Nebraska ex rel. Bruning v. U.S. Dep't of Health & Human Servs.

• Decision Date: 17 July 2012
• Docket Number: No. 4:12CV3035.,4:12CV3035.
• Citation: 877 F.Supp.2d 777
• Parties: State of NEBRASKA, by and through, Jon C. BRUNING, Attorney General of the State of Nebraska, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Kathleen Sebelius, in her official capacity as the Secretary of the United States Department of Health and Human Services, et al., Defendants.
• Court: U.S. District Court — District of Nebraska

877 F.Supp.2d 777

State of NEBRASKA, by and through, Jon C. BRUNING, Attorney General of the State of Nebraska, et al., Plaintiffs,

v.UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Kathleen Sebelius, in her official capacity as the Secretary of the United States Department of Health and Human Services, et al., Defendants.

No. 4:12CV3035.

United States District Court,

D. Nebraska.

July 17, 2012.

David D. Cookson, Katherine J. Spohn, Attorney General's Office, Rocky C. Weber, Crosby, Guenzel Law Firm, Donald G. Blankenau, Blankenau, Wilmoth Law Firm, Lincoln, NE, for Plaintiffs.

Jon C. Bruning, Lincoln, NE, pro se.

Michelle R. Bennett, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS

WARREN K. URBOM, Senior District Judge.

On February 23, 2012, the plaintiffs State of Nebraska, by and through Jon Bruning, Attorney General of the State of Nebraska (Nebraska); State of South Carolina, by and through Alan Wilson, Attorney General of the State of South Carolina (South Carolina); Bill Schuette, Attorney General of the State of Michigan, on behalf of the People of Michigan (Schuette); State of Texas, by and through Greg Abbott, Attorney General of the State of Texas (Texas); State of Florida, by and through Pam Bondi, Attorney General of the State of Florida (Florida); State of Ohio, by and through Michael DeWine, Attorney General of the State of Ohio (Ohio); State of Oklahoma, by and through Scott Pruitt, Attorney General of the State of Oklahoma (Oklahoma); Sister Mary Catherine, CK (Sister Mary Catherine); Stacy Molai (Molai); Catholic Social Services; Pius X Catholic High School (Pius X); and the Catholic Mutual Relief Society of America (Catholic Mutual) filed a five-count complaint against the defendants United States Department of Health and Human Services (HHS); Kathleen Sebelius (Sebelius), in her official capacity as the Secretary of HHS; United States Department of the Treasury (Treasury); Timothy F. Geithner (Geithner), in his official capacity as the Secretary of the Treasury; United States Department of Labor (DOL); and Hilda L. Solis (Solis), in her official capacity as Secretary of the DOL. ( See Compl., ECF No. 1.) Now before me is the defendants' motion to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). ( See Defs.' Mot. to Dismiss, ECF No. 30). For the following reasons, the defendants' motion will be granted.

I. BACKGROUND

A. The Parties

The plaintiffs Nebraska, South Carolina, Texas, Florida, Ohio, and Oklahoma are sovereign states in the United States of America. ( See Compl. ¶¶ 9–10, 12–15, ECF No. 1.) The plaintiff Schuette appears in this action for the people of Michigan. ( See id. ¶ 11.) Collectively, these seven plaintiffs will be referred to as “the State plaintiffs.”

The plaintiff Sister Mary Catherine is a Catholic nun affiliated with the School Sisters of Christ the King, which is a Catholic Order located in Lincoln, Nebraska. (Compl. ¶ 16, ECF No. 1.) The plaintiff Molai is a Catholic individual residing in Omaha, Nebraska, and a missionary employed by the Fellowship of Catholic University Students (FOCUS), which is “a Catholic organization engaged in ministry and outreach on college campuses throughout the United States and around the world.” ( Id. ¶¶ 22–23.) Collectively, these two plaintiffs will be referred to as “the individual plaintiffs.”

The plaintiff Catholic Social Services is “a Nebraska non-profit corporation,” “a faith-based charity services provider,” and “a Catholic religious organization employer.” (Compl. ¶ 34, ECF No. 1.) It “is an affiliated entity of the Catholic Diocese of Lincoln, Nebraska[,] providing social charity to persons in southern Nebraska.” ( Id. ¶ 35.) The plaintiff Pius X “is a Nebraska non-profit corporation and is the sole Catholic high school for the City of Lincoln and the Diocese of Lincoln, Nebraska.” ( Id. ¶ 44.) The plaintiff Catholic Mutual “is a non-profit religious 501(c)(3) organization with its princip[al] place of business located in Omaha, Nebraska.” ( Id. ¶ 51.) Collectively, these three plaintiffs will be referred to as “the organizational plaintiffs.”

The defendants HHS, Treasury, and DOL (collectively, “the Departments”) are agencies of the United States, and as noted previously, the defendants Sebelius, Geithner, and Solis are sued in their official capacities as the secretaries of those agencies. (Compl. ¶¶ 63–68, ECF No. 1.)

B. The Relevant Statutes and Regulations

The plaintiffs allege that certain “final rules” that were adopted by the defendants in order to implement the Patient Protection and Affordable Care Act, Pub.L. No. 111–148, 124 Stat. 119 (2010), as amended by the Health Care and Education Reconciliation Act of 2010, Pub.L. No. 111–152, 124 Stat. 1029 (2010) (collectively, the Affordable Care Act or ACA), will “coerce” religious individuals, “organizations, institutions, care providers, outreach groups, and social service agencies, among others, to directly subsidize contraception, abortifacients, sterilization, and related services in contravention [of] their religious beliefs.” (Compl. ¶ 1, ECF No. 1; see also id. ¶ 69.) They add that “Plaintiff States' budgetary stability” will be threatened if “religious organization employers were to cease [to provide] health insurance in order to avoid the requirements of the Rule.” ( Id. ¶¶ 85–86.) A review of the relevant statutes, regulations, and rules is in order.

Section 1001 of the ACA added section 2713 to the Public Health Service Act (PHS Act). See42 U.S.C. § 300gg–13. In pertinent part, PHS Act section 2713, which is titled “coverage of preventive health services,” states,

(a) In general

A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for—

(1) evidence-based items or services that have in effect a rating of “A” or “B” in the current recommendations of the United States Preventive Services Task Force; [and]

....

(4) with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.

42 U.S.C. § 300gg–13(a)(1), (4).

On July 19, 2010, the Departments issued interim final regulations implementing section 2713. SeeInterim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 75 Fed.Reg. 41726 (July 19, 2010). The interim final regulations state that when new recommendations or guidelines for preventive health services are issued, coverage for those services “must be provided for plan years (in the individual market, policy years) beginning ... one year after the date the recommendation or guideline is issued.” 75 Fed.Reg. 41726, 41729. They also state, “The requirements to cover recommended preventive services without any cost-sharing requirements do not apply to grandfathered health plans.” Id. (citing 26 C.F.R. § 54.9815–1251T; 29 C.F.R. 2590.715–1251; 45 C.F.R. § 147.140). Grandfathered health plans are defined as plans “in which an individual was enrolled on March 23, 2010,” and which are able to comply with certain regulations. See26 C.F.R. § 54.9815–1251T; 29 C.F.R. 2590.715–1251; 45 C.F.R. § 147.140.

On August 1, 2011, the Health Resources and Services Administration (HRSA) adopted recommendations for preventive services for women that include certain services related to contraception. ( See Defs.' Br. at 7, ECF No. 31 (citing HRSA Guidelines, available at http:// www. hrsa. gov/ womensguide lines/).) The Departments then published amendments to the interim final regulations that took effect on that same date ( i.e., August 1, 2011). SeeGroup Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed.Reg. 46621 (Aug. 3, 2011). The amendments to the interim final regulations note,

[The interim final regulations state that], to the extent not described in the U.S. Preventive Services Task Force recommendations, HRSA was charged with developing comprehensive guidelines for preventive care and screenings with respect to women.... The interim final regulations also require that changes in the required items and services be implemented no later than plan years (in the individual market, policy years) beginning on or after the date that is one year from when the new recommendation or guideline is issued.

In response to the request for comments on the interim final regulations, the Departments received considerable feedback regarding which preventive services for women should be considered for coverage under PHS Act section 2713(a)(4). Most commenters, including some religious organizations, recommended that HRSA Guidelines include contraceptive services for all women and that this requirement be binding on all group health plans and health insurance issuers with no religious exemption. However, several commenters asserted that requiring group health plans sponsored by religious employers to cover contraceptive services that their faith deems contrary to its religious tenets would impinge upon their religious freedom. One commenter noted that some religious employers do not currently cover such benefits under their group health plan due to their religious beliefs.

... These HRSA Guidelines exist solely to bind non-grandfathered group health plans and health insurance issuers with respect to the extent of their coverage of certain preventive services for women. In the Departments' view, it is appropriate that HRSA, in issuing these Guidelines, takes into account the effect on the religious beliefs of certain religious employers if coverage...