Irish 4 Reprod. Health v. U.S. Dep't of Health & Human Servs.

Decision Date16 January 2020
Docket NumberCause No. 3:18-CV-491-PPS-JEM
Citation434 F.Supp.3d 683
Parties IRISH 4 REPRODUCTIVE HEALTH, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.
CourtU.S. District Court — Northern District of Indiana

Anne S. Aufhauser, Pro Hac Vice, Janice M. Mac Avoy, Pro Hac Vice, Robert D. Gallo, Pro Hac Vice, Fried Frank Harris Shriver and Jacobson LLP, New York, NY, Carmen N. Green, Pro Hac Vice, Richard B. Katskee, Pro Hac Vice, Alison Tanner, Pro Hac Vice, Americans United for Separation of Church and State, Gretchen R. Borchelt, Pro Hac Vice, Michelle I. Banker, Pro Hac Vice, Sunu P. Chandy, Pro Hac Vice, National Women's Law Center, Washington, DC, Jeffrey A. Macey, Macey Swanson LLP, Indianapolis, IN, for Plaintiff Irish 4 Reproductive Health.

Anne S. Aufhauser, Pro Hac Vice, Janice M. Mac Avoy, Pro Hac Vice, Robert D. Gallo, Pro Hac Vice, Fried Frank Harris Shriver and Jacobson LLP, Jessica Leah Sklarsky, Pro Hac Vice, Center for Reproductive Rights, New York, NY, Emily B. Nestler, Pro Hac Vice, Center for Reproductive Rights, Washington, DC, Jeffrey A. Macey, Macey Swanson LLP, Indianapolis, IN, for Plaintiff Natasha Reifenberg.

Anne S. Aufhauser, Pro Hac Vice, Janice M. Mac Avoy, Pro Hac Vice, Robert D. Gallo, Pro Hac Vice, Fried Frank Harris Shriver and Jacobson LLP, Jessica Leah Sklarsky, Pro Hac Vice, Center for Reproductive Rights, New York, NY, Carmen N. Green, Pro Hac Vice, Richard B. Katskee, Pro Hac Vice, Alison Tanner, Pro Hac Vice, Americans United for Separation of Church and State, Emily B. Nestler, Pro Hac Vice, Gretchen R. Borchelt, Pro Hac Vice, Michelle I. Banker, Pro Hac Vice, Sunu P. Chandy, Pro Hac Vice, National Women's Law Center, Washington, DC, Jeffrey A. Macey, Macey Swanson LLP, Indianapolis, IN, for Plaintiff Jane Does 1-3.

Rebecca M. Kopplin, US Department of Justice, Washington, DC, for Defendants United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury, Alex M. Azar, II, R. Alexander Acosta, Steven Mnuchin.

Anthony J. Dick, Pro Hac Vice, Jones Day, Washington, DC, Matthew A. Kairis, Jones Day, Columbus, OH, for Defendant University of Notre Dame.

OPINION AND ORDER

PHILIP P. SIMON, JUDGE

This lawsuit is the continuation of a longstanding dispute over the provision of contraceptive services. for students and employees of the University of Notre Dame. There are really two separate disputes at play here. The first involves a challenge to regulations that would allow Notre Dame to declare itself exempt from the Women's Health Amendment of the Patient Protection and Affordable Care Act ("ACA"). This first challenge is being brought against the federal agencies responsible for the implementation of the challenged regulations — the Department of Health and Human Services, the Department of Labor, and the Department of the Treasury. For ease of reference I will refer to this group as the "Federal Defendants." The regulations are being challenged under the Administrative Procedures Act ("APA"), and they have already been enjoined by two different district courts and those preliminary injunctions have been affirmed in the Ninth and the Third Circuits.

The second part of this case presents a wrinkle not present in the cases out of the Third and Ninth Circuits. Notre Dame has been named as a defendant because a week after issuing the interim final rules ("IFRs"), the Federal Defendants executed a private settlement agreement with Notre Dame exempting the university from all existing and future requirements with respect to contraceptive coverage. Notre Dame did not seek input from its students or faculty before entering into the settlement agreement. The Plaintiffs in this case — Irish 4 Reproductive Health (an association of Notre Dame students), Natasha Reifenberg, and Jane Does 1-3 — claim this backroom deal is illegal and unconstitutional.

Two motions to dismiss the amended complaint are before me: one filed by Notre Dame, and the other by the Federal Defendants. The motions will largely be denied because Plaintiffs have stated plausible claims that the Final Rules violate the procedural requirements of the APA, the Settlement Agreement and Final Rules substantively violate the APA, the Settlement Agreement is void for illegality, and the Settlement Agreement and Rules violate the Establishment Clause. Dismissal is only warranted for two of the constitutional claims.

Factual Background

This is not the first time a controversy involving Notre Dame, the ACA and the provision of contraceptive care has arrived at my doorstep. In December 2013, Notre Dame unsuccessfully sought to enjoin an earlier version of the ACA's Women's Health Amendments. Much has changed in the six years since I last considered this issue. But before I dive into the legal morass presently before the court, a brief recounting of the extensive litigation history surrounding the ACA's contraception mandate is necessary to give some context about how we got here. To put it mildly, litigation over the contraceptive mandate of the ACA has been widespread and vigorous. It reached the Supreme Court in 2016 but the Court essentially punted on the issue hoping that the parties could just resolve the matter on their own. No such luck. And so the fight trundles on.

Here's how we got here: the Women's Health Amendment to the ACA was passed in 2010 and requires insurance plans to cover women's preventive health services. Critically, the services must be provided without cost-sharing. [Am. Compl. ¶ 51; 42 U.S.C. § 300gg-13(a)(4).] While the Act itself does not specify the types of women's preventive care that must be covered, it does require coverage for such "additional preventive care and screenings ... as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [HRSA]." 42 U.S.C. § 300gg-13(a)(4). HRSA, in turn, commissioned the Institute of Medicine to convene a committee of experts on women's and adolescents' health and disease prevention to review their preventive-health needs and produce a report recommending the preventive services that should be included in the Guidelines. [Am. Compl. ¶ 59; Institute of Medicine, Clinical Prevention Services for Women: Closing the Gaps (2011) ("IOM Report")1 .]

The Institute of Medicine found that access to contraception reduces unintended pregnancies, abortions, adverse pregnancy outcomes, and negative health consequences for women and children, and that even small out-of-pocket costs significantly reduce the use of contraception. [Am. Compl. ¶ 60.] Based on these findings, the Institute recommended that HRSA should include critical preventive services for women that must cover the "full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity." [Id. ; see IOM Report at 109-10.]

In August 2011, HRSA adopted the Guidelines, implementing the recommendation requiring coverage of the full range of FDA-approved contraceptive methods for women. [Am. Compl. ¶ 61.2 ] In regulations implementing the Women's Health Amendment, it was acknowledged that "cost sharing can be a significant barrier to effective contraception" and that "[c]ontraceptive coverage, by reducing the number of unintended and potentially unhealthy pregnancies, furthers the goal of eliminating [the gender] disparity [in health coverage] by allowing women to achieve equal status as healthy and productive members of the job force." [Am. Compl. ¶ 65; 77 Fed. Reg. 8,725, 8,728 (Feb. 15, 2012).]

Shortly thereafter, in 2013, the government created a regulatory exemption from the contraceptive requirement for houses of worship. [Am. Compl. ¶ 66; 78 Fed. Reg. 39,870 -01, 39,874 (July 2, 2013).] Certain religiously affiliated employers and universities (like Notre Dame) that didn't qualify for the house-of-worship exemption objected to having to include coverage for contraception in their insurance plans. [Am. Compl. ¶¶ 3, 66-67.]

From this discontent, the so-called "accommodation" was born. See 78 Fed. Reg. 39,870, 39,871 (July 2, 2013). Through this process, an objecting employer or university could inform the government, or the entity's insurer or third-party administrator, that it had religious objections to providing coverage for contraceptive services. [Am. Compl. ¶¶ 3, 72; 26 C.F.R. § 54.9815-2713A(2015).] This was accomplished by filling out a one page opt out form and providing it to the entity's insurance issuer or third-party administrator who would, in turn, fulfill its legal obligation by separately providing or arranging payments for contraceptive services, without cost-sharing. [Am. Compl. ¶¶ 3, 73; 78 Fed. Reg. 39,875 -80 (July 2, 2013).] This was an attempt by the government to try and ensure the provision of contraceptive services, on the one hand, while being respectful to the legitimate religious concerns of religiously affiliated employers, on the other.

But the objectors were not mollified. Notre Dame, along with other nonprofit religious organizations, filed suit challenging the contraceptive mandate under the Religious Freedom Restoration Act ("RFRA"). As referenced earlier, I issued an opinion rejecting Notre Dame's RFRA claim in its quest for a preliminary injunction, finding that making Notre Dame comply with the accommodation did not impose a substantial burden on its religious exercise. See Univ. of Notre Dame v. Sebelius , 988 F. Supp. 2d 912, 921-26 (N.D. Ind. 2013). A divided panel of the Seventh Circuit affirmed. See Univ. of Notre Dame v. Sebelius , 743 F.3d 547, 554 (7th Cir. 2014), vacated on other grounds , 575 U.S. 901, 135 S. Ct. 1528, 191 L.Ed.2d 557 (2015).

Shortly after the Seventh Circuit's decision in Sebelius , the Supreme Court decided Burwell v. Hobby Lobby Stores, Inc. , 573 U.S. 682, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014...

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