶ 43 [Dkt. # 31-1]. The Court finds that plaintiffs' religion forbids them from facilitating access to contraceptive services, and that finding of fact serves as the basis for the RFRA analysis.

Plaintiffs contend that the contraceptive mandate imposes a burden on their sincere religious belief because it requires

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that plaintiffs provide a health insurance plan that includes coverage for contraceptive services and counseling and thereby renders them unable to offer a health insurance plan consistent with their religious beliefs. Pls.' Mot. at 21-24. They argue that the accommodation does not alleviate that burden because, as they put it, they must file a self-certification form that " inexorably leads to provision of the very coverage to which they object," and offer a health insurance plan through which their " employees would receive access to the mandated payments [for contraceptive services] only by virtue of their participation in [that] health plan." Id. at 20. Also, they complain that, in some circumstances, they must " locate and identify a third party willing to provide the very services they deem objectionable, and . . . enter into a contract with that party that will result in the provision or procurement of those services 'for free.'" Id. All of these burdens, plaintiffs state, are substantial, because failure to comply with the requirement of the contraceptive mandate -- either by providing the coverage or by self-certifying under the accommodation -- results in significant monetary penalties. Id. at 22-24; see also 26 U.S.C. § 4980H.

Defendants maintain that the accommodation has eliminated the objectionable impact of the mandate and that any remaining burden on plaintiffs' religious exercise is at most de minimis or too attenuated to be substantial and to trigger strict scrutiny under RFRA. Defs.' Mem. at 11-20. They also argue that all the plaintiffs except Catholic University and Thomas Aquinas lack standing to bring a RFRA challenge. Defs.' Opp. & Reply at 5-7. But if the Court determines that any one plaintiff is substantially burdened by the contraceptive mandate and that it must therefore go on to apply strict scrutiny to the regulatory scheme, defendants concede that the D.C. Circuit's recent holding that the contraceptive mandate does not satisfy strict scrutiny controls this case and is binding on this Court.[7] See Gilardi v. U.S. Dep't of Health & Human Servs., 733 F.3d 1208, 1219-24, 407 U.S.App.D.C. 30 (D.C. Cir. 2013); Defs.' Opp. & Reply at 17; Mot. Hr'g Tr. 34. As a result, the RFRA analysis here is limited to the question of whether the contraceptive mandate places a substantial burden on plaintiffs' asserted religious exercise.

Congress enacted RFRA in response to the decision in Employment Division, Department of Human Services of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), in which the Supreme Court narrowed what had been its previous delineation of the scope of the protection afforded to religion by the Free Exercise Clause. See Holy Land Found., 333 F.3d at 166. In Smith, the Court permitted a law that was neutral towards religion to stand, notwithstanding its impact on a particular plaintiff's religious exercise. 494 U.S. at 890. Thereafter, as Congress expressly stated in the findings and declaration of purpose section of the statute, RFRA was enacted " to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened." 42 U.S.C. § 2000bb(b)(1); see also Holy Land Found., 333 F.3d at 166-67. Thus, if the question to resolve is whether plaintiffs have met their burden to establish that the challenged regulations impose a substantial burden on their religious exercise, Sherbert and Yoder must be

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the starting point of the analysis. See Tyndale House Publishers, Inc. v. Sebelius, 904 F.Supp.2d 106, 120 (D.D.C. 2012) (" Accordingly, courts look to pre- Smith free exercise jurisprudence in assessing RFRA claims." ); see also Vill. of Bensenville v. FAA, 457 F.3d 52, 62, 372 U.S.App.D.C. 406 (D.C. Cir. 2006).

In Sherbert, a member of the Seventh-Day Adventist Church was fired by her employer for her refusal to work on Saturday, the day on which she observed the Sabbath. 374 U.S. at 399. She was subsequently found to be ineligible for state unemployment benefits on the grounds that she had failed, without good cause, to accept employment that had been offered. Id. at 400-01. To resolve her constitutional challenge to the state's decision, the Supreme Court first addressed the question of whether the disqualification imposed a burden on the employee's free exercise of her religion. Id. at 403. The Court likened the situation to a fine imposed on the employee for her Saturday worship and stated:

[I]f the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect. Here not only is it apparent that appellant's declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forego that practice is unmistakable. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.

Id. at 404 (citations omitted).

Yoder involved members of the Old Order Amish religion and a member of the Conservative Amish Mennonite Church who declined to send their children to public school after eighth grade and were convicted of violating the state's compulsory attendance laws. 406 U.S. at 207-08. In that case, the Court observed that:

[T]he unchallenged testimony of acknowledged experts in education and religious history, almost 300 years of consistent practice, and strong evidence of a sustained faith pervading and regulating respondents' entire mode of life support the claim that enforcement of the State's requirement of compulsory formal education after the eighth grade would gravely endanger if not destroy the free exercise of respondents' religious beliefs.

Id. at 219. The state did not challenge those findings, but it advanced the position that the state's interest in universal compulsory education was so great that the laws should be enforced notwithstanding the undisputed religious consequences. Id. Thus, the bulk of the opinion is only relevant to the second prong of the RFRA analysis, but the Court did state, in language that appears in plaintiffs' pleadings: " The impact of the compulsory-attendance law on respondents' practice of the Amish religion is not only severe, but inescapable, for the Wisconsin law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs." Id. at 218.

The Supreme Court took up the denial of unemployment benefits again in Thomas. 450 U.S. at 707. Thomas terminated his employment at a foundry and machinery company when he was transferred from a department that fabricated steel for a range of industrial

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uses to a department that produced turrets for military tanks. Id. at 710. At that time, there were no longer any units at the company that were not involved in the manufacture of armaments, and Thomas, a Jehovah's Witness, maintained that participation in the production of weapons for war violated his religious beliefs. Id. at 710-11. When the employer declined to lay him off, he quit and was subsequently denied unemployment benefits by the state on the grounds that his departure was not based on good cause. Id. at 710-12.

As in Sherbert, the state argued that its public welfare legislation did not directly command the employee to violate his conscience, but the Court noted that " the employee was put to a choice between fidelity to religious belief or cessation of work" and therefore " the coercive impact on Thomas is indistinguishable from Sherbert." Id. at 717. The Court then restated the principle that had been set out in Sherbert :

Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.

Id. at 717-18.

In sum, all of the key Supreme Court cases involve individuals who were compelled, under the threat of either punishment or the denial of a benefit, to act : to personally do the very thing that violated their religious beliefs. That means that the issue in this case is whether plaintiffs are being required to " modify their behavior" or perform acts that contravene the tenets of their faith.

Plaintiffs laid out their position in their motion for preliminary injunction:

Under the original version of the Mandate, a non-exempt religious organization's decision to offer a group health plan resulted in the provision of coverage for [contraceptive services]. Under the Final Rule, a non-exempt religious organization's decision to offer a group health plan still results in the provision of coverage . . . . In both scenarios, Plaintiffs' actions trigger the provision of " free" contraceptive coverage to their employees in a manner contrary to their beliefs. ...

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