Grace Sch. v. Sebelius

• Decision Date: 27 December 2013
• Docket Number: Case No. 3:12–CV–459 JD.
• Citation: 988 F.Supp.2d 935
• Parties: Grace SCHOOLS, et al., Plaintiffs, v. Kathleen SEBELIUS, in her official capacity as Secretary of the U.S. Department of Health and Human Services, et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

988 F.Supp.2d 935

Grace SCHOOLS, et al., Plaintiffs,

v.Kathleen SEBELIUS, in her official capacity as Secretary of the U.S. Department of Health and Human Services, et al., Defendants.

Case No. 3:12–CV–459 JD.

United States District Court,

N.D. Indiana,

South Bend Division.

Dec. 27, 2013.

David A. Cortman, Alliance Defending Freedom, Lawrenceville, GA, Gregory S. Baylor PHV, Matthew Scott Bowman PHV, Alliance Defending Freedom, Washington, DC, Jane Dall Wilson, Faegre Baker Daniels LLP, Indianapolis, IN, Jerry D. Mackey PHV, Biola University Inc, La Mirada, CA, for Plaintiffs.

Benjamin L. Berwick, Michael C. Pollack, U.S. Department of Justice, Washington, DC, for Defendants.

Memorandum Opinion and Order

JON E. DeGUILIO, District Judge.

Plaintiffs Grace Schools (hereinafter, “Grace”) and Biola University, Inc. (hereinafter, “Biola”) have filed their first amended verified complaint [DE 54] seeking declaratory and injunctive relief claiming that the government defendants have violated their rights under the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb et seq., the First Amendment of the Constitution of the United States, and the Administrative Procedure Act, 5 U.S.C. § 500 et seq., by enacting the “contraception mandate” which requires certain employers to provide coverage for contraception and sterilization procedures in their employee health care plans on a no-cost-sharing basis, or face stiff financial penalties and the risk of enforcement actions for the failure to do so. Although the defendants have since moved to dismiss the amended complaint and the parties have sought summary judgment on the various claims presented [DE 60; DE 69], the Court focuses only on plaintiffs' request for injunctive relief and defendants' objection thereto,¹ in an effort to prevent the possibility of any unjust enforcement of the contraception mandate against plaintiffs come the first of the year.²

For the reasons that follow, plaintiffs have shown that their RFRA claim stands a reasonable likelihood of success on the merits, that irreparable harm will result without adequate remedy absent an injunction, and that the balance of harms favor protecting the religious-liberty rights of the plaintiffs. As such, the Court enters a preliminary injunction barring enforcement of the contraception mandate against Grace and Biola.

I. Background

The Contraception Mandate

Under the Patient Protection and Affordable Care Act (ACA), employment-based group health plans covered by the Employee Retirement Income Security Act must provide certain types of preventive health services. See42 U.S.C. § 300gg–13; 29 U.S.C. § 1185d. One provision mandates coverage, without cost-sharing by plan participants or beneficiaries,of “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). The HRSA, an agency of the U.S. Department of Health and Human Services (HHS), then delegated the task of developing appropriate preventive-services guidelines to the Institute of Medicine (IOM), an arm of the National Academy of Sciences funded by Congress to provide the government with independent expert advice on matters of public health. After reviewing the type of preventive services necessary for women's health and well-being, the IOM recommended that the following preventive services be required for coverage: annual well-woman visits; screening for gestational diabetes and breast-feeding support, supplies, and counseling; human papillomavirus screening; screening and counseling for sexually transmitted infections and human immune-deficiency virus; screening and counseling for interpersonal and domestic violence; and contraceptive education, methods, and services so that women can better avoid unwanted pregnancies and space their pregnancies to promote optimal birth outcomes. See IOM, Clinical Preventive Services for Women: Closing the Gaps, http:// www. iom. edu/ Reports/ 2011/ Clinical– Preventive– Services– for– Women– Closing– the– Gaps. aspx (last visited Dec. 9, 2013). Based on the IOM's recommendations, the HRSA issued comprehensive guidelines requiring coverage of (among other things) “[a]ll Food and Drug Administration [FDA] approved contraceptive methods, sterilization procedures, and patient education and counseling ³ for all women with reproductive capacity.” HRSA, Women's Preventive Services Guidelines: Affordable Care Act Expands Prevention Coverage for Women's Health and Well–Being, http:// www. hrsa. gov/ womens guidelines/ (last visited Dec. 9, 2013). These include hormonal methods such as oral contraceptives (the pill), implants and injections, barrier methods, intrauterine devices, and emergency oral contraceptives (Plan B and Ella). ⁴See FDA, Birth Control: Medicines To Help You, http:// www. fda. gov/ For Consumers/ By Audience/ For Women/ Free Publications/ ucm 313215. htm (lasted visited Dec. 9, 2013). On February 15, 2012, HHS published final regulations incorporating the HRSA guidelines. 77 Fed.Reg. 8725 (Feb. 15, 2012). The agency made the mandate effective in the first plan year on or after August 1, 2012, see45 C.F.R. § 147.130(b)(1), however, a temporary enforcement safe harbor for nonexempt nonprofit religious organizations that objected to covering contraceptive services was also created, making the mandate effective in the first plan year on or after August 1, 2013 for those qualifying organizations who did not meet the religious employer exemption. 77 Fed.Reg. 8728–29. The government then undertook new rulemaking during the safe harbor period to adopt new regulations applicable to non-grandfathered ⁵ nonprofit religious organizations with religious objections to covering contraceptive services. Id.

On March 21, 2012, the government issued an Advance Notice of Proposed Rulemaking that stated it was part of the government's effort “to develop alternative ways of providing contraceptive coverage without cost sharing in order to accommodate non-exempt, nonprofit religious organizations with religious objections to such coverage.” 77 Fed.Reg. 16,501, 16,503 (Mar. 21, 2012). On February 1, 2013, the government issued a Notice of Proposed Rulemaking (NPRM), setting forth a proposal that stated it was to “amend the criteria for the religious employer exemption to ensure that an otherwise exempt employer plan is not disqualified because the employer's purposes extend beyond the inculcation of religious values or because the employer serves or hires people of different religious faiths,” and to “establish accommodations for health coverage established or maintained by eligible organizations, or arranged by eligible organizations that are religious institutions of higher education, with religious objections to contraceptive coverage.” See78 Fed.Reg. 8456 (Feb. 6, 2013). On June 28, 2013, the government issued final rules adopting and/or modifying the proposals in the NPRM. See78 Fed.Reg. 39,870. The regulations challenged here (the “final rules”) include the new regulations issued by the government and applicable to non-grandfathered, nonprofit religious organizations with religious objections to covering contraceptive services. See78 Fed.Reg. 39,870.

The final rules state that they “simplify[ied] and clarify[ied]” the definition of “religious employer.” 78 Fed.Reg. 39,871. Under the new definition, an exempt “religious employer” is an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. 78 Fed.Reg. 39,874 (codified at 45 C.F.R. § 147.131(a)). The groups that are “refer[red] to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code,” are “churches, their integrated auxiliaries, and conventions or associations of churches” and “the exclusively religious activities of any religious order.” 26 U.S.C. § 6033(a)(3)(A)(i), (iii). The new definition of “religious employer” does “not expand the universe of religious employers that qualify for the exemption beyond that which was intended in the 2012 final regulations.” 78 Fed.Reg. 39,874 (citing 78 Fed.Reg. 8461). The 2013 final rules' amendments to the religious employer exemption apply to group health plans and group health insurance issuers for plan years beginning on or after August 1, 2013. See id. at 39,871.

The 2013 final rules also included an “accommodation” regarding the contraceptive coverage requirement for group health plans, as well as student health plans, established or maintained by “eligible organizations.” 78 Fed.Reg. 39,874–80; 45 C.F.R. § 147.131(b)-(f). An “eligible organization” is an organization that satisfies the following criteria:

(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered under § 147.130(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 (b)(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 (c) of this section applies. The self-certification must be executed by a person authorized to make the certification on behalf of the organization, and must be maintained in a manner consistent with the record retention requirements under section 107 of the Employee Retirement Income Security Act of 1974.

45 C.F.R. § 147.131(b); see also78 Fed.Reg. 39,874–75. The 2013 final rules state that an eligible organization is not required “to contract, arrange, pay, or refer for contraceptive coverage” to which it has religious objections....