REGGIE B. WALTON, District Judge.
The plaintiffs, Tyndale House Publishers, Inc. and its president and CEO, Mark D. Taylor, challenge the application of the regulations and penalties relating to an employer's obligation to cover contraceptives under an employer health plan pursuant to the Patient Protection and Affordable Care Act (the "ACA"), Pub.L. No. 111-148, 124 Stat. 119 (2010),
Enacted in March 2010, the ACA requires group health plans to provide women with "preventive care and screenings" without imposing any cost-sharing requirements on the plan beneficiaries. See 42 U.S.C. § 300gg-13(a)(4) (Supp.2010). Specifically, the ACA requires that non-grandfathered
The Department of Health and Human Services ("HHS") tasked the Institute of Medicine ("Institute") with developing recommendations to implement the requirement to provide preventive services for women. Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps 2 (2011) ("Institute Report"). The HRSA adopted the Institute's recommendations on August 1, 2011, which included a provision requiring "the full range of [FDA]-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity." Id. at 20-22, 109-10. HHS subsequently promulgated regulations implementing the Institute's recommendations, under which all health insurance plans and policies (except those grandfathered or otherwise exempt) are required to comply with the contraceptive coverage mandate starting with the plan years beginning on or after August 1, 2012. 76 Fed.Reg. 46621-01 (Aug. 3, 2011).
Among other exemptions, the regulations exempt from the contraceptive coverage mandate certain "religious employers," defined as employers having each of the following characteristics:
45 C.F.R. § 147.130(a)(1)(iv)(B). In response to concerns from various organizations with religious objections to the contraceptive
Employers subject to the contraceptive coverage mandate face fines, penalties, and enforcement actions for non-compliance. See 29 U.S.C. § 1132(a) (civil enforcement actions by the Department of Labor and insurance plan participants); 26 U.S.C. § 4980D(a), (b) (penalty of $100 per day per employee for noncompliance with coverage provisions of the ACA); 26 U.S.C. § 4980H (annual tax assessment for noncompliance with requirement to provide health insurance).
The first named plaintiff, Tyndale House Publishers, Inc. ("Tyndale"), is a Christian publishing company founded in 1962 by Dr. Kenneth Taylor and his wife, Margaret Taylor. Compl. ¶ 21. Initially founded to publish "Kenneth Taylor's modern paraphrase of portions of the New Testament" of the Bible, the company today "publishes a wide array of Christian books ranging from Bible commentaries to books about family issues to Christian fiction." Id. ¶ 24. The publishing company employs 260 full-time employees, and provides them with health insurance through a self-insured health plan. Id. ¶¶ 71-73.
Tyndale is 96.5% owned by the Tyndale House Foundation (the "Foundation"), a non-profit religious entity. Id. ¶¶ 41-42, 45. Of the shares owned by the Foundation, "just over 8.4%" are voting shares. Id. ¶ 45. "The Foundation receives 96.5% of all of Tyndale's distributed profits," amounting to $38.8 million of the $40.2 million in profits since 2001. Id. ¶ 47. The Foundation directs much of its proceeds "to various charitable causes." Id. ¶ 50. In particular, "[t]he Foundation has used proceeds from Tyndale to benefit such ministries as: a Christian community center in the Chicago area ...; [the] Cabrini Green Legal Aid Clinic ...; and evangelistic work worldwide." Pls.' Mem., Exhibit ("Ex.") 1 (Oct. 8, 2012 Affidavit of Mark D. Taylor) ¶ 3.
In addition to the shares owned by the Foundation, "a small percentage is owned by [the] Tyndale Trust." Compl. ¶ 52. Because the Tyndale Trust holds "84% of the voting shares," Tyndale is "primarily directed" by the Tyndale Trust. Id. ¶¶ 2, 52. The same group of individuals serves both as the trustees of the Tyndale Trust and as the board of directors of Tyndale
Two additional Illinois trusts established to "benefit Dr. Kenneth Taylor's widow and children," own "just over 3.4%" of the publishing company's remaining shares. Id. ¶ 60. The two trusts "share the beliefs of Tyndale House Publishers, [the] Tyndale House Foundation, and [the] Tyndale Trust." Id. ¶ 61.
Tyndale, the Foundation, and the three trusts
The second named plaintiff, Mark D. Taylor, is the son of Tyndale's founder, Kenneth Taylor. Id. ¶ 2. Mark Taylor is the president and CEO of Tyndale and the Foundation, and a trustee of both the Tyndale Trust and the Kenneth N. Taylor Trust. Id. ¶ 63. In his capacity as president and CEO of the publishing company and the Foundation, Mark Taylor "is responsible for their overall operations, including the provision of Tyndale's health insurance plan." Id. ¶ 65. He shares the same beliefs as the entities described above. Id. ¶ 67.
The contraceptive coverage mandate requires the plaintiffs "to provide and pay for drugs and devices ... [that] violate [their] religious beliefs, and [] subjects [the plaintiffs] to heavy fines and penalties if [they] choose[] not to violate those beliefs." Id. ¶¶ 3, 5. In particular, the plaintiffs are required to pay for "drugs (e.g., Plan B, ella) or devices (e.g., intrauterine devices) that can cause the demise of an already conceived/fertilized human embryo." Id. ¶¶ 39, 81-82.
The plaintiffs instituted this action on October 2, 2012. By requiring the plaintiffs to provide for certain contraceptive care, the plaintiffs allege that the defendants have violated their rights under the RFRA, and the First and Fifth Amendments to the Constitution of the United States. Id. ¶ 7. The plaintiffs further allege that the defendants "violated the [APA] by imposing the [contraceptive coverage mandate] with deliberate disregard of public comments." Id.
The plaintiffs have now moved for a preliminary injunction. Pls.' Mot. at i. They assert that they face imminent harm because their refusal to comply with the ACA will subject them "to the [contraceptive coverage mandate's] draconian penalties." Compl. ¶ 8. Namely, the plaintiffs claim that they "face[], today, the certain prospect of lawsuits from the Secretary of Labor, fines and regulatory penalties."
"`A plaintiff seeking a preliminary injunction must establish [1] that [it] is likely to succeed on the merits, [2] that [it] is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in [its] favor, and [4] that an injunction is in the public interest.'" Sherley v. Sebelius, 644 F.3d 388, 392 (D.C.Cir.2011) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)) (some alterations in original). Because it is "an extraordinary remedy," a preliminary injunction "should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion." Cobell v. Norton, 391 F.3d 251, 258 (D.C.Cir.2004) (citing Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997)).
The District of Columbia Circuit has applied a "sliding scale" approach in evaluating the preliminary injunction factors. Sherley, 644 F.3d at 392. Under this analysis,
Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291-92 (D.C.Cir.2009) (internal quotation marks and citations omitted).
Before addressing the merits of the plaintiffs' claims, the Court first turns to the question of whether the plaintiffs have standing to pursue their RFRA claim.
"Because Article III limits the constitutional role of the federal judiciary to resolving cases and controversies, a showing of standing `is an essential and unchanging' predicate to any exercise of [federal] jurisdiction." Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 663 (D.C.Cir.1996) (en banc) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). "`The irreducible constitutional minimum of standing contains three elements: (1) injury-in-fact, (2) causation, and (3) redressability.'" Nat'l Ass'n of Home Builders v. EPA, 667 F.3d 6, 11 (D.C.Cir.2011) (citation omitted). "`Thus, to establish standing, a litigant must demonstrate a personal injury fairly traceable to the [opposing party's] allegedly unlawful conduct [that is] likely to be redressed by the requested relief.'" Id. (citation omitted).
The parties initially dispute whether Tyndale has standing to raise RFRA and free exercise claims.
This Court, like others before it, declines to address the unresolved question of whether for-profit corporations can exercise religion within the meaning of the RFRA and the Free Exercise Clause. See, e.g., First Nat'l Bank v. Bellotti, 435 U.S. 765, 777-78 n. 14, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978) (recognizing that corporations have First Amendment speech rights, but declining to "address the abstract question whether corporations have the full measure of rights that individuals enjoy under the First Amendment"); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119 (9th Cir.2009) ("We decline to decide whether a for-profit corporation can assert its own rights under the Free Exercise Clause ..."); Church of Scientology of Cal. v. Cazares, 638 F.2d 1272, 1280 n. 7 (5th Cir.1981) (same). Instead, the Court will assess whether Tyndale has standing to assert the free exercise rights of its owners.
At least one Circuit Court of Appeals has "held that a corporation has standing to assert the free exercise right of its owners." Stormans, 586 F.3d at 1120 (citing EEOC v. Townley Eng'g & Mfg. Co., 859 F.2d 610, 620 n. 15 (9th Cir.1988)). The Ninth Circuit first recognized this theory of standing in Townley. The plaintiff in that case was a closely-held manufacturing company whose owners made a "covenant with God requir[ing] them to share the Gospel with all of their employees." Townley, 859 F.2d at 620. It sought an exemption, on free exercise
The Ninth Circuit subsequently applied Townley's reasoning in Stormans. There, a pharmacy brought a free exercise challenge to a state regulation requiring it to dispense Plan B, an emergency contraceptive drug. Stormans, 586 F.3d at 1117. In analyzing whether the pharmacy had standing to assert the free exercise rights of its owners, the court emphasized that the pharmacy was a "fourth-generation, family-owned business whose shareholders and directors [were] made up entirely of members of the Stormans family," and that "Kevin Storman's opposition to Plan B[was] that of [the pharmacy's] and all the owners." Id. at 1120. The court thus found that the pharmacy was "an extension of the beliefs of members of the Stormans family, and that the beliefs of the Stormans family [were] the beliefs of" the pharmacy. Id. Because the pharmacy did "not present any free exercise rights of its own different from or greater than its owners' rights," the court held, as it had in Townley, that the company had "standing to assert the free exercise rights of its owners." Id.
Applying the principles of Townley and Stormans here, as this Court deems it appropriate to do, it is first necessary to dissect Tyndale's corporate structure. Tyndale is a "closely-held entity" owned by four other entities: the Foundation, the Tyndale Trust, the Kenneth N. Taylor Trust, and the Margaret W. Taylor Trust. See November 7, 2012 Affidavit of Mark D. Taylor [ECF No. 24] ("Taylor Aff.") ¶ 2; id., Ex. A. All five entities were created by Dr. Kenneth Taylor, the father of plaintiff Mark D. Taylor and Tyndale's founder. Id. ¶ 2. Dr. Taylor designed Tyndale's ownership structure to accomplish two goals: "to direct [Tyndale's] proceeds to religious charity and educational non-profit work" and "to ensure that the direction of [Tyndale] will remain ... faithful to his religious beliefs and Christian educational vision even after his passing." Id. ¶ 3. To these ends, Dr. Taylor separated the stock of Tyndale into non-voting shares and voting shares. Id. ¶ 5. The Foundation, a "non-profit religious entity," owns 96.5% of Tyndale's total shares. Id. ¶ 4; Compl. ¶ 45. Not only is the Foundation the primary recipient of Tyndale's profits, "Tyndale also pays royalties to the Foundation in amounts exceeding $1 million annually, because Dr. Taylor had donated his author rights to the Foundation." Compl. ¶ 49. The Foundation distributes the funds it
The plaintiffs' submissions to the Court indicate that all five Tyndale entities, as well as their directors, trustees, and even many of their employees, share the same religious beliefs:
Thus, as in Townley and Stormans, the beliefs of Tyndale and its owners are indistinguishable. Tyndale is a closely-held corporation owned by four entities united by their Christian faith, each of which plays a distinct role in achieving shared, religious objectives. Christian principles, prayer, and activities are pervasive at Tyndale, and the company's ownership structure is designed to ensure that it never strays from its faith-oriented mission. The Court has no reason to doubt, moreover, that Tyndale's religious objection to
The defendants argue that nothing in Townley or Stormans suggests that a regulation that burdens a corporation alone can also constitute a burden on its owners. Defs.' Opp'n at 17-18. But, at least for the purposes of standing in the free exercise context, that is precisely what those cases held. Specifically, Townley and Stormans recognize that when the beliefs of a closely-held corporation and its owners are inseparable, the corporation should be deemed the alter-ego of its owners for religious purposes. See Stormans, 586 F.3d at 1120. In such circumstances, courts must "consider the rights of the owners as the basis for the [f]ree [e]xercise claim" brought by the corporation, even if the regulation technically applies only to the corporation.
Viewing the rights of Tyndale's owners (in particular, those of the Foundation) as the basis for its RFRA claim, the Court finds that Tyndale has made a satisfactory showing of Article III standing. According to the complaint, Tyndale has been subject to the contraceptive coverage mandate since it became effective on October 1, 2012, and, based on its noncompliance with the law on religious grounds, it currently faces heavy fines and penalties that accrue daily, as well as likely governmental enforcement actions. See Compl. ¶¶ 87-99. The defendants do not dispute these allegations. Tyndale has therefore shown an "actual or imminent" injury-in-fact that is "concrete and particularized" and "`fairly... traceable'" to the contraceptive coverage mandate. Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (citations and brackets omitted).
Even if this Court were not inclined to adopt the Townley-Stormans theory of free exercise standing,
The Court will thus analyze whether Tyndale has satisfied the third-party standing criteria with respect to its primary owner, the Foundation. As discussed above, Tyndale has shown a sufficient injury-in-fact that is fairly traceable to the contraceptive coverage mandate, and therefore has satisfied the first criterion. Regarding the "close relationship" requirement, Powers states that courts should examine whether the plaintiff and third party have a "congruence of interests" such that the plaintiff will be a "motivated, effective advocate for the [third party's] rights." Id. at 414, 111 S.Ct. 1364. These conditions are present here, as Tyndale and the Foundation are closely-linked entities that share common religious objections to the contraceptive coverage mandate. See Compl. ¶ 46 ("By virtue of the Foundation's nearly total ownership of Tyndale," the "religious missions" of Tyndale and the Foundation "are largely overlapping and mutually reinforcing."); id. ¶ 61 (alleging that all five Tyndale entities hold the same religious beliefs "in general and with respect to Tyndale's provision of health insurance and omission of [certain contraceptives] therefrom"). There can be little doubt, then, that Tyndale will effectively advocate for the Foundation's rights.
Turning to the "hindrance" prong of the third-party standing analysis, the Court must examine the "likelihood and ability of the third parties ... to assert their own rights." Powers, 499 U.S. at 414, 111 S.Ct. 1364. The defendants take a perplexing,
It bears emphasizing that if the Court accepted the defendants' position, no Tyndale entity would have standing to challenge the contraceptive coverage mandate — not even the Foundation. This is because, in the defendants' view, Tyndale — though directly injured by the regulation — cannot exercise religion, and the Foundation — though capable of exercising religion — is not directly injured by the regulation. The third-party standing doctrine serves to avoid such conundrums. Indeed, the Supreme Court has "been quite forgiving with [the third-party standing] criteria" where, as here, "`enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties' rights.'" Kowalski, 543 U.S. at 130, 125 S.Ct. 564 (quoting Warth, 422 U.S. at 510, 95 S.Ct. 2197) (emphasis in original). Because Tyndale has satisfied all three requirements of third-party standing, it may assert the Foundation's free exercise rights in this case.
The RFRA forbids the government from "substantially burden[ing] a person's exercise of religion even if the
Under the RFRA, "exercise of religion" is defined as "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." See 42 U.S.C. § 2000bb-2 (defining "exercise of religion" as defined in 42 U.S.C. § 2000cc-5 (2006)). The plaintiffs assert that they "have a sincere conscientious religious objection to providing coverage for abortifacients[
To determine whether the contraceptive coverage mandate substantially burdens the plaintiffs' religious exercise, the Court must consider whether the government action "puts `substantial pressure on [the] adherent[s] to modify [their] behavior and to violate [their] beliefs.'" Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C.Cir.2008) (quoting Thomas v. Review Bd. of Ind. Employ. Sec. Div., 450 U.S. 707, 718, 101 S.Ct. 1425, 67 L.Ed.2d 624
Government action can substantially burden a plaintiff's religious exercise even if the law only results in the plaintiff being forced to forego a government benefit. In Sherbert, the Supreme Court found that the state had substantially burdened the plaintiff's religious exercise by denying her unemployment benefits because, in accordance with the tenets of her faith, she was unwilling to work on Saturdays. 374 U.S. at 403-04, 83 S.Ct. 1790. The Court held that "the pressure upon [the plaintiff] to forego that practice is unmistakable" because the government's action "forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand." Id. at 404, 83 S.Ct. 1790. In Thomas, the Court applied similar reasoning to conclude that the plaintiff's religious exercise was substantially burdened by the state's denial of unemployment benefits because the plaintiff, citing religious objections, voluntarily quit his job at a manufacturing plant after the factory began producing weapons. 450 U.S. at 717-18, 101 S.Ct. 1425. And, the Court found that the "indirect" nature of the burden did not render the burden insubstantial. See id. at 718, 101 S.Ct. 1425.
As in Yoder, the contraceptive coverage mandate affirmatively compels the plaintiffs to violate their religious beliefs in order to comply with the law and avoid the sanctions that would be imposed for their noncompliance. Indeed, the pressure on the plaintiffs to violate their religious beliefs is "unmistakable." Sherbert, 374 U.S. at 404, 83 S.Ct. 1790. The plaintiffs contend that compliance with the contraceptive coverage mandate would violate their sincerely-held religious beliefs, Pl.'s Mem. at 8-9, but if the plaintiffs adhere to their religious beliefs and do not comply with the contraceptive coverage mandate, they are subject to suit, see 29 U.S.C. § 1132(a) (providing for civil enforcement actions by the Department of Labor and insurance plan participants), and to considerable financial penalties, see 26 U.S.C. § 4980D(a), (b) (providing for penalty of $100 per day per employee for noncompliance with coverage provisions of the ACA); 26 U.S.C. § 4980H (providing for annual tax assessment for noncompliance with requirement to provide health insurance). And the plaintiffs assert that the penalties to which Tyndale may be subject under the law would result in the ultimate closure of the business. See Compl. ¶¶ 112-15; Pls.' Mem., Ex. 1, ¶ 4 ("Tyndale House Publishers cannot afford to sustain the fines threatened by the Mandate at issue in this case.").
In Thomas v. Anchorage Equal Rights Commission, the Ninth Circuit considered an analogous dilemma involving the choice between compliance with a state law prohibiting discrimination in housing based on marital status and the plaintiffs' exercise
The Thomas court's reasoning is persuasive here. The contraceptive coverage mandate similarly places the plaintiffs in the untenable position of choosing either to violate their religious beliefs by providing coverage of the contraceptives at issue or to subject their business to the continual risk of the imposition of enormous penalties for its noncompliance. Such a threat to the very continued existence of the plaintiffs' business necessarily places substantial pressure on the plaintiffs to violate their beliefs. Government action that creates such a Hobson's choice for the plaintiffs amply shows that the contraceptive coverage mandate substantially burdens the plaintiffs' religious exercise.
The defendants nonetheless urge the Court to adopt the reasoning of O'Brien v. HHS, 894 F.Supp.2d 1149, 2012 WL 4481208 (E.D.Mo.2012). There, the court considered the application of the contraceptive coverage mandate to plaintiffs Frank O'Brien and O'Brien Industrial Holdings, LLC, "a secular, for-profit company in St. Louis, Missouri, that is engaged in the business of mining, processing, and distributing refractory and ceramic materials and products," of which Mr. O'Brien is the chairman and managing member. Id. at 1154, *1. Mr. O'Brien is Catholic and "tries to manage and operate [his company] in a manner consistent with his religion." Id. The company's lobby contains a religious statue, the company's mission and statement of values contain religious references, and the company and its subsidiaries pledge to tithe the earnings generated by the companies. Id. at 1154, *1 n. 3. The company also provides health insurance to its employees through a group plan. Id. at 1155-56, *2. The O'Brien plaintiffs brought a RFRA claim against the same six defendants currently before this Court, alleging that inclusion of contraceptive coverage in the company's group plan would violate the plaintiffs' religious belief that requires the "condemnation of contraception." Id. at 1157, *4.
The court dismissed the plaintiffs' RFRA claim, holding that the plaintiffs had failed to show that the contraceptive coverage mandate substantially burdened their religious exercise. Id. at 1159-61, *6-7. Describing the burden at issue as the "funds, which plaintiffs will contribute to a group health plan, [that] might, after a series of independent decisions by health care providers and patients covered by [the company's] plan, subsidize someone else's participation in an activity that is condemned by plaintiffs' religion," the court reasoned that the burden on the plaintiffs' religious exercise was simply too attenuated to qualify as "substantial." Id. at 1159-60, *6 (emphasis in original). The court emphasized that the decision to use contraceptives, the objectionable act, was ultimately in the hands of a third party, the plan participant, and that such a burden was not within the contemplation of the RFRA. See id. (stating that the RFRA "protects individuals from substantial burdens on religious exercise that occur when the government coerces action one's religion forbids, or forbids action one's religion
The Court finds the facts of the instant case to be sufficiently distinguishable from O'Brien to warrant a different result. One crucial distinction lies in the method by which the companies in each case provide health insurance. In O'Brien, the plaintiffs provided health insurance to their employees through a group health insurance policy which was separately administered by an insurance company. See id. at 1155-56, *2. Here, the plaintiffs provide direct coverage to Tyndale employees through a self-insured plan in which "Tyndale acts as its own insurer." Compl. ¶ 73. This difference in the manner in which coverage is provided is significant because while the company in O'Brien contributes to a health insurance plan which ultimately pays for the services used by the plan participants, Tyndale itself directly pays for the health care services used by its plan participants, thereby removing one of the "degrees" of separation that the court deemed relevant in O'Brien, 894 F.Supp.2d at 1160-61, 2012 WL 4481208 at *7.
If O'Brien is intended to stand for the proposition that a plaintiff can never demonstrate that its religious exercise is substantially burdened by a law that forces it to pay for services to which it objects that are ultimately chosen and used by third parties, this Court must respectfully disagree. As noted, a substantial burden exists when government action places "`substantial pressure on an adherent to modify his behavior and to violate his beliefs.'" Kaemmerling, 553 F.3d at 678 (quoting Thomas, 450 U.S. at 718, 101 S.Ct. 1425). The plaintiffs' specific objection is not simply to the use of the contraceptives at issue, but to "providing coverage for abortifacients and related education and counseling in Tyndale's health insurance plan." Compl. ¶¶ 88-89. As discussed at length above, the contraceptive coverage mandate puts substantial pressure on the plaintiffs to violate their religious beliefs against the provision of coverage for the three contraceptives at issue. Therefore, the requirement to provide such coverage directly burdens the plaintiffs' religious objection to providing such coverage. Because it is the coverage, not just the use, of the contraceptives at issue to which the plaintiffs object, it is irrelevant that the use of the contraceptives depends on the independent decisions of third parties. And even if this burden could be characterized as "indirect," the Supreme Court has indicated that indirectness is not a barrier to finding a substantial burden. Thomas, 450 U.S. at 718, 101 S.Ct. 1425.
Finally, the O'Brien court's statement that the RFRA "is not a means to force one's religious practices upon others," 894 F.Supp.2d at 1159, 2012 WL 4481208 at *6, is not relevant to whether a plaintiff's religious exercise is substantially burdened, but rather applies to the issue of whether the government's interest is sufficiently compelling to justify the substantial burdening of a plaintiff's religious exercise. The statutory language of the RFRA does not contain the limitation suggested in O'Brien, and this Court finds no justification to read such a limitation into the statute. Under the RFRA, substantially burdening a plaintiff's religious exercise is only justified if the law serves a compelling government interest and is the least restrictive means to accomplish that interest. 42 U.S.C. § 2000bb-1(b). Third party harm may rise to the level of a compelling
The holding in Mead v. Holder, 766 F.Supp.2d 16 (D.D.C.2011), aff'd, Seven-Sky v. Holder, 661 F.3d 1 (D.C.Cir.2011), does not change the Court's analysis either. The RFRA claim in Mead concerned the application of the ACA's individual coverage mandate to two plaintiffs who asserted a religious belief "that God will provide for [their] physical, spiritual, and financial well-being," 766 F.Supp.2d at 42 (citation omitted), and that the individual coverage mandate therefore "conflicts with their Christian faith because it requires them to perform an act that implies that they doubt God's ability to provide for their health," id. The Mead court held that the plaintiffs had failed to show that the individual mandate provision substantially burdened their religious exercise because the law provided the plaintiffs the option of making a shared responsibility payment in lieu of obtaining health insurance and therefore did not pressure them to violate their beliefs. Id. Further, the Mead court noted that the plaintiffs "routinely contribute to other forms of insurance, such as Medicare, Social Security, and unemployment taxes, which present the same conflict with their belief that God will provide for their medical and financial needs." Id.
The circumstances of this case are considerably different. Unlike the plaintiffs in Mead, the only alternative offered to the plaintiffs here is noncompliance with the contraceptive coverage mandate and its attendant risk of suit and enormous financial penalties. The availability of a reasonable alternative for the plaintiffs in Mead eliminated the pressure on them to violate their religious beliefs; the plaintiffs here have no such alternative, and therefore, the pressure to violate their religious beliefs remains undiminished. The Mead court's reasoning regarding the plaintiffs' contribution to programs such as Medicare and Social Security is irrelevant here. The objection raised in Mead to participation in a health insurance plan is implicated in the exact same manner with respect to the plaintiffs' participation in other social welfare programs that provide for their medical and financial needs, whereas the objection raised here to directly providing coverage of the contraceptives at issue is easily distinguished from generally contributing to federal programs that provide the contraceptives at issue. As discussed above, one of the reasons this Court declines to adopt the reasoning in O'Brien is that the burden placed on the plaintiffs here is considerably more direct because Tyndale's health plan is self-insured.
Moreover, the Supreme Court has cautioned courts to avoid parsing a plaintiff's religious beliefs for inconsistency, and this Court will heed that warning. See Thomas, 450 U.S. at 715-16, 101 S.Ct. 1425 (admonishing that "[c]ourts should not undertake to dissect religious beliefs"). In Thomas, the Supreme Court rejected an argument that the plaintiff's claimed objection to working in a facility that produced armaments was inconsistent with his prior work in the same facility producing sheet metal that may have been ultimately used in the production of armaments, stating "[w]e see ... that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one." Id. The plaintiffs here have similarly drawn a line. To hold that the plaintiffs' belief regarding direct coverage of the contraceptives at issue requires the plaintiffs to also object to contributing to federal programs that provide the same contraceptives is to engage in exactly the kind of impermissible interrogation of religious beliefs that the
The plaintiffs have therefore shown that the contraceptive coverage mandate substantially burdens their religious exercise. The Court will now consider whether the mandate can nevertheless be applied to the plaintiffs because it serves a compelling interest and is the least restrictive means to accomplish the government's interest.
If a plaintiff demonstrates a substantial burden on its religious exercise, the RFRA requires that the government then demonstrate that it has "a compelling governmental interest" justifying the burden. 42 U.S.C. § 2000bb-1(a), (b). At the preliminary injunction stage, as at trial, the burden is on the government to demonstrate a compelling interest. Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, 429, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006) (citing Ashcroft v. ACLU, 542 U.S. 656, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004)). "The statute makes clear that the term `demonstrates' means meets the burdens of going forward with the evidence and of persuasion." Potter v. District of Columbia, 558 F.3d 542, 546 (D.C.Cir.2009) (quoting 42 U.S.C. § 2000bb-2(3)) (quotation marks omitted).
The defendants claim that the government has two compelling interests regarding the application of the contraceptive coverage mandate. First, the defendants claim an interest in promoting public health, Defs.' Opp'n at 20-21, and this Circuit has recognized that the government "has a compelling interest in safeguarding the public health by regulating the health care and insurance markets," Mead, 766 F.Supp.2d at 43 (citing Olsen v. DEA, 878 F.2d 1458, 1462 (D.C.Cir. 1989)). Second, the defendants claim an interest in providing employed women with access to health care on par with employed men, Defs.' Opp'n at 21-22, and the Supreme Court has recognized the "importance, both to the individual and to society, of removing the barriers to economic advancement and political and social integration that have historically plagued certain disadvantaged groups, including women," Roberts v. United States Jaycees, 468 U.S. 609, 626, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). There is undoubtedly a compelling interest in "[a]ssuring women equal access to ... goods, privileges, and advantages" enjoyed by men. Id.
While the defendants have broad, compelling interests in both promoting public health and ensuring that women have equal access to health care, the question that this Court must answer under the RFRA here is whether the government has shown that the application of the contraceptive coverage mandate to the plaintiffs furthers those compelling interests. 42 U.S.C. § 2000bb-1(b)(1). That is, the defendants must show that requiring the plaintiffs to provide the contraceptives to which they object — Plan B, ella, and intrauterine devices (as well as education and counseling regarding the same) — will further the government's compelling interests in promoting public health and in providing women equal access to health care.
The defendants object to the Court limiting its focus to "the specific characteristics of Tyndale's work force and health plan." Defs.' Opp'n at 22. However, it is upon exactly those specific characteristics that the Court's RFRA analysis must turn. "[The] RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law `to the person' — the particular claimant whose sincere exercise of religion is being substantially burdened." O Centro, 546 U.S.
The defendants primarily rely on the Institute Report as the basis for demonstrating that requiring employers to provide contraceptives to their employees will further the government's stated interests. Defs.' Opp'n at 21 (citing the Institute Report for the proposition that "[i]ncreased access to contraceptive services is a key part of these predicted health outcomes, as a lack of contraceptive use has proven to have negative health consequences for both women and a developing fetus."). The Institute Report, in turn, broadly defines "[p]reventive services for women" as those "that prevent conditions harmful to women's health and well-being." Institute Report at 20. Among the conditions discussed in the Institute Report is "[u]nintended pregnancy[, which] is defined as a pregnancy that is either unwanted or mistimed at the time of conception." Id. at 102. The Institute Report goes on to discuss the health risks associated with unintended pregnancy, including the failure to seek prenatal care in a timely manner as a result of not being aware of the pregnancy and the lack of "motivat[ion] to discontinue behaviors that present risks for the developing fetus," as well as "depression, anxiety, or other conditions." Id. at 103. The Institute Report further points to "the increased risk of adverse pregnancy outcomes for pregnancies that are too closely spaced," id. at 103, as well as the risks that women with certain health conditions might face as a result of becoming pregnant, id. at 103-04. The preventive services prescribed in the Institute Report for unintended pregnancies "include contraception (i.e., all FDA-approved contraceptive drugs and devices, sterilization procedures) as well as patient education and counseling." Id. at 102. On the recommendation of the Institute, those same services are required to be provided under the contraceptive coverage mandate. 76 Fed.Reg. 46621-01.
Lacking from the Institute Report and from the defendants' brief is any proof that mandatory insurance coverage for the specific contraceptives to which the plaintiffs
The defendants point also to the government's interest in avoiding the potential harm that could "befall female employees (and covered spouses and dependents) who do not necessarily share their employer's religious beliefs." Defs.' Opp'n at 24. They argue that granting an exemption to the plaintiffs would effectively hoist the plaintiffs' religious beliefs above those of the plaintiffs' employees. Id. The plaintiffs, in response, point to the fact that "the government itself has voluntarily omitted 191 million people from the" contraceptive coverage mandate. Pls.' Mem. at 22. In particular, the contraceptive coverage mandate does not apply to grandfathered plans, 42 U.S.C. § 18011; 45 C.F.R. § 147.140, employers with fewer than 50 employees, 42 U.S.C. § 300gg-13(a); 76 Fed.Reg. at 46621-01 n. 1, "member[s] of a recognized religious sect or division thereof" who have religious objections to the concept of health insurance, 26 U.S.C. § 5000A(d)(2)(A), or religious employers, as defined above, 45 C.F.R. § 147.130(a)(1)(iv).
"[A] law cannot be regarded as protecting an interest of the highest order ...
In O Centro, the government sought to enforce the Controlled Substances Act, 21 U.S.C. § 801 (2006), as to an American branch of a Christian Spiritist Sect based in Brazil. 546 U.S. at 425, 126 S.Ct. 1211. The plaintiffs there "receiv[ed] communion through hoasca ..., a sacramental tea made from two plants unique to the Amazon region," one of which contained a substance regulated by the Controlled Substances Act. Id. The Controlled Substances Act, in turn, imposes "criminal sentence[s] for simple possession" of the substance, which the government conceded imposed a substantial burden on the plaintiffs' exercise of religion within the meaning of the RFRA. Id. at 425-26, 126 S.Ct. 1211. Applying the RFRA's compelling interest test, the Supreme Court held that "the Government failed to demonstrate, at the preliminary injunction stage, a compelling interest in barring the [plaintiffs'] sacramental use of hoasca." Id. at 439, 126 S.Ct. 1211. In so holding, the Supreme Court pointed to the broad exemption for the use of peyote — a drug which also contained a regulated, controlled substance — that the Act granted "for hundreds of thousands of Native Americans practicing their faith." Id. at 433, 126 S.Ct. 1211. The Court observed that "[e]verything the Government says about [the dangers of hoasca] ... applies in equal measure to... peyote, yet both the Executive and Congress itself have decreed an exception from the Controlled Substances Act for Native American religious use of peyote." Id. Thus, the Court concluded that the existence of an exemption for a similarly dangerous drug undermined the government's interest in prohibiting the plaintiffs from using hoasca. Id.
As outlined above, and as in O Centro, the defendants have already granted exemptions to other employers — either by way of an explicit "religious employer" exemption or another broad provision that functionally excludes other sets of employers from the scope of the contraceptive coverage mandate. Indeed, the 191 million employees excluded from the contraceptive coverage mandate include those covered by grandfathered plans alone. 75 Fed.Reg. 34538-01, 34,550 (June 17, 2010). The defendants have provided no information whatsoever about the number of employees excluded under the other exemptions or exclusions. From all indications, the government's findings (through the Institute Report) supporting its compelling interests in the promotion of public health and in equalizing women's access to health care "appl[y] in equal measure," O Centro, 546 U.S. at 433, 126 S.Ct. 1211, to both the large number of employers and employees falling outside, as well as to those, like the plaintiffs, falling within the contraceptive coverage mandate. The existence of these exemptions significantly undermines the defendants' interest in applying the contraceptive coverage mandate to the plaintiffs.
In sum, the plaintiffs have shown a strong likelihood of success on the merits of their RFRA claim.
It is well settled that "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). By extension, the same is true of rights afforded under the RFRA, which covers the same types of rights as those protected under the Free Exercise Clause of the First Amendment. See O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 995 (10th Cir.2004), aff'd, O Centro, 546 U.S. at 429, 126 S.Ct. 1211 (2006) ("[The plaintiff] would certainly suffer an irreparable harm, assuming of course that it is likely to succeed on the merits of its RFRA claim."). As outlined above, the plaintiffs have established a strong likelihood of success on the merits of their RFRA claim. Accordingly, the plaintiffs have adequately demonstrated that they will suffer irreparable harm absent the issuance of a preliminary injunction.
The defendants argue only that granting the plaintiffs' motion for a preliminary injunction "would undermine the government's ability to achieve Congress's goals of improving the health of women and children and equalizing the coverage of preventive services for women and men." Defs.' Opp'n at 43. The plaintiffs counter that granting them a preliminary injunction "will simply preserve the status quo between the parties." Pls.' Mem. at 44.
As discussed above, the defendants have not carried their burden of persuading the
The defendants point to the deprivation of preventive services to the 260 employees covered by the plaintiffs' health plan, as well as those employees' spouses and dependents, as harming the public interest. Defs.' Opp'n at 43. In so arguing, the defendants point to the purpose of the contraceptive coverage mandate, "which is to improve the health of women and children and promote gender equality by equalizing coverage of preventive services for women." Id. (citing 75 Fed.Reg. 41726-01, 41733 (July 19, 2010) and 77 Fed.Reg. 8725-01, 8728 (Feb. 15, 2012)). However, as discussed above, the defendants have failed to demonstrate a compelling interest in applying the contraceptive coverage mandate to the plaintiffs. They have thus also failed to show the harm to the public that they claim.
Although there is arguably a public interest in the uniform application of the ACA and the contraceptive coverage mandate, see, e.g., Allina Health Servs. v. Sebelius, 756 F.Supp.2d 61, 71 (D.D.C.2010) ("The public interest is served by the consistent and uniform application of regulations to similarly-situated parties"), there is undoubtedly also a public interest in ensuring that the rights secured under the First Amendment and, by extension, the RFRA, are protected, 42 U.S.C. § 2000bb(a) ("The Congress finds that ... the framers of the Constitution, recognizing free exercise of religion as an inalienable right, secured its protection in the First Amendment to the Constitution[.]"). Indeed, First Amendment rights are among the most precious rights guaranteed under the Constitution. Lee v. Weisman, 505 U.S. 577, 589, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992). Where, as here, the regulations at issue include exemptions and other provisions excluding a large number of people from the scope of the regulations, and the government has failed to show a compelling interest furthered by the enforcement of those regulations as to the plaintiffs in this case, the public has little interest in the "uniform application" of the regulations. The public interest instead weighs in favor of the plaintiffs.
For the reasons set forth above, the plaintiffs' motion for a preliminary injunction is granted.
