Real Alternatives, Inc. v. Burwell

• Decision Date: 10 December 2015
• Docket Number: 1:15-cv-0105
• Citation: 150 F.Supp.3d 419
• Parties: Real Alternatives, Inc. ; Kevin I. Bagatta, Esq.; Thomas A. Lang, Esq.; Clifford W. Mckeown, Esq. Plaintiffs, v. Sylvia M. Burwell, in her official capacity as Secretary of the Department of Health and Human Services, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

150 F.Supp.3d 419

Real Alternatives, Inc. ; Kevin I. Bagatta, Esq.; Thomas A. Lang, Esq.; Clifford W. Mckeown, Esq. Plaintiffs,

v.Sylvia M. Burwell, in her official capacity as Secretary of the Department of Health and Human Services, et al., Defendants.

1:15-cv-0105

United States District Court, M.D. Pennsylvania.

Signed December 10, 2015

Elissa M. Graves, Alliance Defending Freedom, Scottsdale, AZ, Jeremy L. Samek, Harrisburg, PA, Matthew S. Bowman, Alliance Defending Freedom, Washington, DC, for Plaintiffs.

Adam A. Grogg, Washington, DC, Defendants.

MEMORANDUM

Hon. John E. Jones, III

, District Judge

Presently before the Court are the Defendants' Motion to Dismiss or, in the alternative, for Summary Judgment, and the Plaintiffs' Motion for Summary Judgment. Docs. 27, 29. For the reasons that follow, the Court will deny the Plaintiffs' motion in its entirety and grant Defendants' motion for Summary Judgment.

I. FACTUAL BACKGROUND

A. The Affordable Care Act

In March 2010, the Patient Protection and Affordable Care Act, Pub. L. No. 111–148, 124 Stat. 119 (2010)

and the Health Care and Education Reconciliation Act, Pub. L. No. 111–152, 124 Stat. 1029 (2010) (collectively, the “ACA”) passed into law. The ACA requires non-grandfathered group health care plans¹ and insurance providers offering non-grandfathered coverage to supply four categories of recommended preventive health services, without requiring copayments or deductibles from plan participants and beneficiaries. Doc. 1, ¶¶ 49-53; see Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46,621, 46,622 -23 (Aug. 3, 2011). The four categories of preventive health services include: (1) items or services that have an “A” or “B” rating from the United States Preventive Services Task Force; (2) immunizations as recommended by the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention; (3) preventive care and screenings for infants, children and adolescents as provided for by the guidelines supported by the Health Resources and Services Administration (“HRSA”);² and (4) preventive care and screenings for women, also as provided by guidelines supported by the HRSA. 76 Fed. Reg. 46,622

-23 (Aug. 3, 2011).

At the time that the ACA passed into law, no guidelines regarding preventive care and screenings for women existed. Doc. 27, p. 4. Thus, the HHS requested recommended guidelines from the Institute of Medicine (“IOM”), a nonprofit organization established by the National Academy of Sciences and funded by Congress.³ Doc. 1, ¶ 56; Doc. 27, p. 4. In response to this request, the IOM recommended that the HRSA adopt guidelines endorsing, among other measures, breastfeeding support, domestic violence screening, and also “the full range of [FDA]-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” Doc. 27, p. 5. FDA-approved contraceptive methods include diaphragms, oral contraceptives, intrauterine devices

, and emergency contraceptives (such as “Plan B,” also known as the “morning-after pill,” and ulipristal, also known as “Ella” or the “week-after pill”). Id .⁴ The IOM asserts that the services recommended by its proposed guidelines are “shown to improve well-being, and/or decrease the likelihood or delay the onset of a targeted disease or condition.” Id . at 4-5.

On August 1, 2011, the HRSA adopted the IOM's recommended guidelines regarding preventive care and screenings for women in full. Doc. 1, ¶ 66. In doing so, the HRSA required every non-exempt employer to provide these services for their employees in their health insurance coverage plans (the “Contraceptive Mandate”). Id .

On the same day, an exemption from the Contraceptive Mandate for certain religious employers was proposed as an interim final regulation. Doc. 1, ¶¶ 71-72. The Departments of Treasury, Labor, and the HHS (collectively, the “Departments”) explained that certain commenters to the proposed guidelines had suggested that requiring religious employers to sponsor group health plans for their employees that provide contraceptive services could impinge upon those employers' religious freedom. 76 Fed. Reg. 46,621, 46,624 (Aug. 3, 2011). In light of these comments, the Departments determined that:

it is appropriate that HRSA, in issuing these Guidelines, takes 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. Specifically, the Departments seek to provide for a religious accommodation that respects the unique relationship between a house of worship and its employees in ministerial positions. Such an accommodation would be consistent with the policies of States that require contraceptive services coverage, the majority of which simultaneously provide for a religious accommodation.

Id .

To qualify for the religious employer exemption as it was set forth in the 2011 regulations, an employer was required meet criteria consistent with the exemptions adopted in most states. A religious employer was required to: (1) have as its purpose the inculcation of religious values; (2) primarily employ persons who share its religious tenets; (3) primarily serve persons who share its religious tenets; and (4) be a non-profit organization under Section 6033(a)(1) and Section 6033(a)(3)(A)(i) or (iii) of the Code.⁵ Id.

Though the religious employer exemption went into effect immediately,⁶ the Departments requested comments on this definition, as well as alternative definition submissions. Id .

The Departments also noted that “[b]ecause the HRSA's discretion to establish an exemption applies only to group health plans sponsored by certain religious employers and group health insurance offered in connection with such plans, health insurance issuers in the individual health insurance market would not be covered under any such exemption.” Id . at 46,623 -24.

In February 2012, the Departments formally adopted the exemption set forth in the 2011 interim final regulations.⁷ 77 Fed. Reg. 8,725 (Feb. 15, 2012)

. The Departments also provided a “temporary enforcement safe harbor,” a one-year period of non-enforcement for non-exempted, non-profit organizations with religious objections to providing coverage for contraceptive services, and whose group health plans were not grandfathered. Id . During the safe harbor period, the Departments announced that they would “plan to develop and propose changes to these final regulations that would meet two goals—providing contraceptive coverage without cost-sharing to individuals who would want it and accommodating non-exempted, non-profit organizations' religious objections to covering contraceptive services....” Id .

In August 2013, the final rules regarding the religious employer exemption went into effect. 78 Fed. Reg. 39,874 (July 2, 2013)

. The new rules significantly shortened the definition of an exempt religious employer and expanded it to ensure that “an otherwise exempt 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.” Id . Instead of the four-pronged definition, the final rules clarified that any “employer 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 ” is considered a religious employer for purposes of the religious employer exemption. Id . The Departments further noted that:

the simplified and clarified definition of religious employer continues to respect the religious interests of houses of worship and their integrated auxiliaries in a way that does not undermine the governmental interests furthered by the contraceptive coverage requirement. Houses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan.

Id . at 39,874

-75.

Due to this exemption, and others, “the contraceptive mandate presently does not apply to tens of millions of people.” Burwell v. Hobby Lobby Stores, Inc. , ––– U.S. ––––, 134 S.Ct. 2751, 2764, 189 L.Ed.2d 675 (2014)

. Rather, insurance providers supply contraceptive coverage to individual employees independently of the plans sponsored by exempted employers with religious objections to contraceptive care. Doc. 27, pp. 30-31 (explaining that “the grandfathering provision applies at the plan level....Likewise, the religious employer exemption operates on a plan-wide basis, see 45 C.F.R. § 147.131(a), and does not permit individual plan participants and beneficiaries to opt out of contraceptive coverage.”).

Since the time that the final rules went into effect, dozens of lawsuits similar to the one presently before this Court have challenged both the Contraceptive Mandate and the dimensions of its exemptions. See Geneva Coll. v. Sebelius , 929 F.Supp.2d 402, 411 (W.D.Pa.2013)

(similarly commenting on the vast array of litigation surrounding the Contraceptive Mandate).

B. Real Alternatives

Plaintiff Real Alternatives is a non-profit, non-religious, pro-life organization formed under the laws of the Commonwealth of Pennsylvania. Doc. 1, ¶ 6. Real Alternatives does not hold itself out as a religious entity, is not incorporated as such, and has not adopted any religious views or positions. Id . ¶ 17. Rather, its views are based on “science, reason, and non-religious philosophical principles.” Id . ¶ 18.

Real Alternatives avers that its primary purpose is to provide “life-affirming...