DeOtte v. Azar

• Decision Date: 05 June 2019
• Docket Number: Civil Action No. 4:18-cv-00825-O
• Citation: 393 F.Supp.3d 490
• Parties: Richard W. DEOTTE et al., Plaintiffs, v. Alex M. AZAR II et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

393 F.Supp.3d 490

Richard W. DEOTTE et al., Plaintiffs,

v.Alex M. AZAR II et al., Defendants.

Civil Action No. 4:18-cv-00825-O

United States District Court, N.D. Texas, Fort Worth Division.

Signed June 5, 2019

Jonathan F. Mitchell, Austin, TX, Charles W. Fillmore, H. Dustin Fillmore, III, The Fillmore Law Firm LLP, Fort Worth, TX, for Plaintiffs.

Daniel M. Riess, James Mahoney Burnham, US Department of Justice - Civil Division, Washington, DC, for Defendants.

ORDER

Reed O'Connor, UNITED STATES DISTRICT JUDGE

Before the Court are Plaintiffs' Motion for Summary Judgment and Permanent Injunction, ECF No. 34, filed April 1, 2019; Defendants' Response, ECF No. 38, filed April 15, 2019; and Plaintiffs' Reply, ECF No. 39, filed April 19, 2019. Having reviewed the motion, briefing, and applicable law, the Court finds the Motion for Summary Judgment and Permanent Injunction, ECF No. 34, should be and is hereby GRANTED .

I. BACKGROUND

A. The Contraceptive Mandate and Related Litigation

In 2010, Congress mandated through the Patient Protection and Affordable Care Act (ACA) that "[a] group health plan and a health insurance issuer offering group or individual health insurance coverage shall ... provide coverage for and shall not impose any cost sharing requirements for" such "preventive care and screenings" for women "as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [ (HRSA) ] ...." 42 U.S.C. § 300gg-13(a)(4). Congress did not make a policy choice about what "preventive care and screenings" must be covered but instead left that decision to HRSA, an administrative agency of the Department of Health and Human Services (HHS). Id.

In August 2011, HRSA made the policy choice Congress left open by requiring coverage of all FDA-approved contraceptive methods—the "Contraceptive Mandate."¹ See 77 Fed. Reg. 8,725 (Feb. 15, 2012). On August 3, 2011, the Departments of the Treasury, Labor, and HHS ("the Departments") issued amended interim final rules to "take[ ] into account the effect on the religious beliefs of certain religious employers if coverage of contraceptive services were required in the group health plans in which employees in certain religious positions participate." 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011). The interim final rules created exemptions from the Contraceptive Mandate for religious employers, limited to "churches, their integrated auxiliaries, and conventions or associations of churches, as well as ... the exclusively religious activities of any religious order." Id. And on July 2, 2013, the Departments issued a final rule that created a separate accommodation process for religious non-profits who did not qualify for the religious-employer exemption. See 78 Fed. Reg. 39,870, 39,896 –97 (July 2, 2013).

Plaintiffs emphasize that the process created for religious non-profits was "an ‘accommodation’—not an exemption." Am. Compl. 3, ECF No. 19. They explain, "[t]o use this accommodation, an entity was required to certify that it is a religious non-profit that objects to covering some or all methods of contraception on religious grounds," at which point "the issuer of the group health insurance used by the religious non-profit must exclude contraceptive coverage from that employer's plan, but the issuer must pay for any contraception used by the non-profit's employees." Id. at 4. "The issuer may not shift any of those costs on to the religious non-profit, its insurance plan, or its employee beneficiaries." Id. (citing 78 Fed. Reg. at 39896–97 ). And "[i]f a religious non-profit is self-insured, then its third-party administrator must pay for the employees' contraception, without shifting any costs on to the religious non-profit, its insurance plan, or its employee beneficiaries." Id. (citing 78 Fed. Reg. at 39893 ).

More or less, that was the state of things until Burwell v. Hobby Lobby , 573 U.S. 682, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014), where the Supreme Court held the Contraceptive Mandate violated the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U.S.C. § 2000bb et seq., as applied to three for-profit corporations. 573 U.S. at 688–91, 134 S.Ct. 2751. Hobby Lobby was a defining decision for the civil rights of religious employers. There, the Supreme Court held RFRA prohibited the Government from forcing the for-profit, plaintiff employers to "provide health-insurance coverage for methods of contraception that violate[d] the sincerely held religious beliefs of the companies' owners." Id. at 689–90, 134 S.Ct. 2751. In reaching this conclusion, the Supreme Court noted "Congress enacted RFRA ... to provide very broad protection for religious liberty." Id. at 693, 134 S.Ct. 2751. And "a law that ‘operates so as to make the practice of ... religious beliefs more expensive’ in the context of business activities imposes a burden on the exercise of religion." Id. at 710, 134 S.Ct. 2751 (quoting Braunfeld v. Brown , 366 U.S. 599, 605, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961) ).

Important to the Supreme Court's analysis was that "nothing in the text of RFRA as originally enacted suggested that the statutory phrase ‘exercise of religion under the First Amendment’ was meant to be tied to [the Supreme] Court's pre- Smith interpretation of that Amendment"—plus, "the amendment of RFRA through RLUIPA ... provid[ed] that the exercise of religion ‘shall be construed in favor of a broad protection of religious exercise.’ " Id. at 714, 134 S.Ct. 2751 (quoting 42 U.S.C. § 2000cc–3(g) ). After finding the Contraceptive Mandate burdened the employers' religious beliefs—beliefs the Court could not question, id. at 723–26, 134 S.Ct. 2751 —the Supreme Court held the Government failed the least-restrictive-means test because "[t]he most straightforward way" of furthering the Government's interests "would be for the Government to assume the cost of providing the four contraceptives at issue," id. at 728, 134 S.Ct. 2751. Ultimately, however, the Supreme Court held the plaintiff for-profit corporations were at least entitled to use the "accommodation for nonprofit organizations with religious objections." Id. at 730–31, 134 S.Ct. 2751.

The Supreme Court issued two other relevant rulings that year. See Wheaton Coll. v. Burwell , 573 U.S. 958, 134 S.Ct. 2806, 189 L.Ed.2d 856 (2014) ; Little Sisters of the Poor Home for the Aged v. Sebelius , 571 U.S. 1171, 134 S.Ct. 1022, 187 L.Ed.2d 867 (2014). As things stood in 2014, the accommodation process required a religious, non-profit employer to inform its third-party administrator (TPA) or group-health-insurance issuer via EBSA Form 700 of its religious objections to providing contraceptive coverage. In Little Sisters of the Poor and in Wheaton College , the Supreme Court issued interim injunctive relief—expressly reserving its views on the merits—that allowed the religious, non-profit applicants to inform the Secretary of HHS directly of their religious objections, rather than complete Form 700 and send it to a TPA or issuer. See Wheaton Coll. , 573 U.S. at 958, 134 S.Ct. 2806 ; Little Sisters of the Poor , 571 U.S. at 1171, 134 S.Ct. 1022.

Following Hobby Lobby, Little Sisters of the Poor , and Wheaton College , the Departments issued new rules to effectively codify the outcomes of those cases. Consistent with Hobby Lobby , the Departments gave closely held, for-profit corporations access to the accommodation process previously reserved for religious non-profits. See 80 Fed. Reg. 41,318, 41,346 (July 14, 2015). And consistent with Little Sisters of the Poor and Wheaton College , the Departments allowed employers using the accommodation process to choose whether to (1) complete Form 700 and notify their TPA or issuer or (2) notify the Secretary of HHS of their religious objections directly. See id.

As sure as the sun sets in the west, "[y]ears of litigation in dozens of cases followed." Defs.' Resp. Mot. Certification 1, ECF No. 30. At this point, a major question remained: Does the accommodation itself violate RFRA? This question caused a circuit split. Importantly, the Fifth Circuit addressed the issue. See E. Tex. Baptist Univ. v. Burwell , 793 F.3d 449, 452 (5th Cir. 2015), vacated and remanded sub nom. Zubik v. Burwell , ––– U.S. ––––, 136 S. Ct. 1557, 194 L.Ed.2d 696 (2016), and cert. granted, judgment vacated sub nom. Univ. of Dall. v. Burwell , ––– U.S. ––––, 136 S. Ct. 2008, 195 L.Ed.2d 211 (2016). In East Texas Baptist , "religious organizations" challenged the "requirement that they either offer their employees health insurance that covers certain contraceptive services or submit a form or notification declaring their religious opposition to that coverage"—i.e., the Contraceptive Mandate's accommodation. Id. at 452. The panel reasoned, "[a]lthough the plaintiffs have identified several acts that offend their religious beliefs, the acts they are required to perform do not include providing or facilitating access to contraceptives." Id. at 459 (emphasis in original). "In short," the panel concluded, "the acts the plaintiffs are required to perform do not involve providing or facilitating access to contraceptives, and the plaintiffs have no right under RFRA to challenge the independent conduct of third parties." Id. at 463 (emphasis in original). The RFRA challenge failed.

Stepping into the fray yet again, the Supreme Court granted certiorari in Zubik v. Burwell , ––– U.S. ––––, 136 S. Ct. 1557, 194 L.Ed.2d 696 (2016), to resolve the circuit split on the accommodation's legality under RFRA. But after oral argument, the Supreme Court requested supplemental briefing and the parties represented that "an option [was] feasible" to provide "contraceptive coverage ... to petitioners' employees, through petitioners' insurance companies, without any [accommodating-process] notice from petitioners.' " Id. at 1559–60. The Supreme Court therefore vacated all lower-court opinions—including East Texas Baptist —"anticipat[ing] that...