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March For Life v. Burwell

United States District Court, D. Columbia.

August 31, 2015

MARCH FOR LIFE, et al., Plaintiffs,
SYLVIA M. BURWELL, et al., Defendants

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[Copyrighted Material Omitted]

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         For 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.

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         RICHARD J. LEON, United States District Judge.

         Plaintiffs, the March for Life Education and Defense Fund (" March for Life" ),

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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].[1]

         Plaintiffs 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].

         After 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.


         I. Statutory and Regulatory Background

         In 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. § 300gg-13(a)(1)-(4).

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          In 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[2] 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), . 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."

         The 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, 2012).

         At the conclusion of this rulemaking process in 2013, HHS arrived at the rule in place at the time the Complaint in this case was filed.[3] 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

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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).[4] 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.[5]

         II. Parties

         March 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.

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          March 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].

         March 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 ¶ ¶ 6-7.

         The 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.

         III. Procedural History

         Plaintiffs 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).

         The 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).[6]

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          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.

         In 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].


         The 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.[7] 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 injunction factors.

         I. Rule 12(b)(6) Dismissal

         The 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," ...

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