Oregon Right To Life v. Stolfi

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

OREGON RIGHT TO LIFE, Civ. No. 6:23-cv-01282-MK

Plaintiff, OPINION & ORDER

v.

ANDREW R. STOLFI, in his official

capacities as Department of Consumer

and Business Services Director and

Oregon Insurance Commissioner,

Defendant.

_______________________________________

AIKEN, District Judge.

This case comes before the Court on Plaintiff’s Motion to Consolidate, ECF No.

13, and Plaintiff’s Motion for Preliminary Injunction. ECF No. 11. For the reasons

set forth below, the Motion to Consolidate is DENIED and the Motion for Preliminary

Injunction is DENIED.

LEGAL STANDARDS

A preliminary injunction is an “extraordinary remedy that may only be

awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v.

Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). A plaintiff seeking a preliminary

injunction must show (1) that he or she is likely to succeed on the merits; (2) he or

she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the

balance of the equities tips in his or her favor; and (4) an injunction is in the public

interest. Id. at 20.

In the Ninth Circuit, courts may apply an alternative “serious questions” test

which allows for a preliminary injunction where a plaintiff shows that “serious

questions going to the merits” were raised and the balance of hardships tips sharply

in plaintiff’s favor, assuming the other two elements of the Winter test are met.

Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). This

formulation applies a sliding scale approach where a stronger showing on one

element may offset a weaker showing in another element. Id. at 1131. Nevertheless,

the party requesting a preliminary injunction must carry its burden of persuasion by

a “clear showing” of the four elements set forth above. Lopez v. Brewer, 680 F.3d

1068, 1072 (9th Cir. 2012).

“Due to the urgency of obtaining a preliminary injunction at a point when there

has been limited factual development, the rules of evidence do not apply strictly to

preliminary injunction proceedings.” Herb Reed Enters., LLC v. Fla. Entm’t Mgmt.,

Inc., 736 F.3d 1239, 1250 n.5 (9th Cir. 2013).

BACKGROUND

I. Reproductive Health Equity Act

In 2017, the Oregon legislature enacted the Reproductive Health Equity Act

(“RHEA”), codified in relevant part in ORS 743A.067. As relevant to the present

motion, the RHEA provides: “A health benefit plan in this state must provide

coverage for all of the following services, drugs, devices, products and procedures: . .

. (g) Abortion. . . . (j) Any contraceptive drug, device or product approved by the United

States Food and Drug Administration[.]” ORS 743A.067(2).

The RHEA also provides that “[a] health benefit plan may not impose on an

enrollee a deductible, coinsurance, copayment or any other cost-sharing requirement

on the coverage required by this section.” ORS 743A.067(3). In addition, “[e]xcept as

authorized under this section, a health benefit plan may not impose any restrictions

or delays on the coverage required by this section.” ORS 743A.067(4). “A health

benefit plan may not infringe upon an enrollee’s choice of contraceptive drug, device

or product and may not require prior authorization, step therapy or other utilization

review techniques for medically appropriate covered contraceptive drugs, devices or

other products approved by the United States Food and Drug Administration.” ORS

743A.067(2)(j)(D).

There are certain exceptions to the insurance coverage requirement under the

RHEA. First, “[t]his section does not require a health plan to cover: . . . Abortion if

the insurer offering the health plan: (A) Has a certificate of authority to transact

insurance in this state issued by the Department of Consumer and Business Services;

and (B) Excluded coverage for abortion in all of its individual, small employer and

large employer group plans during the 2017 plan year.” ORS 743A.067(7)(e). This is

known as the “legacy clause” or “grandfather clause.” Providence Health Plans is

“the only known entity that fits that exemption.” Compl. ¶ 41.

Next, the RHEA provides that “[a]n insurer may offer to a religious employer

a health benefit plan that does not include coverage for contraceptives or abortion

procedures that are contrary to the religious employer’s religious tenets only if the

insurer notifies in writing all employees who may be enrolled in the health benefit

plan of the contraceptives and procedures the employer refuses to cover for religious

reasons.” ORS 743A.067(9). “Religious employer” is defined as an employer “(a)

Whose purpose is the inculcation of religious values; (b) That primarily employs

persons who share the religious tenets of the employer; (c) That primarily serves

persons who share the religious tenets of the employer; and (d) That is a nonprofit

section 6033(a)(3)(A)(i) [“churches, their integrated auxiliaries, and conventions or

associations of churches,”] or (iii) [“the exclusively religious activities of any religious

order,”] of the Internal Revenue Code.” ORS 743A.066(4); ORS 743A.067(1)(e). This

is the “religious employer exception.”

Finally, the RHEA includes a “federal funding exception.” This exception

provides that “[i]f the Department of Consumer and Business Services concludes that

enforcement of this section may adversely affect the allocation of federal funds to the

state, the department may grant an exemption to the requirements but only to the

minimum extent necessary to ensure the continued receipt of federal funds.” ORS

743A.067(10).

The Director of the Oregon Department of Consumer and Business Services

(“DCBS”) is empowered to enforce the RHEA’s insurance coverage requirements

through civil penalties. ORS 731.988. Defendant Andrew Stolfi is the current

Director of DCBS. Compl. ¶ 16.

II. Oregon Right to Life

Plaintiff Oregon Right to Life (“ORTL”) “is an Oregon non-stock corporation

with its principal place of business in Keizer, Oregon.” Compl. ¶ 14. Plaintiff “is

organized and operates as a nonprofit membership organization.” Id. Plaintiff “was

formed in 1970 to proclaim and advocate for the inherent dignity of human life and

to promote respect and protection for human life regardless or race, sex, age, or stage

of development.” Id.

Plaintiff has over 25,000 members. Compl. ¶ 14. “Members join due to

agreement with ORTL’s prolife principles and provide at least modest financial

support.” Id. at ¶ 21. Plaintiff is controlled by a Board of Directors, two of whom are

elected by the membership of the organization. Id. at ¶¶ 20-21.

Plaintiff currently has ten full time employees. Compl. ¶ 25. Of those

employees, eight are currently enrolled in a health plan provided by Plaintiff. Id. at

¶ 39. Plaintiff has provided health coverage through Providence Health Plans since

2015 and that plan excludes coverage for abortions. Id. at ¶ 40. Providence Health

Plan is covered by the “legacy clause” to the RHEA and so is not required to provide

abortion coverage under the RHEA. Jones Decl. Ex. 1. ECF No. 28. Plaintiff’s

present Providence Health Plan “plan excludes abortion coverage unless there is a

severe threat to the mother, or if the life of the fetus cannot be sustained,” but does

not exclude contraceptive coverage. Compl. ¶ 42 (internal quotation marks omitted).

Plaintiff maintains that life begins at fertilization. Compl. ¶ 31. Plaintiff takes

no position on forms of contraception that prevent the combination of egg and sperm

cells but is opposed to contraception that prevents implantation of a fertilized egg and

views such forms of contraception as abortifacients. Id. at ¶¶ 31-32. Although

Plaintiff’s health plan is not required to provide coverage for abortions under the

legacy clause of the RHEA, “[t]hat excemption doesn’t address contraceptive

coverage.” Id. at ¶ 41 (emphasis in original). In addition, Plaintiff objects the

Providence Health Plans provides coverage for abortions “beyond imminent danger

to the mother’s life.” Id. at ¶ 44.

Plaintiff asserts that Providence Health Plans has become unsuitable for a

number of reasons, only some of which are related to abortion and contraceptive

coverage. Compl. ¶¶ 43-44. Plaintiff and its employees “want a traditional health

benefit plan” and so alternatives such as “faith-based medical-cost-sharing groups

and direct primary-care alternatives” are “unsuitable.” Id. at ¶ 45.

Plaintiff has not sought an exception as a “religious employer” because it does

not believe that it would qualify under the statutory definition. Compl. ¶ 46. Plaintiff

has sought an exemption under the federal funding exception and “did so under the

Weldon Amendment (a federal-funds conscience provision), based on a now-defunct

Trump administration interpretation of its provisions.” Id. at ¶ 48. Plaintiff was not

successful in seeking a federal funding exception. Id.

DISCUSSION

In their Complaint, Plaintiff brings an as-applied challenge to the RHEA, ORS

743A.067(2) under the Free Exercise Clause of the First Amendment. Compl. ¶ 1.

Plaintiff objects on religious grounds to the requirement that it provide insurance

coverage in its health-benefit plan for “abortion (except to save the mother’s life)” and

“contraceptives that act as abortifacients.” Id. at ¶ 8. Plaintiff does not qualify as a

“religious employer” under the RHEA because “its purpose is prolife advocacy, not

inculcating religious values, and it doesn’t primarily serve persons sharing its

religious tenets.” Id. However, Plaintiff asserts that its objections to abortion and

contraception are religious in nature and seeks to be treated as a religious employer

for purposes of the RHEA.

Defendant opposes the injunction on the basis that (1) Plaintiff’s opposition to

abortion and contraception is a not a religious belief and (2) that the RHEA is a

neutral and generally applicable law that passes rational basis review.

I. Consolidation

As a preliminary matter, the Court must address Plaintiff’s motion to

consolidate consideration of its motion for preliminary injunction with a decision on

the merits of the case. The Federal Rules of Civil Procedure provide that:

Before or after beginning the hearing on a motion for preliminary

injunction, the court may advance the trial on the merits and consolidate

it with the hearing. Even when consolidation is not ordered, evidence

that is received on the motion and that would be admissible at trial

becomes part of the trial record and need not be repeated at trial. But

the court must preserve any party’s right to a jury trial.

Fed. R. Civ. P. 65(a)(2).

“The decision about whether to consolidate is discretionary, as the rule simply

states that the court ‘may’ advance and consolidate a trial on the merits.” Human

Life of Wash., Inc. v. Brumsickle, Case No. C08-0590-JCC, 2008 WL 11506796, at *2

(W.D. Wash. May 15, 2008).

Here, the Court declines to consolidate its determination on the motion for

preliminary injunction with a decision on the merits. Plaintiff’s motion to consolidate

is DENIED.

II. Likelihood of Success on the Merits

To prevail on a motion for preliminary injunction, a plaintiff must show either

a likelihood of eventual success on the merits or, under the Ninth Circuit’s alternative

“sliding scale” formulation of the test, serious questions going to the merits of their

claims. Winter, 555 U.S. at 20; Alliance for the Wild Rockies, 632 F.3d 1131-32.

However, a court’s decision on a motion for preliminary injunction is not a ruling on

the merits of the claim. Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415,

1422 (9th Cir. 1984).

As noted, Plaintiff brings an as-applied challenge to the RHEA mandate as

violative of Plaintiff’s free exercise rights. The Free Exercise Clause of the First

Amendment provides that “Congress shall make no law . . . prohibiting the free

exercise” of religion. U.S. Const. amend 1. To avoid strict scrutiny, laws that burden

religious exercise must be both neutral and generally applicable. Church of Lukumi

Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993). Nor may the

government “act in a manner that passes judgment upon or presupposes the

illegitimacy of religious beliefs and practices.” Masterpiece Cakeshop, Ltd. v.

Colorado Civil Rights Comm’n, 584 U.S. 617, 638 (2018).

A. Religious Beliefs

Plaintiff alleges in the Complaint that its opposition to the RHEA mandate is

based on its “Judeo-Christian religious beliefs” and Biblical commands. Compl. ¶ 34.

Defendant asserts that Plaintiff’s opposition to abortion is not a religious belief.

It is well-established that courts do not determine truth or falsity in matters

of faith, but courts are still called upon to “determined as a threshold matter whether

[a plaintiff’s] beliefs are within the ambit of the First Amendment.” United States v.

Ward, 989 F.2d 1015, 1017 (9th Cir. 1992). To fall within the bounds of the Free

Exercise Clause, a plaintiff’s claims “‘must be rooted in religious belief.’” Id. (quoting

Wisconsin v. Yoder, 406 U.S. 205, 215 (1972)); see also Thomas v. Review Bd. of

Indiana Emp. Sec. Div., 450 U.S. 707, 713 (1981) (“Only beliefs rooted in religion are

protected by the Free Exercise Clause, which, by its terms, gives special protection to

the exercise of religion.”). In making that determination, “the task is to decide

whether the beliefs professed are sincerely held and whether they are, in [the

plaintiff’s] own scheme of things, religious.” Ward, 989 F.2d at 1018 (internal

quotation marks and citations omitted, alterations normalized). Religious beliefs

“need not be acceptable, logical, consistent, or comprehensible to others in order to

merit First Amendment protections.” Thomas, 450 U.S. at 714. However, a “purely

secular philosophical concern” is not protected by the Free Exercise Clause. Ward,

989 F.2d at 1018 (internal quotation marks and citation omitted). “Although a

determination of what is a ‘religious’ belief or practice entitled to constitutional

protection may present a most delicate question, the very concept of ordered liberty

precludes allowing every person to make his own standards on matters of conduct in

which society as a whole has important interests.” Yoder, 406 U.S. at 215-16.

Here, as noted, Plaintiff asserts that the RHEA mandate requiring health

benefit plans to cover abortion and certain forms of contraception violates its religious

beliefs. While the Court does not weigh the truth or falsity of those beliefs, it must

determine first whether the beliefs are sincerely held by Plaintiff and whether they

are, in fact, religious. Defendant challenges both assertions.

Plaintiff’s articles of incorporation provide that its directors, who control the

organization, must subscribe to the “specific purposes” of the organization, “as

contained in the subparagraphs of paragraph 6.2” and to the following “personal life

perspectives”:

a. That the life of all innocent human beings is the first good and

fundamental to all other human goods. The right to this life is first

and fundamental of all human rights.

b. That the termination of an innocent human life at any stage from

fertilization to natural death is never an acceptable or just “solution”

to social problems.

Jones Decl. Ex. 2, at 3. ECF No. 28-2.

The purposes of ORTL are set out in Article 6 of the organization’s articles of

incorporation:

6.1 The corporation is organized to engage in lawful activity permitted

under Oregon and federal law.

6.2 Among its purposes are the following:

6.2.1 Proclaiming the inherent dignity of human life and

promoting respect and protection for human life in all of its stages

regardless of the race, sex, age, development, or level of

dependence of that human life;

6.2.2 Advocating and lobbying for the most vulnerable innocent

human beings, from the moment of their conception, where their

right to life is denied, abridged, or threatened by local, state or

federal law;

6.2.3 Opposing abortion, assisted suicide, euthanasia, infanticide,

and life-destroying research.

6.3 The purposes of the corporation shall be carried out with integrity

and nonviolence, and by means consistent with traditional Judeo-

Christian ethics.

Jones Decl. Ex. 2, at 4.

In her deposition, ORTL Executive Director Lois Catherine Anderson testified

that directors, officers, board members, and employees were not required to subscribe

to any beliefs beyond the organization’s mission and policy positions. Jones Decl. Ex.

4, at 13. There are no religious requirements to be an employee, director, officer, or

member of ORTL. Id. There are no requirements to becoming a member of the

organization, other than paying $5 to join. Id. at 14.

In her deposition, Director Anderson was asked the following:

Q: Outside of this litigation, when has Oregon Right to Life referred to

its opposition to abortion as a religious belief?

A: I don’t know.

Jones Decl. Ex. 4, at 22.

These facts distinguish Plaintiff from the corporations that have been found to

exercise religion in their own right. In Burwell v. Hobby Lobby Stores, Inc., 573 U.S.

682 (2014), the Supreme Court considered RFRA1 claims brought by corporate

entities. One of those entities, Conestoga Wood Specialties, was solely owned by the

founding family, the Hahns, as a closely held business with members of the family

controlling the board of directors and holding all the voting shares of the business.

Id. at 700-01. The board adopted an explicitly religious statement holding that it

would be a “sin against God to which they would be held accountable” for the company

to be involved in the termination of a pregnancy. Id. The other company involved in

the case, Hobby Lobby, was also closely held, with members of the founding family,

the Greens, retaining exclusive control of the company and members of the family

serving as the corporation’s principal officers. Id. at 702-03. Like Conestoga, Hobby

Lobby also adopted explicitly religious resolutions, such as a statement of purpose

committing them to “[h]onoring the Lord in all [they] do by operating the company in

a manner consistent with Biblical principles.” Id. “Each member of the family has

signed a pledge to run the business in accordance with the family’s religious beliefs

and to use the family assets to support Christian ministries.” Id. In a Ninth Circuit

case concerning the corporate exercise of religion, the corporation in question was

also a closely held family-owned business “whose shareholders and directors are

made up entirely of members of the Stormans family” and the religious objection to

contraception was shared by all members of the family. Stormans, Inc. v. Selecky,

586 F.3d 1109, 1120 (9th Cir. 2009).

1 Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.

Here, by contrast, Plaintiff is not affiliated with any religious practice or

institution and does not have any religious requirement for being an employee or

director. The “specific purpose” and “personal life perspectives” that Plaintiff’s

directors are required to subscribe to is free of any religious elements, requiring only

that they subscribe to a belief in the importance of human life and oppose abortion,

euthanasia, assisted suicide, and “life-destroying research.” As noted, Plaintiff has

over 25,000 members, who are not required to subscribe to any religious belief and

are responsible for electing two members of Plaintiff’s board of directors. Other than

a fleeting reference to “Judeo-Christian ethics,” there is nothing in the articles of

incorporation that would suggest any religious element in Plaintiff’s organization.2

There are many reasons why an individual or entity might oppose abortion and

contraception, which range from deeply held religious conviction to the purely

philosophical. Plaintiff asserts in this litigation that its reasons, as an organization,

are religious, but that assertion is not fully supported by the record. It is not

necessary for the Court, at this early stage of the case, to conclusively resolve whether

Plaintiff’s beliefs are, in Plaintiff’s own scheme of things, religious. But the Court’s

review of Plaintiff’s organizational documents and requirements for membership,

employment, and leadership cast doubt on whether Plaintiff’s opposition is genuinely

2 Of note, Plaintiff’s articles of incorporation state: “The purposes of the corporation shall be

carried out with integrity and nonviolence, and by means consistent with traditional Judeo-

Christian ethics.” Jones Decl. Ex. 2, at 4. This states that the purposes of the corporation

shall be “carried out” by means consistent with Judeo-Christian ethics but does not state that

the purposes themselves are necessarily derived from Judeo-Christian beliefs or any other

religious beliefs. In addition, the reference to Judeo-Christian ethics is contained in paragraph

6.3, while paragraph 4.3 only requires that the directors subscribe to paragraph 6.2, which

contains no reference to Judeo-Christian ethics.

religious in nature. This doubt undermines Plaintiff’s showing of likely success on

the merits.

Defendant also challenges whether Plaintiff actually holds the beliefs

professed in the Complaint. As noted, a major aspect of Plaintiff’s objection the RHEA

mandate is the provision of certain forms of contraception. Plaintiff has maintained

a health benefit plan through Providence Health Plans since 2015, years prior to the

passage of the RHEA, and now objects that Providence Health Plans is not acceptable

to them because it covers challenged forms of contraception. The fact that Plaintiff

maintained benefits through Providence Health Plans prior to the passage of the

RHEA, despite its provisions concerning contraception, likewise casts doubt on

Plaintiff’s claim.

B. Rational Basis Review

One of the core disputes in this case is whether the RHEA should be subject to

strict scrutiny as a statute that burdens the practice of religion or whether it is

entitled to rational basis review as a neutral and generally applicable law. See

Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1084 (9th Cir. 2015) (stating that when a

law is neutral and generally applicable it is reviewed for a rational basis).

“Government fails to act neutrally when it proceeds in a manner intolerant of

religious beliefs or restricts practices because of their religious nature.” Fulton v.

City of Philadelphia, 593 U.S. 522, 533 (2021). As for general applicability, “[a] law

is not generally applicable if it invites the government to consider the particular

reasons for a person’s conduct by providing a mechanism for individualized

exemptions.” Id. (internal quotation marks and citation omitted, alterations

normalized). “A law also lacks general applicability if it prohibits religious conduct

while permitting conduct that undermines the government’s asserted interests in a

similar way.” Id. at 534. The application of rational basis review in free exercise

cases has recently been clarified by the Ninth Circuit, which set forth three factors

for courts to consider:

Distilled, Supreme Court authority sets forth three bedrock

requirements of the Free Exercise Clause that the government may not

transgress, absent a showing that satisfies strict scrutiny. [1] First, a

purportedly neutral “generally applicable” policy may not have a

mechanism for individualized exemptions. [2] Second, the government

may not treat comparable secular activity more favorably than religious

exercise. [3] Third, the government may not act in a manner hostile to

religious beliefs or inconsistent with the Free Exercise Clause’s bar on

even subtle departures from neutrality. The failure to meet any one of

these requirements subjects a governmental regulation to review under

strict scrutiny.

Fellowship of Christian Athletes v. San Jose Unified School Dist., 82 F.4th 664, 686

(9th Cir. 2023) (“FCA”) (internal quotation marks and citations omitted, alterations

normalized).

Here, the RHEA does not have a mechanism for individualized exemptions.

The federal funding exemption is only implicated if the state is threatened with the

loss of federal funding and variance is permitted only so far as is required by the

federal government. This is not an exception that invites or permits the state to grant

individualized exceptions, nor does it invite the state to consider the particular

reasons for a person’s conduct. On its face, it only permits exceptions to maintain

federal funding. This contrasts with the “good cause” standard for exemptions

considered in Sherbert v. Verner, 374 U.S. 398 (1963) and discussed in Fulton as an

example of individualized exemptions that rendered a law not “generally applicable.”

Fulton, 593 U.S. at 534. The “good cause” standard “permitted the government to

grant exemptions based on the circumstances underlying each application.” Id. The

discretion conveyed by the provision challenged in Fulton itself was even more

obvious, as it allowed an exception to be granted in the “sole discretion” of the

responsible official. Id. at 535. The federal funding exception to the RHEA does no

such thing, but only permits exceptions to the degree necessary to ensure that the

state remains in compliance with the requirements of federal funding.3 This does not

confer discretion to make individualized determinations.

The RHEA does not treat comparable secular activity more favorably than

religious exercise. In Fulton, the Supreme Court held that “[a] law lacks general

applicability if it prohibits religious conduct while permitting secular conduct that

undermines the government’s asserted interests in a similar way.” Fulton, 593 U.S.

at 534; see also Stormans, Inc., 794 F.3d at 1079 (“A law is not generally applicable if

its prohibitions substantially underinclude non-religiously motivated conduct that

might endanger the same governmental interest that the law is designed to protect.”).

In the case of the RHEA, there are two health plans that qualified under the “legacy

exception” to the statute’s mandate. Jones Decl. Ex. 1, at 1. Providence Health Plans,

one of the excepted plans, is a “faith-based non-profit health system” that advocated

3 Plaintiff acknowledges as much in its Complaint: “ORTL has not sought an exemption under a

good-cause exemption mechanism . . . since Oregon lacks such a good cause exemption authority,

making any such ORTL exemption request futile.” Compl. ¶ 47.

for “conscience clause for religious-sponsored insurers” prior to the passage of the

RHEA. Compl. ¶¶ 50-51. The record before the Court indicates that the purpose of

the legacy exception was to accommodate existing restrictions based on religious

objections. This is rather the opposite of privileging secular activity that undermines

the purpose of the statute.

As to the third factor discussed in FCA, the RHEA is not hostile to religious

beliefs. The Ninth Circuit has a multi-factor analysis for neutrality focused on (1)

whether “the purpose of the law is to restrict practices because of the religious

motivation of those performing the practice,”; (2) whether law is “neutral on its face,”;

(3) whether the “circumstances surrounding the enactment” of the law “undermine

its facial neutrality,”; (4) and whether the law “effectively accomplished a ‘religious

gerrymander’ targeting the petitioner’s religious exercise.” Tingley v. Ferguson, 47

F.4th 1055, 1085-88 (9th Cir. 2022). Here, there is nothing in the purposes of the law

or on the face of the law that evidences a hostility to religion, nor do the circumstances

of the enactment of the law undermine its facial neutrality. The exceptions built into

the RHEA are favorable to religious objectors, with one of the three express

exceptions made specifically for religious employers. As noted, the legacy exception

relieved plans that existed before 2017 from the necessity of complying with the

RHEA and the primary beneficiary of that exception, Providence Health Plans, does

not cover abortions because of its religious objections. Far from demonstrating

hostility to religious beliefs, the structure of the RHEA indicates the legislature’s

desire to accommodate religious beliefs without creating a system of individualized

exceptions that would render the statute not generally applicable.

In sum, the Court concludes that the RHEA is neutral and generally

applicable. As a result, rational basis review will apply. “Under rational basis

review, [courts] must uphold the rules if they are rationally related to a legitimate

governmental purpose,” and a plaintiff has “the burden to negate every conceivable

basis which might support the rules.” Stormans, Inc., 794 F.3d at 1084 (internal

quotation marks and citation omitted, alterations normalized).

Here, the stated purpose the RHEA is to “ensure[ ] that Oregonians have access

to comprehensive reproductive heath care regardless of their income, citizenship or

immigration status, gender identity, or insurance coverage.” Jones Decl. Ex. 9, at 5.

The Court has no trouble concluding that this is a legitimate governmental purpose

and that the challenged RHEA provisions are rationally related to advancing that

interest. The RHEA passes rational review.

The Court concludes that Plaintiff has failed to demonstrate a likelihood of

success on the merits of its claims, or serious questions going to the merits of its

claims. This Winter factor weighs against the issuance of an injunction.

III. Irreparable Harm

In order to satisfy the standard for a preliminary injunction, a party must show

that “the applicant is likely to suffer irreparable harm before a decision on the merits

can be rendered.” Winter, 555 U.S. at 22 (internal quotation marks and citation

omitted). The Ninth Circuit has held that “an alleged constitutional infringement

will often alone constitute irreparable harm,” but that, in such cases, the plaintiff

must still establish “a sufficient likelihood of success on the merits of its

constitutional claims to warrant the grant of a preliminary injunction.” Associated

Gen. Contractors of Cal., Inc. v. Coal. for Econ. Equity, 950 F.2d 1401, 1412 (9th Cir.

1991) (internal quotation marks and citation omitted, alterations normalized). Here,

the Court has concluded that Plaintiff has not made the required showing of likely

success on the merits and so the Court concludes that they have not made a sufficient

showing of irreparable harm. This Winter factor weighs against the requested

injunction.

IV. Balance of the Equities and the Public Interest

Under the “balance of the equities” analysis, a court must “balance the

competing claims of injury” and “consider the effect on each party of the granting or

withholding of the requested relief.” Winter, 555 U.S. at 24 (internal quotation marks

and citation omitted). The public interest inquiry, by contrast, “primarily addresses

impact on non-parties rather than parties.” League of Wilderness Defs./Blue

Mountains Biodiversity Project v. Connaughton, 752 F.3d 755, 766 (9th Cir. 2014).

When the government is a party, these last two factors of the preliminary injunction

analysis will merge. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir.

2014).

Here, Plaintiff asserts that it will be harmed if it is required to comply with

the requirements of the RHEA and that some of its directors and members might

disassociate from it. This argument is undermined by the fact that Plaintiff

maintained a health benefit plan from Providence Health Plans, which included

contraceptive coverage, for years prior to the passage of the RHEA and continued to

maintain it in the years since the passage of the RHEA.

On the other hand, the Ninth Circuit has held that “it is clear that a state

suffers irreparable injury whenever an enactment of its people or their

representatives is enjoined.” Coal. for Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th

Cir. 1997); see also Video Gaming Techs., Inc. v. Bureau of Gambling Control, 356

Fed. App’x 89, 92 (9th Cir. 2009) (holding same). The Court concludes that the

balance of the equities and the public interest weigh against the requested injunction.

In sum, the Court concludes that all four Winter factors weigh against the

extraordinary remedy of an injunction and so Plaintiff’s motion will be DENIED.

CONCLUSION

For the reasons set forth above, Plaintiff’s Motion to Consolidate, ECF No. 13,

is DENIED and Plaintiff’s Motion for Preliminary Injunction, ECF No. 11 is

DENIED.

It is so ORDERED and DATED this 30th day of September 2024.

/s/Ann Aiken

ANN AIKEN

United States District Judge