United States District Court, D. Columbia.
[Copyrighted Material Omitted]
MARCH FOR LIFE, JEANNE F. MONAHAN, BETHANY A. GOODMAN,
Plaintiffs: Matthew S. Bowman, LEAD ATTORNEY, ALLIANCE
DEFENDING FREEDOM, Washington, DC; Steven Henry Aden, LEAD
ATTORNEY, ALLIANCE DEFENSE FUND, Washington, DC; Elissa
Graves , PRO HAC VICE, ALLIANCE DEFENDING FREEDOM,
SYLVIA M. BURWELL, in her official capacity as Secretary of
the United States Department of Health and Human Services,
THOMAS E. PEREZ, in his official capacity as the Secretary of
the United States Department of Labor, JACOB J. LEW, in his
official capacity as Secretary of the United States
Department of the Treasury, UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR,
UNITED STATES DEPARTMENT OF THE TREASURY, Defendants: Adam
Anderson Grogg, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE,
Federal Programs Branch, Washington, DC.
J. LEON, United States District Judge.
the March for Life Education and Defense Fund (" March
for Life" ),
Jeanne F. Monahan, and Bethany A. Goodman (together, "
employee plaintiffs" ), bring this action seeking
injunctive relief from what is commonly referred to as the
" Contraceptive Mandate" embodied in the
regulations implementing the Patient Protection and
Affordable Care Act. Defendants are three federal agencies
and their respective Secretaries: the United States
Department of Health and Human Services (" HHS" )
and Secretary of HHS Sylvia M. Burwell; the United States
Department of Labor and Secretary of Labor Thomas E. Perez;
and the United States Department of the Treasury and
Secretary of the Treasury Jacob Lew (together "
defendants" or " the government" ).
Secretaries Burwell, Perez, and Lew are named in their
official capacities only. See generally Verified
Compl. (" Compl." ) [Dkt. #1].
move for a preliminary injunction and consolidated trial on
the merits, requesting permanent declaratory and injunctive
relief. Mot. for Prelim. Inj. & Consolidated Trial on the
Merits & Mem. of Law in Supp. (" Pls.' Mot." )
[Dkt. #11]. Defendants oppose and move to dismiss
plaintiffs' Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6), or, in the alternative, for summary
judgment. Defs.' Mot. to Dismiss or for Summ. J. [Dkt. #
16]; Mem. of P. & . A. in Supp. of Defs.' Mot. to Dismiss
or for Summ. J. & Opp'n to Pls.' Mot. for Prelim.
Inj. (" Defs.' Opp'n" ) [Dkt. #16].
reviewing the pleadings, record, and applicable law, the
trial on the merits is consolidated with the preliminary
injunction and, as the disputes are purely legal,
plaintiffs' motion is construed as a motion for summary
judgment. For the reasons discussed herein, Plaintiffs'
Motion for Summary Judgment is GRANTED as to their First
Claim for Relief, under the equal protection clause of the
Fifth Amendment; GRANTED as to their Second Claim for Relief,
under the Religious Freedom Restoration Act; GRANTED as to
their Fourth Claim for Relief under the Administrative
Procedure Act; and DENIED as to their Third Claim for Relief,
under the free exercise clause of the First Amendment.
Defendants' Motion for Summary Judgment is GRANTED as to
plaintiffs' Third Claim for Relief, and DENIED as to
plaintiffs' First, Second, and Fourth Claims for Relief.
Statutory and Regulatory Background
March 2010, President Obama signed into law The Patient
Protection and Affordable Care Act, Pub. L. No. 111-148, 124
Stat. 119 (" ACA" ). One of its many provisions
mandates that group health plans and insurers offering group
or individual health insurance coverage must cover certain
preventive health services without imposing cost sharing
requirements on plan participants or beneficiaries. 42 U.S.C.
§ 300gg-13(a). The required preventive services include
items or services rated an " A" or " B"
by the United States Preventive Services Task Force;
immunizations recommended by the Centers for Disease Control
and Prevention's Advisory Committee on Immunization
Practices; and preventive care and screenings for women as
" provided for in comprehensive guidelines supported by
the Health Resources and Services Administration"
(" HRSA" ), a section within HHS. 42 U.S.C. §
keeping with the ACA's provisions, HHS directed a third
party, the Institute of Medicine (" IOM" ), to
recommend which services and care should be included under
the aegis of women's preventive services. IOM,
Clinical Preventive Services for Women: Closing the
Gaps (2011) (" IOM Report" ), AR at 285-534.
IOM did so, and the ensuing HRSA Guidelines, published in
August 2011, adopted IOM's recommendations. HRSA,
Women's Preventive Services Guidelines (Aug. 1,
2011), http://www.hrsa.gov/womensguidelines/ . The HRSA
Guidelines provide that, among other things, " [a]ll
Food and Drug Administration approved contraceptive methods,
sterilization procedures, and patient education and
counseling for all women with reproductive capacity"
will be covered by the ACA without cost sharing. Id.
FDA-approved contraceptive methods include hormonal
contraceptives, such as birth control pills, intrauterine
devices, and emergency contraception. IOM Report at 105, AR
403. Together, the ACA preventive services coverage
provision, the HRSA Guidelines, and the HHS, Labor, and
Treasury implementing regulations, form what is colloquially
referred to as the " Contraceptive Mandate," or,
here, simply the " Mandate."
Mandate is not without its opponents. In the wake of its
issuance, HHS was deluged with concerns about " imposing
on certain religious employers through binding guidelines the
requirement to cover contraceptive services that would be in
conflict with the religious tenets of the employer." 76
Fed.Reg. 46,621, 46,625 (Aug. 3, 2011). To preserve the
" unique relationship between a house of worship and its
employees in ministerial positions," and to prevent the
Mandate from " imping[ing]" upon religious
employees' faith-based objections to contraceptives, HHS
promulgated an interim regulation granting HRSA "
discretion to exempt certain religious employers from the
Guidelines where contraceptive services are concerned."
76 Fed.Reg. at 46,623. The interim regulation was adopted,
without change, as a final rule in February 2012.
See 77 Fed.Reg. 8,725 (Feb. 15, 2012). The story,
however, does not end there. Besieged by concerns that this
safe harbor did not fully resolve fears about imposing the
Mandate on classes of individuals that object to the use of
contraceptives, HHS initiated a notice-and-comment rulemaking
procedure. See 77 Fed.Reg. 16,501, 16,503 (Mar. 21,
conclusion of this rulemaking process in 2013, HHS arrived at
the rule in place at the time the Complaint in this case was
filed. Under this final rule, HRSA was given
authority to exempt from the Mandate health plans "
established or maintained by religious employers." 78
Fed.Reg. 39,870, 39,873 (July 2, 2013). As defined in the
regulation, " religious employers" are confined to
" churches, their integrated auxiliaries, and
conventions or associations of churches as well as to the
exclusively religious activities of any religious
order." 78 Fed.Reg. at 39,874. Secular non-profit
organizations, regardless of their employees' views on
contraceptives, are thus excluded from this exemption. HHS
reasoned that a narrow religious employer exemption was
necessary to accomplish two objectives. First, it addressed
HHS's desire to " respect the religious interests of
houses of worship and their integrated
auxiliaries." 78 Fed.Reg. at 39,874. Second, it
accommodated these religious interests without undermining
" the governmental interests furthered by the
contraceptive coverage requirement," i.e. --the
provision of contraceptive coverage to women who " want
it." 78 Fed.Reg. at 39,874; see 77 Fed.Reg. at
8,727. As to the latter objective, HHS opined that the
Mandate's central purpose would remain undisturbed
because employees of religious organizations would be less
likely than employees of secular organizations to want
contraceptive coverage in the first instance. Specifically,
" [h]ouses of worship and their integrated auxiliaries
that object to contraceptive coverage on religious grounds
are more likely than other employers to employ
people of the same faith who share the same objection, and
who would therefore be less likely than other people
to use contraceptive services even if such services were
covered under their plan." 78 Fed.Reg. at 39,874
(emphasis added). HHS did not, however, supply a
rationale for subjecting to the Mandate secular non-profit
groups whose employees share an analogous objection to the
use of certain contraceptives.
for Life is a non-profit, non-religious pro-life organization
founded in 1973 following the Supreme Court's decision in
Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d
147 (1973). Compl. ¶ ¶ 5, 16. March for Life holds
as a foundational tenet the idea that life begins at
conception. Id. at ¶ 1. March for Life defines
conception as fertilization of an egg by a sperm, and thus
considers a human embryo to be an unborn human life.
Id. at ¶ ¶ 1, 19. March for Life will not
support abortion in any way, and, as such, opposes coverage
in its health insurance plan for contraceptive methods it
deems " abortifacients." Id. at ¶ 20.
March for Life believes that hormonal contraceptives, IUDs,
and emergency contraception can, and in some cases do,
prevent the implantation into the uterus of a fertilized
human embryo, and making them abortifacients; See
id. at ¶ 49.
for Life offers health insurance to its employees. See
id. at ¶ ¶ 6-7, 22. March for Life does not
qualify for the religious exemption because it is not
religious, much less a house of worship or integrated
auxiliary. Id. at ¶ 63. Nor is its health
insurance plan a " grandfathered plan," because it
did not exist prior to the passage of the ACA in 2010.
Id. at ¶ 23. March for Life's insurance
carrier has indicated that it would be willing to offer March
for Life a health insurance plan that does not include
coverage for abortifacients if it were legally permissible to
do so. Id. at ¶ 25; CareFirst Letter, Ex. A to
Affidavit of Pl. Jeanne F. Monahan (" Monahan
Affidavit" ) [Dkt. #27].
for Life only hires individuals who oppose all forms of
abortion, including contraceptives that the organization
believes are abortifacients. Compl. ¶ 21. This includes
the two individual employee plaintiffs here: Jeanne Monahan,
a Catholic, is President of March for Life, and Bethany
Goodman, an Evangelical Protestant, is one of the
organization's employees. Id. at ¶ 6-7, 27.
Both employee plaintiffs participate in the insurance plan
currently offered by March for Life. Id. at ¶
employee plaintiffs state that their religious faiths
prohibit them from using or supporting the use of
abortifacient drugs and devices. Id. at 32. They,
like the organization they work for, believe that certain of
the FDA-approved contraceptives are abortifacients.
Id. at ¶ 49. On the basis of these "
sincere and deeply held religious and moral beliefs against
abortion and abortifacients," employee plaintiffs oppose
having insurance coverage for contraceptives they deem
abortifacients and object to participating in a health
insurance plan that provides them such coverage. Id.
at ¶ 33-34.
filed the instant suit in July 2014. Compl. Not all claims
are alleged by all plaintiffs. March for Life alone claims
that the Contraceptive Mandate and the attendant religious
employer exemption violate its right to equal protection
under the Fifth Amendment. Compl. ¶ 113-123 (First Claim
for Relief). All plaintiffs claim that the Mandate is
unlawful and must be set aside under the Administrative
Procedure Act, 5 U.S.C. § 706, (" APA" ) for
two separate reasons: (1) it is arbitrary and capricious
because it does not serve a rational government interest as
applied to an organization employing only people who are
opposed to contraceptive coverage, while exempting churches;
and (2) it violates the Constitution and federal laws. Compl.
¶ ¶ 152-161 (Fourth Claim for Relief).
employee plaintiffs also bring challenges based on their
religious beliefs. They claim that applying the Mandate to
their health insurance plans violates their rights under the
Religious Freedom Restoration Act, 42 U.S.C. § 2000bb
et seq., Compl. ¶ ¶ 124-136 (Second Claim
for Relief), as well as under the First Amendment's Free
Exercise clause, id. ¶ ¶ 137-151 (Third
Claim for Relief).
Plaintiffs request that the Court declare the Mandate
unconstitutional and contrary to federal law, and enjoin
defendants from continuing to apply the Mandate to plaintiffs
and their insurers, such that March for Life can provide, and
its employees can participate in, health insurance plans that
do not provide coverage for the opposed contraceptives.
Compl. at 28-29.
September 2014, plaintiffs moved for a preliminary injunction
and consolidated trial on the merits on all of their claims.
Pls.' Mot. Defendants opposed and moved to dismiss, or,
in the alternative, for summary judgment. Defs.'
Opp'n. I heard oral argument on November 6, 2014,
see November 6, 2014 Minute Entry, and received
supplemental briefing from both sides on December 10, 2014,
see Defendants' Supplemental Brief [Dkt. #28];
Plaintiffs' Supplemental Brief [Dkt. #29].
questions raised by the parties are matters of law, and they
have been fully briefed. There are no material factual
disputes regarding the administrative record or the
allegations in plaintiffs' Verified
Complaint. Accordingly, the record is sufficient
for a determination on the merits under the summary judgment
standard, or, where reliance on the record is unnecessary,
under the motion to dismiss standard. I consolidate the
preliminary injunction with trial on the merits on all claims
pursuant to Federal Rule of Civil Procedure 65(a)(2), and,
therefore, do not need to analyze the typical preliminary
Rule 12(b)(6) Dismissal
Court may dismiss a complaint or any portion thereof for
failure to state a claim upon which relief may be granted.
See Fed.R.Civ.P. 12(b)(6). At the motion to dismiss
stage, the Court " may consider only the facts alleged
in the complaint, any documents either attached to or
incorporated in the complaint and matters of which [the
court] may take judicial notice." EEOC v. St.
Francis Xavier Parochial Sch., 117 F.3d 621, 624, 326
U.S. App.D.C. 67 (D.C. Cir. 1997). To survive a motion to
dismiss, a plaintiff must plead " factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged."
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009). The Court must " accept as
true all of the allegations contained in a complaint."
Id. However, the Court need not " accept legal
conclusions cast in the form of factual allegations,"