March for Life v. Burwell

• Decision Date: 31 August 2015
• Docket Number: Case No. 14–cv–1149 (RJL)
• Citation: 128 F.Supp.3d 116
• Parties: March for Life, et al., Plaintiffs, v. Sylvia M. Burwell, et al., Defendants.
• Court: U.S. District Court — District of Columbia

128 F.Supp.3d 116

March for Life, et al., Plaintiffs,

v.Sylvia M. Burwell, et al., Defendants.

Case No. 14–cv–1149 (RJL)

United States District Court, District of Columbia.

Signed August 31, 2015

Matthew S. Bowman, Steven Henry Aden, Washington, DC, Elissa Graves, Scottsdale, AZ, for Plaintiffs

Adam Anderson Grogg, Washington, DC, for Defendants

MEMORANDUM OPINION

[Dkts. ## 11, 16]

RICHARD J. LEON, United States District Judge

Plaintiffs, 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].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.

BACKGROUND

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).

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"), AR² 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."

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 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 nonprofit 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. ¶¶ 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. Seeid. at ¶ 49.

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; Care First 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,...