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

• Decision Date: 12 August 2021
• Docket Number: Cause No. 3:18-CV-491-PPS-JEM
• Citation: 554 F.Supp.3d 967
• Parties: IRISH 4 REPRODUCTIVE HEALTH, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

554 F.Supp.3d 967

IRISH 4 REPRODUCTIVE HEALTH, et al., Plaintiffs,

v.UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.

Cause No. 3:18-CV-491-PPS-JEM

United States District Court, N.D. Indiana, South Bend Division.

Signed August 12, 2021

Anne S. Aufhauser, PHV, Pro Hac Vice, Janice M. Mac Avoy, PHV, Pro Hac Vice, Kellie P. Desrochers, PHV, Pro Hac Vice, Robert D. Gallo, PHV, Pro Hac Vice, Fried Frank Harris Shriver and Jacobson LLP, New York, NY, Fatima Goss Graves, PHV, Pro Hac Vice, Gretchen R. Borchelt, PHV, Pro Hac Vice, Michelle I. Banker, PHV, Pro Hac Vice, Sunu P. Chandy, PHV, Pro Hac Vice, Lauren B. Gorodetsky, PHV, Pro Hac Vice, National Womens Law Center, Richard B. Katskee, PHV, Pro Hac Vice, Americans United for Separation of Church and State, Washington, DC, Jeffrey A. Macey, Macey Swanson LLP, Indianapolis, IN, for Plaintiff Irish 4 Reproductive Health.

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

Anne S. Aufhauser, PHV, Pro Hac Vice, Janice M. Mac Avoy, PHV, Pro Hac Vice, Kellie P. Desrochers, PHV, Pro Hac Vice, Robert D. Gallo, PHV, Pro Hac Vice, Fried Frank Harris Shriver and Jacobson LLP, Caroline M. Sacerdote, PHV, Pro Hac Vice, Jen Samantha D. Rasay, PHV, Pro Hac Vice, Jessica Leah Sklarsky, PHV, Pro Hac Vice, Center for Reproductive Rights, New York, NY, Emily B. Nestler, PHV, Pro Hac Vice, Center for Reproductive Rights, Fatima Goss Graves, PHV, Pro Hac Vice, Gretchen R. Borchelt, PHV, Pro Hac Vice, Michelle I. Banker, PHV, Pro Hac Vice, Sunu P. Chandy, PHV, Pro Hac Vice, Lauren B. Gorodetsky, PHV, Pro Hac Vice, National Women's Law Center, Richard B. Katskee, PHV, Pro Hac Vice, Americans United for Separation of Church and State, Washington, DC, Jeffrey A. Macey, Macey Swanson LLP, Indianapolis, IN, for Plaintiff Jane Does 1-3.

Rebecca M. Kopplin, Christopher R. Healy, US Department of Justice, Civil Division, 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, Eugene Scalia.

Anthony J. Dick, PHV, 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 case hinges on the provision of contraceptive services for University of Notre Dame students and employees and it continues to linger before me, this time on a second round of motions to dismiss. Previously, I largely denied motions to dismiss filed by the Department of Health and Human Services, the Department of Labor, and the Department of the Treasury (the "Federal Defendants"), as well as defendant Notre Dame, which challenged the regulations allowing Notre Dame to declare itself exempt from the Women's Health Amendment of the Patient Protection and Affordable Care Act ("ACA") as well as the private settlement agreement reached between the Federal Defendants and Notre Dame exempting the university from all existing and future requirements with respect to contraceptive coverage. However, following my opinion, the United States Supreme Court issued a decision in Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania , ––– U.S. ––––, 140 S.Ct. 2367, 207 L.Ed.2d 819 (2020), which greatly impacts this case. This Supreme Court decision prompted Plaintiffs, Irish 4 Reproductive Health (an association of Notre Dame students), Natasha Reifenberg, and Jane Does 1-3, to file a second amended complaint, voluntarily streamlining their claims somewhat. The defendants now seek dismissal of the second amended complaint, relying heavily on Little Sisters and another ensuing case, Massachusetts v. United States Department of Health & Human Services , 513 F.Supp.3d 215 (D. Mass. 2021). Because I find the legal foundation (and indeed precedent established by the Supreme Court) for these motions to dismiss has changed dramatically from when I issued my earlier opinion in this case, the motions to dismiss the second amended complaint will be granted.

Factual Background

In my opinion dated January 16, 2020, I extensively reviewed the factual background of this case, as well as the general controversy regarding the provision of contraceptive care under the ACA. [DE 80.] Familiarity with my earlier opinion is assumed, and, as a result, I won't rehash the extensive background of this controversy. Instead, I will simply pick up where that order left off.

During the previous round of motions to dismiss, I denied dismissal of Counts I-V of the amended complaint and only dismissed Count VI (for violation of the Fifth Amendment Due Process Clause) and Count VII (for violation of the Fifth Amendment Equal Protection Clause). Following the Little Sisters case, Plaintiffs filed a second amended complaint. [DE 102.] The second amended complaint is more narrow than its predecessor and only states four causes of action: Count I (against the Federal Defendants) alleges the Settlement Agreement violates the Administrative Procedure Act ("APA"); Count II (against all defendants) alleges the Settlement Agreement is void for illegality; Count III (against the Federal Defendants) alleges the Final Rules violate the substantive requirements of the APA; and Count IV (against the Federal Defendants) alleges the Settlement Agreement and the Rules violate the Establishment Clause of the First Amendment.

This case is before me on two motions to dismiss the Second Amended Complaint.

The Federal Defendants have moved to dismiss all four claims in the Second Amended Complaint under Federal Rule of Civil Procedure 12(b)(6).¹ Notre Dame has moved to dismiss the one claim against it in the Second Amended Complaint (Count II) also under Rule 12(b)(6).

Before I set about analyzing the parties’ arguments, it is necessary to summarize what happened in Little Sisters , as it is pivotal to the motions presently before me. Little Sisters entered the landscape after years of litigation across the country, and after the Departments of Health and Human Services, Labor, and the Treasury exempted certain employers who had religious and conscientious objections to the regulatory requirement that employers were required to provide contraceptive coverage to their employees through their group health plans. The Third Circuit had upheld district court decisions (from Pennsylvania and New Jersey) ruling the departments lacked statutory authority to promulgate the exemptions from the ACA contraceptive requirements (in the form of interim final rules and final rules), and the issuance of a nationwide preliminary injunction against the implementation of the Final Rules.

The Little Sisters Court reversed and remanded, holding the departments did have authority under the ACA to promulgate the religious and moral exemptions, and finding the Rules were also free from any procedural defects. After looking at the text of the ACA, the Supreme Court found that the Health Resources and Services Administration ("HRSA") "has virtually unbridled discretion to decide what counts as preventive care and screenings. But the same capacious grant of authority that empowers HRSA to make these determinations leaves its discretion equally unchecked in other areas, including the ability to identify and create exemptions from its own Guidelines." Little Sisters , 140 S.Ct. at 2380. The Supreme Court could not have been clearer when it stated, "[u]nder a plain reading of the statute, then, we conclude that the ACA gives HRSA broad discretion to define preventive care and screenings and to create the religious and moral exemptions." Id. at 2381. The late Justice Ginsburg dissented, insisting that this interpretation thwarts Congress’ intent to provide contraceptive coverage to all women who want it, and this would make it harder for interested women to obtain easy access to contraception without healthcare. But the majority found these real world problems to be beside the point because "such a policy concern cannot justify supplanting the text's plain meaning." Id. at 2381, 2411-12.

While the majority did not reach the issue of whether RFRA authorizes the Final Rules, it did note that "it was appropriate for the Departments to consider RFRA" and "[i]t is clear from the face of the statute that the contraceptive mandate is capable of violating RFRA." Id. at 2382-83. The justices went so far as to find that "our decisions all but instructed the Departments to consider RFRA going forward" and "[i]t is hard to see how the Departments could promulgate rules consistent with these decisions [ Hobby Lobby and Zubik ] if they did not overtly consider these entities’ rights under RFRA."

Id. at 2383. In the concurring opinion, Justices Alito and Gorsuch said they would have taken one step further, finding "RFRA compels an exemption for the Little Sisters and any other employer with a similar objection to what has been called the accommodation to the contraceptive mandate." Id. at 2387 (emphasis added).

The majority of the Supreme Court did address and determine the Final Rules were procedurally proper, finding "[f]ormal labels aside, the rules contained all of the elements of a notice of proposed rulemaking as required by the APA." Id. at 2384. It held the Rules fully complied with "the maximum procedural requirements [that] Congress was willing to have the courts impose upon agencies in conducting rulemaking procedures." Id. at 2386 (quoting Perez...