Roman Catholic Archbishop of Washington v. Sebelius

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

ROMAN CATHOLIC ARCHBISHOP )

OF WASHINGTON, et al., )

)

Plaintiffs, )

)

v. ) Civil Action No. 13-1441 (ABJ)

)

KATHLEEN SEBELIUS, Secretary, U.S. )

Department of Health and Human )

Services, et al., )

)

Defendants. )

____________________________________)

MEMORANDUM OPINION

This case concerns the requirements imposed on certain employers under the Affordable

Care Act to offer healthcare plans to their employees that provide cost-free coverage for

contraceptive services. Plaintiffs the Roman Catholic Archbishop of Washington (“the

Archdiocese”), the Consortium of Catholic Academies of the Archdiocese of Washington, Inc.,

Archbishop Carroll High School, Inc., Don Bosco Cristo Rey High School of the Archdiocese of

Washington, Inc., Mary of Nazareth Roman Catholic Elementary School, Inc., Catholic Charities

of the Archdiocese of Washington, Inc., Victory Housing, Inc., the Catholic Information Center,

Inc., Catholic University of America, and Thomas Aquinas College have filed this case against

defendants Kathleen Sebelius, the Secretary of Health and Human Services; Thomas Perez, the

Secretary of Labor; Jacob Lew, the Secretary of the Treasury; the U.S. Department of Health

and Human Services; the U.S. Department of Labor; and the U.S. Department of the Treasury.

In their complaint, plaintiffs allege that the contraceptive mandate violates the Religious

Freedom Restoration Act (“RFRA”) as applied to them, as well as the Free Exercise Clause, the

Free Speech Clause, and the Establishment Clause of the First Amendment to the U.S.

Constitution. Compl. ¶¶ 237–312 [Dkt. # 1]. They also assert that defendants violated the

Administrative Procedure Act and advanced an erroneous interpretation of the religious

employer exemption to the mandate when they adopted the contraceptive mandate in its final

form. Id. ¶¶ 313–39.

Plaintiffs filed a motion for preliminary injunction in light of the impending January 1,

2014 contraceptive mandate enforcement date. Pls.’ Mot. for Prelim. Inj. [Dkt. # 6]. Pursuant to

Federal Rule of Civil Procedure 65(a)(2), this Court consolidated the motion with the merits on

September 26, 2013. Defendants filed a motion to dismiss the complaint pursuant to Federal

Rule of Civil Procedure 12(b)(6) and to dismiss plaintiffs’ Establishment Clause count under

Federal Rule of Civil Procedure 12(b)(1). Defs.’ Mot. to Dismiss or, in the alt., for Summ. J.

(“Defs.’ Mot.”) [Dkt. # 26]; Defs.’ Mem. in Supp. of Mot. to Dismiss or, in the alt., for Summ. J.

(“Defs.’ Mem.”) [Dkt. # 26-1]. They also moved, in the alternative, for summary judgment

under Federal Rule of Civil Procedure 56. Defs.’ Mot. at 1; Defs.’ Mem. at 9. Plaintiffs then

filed a cross-motion for summary judgment. Pls.’ Opp. & Cross-Mot. for Summ. J. (“Pls.’ Opp.

& Cross-Mot.”) [Dkt. # 27-1]. The case has been fully briefed, and the Court held oral argument

on November 22, 2013.

For the reasons stated below, the Court will grant defendants’ motion for summary

judgment with respect to Catholic University’s RFRA claim in Count I, and all of the plaintiffs’

Free Exercise claims in Count II, compelled speech claims in Count III, denominational

preference claims in Count V, internal church governance claims in Count VI, and APA contrary

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to law claims in Count VII. 1 The Court will also grant defendants’ motion to dismiss the RFRA

claims in Count I that are advanced by those plaintiffs who are covered under the Archdiocese’s

healthcare plan, and all of the plaintiffs’ Establishment Clause challenges to the IRS factors in

Count V and APA erroneous interpretation claims in Count VIII for lack of jurisdiction pursuant

to Federal Rule of Civil Procedure 12(b)(1). Finally, the Court will grant Thomas Aquinas

College’s cross-motion for summary judgment on its RFRA claim in Count I, and all of the

plaintiffs’ cross-motions for summary judgment on their Free Speech claims asserted in Count

IV.

Plaintiffs allege that the contraceptive mandate burdens their religious exercise because it

requires them “to provide, pay for, and/or facilitate access to abortion-inducing products,

contraception, sterilization procedures, and related counseling, in a manner that is directly

contrary to their religious beliefs.” Compl. ¶ 241. This is practically identical to the claim that

the Archdiocese and four of the other plaintiffs advanced in the suit they filed in this Court in

May of 2012. See Roman Catholic Archbishop of Washington v. Sebelius, No. 12-0815, Compl.

¶ 181 [Dkt. # 1] (“The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or

facilitate practices and speech that are contrary to their religious beliefs.”). Plaintiffs’ religious

beliefs remain the same, but in the interim, the law has changed. Defendants have created an

accommodation for the specific purpose of alleviating the burden that the mandate imposes on

religious organizations that are not entirely exempt. And in the case of all but one of the

plaintiffs – the self-insured Thomas Aquinas College – the Court finds that the law no longer

1 Although defendants’ motion is styled as a motion to dismiss, or in the alternative, for

summary judgment, the Court will decide those claims for which it has jurisdiction under the

summary judgment standard because plaintiffs have alleged enough facts to satisfy Iqbal’s and

Twombly’s pleading requirements. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v.

Twombly, 550 U.S. 544 (2007).

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requires plaintiffs to provide, pay for, or facilitate access to contraception. Thus, it does not

require plaintiffs to “modify [their] behavior and to violate [their] beliefs,” as the Supreme Court

defined an unacceptable burden more than thirty years ago in Thomas v. Review Board of

Indiana Employment Security Division, 450 U.S. 707, 718 (1981), or to “meaningfully approve

and endorse the inclusion of contraceptive coverage” in their plans, as the D.C. Circuit described

the burden in the context of the mandate without the accommodation just last month. Gilardi v.

U.S. Dep’t of Health & Human Servs., 733 F.3d 1208, 1217 (2013).

Religious organizations like Catholic University – that offer health insurance to their

employees through an insured group plan – may avail themselves of the accommodation simply

by memorializing their objection to the mandate in writing. The insurer is obligated under the

rules to exclude the coverage from the University’s plan and to provide and pay for the coverage

itself, and therefore, as the Court explains in detail below, Catholic University has no grounds for

a RFRA claim. Plaintiffs contend that the act of self-certifying – an act that consists of nothing

more than plaintiffs’ reiteration of their already public objection to participation in the

requirements of the mandate – is a substantial burden on the exercise of their religion in and of

itself. But that argument so blurs the demarcation between what RFRA prohibits – that is,

governmental pressure to modify one’s own behavior in a way that would violate one’s own

beliefs – and what would be an impermissible effort to require others to conduct their affairs in

conformance with plaintiffs’ beliefs, that it obscures the distinction entirely. RFRA was enacted

to shield religious adherents from governmental interference with their own religious exercise

and to protect them from being required to perform odious acts themselves. Plaintiffs articulate

this distinction clearly: “Plaintiffs simply invoke RFRA to vindicate the principle that the

Government may not force them, in their own conduct, to take actions that violate their religious

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conscience.” Pls.’ Mem. in Supp. of Mot. for Prelim. Inj. (“Pls.’ Mot.”) at 20 [Dkt # 6-1]. Since

the rules that apply in the insured group plan context do not involve that compulsion, they

survive the RFRA challenge. RFRA is not a mechanism to advance a generalized objection to a

governmental policy choice, even if it is one sincerely based upon religion.

But Thomas Aquinas College is covered by the set of regulations directed towards

religious organizations that are self-insured, and unlike all of the other plaintiffs with self-insured

plans, Thomas Aquinas College does not offer its employees coverage through a plan offered by

the church, which cannot be compelled to comply with the mandate. In the case of a self-insured

entity like Thomas Aquinas, the newly enacted regulations fall short of the mark. Since the

accommodation imposes a duty upon the religious organization to contract with a willing third-

party administrator that will arrange for the payments for contraceptives, they compel the

organization to take affirmative steps – to do something – that is in conflict with the tenets of its

faith. And therefore, defendants are enjoined from enforcing the mandate against Thomas

Aquinas College.

RFRA involves the application of a more lenient standard than the one that applies under

the First Amendment, though, and all of the plaintiffs have failed to establish any violation of the

Free Exercise Clause. The contraceptive coverage law is neutral and generally applicable to all

employers, and it does not target religion. Nothing about the regulatory scheme violates the

Establishment Clause either. The fact that the Archdiocese, a church, is completely exempt,

while the educational and charitable organizations must seek relief through the accommodation

does not constitute unlawful discrimination among denominations, and it does not entangle the

government in religious affairs.

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With one important exception, the law also passes muster under the Free Speech Clause

of the First Amendment. The fact that counseling is included within the set of services to be

offered, and the requirement that a religious organization certify its objection to providing

contraceptive services to be eligible for the accommodation do not violate the Constitution. But

defendants cannot lawfully prohibit a self-insured religious organization from seeking to

influence – directly or indirectly – a third-party administrator’s decision on whether to remain in

a contractual relationship with a plan. That is a content-based restriction on expression that is

not justified by the government’s proffered interest.

Finally, the Court finds that defendants did not violate the Administrative Procedure Act,

that the accommodation and the exemption do not lead to unlawful interference with internal

church governance, and that there is no plaintiff that can allege an injury arising out of the

challenged interpretation of how the accommodation is to be applied.

BACKGROUND

I. Statutory and Regulatory Background

A. The Affordable Care Act

In March 2010, Congress enacted 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), which together make up the Affordable Care Act

(“ACA”). 78 Fed. Reg. 39870-01, 39870 (July 2, 2013). The ACA made changes to the existing

Public Health Service Act and incorporated those changes into the Employee Retirement Income

Security Act (“ERISA”) and the Internal Revenue Code. Id.

Two changes made by the ACA are pertinent to this case. The first change is the

requirement that employers with more than fifty full-time employees must provide their

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employees with a health insurance plan that complies with the ACA’s minimum essential

coverage requirements. 26 U.S.C. § 4980H (2012); see also 42 U.S.C. § 300gg-13 (2012).

Failure to comply with this provision – often referred to as the “employer mandate” – results in

substantial penalties. See 26 U.S.C. § 4980H.

The second pertinent change relates to the “essential minimum coverage” that must be

offered by an employer’s plan. The ACA provides that all insurance plans must cover

“preventive care,” and specifically, that they “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,” an agency within the U.S. Department of

Health and Human Services (“HHS”). 42 U.S.C. § 300gg-13(a)(1), (4).

B. The Contraceptive Mandate

Pursuant to its delegated authority under ACA section 300gg-13(a)(4), HHS requested

that the Institute of Medicine (“IOM”) – an organization established by the National Academy of

Sciences and funded by Congress – provide recommendations to HHS regarding “what

preventive services are necessary for women’s health and well-being and should be considered in

the development of comprehensive guidelines for preventive services of women.” Inst. of Med.,

Clinical Preventive Services for Women: Closing the Gaps (“IOM Report”) iv, 2, AR 289, 300.

After convening a sixteen-member committee, IOM proposed numerous recommendations

regarding what preventive services should be covered and how HHS could continue to keep the

list up-to-date. See generally id. The recommendation most relevant to this case was IOM’s

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suggestion that the definition of “preventive health services” include “the full range of Food and

Drug Administration-approved contraceptive methods, sterilization procedures, and patient

education and counseling for women with reproductive capacity” (collectively, “contraceptive

services”), which includes diaphragms, oral contraceptive pills, emergency contraceptives, and

intrauterine devices. Id. at 10, 105, AR 308, 403. After reviewing IOM’s recommendations,

defendants ultimately adopted the suggestion that the preventive services for which coverage

would be required be defined to include all Food and Drug and Administration (“FDA”)

approved contraceptive services. 78 Fed. Reg. at 39870. That regulation is commonly referred

to as “the contraceptive mandate.”

In promulgating the initial contraceptive mandate, defendants recognized the potential

religious implications and authorized the creation of a religious employer exemption to the

contraceptive mandate’s requirements. 45 C.F.R. § 147.131(a) (2013); see also 78 Fed. Reg. at

39871, 39896. An organization that satisfies the definition of a religious employer derived from

the Internal Revenue Code is wholly exempt from the requirement to cover contraceptive

services. 2 45 C.F.R. § 147.131(a); 78 Fed. Reg. at 39871, 39896. All other employers, including

religious organizations that did not meet the definition of a religious employer, were required to

2 The religious employer exemption originally defined “religious employer” as one that:

(1) has the inculcation of religious values as its purpose;

(2) primarily employs persons who share its religious tenets;

(3) primarily serves persons who share its religious tenets; and

(4) is a nonprofit organization described in section 6033(a)(1) and (a)(3)(A)(i) or

(iii) of the [Internal Revenue] Code.

78 Fed. Reg. at 39871. The definition has since been altered to state that “a ‘religious employer’

is an organization 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 of 1986, as amended.” 45 C.F.R.

§ 147.131(a); see also 78 Fed. Reg. at 39896.

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comply with the requirements of the contraceptive mandate if they provided a health insurance

plan to their employees, regardless of whether they provided the plan voluntarily or because they

were subject to the employer mandate.

Religious organizations that did not qualify for the exemption voiced their strong

objection to the coverage requirements. In response to their concerns, HHS, the Department of

Labor, and the Department of the Treasury (collectively, “the Departments”) “issued guidance

establishing a temporary safe harbor from enforcement of the contraceptive coverage

requirement by the Departments for group health plans established or maintained by certain

nonprofit organizations with religious objections to contraceptive coverage.” 78 Fed. Reg. at

39871. During that safe harbor, the Departments published an advance notice of proposed

rulemaking that solicited comments on how to achieve the goal of ensuring “more women broad

access to recommended preventive services, including contraceptive services, without cost

sharing, while simultaneously protecting certain additional nonprofit religious organizations with

religious objections to contraceptive coverage.” Id. At the end of the comment period, the

Departments published proposed regulations at 78 Fed. Reg. 8456 that created what has come to

be known as “the accommodation.” 78 Fed. Reg. 8456, 8462 (Feb. 6, 2013); see also 29 C.F.R.

§ 2590.715–2713A (2013). On July 2, 2013, the Departments adopted the final version of that

accommodation, which is available to all “eligible organizations.” See 78 Fed. Reg. at 39870-01,

39874; see also 29 C.F.R. § 2590.715–2713A.

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An organization is considered an “eligible organization” for purposes of the

accommodation if it satisfies all of the following requirements:

(1) The organization opposes providing coverage for some or all of any

contraceptive services required to be covered under § 2590.715-2713(a)(1)(iv)

on account of religious objections.

(2) The organization is organized and operates as a nonprofit entity.

(3) The organization holds itself out as a religious organization.

(4) The organization self-certifies, in a form and manner specified by the

Secretary, that it satisfies the criteria in paragraphs (a)(1) through (3) of this

section, and makes such self-certification available for examination upon

request by the first day of the first plan year to which the accommodation in

paragraph (b) or (c) of this section applies.

29 C.F.R. § 2590.715-2713A(a)(1)–(4).

The accommodation then specifies two sets of means by which the employees of an

eligible organization will obtain coverage for contraceptive services based upon whether the

organization offers health insurance to its employees through a self-insured health plan or a

group insured health plan. See id. § 2590.715–2713A(b)–(c).

In the group insured context, an eligible organization satisfies its obligations under the

contraceptive mandate by providing its insurance issuer (“insurer”) with a self-certification form.

Id. § 2590.715–2713A(c)(1). At that point, the statutory duty to provide the organization’s

employees with cost-free contraceptive services coverage automatically shifts to the insurer. Id.

§ 2590.715–2713A(c)(2); see also 78 Fed. Reg. at 39876. The insurer cannot decline to provide

that coverage on the self-certifying organization’s behalf, and the insurer must expressly exclude

contraceptive services coverage from the self-certifying organization’s plan. 29 C.F.R.

§ 2590.715–2713A(c)(2)(i); see also 78 Fed. Reg. at 39876. Furthermore, the insurer is

expressly prohibited from passing on the costs of covering contraceptive services to either the

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self-certifying organization or that organization’s employees. 29 C.F.R. § 2590.715–

2713A(c)(2)(ii); see also 78 Fed. Reg. at 39876.

If an eligible organization is self-insured, the organization that objects to providing

contraceptive coverage on religious grounds must provide its “third party administrator that will

process claims for any contraceptive services required to be covered . . . with a copy of the self-

certification described in paragraph (a)(4) of this section.” 29 C.F.R. § 2590.715–

2713A(b)(1)(ii). If the third-party administrator agrees to remain in its contractual relationship

with the organization or its plan, the self-certifying organization has met its obligation under the

contraceptive mandate. Id. § 2590.715–2713A(b)(1); see also 78 Fed. Reg. at 39879. It is the

third-party administrator that must then provide or arrange payments for contraceptive services

without “imposing a premium, fee, or other charge, or any portion thereof, directly or indirectly,

on the eligible organization.” 29 C.F.R. § 2590.715–2713A(b)(2)(i)–(ii). 3

The third-party administrator becomes a “plan administrator” under ERISA for purposes

of providing the contraceptive coverage, see id. § 2510.3–16(b), and it provides the coverage

through the eligible organization’s self-insured plan. See id. § 2590.715–2713A(b).

But a third-party administrator is permitted to decline to assume responsibility for

providing contraceptive services coverage on behalf of a self-certifying organization by

cancelling its contract with the eligible organization and declining to serve as that organization’s

3 The “costs of providing or arranging such payments . . . may be reimbursed through an

adjustment to the Federally-facilitated Exchange user fee.” 29 C.F.R. § 2590.715-2713A(b)(4).

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third-party administrator. Id. § 2590.715–2713A(b)(2); see also 78 Fed. Reg. at 39879. 4 If the

contract is cancelled, the self-certifying organization must either provide the self-certification

form to its newly hired third-party administrator, see 29 C.F.R. § 2590.715–2713A(b), or notify

the government that it will no longer use a third-party administrator and await further instruction

on how it may comply with the contraceptive mandate’s requirements. 78 Fed. Reg. at 39880–

81. 5

Regardless of whether a self-certifying organization utilizes an insurer or a third-party

administrator, the accommodation requires that notice of the availability of separate payments

for contraceptive services be provided to plan participants and beneficiaries contemporaneous

with, “but separate from, any application materials distributed in connection with enrollment (or

re-enrollment) in [the organization’s] group health coverage.” 29 C.F.R. § 2590.715-2713A(d).

The accommodation relieves a self-certifying religious organization of any responsibility to

provide or pay for contraceptive services coverage itself.

II. Procedural and Factual Background

Plaintiffs in this case consist of the Archdiocese, several charitable organizations that are

affiliated with the Catholic Church – Catholic Academies, Archbishop Carroll, Don Bosco, Mary

of Nazareth, Catholic Charities, Victory Housing, and the Catholic Information Center – and two

Catholic institutions of higher education: Catholic University of America and Thomas Aquinas

4 While the preamble to the regulations expresses defendants’ intention to implement the

regulations on an employer-by-employer, and not a plan-by-plan basis, the regulations

themselves do not clearly address how this will operate in practice in the situation where an

employer offers its employees coverage under the auspices of a self-insured plan established by

another entity that has identified and entered into a contract with the third-party administrator.

5 At this time, defendants have not specified the procedures that will govern a self-insured

eligible organization that does not use a third-party administrator because defendants have not

received any information to indicate that any such organization exists. See 78 Fed. Reg. at

39880–81.

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College. Compl. ¶¶ 2, 16–25, 59, 66, 74, 83, 90, 98, 107. They challenge the contraceptive

mandate under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., several

provisions of the First Amendment to the U.S. Constitution, and the Administrative Procedure

Act, 5 U.S.C. § 501 et seq., and they argue that the accommodation does not remedy those

violations. Compl. ¶¶ 237–339. Pending before this Court are defendants’ motion to dismiss, or

in the alternative, for summary judgment and plaintiffs’ cross-motion for summary judgment.

For purposes of deciding this case, the Court will adopt the following undisputed material facts.

The Archdiocese employs approximately 1,825 full-time employees, Supplemental Aff.

of the Archdiocese (“Supp. Aff. Archdiocese”), Ex. A to Pls.’ Reply ¶ 4 [Dkt. # 33-1], and

operates a self-insured health plan that is “recognized under the Employee Retirement Income

Security Act as a ‘church plan.’” Pls.’ Statement of Material Facts (“Pls.’ SOF”), Ex. 2 to Pls.’

Opp. & Cross-Mot. ¶ 2 [Dkt. # 27-2]. The plan is currently administered by a third-party

administrator, National Capital Administrative Services, Inc. Id. Although separately

incorporated, Catholic Academies, Archbishop Carroll, Don Bosco, Mary of Nazareth, Catholic

Charities, Victory Housing, and the Catholic Information Center are affiliated with the

Archdiocese, and they offer their employees health insurance coverage through the

Archdiocese’s self-insured health plan. Id. ¶ 5.

Catholic Academies, Archbishop Carroll, Mary of Nazareth, Catholic Charities, and

Victory Housing all employ over fifty full-time employees. Supplemental Aff. of CCA (“Supp.

Aff. CCA”), Ex. B to Pls.’ Reply ¶ 4 [Dkt. # 33-2]; Supplemental Aff. of ACHS (“Supp. Aff.

ACHS”), Ex. C to Pls.’ Reply ¶ 4 [Dkt. # 33-3]; Supplemental Aff. of Mary of Nazareth (“Supp.

Aff. Mary of Nazareth”), Ex. E to Pls.’ Reply ¶ 4 [Dkt. # 33-5]; Supplemental Aff. of Catholic

Charities (“Supp. Aff. Catholic Charities”), Ex. F to Pls.’ Reply ¶ 4 [Dkt. # 33-6]; Supplemental

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Aff. of Victory Housing (“Supp. Aff. Victory Housing”), Ex. G to Pls.’ Reply ¶ 4 [Dkt. # 33-7].

Don Bosco and the Catholic Information Center employ less than fifty full-time employees.

Supplemental Aff. of Don Bosco (“Supp. Aff. Don Bosco”), Ex. D to Pls.’ Reply ¶ 4 [Dkt. # 33-

4]; Supplemental Aff. of the CIC (“Supp. Aff. CIC”), Ex. H to Pls.’ Reply ¶ 4 [Dkt. # 33-8].

The remaining two plaintiffs – Catholic University and Thomas Aquinas – also employ

over fifty full-time employees. Supplemental Aff. of CUA (“Supp. Aff. CUA”), Ex. I to Pls.’

Reply ¶ 5 [Dkt. # 33-9]; Supplemental Aff. of TAC (“Supp. Aff. TAC”), Ex. J to Pls.’ Reply ¶ 5

[Dkt. # 33-10]. Catholic University participates in a group insured plan by offering its students a

health insurance plan through AETNA and its employees a health insurance plan through United

Healthcare. Pls.’ SOF ¶¶ 29, 31. Thomas Aquinas is self-insured; it offers its employees a

health insurance plan through the RETA trust, a self-insurance trust set up by the Catholic

bishops of California, and the trust is administered by a third-party administrator, Benefit

Allocation Systems. Id. ¶ 36. The College’s self-insured plan is not a church plan under ERISA.

Supp. Aff. TAC ¶ 6.

None of the plaintiffs’ health insurance plans qualify for the grandfathered plan exception

to the ACA. Pls.’ SOF ¶¶ 3, 33, 38. The Archdiocese has identified itself to be covered by the

religious employer exemption, Aff. of Archdiocese, Ex. A to Pls.’ Mot. ¶ 18 [Dkt. # 6-2], but the

remaining plaintiffs have stated that they do not qualify for that exemption. Pls.’ SOF ¶¶ 9, 12,

15, 18, 21, 24, 27, 34, 39. They are, however, eligible for the accommodation to the

contraceptive mandate. Compl. ¶ 10.

“Plaintiffs are all religious entities that are part of, and/or adhere to the teachings and

philosophies of, the Roman Catholic Church.” Pls.’ SOF ¶ 40. Consequently, they all subscribe

to the Roman Catholic belief that it is immoral to engage in conduct that artificially interferes

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with conception or terminates an existing pregnancy, which includes, but is not limited to,

abortion, sterilization, emergency contraception, and other contraceptive products. Id. ¶¶ 41, 45–

46. It is a tenet of plaintiffs’ faith that they not only refrain from using contraception themselves,

but that they may not morally assist another in accessing those services. Id. ¶ 48. As a result,

plaintiffs have “historically excluded coverage for abortion, contraceptives (except when used

for non-contraceptive purposes), sterilization, and related education and counseling” from their

health insurance plans, id. ¶ 6; see also Aff. of CUA, Ex. I to Pls.’ Mot. ¶ 15 [Dkt. # 6-10]; Aff.

of TAC, Ex. J to Pls.’ Mot. ¶ 13 [Dkt. # 6-11], and they contend that compliance with the

contraceptive mandate, even as it has been modified, would violate their religious belief.

STANDARD OF REVIEW

I. Federal Rule of Civil Procedure 12(b)(1)

Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a

preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992);

Shekoyan v. Sibley Int’l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts

of limited jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction.”

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors

Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin,

and end, with an examination of our jurisdiction.”). “[B]ecause subject-matter jurisdiction is ‘an

Art[icle] III as well as a statutory requirement . . . no action of the parties can confer subject-

matter jurisdiction upon a federal court.’” Akinseye v. District of Columbia, 339 F.3d 970, 971

(D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S.

694, 702 (1982).

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“To state a case or controversy under Article III, a plaintiff must establish standing.”

Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1442 (2011); see also Lujan, 504 U.S.

at 560. Standing is a necessary predicate to any exercise of federal jurisdiction, and if it is

lacking, then the dispute is not a proper case or controversy under Article III, and federal courts

have no subject-matter jurisdiction to decide the case. Dominguez v. UAL Corp., 666 F.3d 1359,

1361 (D.C. Cir. 2012). To establish constitutional standing, a plaintiff must demonstrate:

(1) that he has suffered an “injury in fact”; (2) that the injury is “fairly traceable” to the

challenged action of the defendant; and (3) that it is “likely, as opposed to merely speculative,

that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 560–61 (internal

quotation marks omitted); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S.

167 (2000). Failure to demonstrate even one of the three requirements will defeat subject-matter

jurisdiction. See Lujan, 504 U.S. at 561.

When considering a motion to dismiss for lack of jurisdiction for standing, unlike when

deciding a motion to dismiss under Rule 12(b)(6), the court “is not limited to the allegations of

the complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other

grounds, 482 U.S. 64 (1987). Rather, “a court may consider such materials outside the pleadings

as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case.”

Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000), citing Herbert

v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens Pharm., Inc.

v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).

II. Federal Rule of Civil Procedure 56

Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

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56(a). The party seeking summary judgment bears the “initial responsibility of informing the

district court of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted).

To defeat summary judgment, the nonmoving party must “designate specific facts

showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted).

The existence of a nongenuine, nonmaterial factual dispute is insufficient to preclude summary

judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A dispute is

“genuine” only if a reasonable fact-finder could find for the nonmoving party, and a fact is only

“material” if it is capable of affecting the outcome of the litigation. Id. at 248; see also

Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In assessing a party’s motion,

the court must “view the facts and draw reasonable inferences ‘in the light most favorable to the

party opposing the summary judgment motion.’” Scott v. Harris, 550 U.S. 372, 378 (2007)

(alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per

curiam).

ANALYSIS

I. Plaintiffs’ Religious Freedom Restoration Act claims.

The central claim in this case is Count I: plaintiffs’ claim that the contraceptive mandate

violates the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq., because

it “requires Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing products,

contraception, sterilization procedures, and related counseling, in a manner that is directly

contrary to their religious beliefs.” Compl. ¶ 241. It is undisputed that the Church itself – the

17

Archdiocese – is completely exempt from the requirement, and therefore, it is not joined in

Count I. It is also part of the background of this case that defendants delayed implementation of

the mandate for a year and engaged in a rulemaking process in an effort to address the objections

raised by other religious organizations and to alleviate the burden that they identified. Thus, the

question presented in this case is whether the accommodation promulgated in July 2013 achieves

that aim or whether the mandate, as it has now been modified, imposes a substantial burden on

plaintiffs’ free exercise of religion.

RFRA provides that the government shall not “substantially burden a person’s exercise of

religion” unless it can demonstrate that application of the burden to the person: “(1) is in

furtherance of a compelling governmental interest; and (2) is the least restrictive means of

furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(a)–(b). 6 The

prohibition applies even if the burden results from a rule of general applicability. Id. § 2000bb-

1(a). To successfully mount a RFRA challenge and subject government action to strict scrutiny,

a plaintiff must meet the initial burden of establishing that the government has substantially

burdened his religious exercise. Henderson v. Stanton, 76 F. Supp. 2d 10, 14 (D.D.C. 1999).

Only if that predicate has been established will the onus then shift to the government to show

that the law or regulation is the least restrictive means to further a compelling interest. 42 U.S.C.

§§ 2000bb-1(b), 2000bb-2(3).

Plaintiffs have averred that it is a central tenet of their faith that life begins at the moment

of conception, and that their religion therefore requires that “they may not provide, pay for,

and/or facilitate access to” contraceptive services. Pls.’ Mot. at 19; see also Pls.’ SOF ¶¶ 42–43;

6 Although the Supreme Court found RFRA unconstitutional as applied to the states, City

of Boerne v. Flores, 521 U.S. 507, 533–34 (1997), the statute still applies to the federal

government, Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 166 (D.C. Cir.

2003); Henderson v. Kennedy, 265 F.3d 1072, 1073 (D.C. Cir. 2001).

18

Aff. of CCA, Ex. B to Pls.’ Mot. ¶¶ 7–8 [Dkt. # 6-3]; Aff. of ACHS, Ex. C to Pls.’ Mot. ¶¶ 7–8

[Dkt. # 6-4]; Aff. of Don Bosco, Ex. D to Pls.’ Mot. ¶¶ 7–8 [Dkt. # 6-5]; Aff. of Mary of

Nazareth, Ex. E to Pls.’ Mot. ¶¶ 7–8 [Dkt. # 6-6]; Aff. of Catholic Charities, Ex. F to Pls.’ Mot.

¶¶ 7–8 [Dkt. # 6-7]; Aff. of Victory Housing, Ex. G to Pls.’ Mot. ¶¶ 7–8 [Dkt. # 6-8]; Aff. of

CIC, Ex. H to Pls.’ Mot. ¶¶ 7–8 [Dkt. # 6-9]; Aff. of CUA ¶¶ 13–14; Aff. of TAC ¶¶ 11–12. The

government does not contest the sincerity of these beliefs. See Defs.’ Combined Mem. in Opp.

to Pls.’ Cross-Mot. for Summ. J. & Reply in Supp. of Defs.’ Mot. to Dismiss, or in the alt., for

Summ. J. (“Defs.’ Opp. & Reply”) at 4, 7–20 [Dkt. # 31]; see also Defs.’ Resp. to Pls.’ SOF ¶ 43

[Dkt. # 31-1]. The Court finds that plaintiffs’ religion forbids them from facilitating access to

contraceptive services, and that finding of fact serves as the basis for the RFRA analysis.

Plaintiffs contend that the contraceptive mandate imposes a burden on their sincere

religious belief because it requires that plaintiffs provide a health insurance plan that includes

coverage for contraceptive services and counseling and thereby renders them unable to offer a

health insurance plan consistent with their religious beliefs. Pls.’ Mot. at 21–24. They argue that

the accommodation does not alleviate that burden because, as they put it, they must file a self-

certification form that “inexorably leads to provision of the very coverage to which they object,”

and offer a health insurance plan through which their “employees would receive access to the

mandated payments [for contraceptive services] only by virtue of their participation in [that]

health plan.” Id. at 20. Also, they complain that, in some circumstances, they must “locate and

identify a third party willing to provide the very services they deem objectionable, and . . . enter

into a contract with that party that will result in the provision or procurement of those services

‘for free.’” Id. All of these burdens, plaintiffs state, are substantial, because failure to comply

with the requirement of the contraceptive mandate – either by providing the coverage or by self-

19

certifying under the accommodation – results in significant monetary penalties. Id. at 22–24; see

also 26 U.S.C. § 4980H.

Defendants maintain that the accommodation has eliminated the objectionable impact of

the mandate and that any remaining burden on plaintiffs’ religious exercise is at most de minimis

or too attenuated to be substantial and to trigger strict scrutiny under RFRA. Defs.’ Mem. at 11–

20. They also argue that all the plaintiffs except Catholic University and Thomas Aquinas lack

standing to bring a RFRA challenge. Defs.’ Opp. & Reply at 5–7. But if the Court determines

that any one plaintiff is substantially burdened by the contraceptive mandate and that it must

therefore go on to apply strict scrutiny to the regulatory scheme, defendants concede that the

D.C. Circuit’s recent holding that the contraceptive mandate does not satisfy strict scrutiny

controls this case and is binding on this Court. 7 See Gilardi v. U.S. Dep’t of Health & Human

Servs., 733 F.3d 1208, 1219–24 (D.C. Cir. 2013); Defs.’ Opp. & Reply at 17; Mot. Hr’g Tr. 34.

As a result, the RFRA analysis here is limited to the question of whether the contraceptive

mandate places a substantial burden on plaintiffs’ asserted religious exercise.

Congress enacted RFRA in response to the decision in Employment Division, Department

of Human Services of Oregon v. Smith, 494 U.S. 872 (1990), in which the Supreme Court

narrowed what had been its previous delineation of the scope of the protection afforded to

religion by the Free Exercise Clause. See Holy Land Found., 333 F.3d at 166. In Smith, the

Court permitted a law that was neutral towards religion to stand, notwithstanding its impact on a

particular plaintiff’s religious exercise. 494 U.S. at 890. Thereafter, as Congress expressly

stated in the findings and declaration of purpose section of the statute, RFRA was enacted “to

7 Defendants did, however, note objection to the Circuit’s decision in Gilardi, thereby

preserving the issue for appeal. See Defs.’ Opp. & Reply at 17; Mot. Hr’g Tr. 34.

20

restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963), and

Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free

exercise of religion is substantially burdened.” 42 U.S.C. § 2000bb(b)(1); see also Holy Land

Found., 333 F.3d at 166–67. Thus, if the question to resolve is whether plaintiffs have met their

burden to establish that the challenged regulations impose a substantial burden on their religious

exercise, Sherbert and Yoder must be the starting point of the analysis. See Tyndale House

Publishers, Inc. v. Sebelius, 904 F. Supp. 2d 106, 120 (D.D.C. 2012) (“Accordingly, courts look

to pre-Smith free exercise jurisprudence in assessing RFRA claims.”); see also Vill. of

Bensenville v. FAA, 457 F.3d 52, 62 (D.C. Cir. 2006).

In Sherbert, a member of the Seventh-Day Adventist Church was fired by her employer

for her refusal to work on Saturday, the day on which she observed the Sabbath. 374 U.S. at

399. She was subsequently found to be ineligible for state unemployment benefits on the

grounds that she had failed, without good cause, to accept employment that had been offered. Id.

at 400–01. To resolve her constitutional challenge to the state’s decision, the Supreme Court

first addressed the question of whether the disqualification imposed a burden on the employee’s

free exercise of her religion. Id. at 403. The Court likened the situation to a fine imposed on the

employee for her Saturday worship and stated:

[I]f the purpose or effect of a law is to impede the observance of one or all

religions or is to discriminate invidiously between religions, that law is

constitutionally invalid even though the burden may be characterized as

being only indirect. Here not only is it apparent that appellant’s declared

ineligibility for benefits derives solely from the practice of her religion,

but the pressure upon her to forego that practice is unmistakable. The

ruling 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 (citations omitted).

21

Yoder involved members of the Old Order Amish religion and a member of the

Conservative Amish Mennonite Church who declined to send their children to public school

after eighth grade and were convicted of violating the state’s compulsory attendance laws. 406

U.S. at 207–08. In that case, the Court observed that:

[T]he unchallenged testimony of acknowledged experts in education and

religious history, almost 300 years of consistent practice, and strong

evidence of a sustained faith pervading and regulating respondents’ entire

mode of life support the claim that enforcement of the State’s requirement

of compulsory formal education after the eighth grade would gravely

endanger if not destroy the free exercise of respondents’ religious beliefs.

Id. at 219. The state did not challenge those findings, but it advanced the position that the state’s

interest in universal compulsory education was so great that the laws should be enforced

notwithstanding the undisputed religious consequences. Id. Thus, the bulk of the opinion is only

relevant to the second prong of the RFRA analysis, but the Court did state, in language that

appears in plaintiffs’ pleadings: “The impact of the compulsory-attendance law on respondents’

practice of the Amish religion is not only severe, but inescapable, for the Wisconsin law

affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds

with fundamental tenets of their religious beliefs.” Id. at 218.

The Supreme Court took up the denial of unemployment benefits again in Thomas. 450

U.S. at 707. Thomas terminated his employment at a foundry and machinery company when he

was transferred from a department that fabricated steel for a range of industrial uses to a

department that produced turrets for military tanks. Id. at 710. At that time, there were no

longer any units at the company that were not involved in the manufacture of armaments, and

Thomas, a Jehovah’s Witness, maintained that participation in the production of weapons for war

violated his religious beliefs. Id. at 710–11. When the employer declined to lay him off, he quit

22

and was subsequently denied unemployment benefits by the state on the grounds that his

departure was not based on good cause. Id. at 710–12.

As in Sherbert, the state argued that its public welfare legislation did not directly

command the employee to violate his conscience, but the Court noted that “the employee was put

to a choice between fidelity to religious belief or cessation of work” and therefore “the coercive

impact on Thomas is indistinguishable from Sherbert.” Id. at 717. The Court then restated the

principle that had been set out in Sherbert:

Where the state conditions receipt of an important benefit upon conduct

proscribed by a religious faith, or where it denies such a benefit because of

conduct mandated by religious belief, thereby putting substantial pressure

on an adherent to modify his behavior and to violate his beliefs, a burden

upon religion exists. While the compulsion may be indirect, the

infringement upon free exercise is nonetheless substantial.

Id. at 717–18.

In sum, all of the key Supreme Court cases involve individuals who were compelled,

under the threat of either punishment or the denial of a benefit, to act: to personally do the very

thing that violated their religious beliefs. That means that the issue in this case is whether

plaintiffs are being required to “modify their behavior” or perform acts that contravene the tenets

of their faith.

Plaintiffs laid out their position in their motion for preliminary injunction:

Under the original version of the Mandate, a non-exempt religious

organization’s decision to offer a group health plan resulted in the

provision of coverage for [contraceptive services]. Under the Final Rule,

a non-exempt religious organization’s decision to offer a group health plan

still results in the provision of coverage . . . . In both scenarios, Plaintiffs’

actions trigger the provision of “free” contraceptive coverage to their

employees in a manner contrary to their beliefs. The provision of the

objectionable products and services are directly tied to Plaintiffs’

insurance policies . . . .

23

Pls.’ Mot. at 10. But plaintiffs have not cited the Court to any binding Supreme Court or Circuit

precedent that would call for the invalidation of a law based upon its consequences, that is, when

plaintiffs are not being required to pay for or “provide” the services themselves, but rather, the

result of compliance with the regulatory steps would be “the provision of” the objectionable

services by a third party to another third party.

Indeed, the precedent in this Circuit points to the opposite conclusion.

In Kaemmerling v. Lappin, the D.C. Circuit explained that a plaintiff cannot satisfy his

burden under RFRA if the government regulation requires a third party, and not the plaintiff, to

act in a way that violates the plaintiff’s religious beliefs. 553 F.3d 669, 679 (D.C. Cir. 2008). In

that case, the plaintiff challenged the DNA Act, which directs the Federal Bureau of Prisons

(“BOP”) to collect tissue or fluid samples from individuals in custody who have been convicted

of certain offenses. Id. at 673. The BOP then delivers the samples to the FBI for the extraction

and analysis of the DNA they contain and the creation of a unique profile for each offender,

which is stored in an FBI database. Id. Kaemmerling, an Evangelical Christian, moved to enjoin

the application of the Act to him because he objected to the distillation and retention of his DNA

– “a foundational aspect . . . of God’s creative work” – on religious grounds. Id. at 674, 678.

The court emphasized that the plaintiff did not object to the government’s collection of any of

the bodily specimens that contained his DNA – not to the gathering of his hair or skin particles or

even the drawing of his blood; rather, plaintiff was only opposed to the government’s extraction

of the DNA from the sample once it was obtained. Id. at 679. Under those circumstances, the

court found that the complaint failed to allege a substantial burden that would be cognizable

under RFRA:

24

Kaemmerling’s objection to the DNA Act centers on the government’s act

of extracting and analyzing his DNA . . . without suggesting that the Act

imposes any restriction on what Kaemmerling can believe or do. Like the

parents in Bowen, Kaemmerling’s opposition to government collection

and storage of his DNA profile does not contend that any act of the

government pressures him to change his behavior and violate his religion,

but only seeks to require the government to conduct its affairs in

conformance with his religion.

Id. at 680; see also Bowen v. Roy, 476 U.S. 693, 699–700 (1986) (explaining that free exercise of

religion does not require “the Government itself to behave in ways that the individual believes

will further his or her spiritual development or that of his or her family”).

The D.C. Circuit emphasized this principle at several points in the Kaemmerling opinion:

The government’s extraction . . . of Kaemmerling’s DNA information

does not call for Kaemmerling to modify his religious behavior in any way

– it involves no action or forbearance on his part, nor does it otherwise

interfere with any religious act in which he engages. Although the

government’s activities with his fluid or tissue sample after the BOP takes

it may offend Kaemmerling’s religious beliefs, they cannot be said to

hamper his religious exercise because they do not “pressure [him] to

modify his behavior and to violate his beliefs.”

Id. at 679 (second alteration in original) (emphases added), quoting Thomas, 450 U.S. at 718.

And the court made it clear that its application of RFRA derived directly from the Supreme

Court precedent that Congress had incorporated into the statute:

Religious exercise necessarily involves an action or practice, as in

Sherbert, where the denial of unemployment benefits impeded the

observance of the plaintiff’s religion by pressuring her to work on

Saturday . . . , or in Yoder, where the compulsory education law compelled

the Amish to perform acts undeniably at odds with fundamental tenets of

their religious beliefs. Kaemmerling, in contrast . . . suggests no way in

which these governmental acts pressure him to modify his own behavior

in any way that would violate his beliefs.

25

Id. at 679 (alteration, citations, and internal quotation marks omitted). 8

It is against this legal backdrop that the Court must analyze plaintiffs’ RFRA claim.

Have defendants put pressure on plaintiffs to modify their behavior and violate their beliefs? Or

does the accommodation alleviate the pressure on them as it was intended to do? Plaintiffs

cannot rest their claims on the fact that their employees will still receive access to contraceptives

under the accommodation; they must point to conduct that they are obliged to undertake that, in

and of itself, violates their religious beliefs.

The Court acknowledges and respects the sincerity of plaintiffs’ expression of their

religious beliefs, and it emphasizes that its ruling is not predicated in any way upon a failure to

accept plaintiffs’ articulation of what their faith commands. The Court has no intention of

substituting its judgment for that of the affiants on the existence or nature or importance of this

aspect of their religion, and nothing in this opinion should be read as an indication of any

divergence of opinion on those topics. See Gilardi, 733 F.3d at 1216 (“We begin with the

peculiar step of explaining what is not at issue. This case is not about the sincerity of the

8 The D.C. Circuit has also found a burden to be inconsequential or de minimis on other

grounds, such as where the government regulation merely prohibits one of a multitude of

methods of exercising religion. Mahoney v. Doe, 642 F.3d 1112 (D.C. Cir. 2011); Henderson v.

Kennedy, 253 F.3d 12 (D.C. Cir. 2001); see also Mead v. Holder, 766 F. Supp. 2d 16 (D.C. Cir.

2011). In Henderson and Mahoney, the plaintiffs challenged regulations that prevented

individuals from selling t-shirts on the National Mall and regulations that prohibited “chalking”

the sidewalk in front of the White House, respectively. 642 F.3d at 1115; 253 F.3d at 13–14.

Both sets of plaintiffs argued that these regulations – otherwise neutral to religion – violated

RFRA because they prevented plaintiffs from following the religious requirement that they

spread the gospel. Mahoney, 642 F.3d at 1120; Henderson, 253 F.3d at 15. The D.C. Circuit

ruled that neither regulation imposed a substantial burden because the regulations were, at most,

“a restriction on one of a multitude of means” by which plaintiffs could exercise their religion

and other alternative means were still available. Henderson, 253 F.3d at 17; see also Mahoney,

642 F.3d at 1121. But the court also specifically noted that neither case posed a situation where

“the regulation force[d the plaintiffs] to engage in conduct that their religion forbid” or prevented

“them from engaging in conduct their religion require[d].” Henderson, 253 F.3d at 16; see also

Mahoney, 642 F.3d at 1121.

26

[plaintiffs]’ religious beliefs, nor does it concern the theology behind Catholic precepts on

contraception. The former is unchallenged, while the latter is unchallengeable.”).

The Court also recognizes that it is not within its province to assess the centrality of the

particular religious tenet involved to plaintiffs’ faith or to calibrate where the challenged conduct

might fall on a spectrum of objectionable practices: whether it would offend plaintiffs’ religious

sensibilities or “gravely endanger if not destroy” the exercise of their religious beliefs as in

Yoder. See Kaemmerling, 553 F.3d at 678 (“Because the burdened practice need not be

compelled by the adherent’s religion to merit statutory protection, we focus not on the centrality

of the particular activity to the adherent’s religion but rather on whether the adherent’s sincere

religious exercise is substantially burdened.”).

In sum, the Court is not qualified or authorized to state what Catholicism does or does not

prohibit, and it accepts plaintiffs’ expressions of their principles on its face. At the same time,

there is nothing about RFRA or First Amendment jurisprudence that requires the Court to accept

plaintiffs’ characterization of the regulatory scheme on its face. Put differently, although the

Court is bound to accept the statements in plaintiffs’ affidavits that their religious teachings go

beyond a ban on the personal use of contraceptives and that “facilitating access” to contraceptive

services and products is also inconsistent with Catholicism, the Court may determine whether

compliance with the contraceptive mandate and accommodation actually constitutes compelled

“facilitation.” Interpreting a regulatory scheme is a secular task that is well within the Court’s

domain. The D.C. Circuit specifically recognized this point in Kaemmerling, when it noted that

there is a critical distinction between a plaintiff’s unassailable factual recitation of what his

religion entails and the court’s ultimate finding on whether his religious exercise has been

substantially burdened: “Accepting as true the factual allegations that Kaemmerling’s beliefs are

27

sincere and of a religious nature – but not the legal conclusion, cast as a factual allegation, that

his religious exercise is substantially burdened – we conclude that Kaemmerling does not allege

facts sufficient to state a substantial burden . . . .” 553 F.3d at 679.

Plaintiffs’ pleadings contain many legal conclusions advanced as facts, and therefore, to

resolve the RFRA claims, it is necessary to hone in more closely on the details of the regulations

themselves rather than the parties’ characterizations of them. Because those regulations affect

different plaintiffs differently based upon the type of insurance plan they offer, it is also

necessary to take up certain plaintiffs’ claims separately. Catholic University covers its

employees under a group health plan, which falls under section 2590.715–2713A(c), and

Catholic Academies, Archbishop Carroll, Don Bosco, Mary of Nazareth, Catholic Charities,

Victory Housing, Catholic Information Center, and Thomas Aquinas cover their employees

through self-insured plans, which are addressed in section 2590.715–2713A(b). Seven of those

plaintiffs offer insurance through the exempt Archdiocese’s self-insured health plan, and only

one plaintiff, Thomas Aquinas, offers its employees a health plan through a self-insured entity

that is not exempt from the mandate itself. The different situations produce different outcomes.

A. The contraceptive mandate does not impose a substantial burden on Catholic

University of America’s religious exercise.

Of the ten plaintiffs in this case, Catholic University is the only plaintiff that offers its

students and employees the option to participate in a group health plan through insurers,

specifically AETNA and United Healthcare. Pls.’ SOF ¶¶ 29–32. The regulations contain a

specific set of rules that deal with organizations insured under a group plan, and in light of the

accommodation available in that instance, the contraceptive mandate as modified does not

impose a substantial burden on the University’s religious belief. See Priests for Life v. U.S.

Dep’t of Health & Human Servs., No. 13-1261 (D.D.C. Dec. 19, 2013).

28

Catholic University has established that its sincerely held religious belief prohibits it from

providing or facilitating access to contraceptive services coverage. Aff. of CUA ¶¶ 14–15. The

affidavit of Frank Persico explains that Catholicism “teaches that life begins at the moment of

conception, that sexual union should be reserved to committed marital relationships in which the

husband and wife are open to the transmission of life, and, therefore, that artificial interference

with life and conception are immoral.” Id. ¶ 13. As a result, “[o]ffering a health insurance

policy that provides coverage for or facilitates access to abortion-inducing products,

contraceptives, sterilization, and related education and counseling is thus inconsistent with the

core moral and religious beliefs of the University.” Id. ¶ 14. In their joint pleadings, plaintiffs

have explained that, although Catholicism does not require them to prevent their employees or

students from gaining access to contraceptive services coverage, it does require that they not

participate in the provision of that coverage. See Pls.’ Reply in Supp. of its Cross-Mot. for

Summ. J. (“Pls.’ Reply”) at 4 [Dkt. # 33] (“If the Government believes all women must be

provided with free abortion-inducing products, sterilization, and contraceptives, Plaintiffs ask

only that the Government not force them to participate in that effort.”). The Court finds that,

since the accommodation effectively severs an organization that offers its employees or students

an insured group health plan from participation in the provision of the contraceptive coverage, it

relieves Catholic University of any burden cognizable under RFRA. See Priests for Life, No. 13-

1261.

Under the terms of the new regulations, a religious organization is eligible for the

accommodation once it certifies that: it is a nonprofit entity, it holds itself out as a religious

organization, and it opposes providing coverage for some or all of the contraceptive services

required to be covered under the mandate. 29 C.F.R. § 2590.715–2713A(a). A group health

29

plan established or maintained by an eligible religious organization complies with the

requirement to provide contraceptive coverage “if the eligible organization or group health plan

furnishes a copy of the self-certification . . . to each issuer that would otherwise provide such

coverage in connection with the group health plan.” Id. § 2590.715–2713A(c)(1). At that point,

“[a] group health insurance issuer that receives a copy of the self-certification . . . with respect to

a group health plan established or maintained by an eligible organization in connection with

which the issuer would otherwise provide contraceptive coverage . . . must –

(A) Expressly exclude contraceptive coverage from the group health insurance

coverage provided in connection with the group health plan; and

(B) Provide separate payments for any contraceptive services required to be

covered . . . for plan participants and beneficiaries.”

Id. § 2590.715–2713A(c)(2)(i).

What does this mean? Catholic University must identify itself as an organization with

religious objections by completing a form that states, as it has repeatedly averred in this

litigation, that it objects to the provision of contraceptive services on religious grounds. Then,

either the University or its health plan must furnish its insurance issuers – Aetna and United

Healthcare – with a copy of the self-certification. That is the extent of what is required from the

religious organization. The insurance issuers are obligated under the ACA to provide

contraceptive coverage under section 2590.715–2713A(c)(2), and once they receive the self-

certification, they must expressly exclude the contraceptive coverage from the healthcare

coverage that is being provided in connection with Catholic University’s plan and pay for the

30

coverage themselves. 9 Id. So, the health insurance plan that the ACA employer mandate

requires the University to provide will not cover contraceptive services. The University has

stated in its affidavit that offering a health insurance policy that provides coverage for

contraceptive services would be inconsistent with its religious beliefs, but it is no longer required

to do so. Under the terms of the accommodation, Catholic University’s group health plan that

does not include contraceptive services coverage will be in full compliance with the ACA once

the University self-certifies that it objects to the provision of that coverage. 10

Plaintiffs, including Catholic University, maintain that the obligation to self-certify to

avail themselves of the accommodation is a burden on religion in and of itself because the act of

completing the form “facilitates” or “authorizes” the provision of contraceptive coverage to their

students or employees. Pls.’ Mot. at 20 (“In other words, the government has effectively made

‘no’ mean ‘yes,’ transforming the very act of objecting to the mandated coverage into the

authorization to provide such coverage.”). But this conclusory characterization of the regulatory

scheme is not immune from probing by the Court merely because it has been incorporated into

each of the plaintiffs’ sworn affidavits. See, e.g., Aff. of CUA ¶ 17 (“[P]erversely, it is CUA’s

self-certification of its religious objection that authorizes provision of the mandated coverage.”).

9 The statement in Catholic University’s affidavit that, under the accommodation, the

University “bears the burden of locating and identifying an insurance company willing to

provide the very services it deems objectionable,” Aff. of CUA ¶ 17, is not consistent with the

regulations, and therefore, it is not a circumstance that can be found to be a burden on the

school’s religious exercise. Also, because the accommodation explicitly requires the insurer to

engage in separate accounting to ensure that none of Catholic University’s premiums are used to

pay for contraceptive services, 29 C.F.R. § 2590.715–2713A(c)(2)(ii), the Court is not persuaded

by the University’s argument that the “cost-neutrality” of providing contraceptive services

somehow results in its premiums being used to pay for contraceptive services. See Pls.’ Mot. at

21 n.15.

10 For the same reasons, the contraceptive mandate does not place Catholic University in a

position where it will give rise to “scandal by acting in a way inconsistent with Church

teachings.” Aff. of CUA ¶ 19.

31

That is not a matter of religious doctrine, and when plaintiffs insist on referring to the self-

certification as a “permission slip” in their papers, see, e.g., Pls.’ Reply at 3, they make it plain

that this aspect of their case turns largely upon semantics and not theology. 11

For one thing, the “authority” to provide contraceptive services to the women who work

or study at the institution is not Catholic University’s to bestow. Access to contraceptives is

guaranteed by the Constitution. Griswold v. Connecticut, 381 U.S. 479 (1965). As plaintiffs

acknowledged in their pleadings, they have “no legal right to prevent individuals from procuring

the objectionable products and services from the Government or anywhere else.” Pls.’ Mot. at

20. And cost-free access to contraceptive services – to women who are covered by a health plan

anywhere – has already been guaranteed by the ACA and the implementing regulations. 42

U.S.C. § 300gg-13; 29 C.F.R. § 2590.715–2713. In the insured group plan context, the

“authority” for the insurers to provide that coverage – or more aptly described, their “obligation”

to do so – is imposed by the regulatory scheme, and it exists whether Catholic University takes

any steps to ensure compliance with the mandate or not. See 29 C.F.R. § 2590.715–2713A(c)

(listing the obligation of an insurer of a self-certifying organization to provide contraceptive

services coverage in mandatory terms). Through its self-certification, the religious organization

11 Indeed, in Priests for Life v. U.S. Dep’t of Health & Human Services, the Catholic

plaintiffs conceded that the self-certification was not a burden of their exercise of religion, in and

of itself. No. 13-1261, slip op. at 26–27.

32

declares its intention to step out of the process. That cannot be accurately characterized as an act

that “facilitates” the employees’ access to the services. 12

Similarly, the University cannot support the legal finding that its religious exercise is

burdened with its assertion that contraceptive services “coverage will be made available to

CUA’s employees only for so long as they remain on the University’s plan.” Aff. of CUA ¶ 17.

The use of the passive voice – “coverage will be made available” – conveys an objection to the

consequences of the self-certification, not to the action of certifying itself. Moreover, that

factual assertion is belied by the fact that the insurance mandate will follow the school’s

employees wherever they go, and that all insurance plans are required to provide preventive

services – as HRSA has defined them – under the ACA.

Plaintiffs’ fundamental complaint is that “[s]hould they choose to certify their objection

to the mandated coverage, that action inexorably leads to provision of the very coverage to which

they object.” Pls.’ Mot. at 20. But the law requiring Kaemmerling to submit to the taking of

blood or tissue samples also led “inexorably” to a result to which he objected, and the D.C.

Circuit determined that was not enough to satisfy RFRA. Plaintiffs seek to distinguish

Kaemmerling by highlighting the Circuit Court’s observation that Kaemmerling did not object to

submitting to the actual collection of the samples. They say, in essence, maybe Kaemmerling

did not object to the first step that led to the objectionable consequences, but we do. But, in fact,

12 Catholic University also argues that it is burdened because, under the contraceptive

mandate, it “will be forced to further facilitate access to the mandated coverage by . . .

identifying its benefits-eligible employees for the insurance company.” Aff. of CUA ¶ 17. In

other words, the University states that it still must facilitate access to contraceptive services

coverage even if those services are completely separated from its plan because it must provide

the insurer with the names of those individuals who are eligible for contraceptive services

payments. But the University does not point to any regulation that imposes this duty, and the

insurance issuer will have independent records of which employees enrolled for healthcare

coverage.

33

Kaemmerling filed his complaint and motion for preliminary injunction to stop the first step from

happening: to enjoin the Bureau of Prisons from collecting the sample. See Compl.

Kaemmerling v. Lappin, No. 06-1389 [Dkt. # 1]. He did not simply sue to bar the FBI from

extracting and preserving his DNA. Like Kaemmerling, the reason that plaintiffs object to the

self-certification is that they object to what happens after someone else receives it. The Court is

aware that plaintiffs predicate that objection on moral grounds. But if RFRA is applied to reach

a religious objection to “bearing witness” to an immoral act by others, in the absence of any

requirement that the objector modify his own behavior, then the law is no longer a shield, but it

is a sword, and it becomes a tool to deny the equally compelling rights of thousands of other

people. Nothing in RFRA jurisprudence to date takes the law that far.

Like the statute that was challenged in Kaemmerling, the regulations here do not “impose

any restrictions on what [Catholic University] can believe or do,” and it does not impose pressure

on the University “to modify [its] behavior and to violate [its] beliefs.” 553 F.3d at 679–80.

Through the self-certification, the eligible organization raises its hand and says “I object” to

participating in the provision of contraceptive services itself, and through the accommodation,

the government accedes to its request and assigns the obligation to someone else. RFRA does

not reach the results.

This conclusion is entirely consistent with the D.C. Circuit’s recent ruling in Gilardi. In

that case, the Court found that the Catholic owners of a for-profit corporation “are burdened

when they are pressured to choose between violating their religious beliefs in managing their

selected plan or paying onerous penalties.” 733 F.3d at 1217; see also Tyndale House, 904

F. Supp. 2d at 122. But the Gilardis are secular employers who do not qualify for the

accommodation and are therefore required to provide and pay for the contraceptive coverage

34

themselves. And a close reading of the Gilardi opinion reveals that the case is distinguishable on

those grounds. 13

In order to determine whether the accommodation alleviates the burden that was

recognized in Gilardi, one must first distill from the opinion what the court found that burden to

be. The court began by reciting the rule that Kaemmerling derived from the Supreme Court’s

opinion in Thomas: “[a] ‘substantial burden’ is ‘substantial pressure on an adherent to modify

his behavior and to violate his beliefs.’” Id. at 1216, quoting Kaemmerling, 553 F.3d at 678.

The court then responded to an argument that the government is not advancing in this case: that

the alleged burden was too remote or attenuated to trigger RFRA because it would only arise at

the point when an employee purchased contraceptives or used contraceptive services. Id. at

1217. The court took issue with that position:

The burden on religious exercise does not occur at the point of

contraceptive purchase; instead, it occurs when a company’s owners fill

the basket of goods and services that constitute a healthcare plan. In other

words, the Gilardis are burdened when they are pressured to choose

between violating their religious beliefs in managing their selected plan or

paying onerous penalties.

13 In Tyndale House, the plaintiffs were secular employers that did not qualify for the

accommodation and were therefore required to provide and pay for contraceptive services. In

concluding that the contraceptive mandate burdened the plaintiffs’ religious exercise, the court

emphasized the direct responsibility imposed on the employer to provide the objectionable

coverage and the specific financial obligation imposed on the plaintiffs to pay for the

contraceptives. The court found it significant that Tyndale acted as its own insurer and that

“Tyndale itself directly pays for the health care services used by its plan participants.” 904 F.

Supp. 2d at 123.

For similar reasons, plaintiffs’ many citations to Hobby Lobby, which is not controlling

on this Court in any event, do not help resolve this case. Hobby Lobby is a self-insured, for-

profit employer that does not qualify for the accommodation, and the plaintiffs there objected to

“participating in, providing access to, paying for, training others to engage in, or otherwise

supporting” the use of certain emergency and intrauterine contraceptives they consider to be a

form of abortion. See 723 F.3d 1114, 1121 (10th Cir. 2013) (en banc), cert. granted No. 13-354,

2013 WL 5297798 (Nov. 26, 2013).

35

Id. This passage suggests that the Circuit Court would find a substantial burden if the

regulations, as revised, imposed obligations on Catholic University to take affirmative steps to

include the objectionable products and services as part of its plans. That is not the case for an

employer that offers a group insured plan in any event. 14 But the court’s statement more directly

addresses the question of when the burden attaches, not what it consists of. It was later in the

opinion that the court more specifically described the burden that had been imposed upon the

Gilardis that warranted relief under RFRA:

The contraceptive mandate demands that owners like the Gilardis

meaningfully approve and endorse the inclusion of contraceptive coverage

in their companies’ employer-provided plans, over whatever objections

they may have. Such an endorsement – procured exclusively by

regulatory ukase – is a “compel[led] affirmation of a repugnant belief.”

That, standing alone, is a cognizable burden on free exercise.

Id. at 1217–18. Finally, the court found that the burden was substantial because the government

commands employer compliance with financial penalties, thereby giving the Gilardis a

“Hobson’s choice:” comply with the mandate and participate in what they believe to be a grave

moral wrong, or abide by the tenets of their faith and pay devastating penalties. Id. at 1218.

Here, plaintiffs seize upon the Hobson’s choice language and the Circuit Court’s

observation that if the risk of a $14 million fine “is not ‘substantial pressure on an adherent to

modify his behavior and to violate his beliefs,’ we fail to see how the standard could be met.” Id.

But the question to be resolved here is not whether an acknowledged burden has been rendered

14 The accommodation requires insurance issuers to “[e]xpressly exclude contraceptive

coverage” from the group health plan. 29 C.F.R. § 2590.715–2713A(c)(2)(i)(A). So even if the

D.C. Circuit meant to define the RFRA burden with its shopping cart metaphor, the

accommodation differentiates Catholic University from the Gilardis because the University is not

required to “fill the basket of goods and services that constitute a healthcare plan” with

contraceptive services coverage. See Gilardi, 733 F.3d at 1217.

36

substantial by the threat of financial consequences for noncompliance but whether the compelled

conduct imposes a meaningful burden on plaintiff’s religious exercise at all.

Unlike the Gilardis, the plaintiff nonprofit religious organizations in this case become

eligible for the accommodation as soon as they state that they oppose providing coverage on the

basis of their religious beliefs. 29 C.F.R. § 2590.715–2713A(a). This is exactly the opposite of

the “compelled affirmation of a repugnant belief” that was at the heart of Gilardi, and it is a

distinction that cannot be ignored. Furthermore, the accommodation explicitly provides that,

“[w]ith respect to payments for contraceptive services, the [insurer] may not impose . . . any

premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible

organization.” Id. § 2590.715–2713A(c)(2)(ii). This relief, which was not available to the

Gilardis, cuts off any obligation of the self-certifying organization to pay for the contraceptive

services of its employees or students. Id. So the case is not governed by Gilardi, and it is

distinguishable from the decision in this District in Tyndale House. 15

Plaintiffs seem to recognize what the law prohibits, and they put it succinctly in their own

pleading: “Plaintiffs’ only request has been that they not themselves be made the vehicle by

which the mandated coverage is delivered.” Pls.’ Reply at 4. Under the terms of the

accommodation, Catholic University has in fact been relieved of any obligation to itself be the

vehicle by which the coverage is delivered. The Court finds that the University has not met its

burden under RFRA to establish a substantial burden on its exercise of religion and thereby

15 The Court’s conclusion can also be squared with Geneva College v. Sebelius, 941 F.

Supp. 2d 672 (W.D. Pa. 2013), which addressed the contraceptive mandate before the

accommodation was promulgated and relied heavily on the fact that the plaintiffs in that case had

to arrange and pay for a health insurance plan that included the contraceptive services coverage.

37

trigger the application of strict scrutiny. 16 Defendants are therefore entitled to summary

judgment on Catholic University’s RFRA claim. 17

B. The accommodation falls short of relieving the burden on Thomas Aquinas

College’s religious exercise.

Thomas Aquinas College is a Catholic institution that adheres to the same religious

beliefs as Catholic University: that interfering with conception is immoral, and that it is equally

wrong to take actions that would facilitate the use of contraceptives by others. Aff. of TAC

¶¶ 12–14. Unlike Catholic University, the College provides benefits on a self-insured basis, and

it offers its employees health insurance through the RETA Trust, “which is a self-insurance trust

set up by the Catholic bishops of California for the purpose of providing medical coverage

consistent with Catholic moral teaching.” 18 Id. ¶ 8. The self-insurance trust is administered by a

third-party administrator, Benefit Allocation System, id., and the parties have informed the Court

16 Additionally, for the reasons stated below in footnote 24, the contraceptive mandate does

not impose a burden on Catholic University’s religious exercise even though it requires that the

University’s student health insurance plan include coverage for contraceptive services. Not only

does the accommodation effectively eliminate any potential facilitation on Catholic University’s

part, but the fact that the ACA does not mandate the University to provide a student health

insurance plan removes the government compulsion necessary to find a RFRA burden. See infra

note 24.

17 The Court is not basing its holding on the government’s argument that the fact that the

plaintiffs provide their employees with a salary that might ultimately be used to purchase

contraceptive services means that the mandate does not impose its own religious burden. If

plaintiffs voice religious objections to providing, paying for, and facilitating contraceptive

themselves, but they do not object to paying a salary that could potentially be used for the

purchase of contraceptives by the employees, it is not for the Court “to say that the line

[plaintiffs] drew was an unreasonable one. Courts should not undertake to dissect religious

beliefs . . . .” Thomas, 450 U.S. at 715.

18 Thomas Aquinas College’s RFRA claim refers only to its employee healthcare plan. It

has not asked the Court to address whether the contraceptive mandate imposes a RFRA burden

on the school by requiring that any student health insurance plan include contraceptive services

coverage.

38

that, notwithstanding the bishops’ involvement, the plan does not constitute a church-sponsored

plan under ERISA. Supp. Aff. of TAC ¶ 6.

Under the regulations, a self-insured organization that wishes to avail itself of the

accommodation must also certify its eligibility as a religious, nonprofit entity that opposes

providing coverage for contraceptive services under 29 C.F.R. § 2590.715–2713A(a)(4). Under

section 2590.715-2713A(b), a health plan established or maintained by an eligible organization

that provides benefits on a self-insured basis then complies with the mandate to provide

contraceptive coverage if:

(i) The eligible organization or its plan contracts with one or more third party

administrators.

(ii) The eligible organization provides each third party administrator . . . with

a copy of the self-certification . . . , which shall include notice that –

(A) The eligible organization will not act as the plan administrator or

claims administrator with respect to claims for contraceptive services,

or contribute to the funding of contraceptive services; and

(B) Obligations of the third party administrator are set forth in [the

applicable regulations].

(iii) The eligible organization must not, directly or indirectly, seek to interfere

with a third party administrator’s arrangements to provide or arrange

separate payments for contraceptive services . . . and must not, directly or

indirectly, seek to influence the third party administrator’s decision to

make any such arrangements.

29 C.F.R. § 2590.715-2713A(b)(1). If a third-party administrator receives a copy of the self-

certification and agrees to enter into or remain in a contractual relationship with the eligible

organization or its plan to provide administrative services, then it is bound to provide or arrange

for separate payments for the contraceptive services. Id. § 2590.715-2713A(b)(2). The third-

party administrator may provide for the payments itself, or it may arrange for an insurance issuer

or another entity to do so, but in no event may any cost-sharing, premium, or fee be imposed,

39

directly or indirectly, on the religious organization or its plan. Id. § 2590.715-2713A(b)(2)(i)–

(ii).

So while this section of the regulations is also designed to accomplish the goal of

relieving the religious organization of the burden of providing contraceptive coverage, by

transferring that obligation to a substitute and shielding the organization from absorbing the cost

in any way, there are several differences between what happens in the case of a self-insured

entity and in the insured group health plan scenario. First, neither the ACA nor the

accommodation itself imposes a mandatory obligation on the third-party administrator to accept

responsibility to provide contraceptive services coverage on behalf of the self-certifying

organization. One of the steps required for plan compliance is that the organization or its plan

contract with a third-party administrator, and under the terms of the accommodation, the third-

party administrator’s obligation to provide contraceptive coverage arises only if it receives a

copy of the self-certification “and agrees to enter into or remain in a contractual relationship

with the eligible organization or its plan to provide administrative services for the plan.” See id.

§ 2590.715–2713A(b)(2) (emphases added). As a result, if a third-party administrator declines to

assume the responsibility to provide coverage for contraceptive services on behalf of the self-

certifying religious organization, the third-party administrator can no longer serve in that

capacity for the organization’s plan, and the organization must either shop around to find a new

third-party administrator that will assume responsibility for the coverage or proceed without a

40

third-party administrator and await instructions from the government on how it can otherwise

satisfy its obligations. See id.; see also 78 Fed. Reg. at 39880–81. 19

Second, the accommodation operates differently in the self-insured context than in the

insurer context because, should the third-party administrator agree to assume responsibility for

the contraceptive services coverage, the regulations provide that the self-certification form itself

“shall be an instrument under which the plan is operated [and] shall be treated as a designation of

the third party administrator as the plan administrator under section 3(16) of ERISA for any

contraceptive services required to be covered.” 29 C.F.R. § 2510.3–16(b); see also id.

§ 2590.715–2713A(b)(1)(ii)(B). In other words, it is “plan administrators” who have the

obligation under ERISA to carry out the contraceptive mandate, and unlike health insurance

issuers in the insured plan context, the third-party administrator would not have this obligation

unless it was conferred on it by law in some way. A religious organization’s self-certification

provides that the organization will not be acting as the plan administrator for purposes of

compliance with the contraceptive mandate, and it directs the third-party administrator to the

rules that will govern its responsibilities. Id. § 2590.715–2713A(b)(ii). 20

Finally, in the insurance context, the regulations expressly require insurers to carve out

contraceptive services coverage from the self-insured organization’s plan. The third-party

19 The regulations do not spell this out explicitly, but both parties agree that this is what

they will entail. The Court has questions about how this set of provisions will operate in practice

in a situation such as the one presented by Thomas Aquinas College, where the third-party

administrator may be in a contractual relationship with the plan but not with the eligible

organization, and the plan and plan administrator may have religious objections of their own, but

the Court has come to its conclusion based on the fact that this obligation to secure a compliant

third-party administrator is by all accounts a critical feature of the accommodation for self-

insured plans.

20 In this case, the College does not serve as the ERISA plan administrator in any event.

See Pl. TAC’s Dec. 17, 2013 Resp. to Order of the Ct. [Dkt. # 42].

41

administrator will be separately arranging for and paying for the coverage, but under the auspices

of the plan. As counsel for the government stated at the hearing, “[i]n the self-insured case,

technically, the contraceptive coverage is part of the plan, [even though] the responsibility to

make the payments . . . is entirely the [third-party administrator’s].” Mot. Hr’g Tr. 18.

In evaluating Thomas Aquinas College’s RFRA claim, then, the question becomes

whether any of these differences are meaningful for purposes of the burden analysis.

In the Court’s view, the obligation to take affirmative steps to identify and contract with a

willing third-party administrator if the existing third-party administrator declines forces the

religious organization to do something to accomplish an end that is inimical to its beliefs. This

involves the organization in facilitating access to contraceptive services, which the College has

averred it cannot do, and it entails the critical element of modifying one’s behavior. Therefore,

the College has met its burden to identify a burden on religious exercise imposed by the

regulations governing self-insured plans.

The Court is less persuaded that the mere fact that the arrangements and payments for the

contraceptive coverage arise under the auspices of the organization’s healthcare plan is enough

to constitute a burden, even if the exclusion of the coverage from an insured group plan makes

the government’s case stronger in that situation. A court could conclude that, since one of the

founders and a Vice President of the College has averred that “[p]roviding health insurance

coverage that includes coverage for [contraceptive services] is . . . inconsistent with the core

moral and religious beliefs of the College,” Aff. of TAC ¶ 12, and a court is bound by law to

accept a litigant’s sincere statement of his religious beliefs, the Court must base a finding that

there is a burden on those grounds. But the fact that the payments are to be made as part of the

plan, as opposed to a separate plan, is a technicality driven by the intricacies of ERISA and the

42

insurance industry and the recognition that the third-party administrator can only advance

“payments” and not issue a “policy.” Nothing about those details changes the fact that any

actions the third-party administrator takes with respect to contraceptive coverage must be

completely independent from the eligible organization. The payments are totally separate from

and cannot be imposed upon the religious organization, and the third-party administrator can

even arrange for an entirely separate insurance issuer to provide the payments. So the argument

that the problem arises because the coverage is still being offered under the auspices of the

religious organization’s plan is difficult to distinguish from the argument the Court has already

rejected: that the organization is burdened based upon objectionable consequences, and the

Court will not predicate its decision in the College’s favor on those grounds.

With respect to the self-certification, an argument can be made there is something

qualitatively different about the act of self-certifying in the context of a self-insured entity that is

different from the group plan scenario. That cuts both ways. On the one hand, the self-insured

organization’s certification contains additional language that explicitly cuts itself out of the

process: it provides that the organization will not be the plan administrator for purposes of the

delivery of the coverage. 29 C.F.R. § 2590.715-2713A(b)(1)(ii)(A).

But on the other hand, the regulations provide that an eligible organization’s self-

certification “shall be an instrument under which the plan is operated” and “shall be treated as a

designation of the third party administrator as the plan administrator under section 3(16) of

ERISA for any contraceptive services required to be covered.” Id. § 2510.3–16. Defendants

explain the practical significance of that regulatory provision:

43

[W]hen a [third-party administrator] receives a copy of the self-

certification from an eligible employer that sponsors a self-insured group

health plan, that [third-party administrator] becomes an ERISA Section

3(16) plan administrator and claims administrator for the purpose of

providing the separate payments for contraceptive services. Thus, the

contraceptive coverage requirements can be enforced against such [third-

party administrators] through defendant Department of Labor’s ERISA

enforcement authority.

Defs.’ Opp. & Reply at 6 (citations omitted). One could argue, then, that when Thomas Aquinas

College files its self-certification, it will be taking more of an affirmative step to help secure

women’s access to contraceptive services than Catholic University will be, and therefore, the

Court should find that it is acting in a manner that is inconsistent with its religious beliefs.

The Court sees the differences in the nature of the self-certification to be, again, primarily

a problem of consequences. What the religious organization is being asked to do is the same: to

express its religious objection. That action eliminates any obligation to provide or pay for

contraceptive services, and then it is the regulations that operate to assign the obligation to

someone else and to give the self-certification its legal import. In other words, defendants have

done it, not the College. While the contraceptive coverage may still be under the broad roof of

one health plan that is being offered, the government has assigned a new plan administrator the

job of offering entirely separate shelter for that purpose under its own umbrella. So unless the

religious organization has been forced to run around with the umbrella and find the person to

hold it, hasn’t the accommodation succeeded in granting plaintiffs’ “only request . . . that they

not themselves be made the vehicle by which the mandated coverage is delivered?” See Pls.’

Reply at 4 (first emphasis added).

It is helpful to remember that, despite plaintiffs’ reliance on Gilardi, the Gilardi court

was not concerned with results. It did not hold that the Gilardi’s rights were violated because

their employees would receive access to contraception by virtue of their participation in the

44

Gilardis’ plan or even because contraceptive services would be included in the plan. That

question was not presented. What animated the court was its observation that the mandate –

without the accommodation – “demands that owners like the Gilardis meaningfully approve and

endorse the inclusion of contraceptive coverage in their companies’ employer-provided plans.”

Gilardi, 733 F.3d at 1217–18 (emphasis added). If the third-party administrator accepts the

obligation, and there is no obligation placed upon the religious organization to secure another,

these circumstances have also been eliminated by the accommodation in the self-insured context.

Once again, there is no compelled affirmation of a repugnant belief.

But the operative word in that sentence is “if.” If the third-party administrator declines to

serve, a series of duties and obligations will fall to the religious organization. If the third-party

administrator stays in the contractual relationship but fails to carry out its obligations, then the

College’s self-certification may be the tool which gives the government its ERISA enforcement

authority. Looking at section 2590.715-2713A(b) as a whole, the Court finds that Thomas

Aquinas has met its burden to show that the mandate, even as revised by the accommodation,

imposes a burden on its religious exercise. Since that burden comes upon pain of substantial

financial penalties, see 26 U.S.C. § 4980H, the Court must find it to be substantial. Gilardi, 733

F.3d at 1218.

Once the Court determines that the regulations impose a substantial burden on plaintiff’s

religious exercise, it must go on to decide whether the application of the burden is in furtherance

of a compelling interest and whether it is the least restrictive means of furthering that interest.

Defendants have conceded that the Gilardi decision requires the Court to find that contraceptive

45

mandate does not survive strict scrutiny, 21 thus the Court concludes that Thomas Aquinas

College is entitled to summary judgment on its RFRA claim.

C. The remaining plaintiffs do not have standing to raise a RFRA claim.

The rest of the plaintiffs – Catholic Academies, Archbishop Carroll, Don Bosco, Mary of

Nazareth, Catholic Charities, Victory Housing, and the Catholic Information Center

(collectively, the “church plan plaintiffs”) – provide their employees with health insurance

through the Archdiocese’s self-insured health plan. Pls.’ SOF ¶ 5. The government contends

that, therefore, they do not have standing to bring a RFRA challenge to the contraceptive

mandate, and it has raised a significant jurisdictional concern. While this Court, like the court in

the Eastern District of New York, is troubled by defendants’ delay in appreciating the

implications of their own regulations, see Roman Catholic Archdiocese of N.Y. v. Sebelius, No.

12-2542, 2013 U.S. Dist. LEXIS 176432 (E.D.N.Y. Dec. 13, 2013), that circumstance does not

alter the fact that they are correct.

The government’s authority to enforce a third-party administrator’s obligation to provide

contraceptive services coverage on behalf of a self-certifying organization under the

accommodation is derived from ERISA. It is ERISA that accords the government authority to

penalize any third-party administrator that undertakes to pay for the coverage by remaining in its

contractual relationship with the self-certifying organization but then fails to make the necessary

21 Gilardi addressed the burden imposed by the mandate itself on an employer that could

not avail itself of the accommodation, and the Court found that the interests identified by the

government were not sufficiently compelling, but even if they were, the mandate was not

narrowly tailored to achieve those goals. 733 F.3d at 1219–24. For all of the reasons set out in

this section of the opinion, the Court is not certain that the application of strict scrutiny would

lead to the same conclusion in the context of weighing the acts required of a religious

organization under the accommodation against the government’s interests, and it believes that

the less restrictive means test would not be governed by the analysis in Gilardi since that Court

was not assessing the provisions in the accommodation.

46

payments or arrangements. See 29 C.F.R. § 2510.3–16(b); Mot. Hr’g Tr. 31. Thus, ERISA is

essential to the accommodation’s regulatory scheme. It is well-settled, though, that church plans

– such as the plan maintained by the Archdiocese – are explicitly exempt from the requirements

of ERISA. 29 U.S.C. § 1003(b)(2) (2012). The government therefore has no authority to

enforce the third-party administrator obligations under the accommodation against the

administrator of a church plan. Defs.’ Opp. & Reply at 5–7.

Based on this regulatory framework, defendants argue that the church plan plaintiffs do

not have standing. The church plan plaintiffs are self-insured under the Archdiocese’s plan, that

plan constitutes a church plan under ERISA, and the government lacks authority to require the

Archdiocese’s third-party administrator to provide contraceptive services coverage on behalf of

the church plan plaintiffs, even if they furnish their self-certifications. As a result, defendants

argue, the church plan plaintiffs have not alleged an actionable injury: they may object to

facilitating access to contraceptive services, but the facts indicate that they will not actually be

facilitating access to contraceptive services by offering a health insurance plan or by self-

certifying under the accommodation because, once they self-certify, there is no imminent risk

that their third-party administrator will provide the objectionable coverage, and the government

cannot force it to do so. Id. The Court agrees.

To satisfy the injury-in-fact requirement of standing, a plaintiff must suffer an invasion of

a legally protected interest that is both (a) concrete and particularized and (b) actual or imminent.

Lujan, 504 U.S. at 560. An injury that is merely conjectural or hypothetical does not suffice. Id.

Here, the church plan plaintiffs allege the same burden under RFRA as Catholic University and

Thomas Aquinas College: that requiring them to facilitate access to contraceptive services

violates their sincerely held religious belief. In other words, as they cast their RFRA claim,

47

plaintiffs’ claimed injury arises when the provision of contraceptive coverage has been facilitated

by their actions and their beliefs have thereby been violated. Although the church plan plaintiffs

are self-insured, and they are under the same obligation as Thomas Aquinas to self-certify and to

transmit the form to the third-party administrator, that conduct does not give rise to a concrete,

actual or imminent, cognizable injury in fact when it is performed by the church plan plaintiffs

because there is no reason to believe that anything will happen after that.

For example, the church plan plaintiffs have not shown that they are injured by the

requirement in the ACA that they provide a health insurance plan that includes access to

contraceptive services because there is no indication in the record that the coverage under their

plan – the Archdiocese plan – is going to change. See Pls.’ Submission in Resp. to Order at 12–

13 [Dkt. # 39]. 22 In response to specific questions from the Court on this topic, the government

has unequivocally stated that the church plan plaintiffs will be in full compliance with the

mandate if they provide the self-certification to the third-party administrator of their plan under

22 Plaintiffs argue that the accommodation itself is mandatory on its face and that, for

purposes of standing, the Court should assume that its third-party administrator will comply

“with its legal obligations as stated in the federal regulations” regardless of whether ERISA

applies. Pls.’ Submission in Resp. to Order at 12. Although there are some contexts in which

the “possibility that third parties may violate the law is too speculative to defeat standing,” Tel.

& Data Sys., Inc. v. FCC, 19 F.3d 42, 48 (D.C. Cir. 1994), this is not one of those situations.

The government has conceded that, under the accommodation, a church plan third-party

administrator has no legal obligation to provide contraceptive services and may remain in its

contractual relationship with the church plan plaintiffs even if it declines to provide that

coverage. Given the representations contained in the Archdiocese’s affidavit concerning the

manner in which it intends to operate its plan, it is reasonable to infer that the Archdiocese’s

third-party administrator will decline to assume additional responsibilities to provide coverage or

to actually provide that coverage when it has been told by the enforcing agency that it has no

legal duty to do so.

48

section 2590.715–2713A(b)(1)(ii) and abide by the provisions of section 2590.715–

2713A(b)(1)(iii). 23 Defs.’ Resp. to Ct. Order at 1–3 [Dkt. # 40].

QUESTION BY THE COURT: If the church plan “plaintiffs submit the

self-certification to the third-party administrator of the church plan

pursuant to section [2590.715–2713A(b)(1)(ii)], would those plaintiffs

then be in full compliance with the regulatory regime provided that they

do not violate section [2590.715–2713A(b)(1)(iii)]?”

DEFENDANTS: “Assuming that they do not violate section [2590.715–

2713A(b)(1)(iii)], and that they maintain the self-certification form and

make it available for examination upon request, then the self-certifying

non-Archdiocese plaintiffs who cover their employees under the church

plan . . . would be in full compliance with the regulatory regime.”

Id. at 1 (citation omitted).

Moreover, the self-certification alone is not enough to enable the church plan plaintiffs’

employees to obtain payments for the contraceptive services: the third-party administrator must

assume that responsibility. In the context of the Archdiocese plan, there is no reason to believe

that is an actual, imminent possibility. See Aff. of Archdiocese ¶ 15 (“Consistent with Catholic

teaching, the Archdiocese has historically excluded coverage for abortion [and] contraceptives

(except when used for non-contraceptive purposes) . . . .”). And the government has made it

clear that plaintiffs will not be obliged to shop for another one. See Defs.’ Resp. to Ct. Order at 3

23 29 C.F.R. § 2590.715–2713A(b)(1) provides that a group health plan “established or

maintained by” an eligible organization that provides benefits on a self-insured basis complies

with the contraceptive mandate if the eligible religious organization “or its plan” contracts with a

third-party administrator, and the eligible organization provides the self-certification to the third-

party administrator. The church plan plaintiffs question whether they are obligated to do

anything under this provision because they have not “established or maintained” the plan – it is

the Archdiocese’s plan. Joint Submission in Resp. to Order at 1–2, 5 [Dkt. # 36]. Based on the

authority cited by plaintiffs on this point, the Court concludes that the church plan plaintiffs have

“established or maintained” the Archdiocese plan for purposes of this section. See Anderson v.

UNUM Provident Corp., 369 F.3d 1257, 1265 (11th Cir. 2004); Peckham v. Gem State Mut. of

Utah, 964 F.2d 1043, 1049 (10th Cir. 1992). If the Court and the government are incorrect about

that and the church plan plaintiffs have not “established or maintained” the plan that they

expressly aver they offer to their employees, then they clearly would not have standing to bring

an action challenging this provision.

49

(“If the non-Archdiocese plaintiffs submit the self-certification to the [third-party administrator

(“TPA”)] of the Archdiocese’s self-insured church plan, and the TPA does not agree to provide

or arrange for payment for contraceptive services, then the non-Archdiocese plaintiffs are not

required to identify another TPA to perform that function.”). Instead, in the context of the

church plan, ERISA enforcement is lacking, and the government can neither require the third-

party administrator of a church plan to end its contractual relationship for failing to assume

responsibility for contraceptive services coverage nor penalize the third-party administrator that

assumes the responsibility if it fails to actually provide that coverage.

Finally, there is no concern in this context that, by requiring the church plan plaintiffs to

file a self-certification form, the government is compelling those plaintiffs to transform their

contractual relationship with their third-party administrator or to provide the instrument that will

serve as the legal authority to enforce the third-party administrator’s obligations under the

accommodation. A church plan is not subject to ERISA, 29 U.S.C. § 1003(b)(2); therefore, a

third-party administrator of a church plan cannot be transformed into an ERISA plan

administrator just because the self-certification is filed. The church plan plaintiffs have not

alleged an injury in fact that will flow from filing the self-certification form because that form

has no effect other than to relieve their burden to provide contraceptive services coverage.

Therefore, the church plan plaintiffs lack standing to bring the RFRA claim in Count I.

But even if one were to conclude that the church plan plaintiffs have standing to press

their RFRA claim because they are still obligated to complete the self-certification form, they

have not met their burden to establish that there is a RFRA burden on their religious exercise.

Since the regulatory obligation to provide a health insurance plan and to self-certify a religious

objection does not compel the church plan plaintiffs to provide contraceptive coverage or to

50

facilitate the delivery of that coverage contrary to their principles, the Court concludes that

neither the contraceptive mandate nor the accommodation places a burden on the church plan

plaintiffs’ religious exercise. 24

The Court will grant defendants’ motion to dismiss the church plan plaintiffs’ RFRA

claims for lack of standing.

II. Defendants are entitled to summary judgment on the Free Exercise Clause claim in

Count II. 25

The Free Exercise Clause of the U.S. Constitution provides that “Congress shall make no

law . . . prohibiting the free exercise” of religion. U.S. Const. amend. I. The Supreme Court has

made clear that this constitutional right “does not relieve an individual of the obligation to

comply with a valid and neutral law of general applicability on the ground that the law proscribes

24 There are additional grounds why, even if the Court found that the church plan plaintiffs

sufficiently alleged an injury to satisfy standing, Catholic Information Center and Don Bosco do

not have a successful RFRA claim. Unlike the other plaintiffs, Catholic Information Center and

Don Bosco have less than fifty employees and are not subject to the employer mandate. Supp.

Aff. CIC ¶ 4; Supp. Aff. Don Bosco ¶ 4. So, they provide health insurance to their employees on

a voluntary basis. Although employers who provide health insurance voluntarily must still

comply with the contraceptive mandate and face penalties for failure to do so, see 42 U.S.C.

§ 300gg-13(a); Mot. Hr’g Tr. 36, plaintiffs simply are not in the same position as those subject to

the employer mandate because they can choose to not provide health insurance in order to

exercise their religious belief of not facilitating access to contraceptive services. Any potential

penalty resulting from that decision – such as difficulty recruiting employees without offering a

health insurance plan – is the product of the conditions of the marketplace and is not imposed by

the government. It therefore cannot be said that Catholic Information Center and Don Bosco

suffer a cognizable RFRA burden because they are not in a position where the government is

placing pressure on them to violate their religious beliefs in order to avoid a government imposed

penalty.

25 In this section, “plaintiffs” refers only to Catholic University and Thomas Aquinas

because the remaining plaintiffs do not have standing to argue that the contraceptive mandate

violates the Free Exercise Clause. See supra section I.C.

51

(or prescribes) conduct that his religion prescribes (or proscribes).” 26 Smith, 494 U.S. at 879

(internal quotation marks omitted); see also Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 594–

95 (1940) (“The mere possession of religious convictions which contradict the relevant concerns

of a political society does not relieve the citizen from the discharge of political

responsibilities.”). The Court must apply strict scrutiny only when a law is either not neutral or

not generally applicable. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,

531–32 (1993). When assessing whether a law is neutral and generally applicable, the two

inquiries tend to overlap and “failure to satisfy one requirement is a likely indication that the

other has not been satisfied.” Id. at 531.

Here, plaintiffs argue that the contraceptive mandate violates the Free Exercise Clause

because it is neither neutral towards religion nor generally applicable because it is subject to

numerous exceptions. Compl. ¶¶ 252–68; see also Pls.’ Mot. at 29–32. The Court disagrees.

A. The contraceptive mandate is neutral.

A law is not neutral if it targets religious beliefs because of their religious nature or “if

the object of a law is to infringe upon or restrict practices because of their religious motivation.”

Lukumi, 508 U.S. at 533. A discriminatory object may be present on the face of the challenged

provision when the text “refers to a religious practice without a secular meaning discernable

from the language or context.” Id. For example, Lukumi involved a city ordinance that

prohibited animal sacrifice and the Supreme Court noted that the use of words such as “sacrifice”

or “ritual” – which are religious in origin – might suggest that the city’s ordinance is

discriminatory on its face. Id. at 533–34. A discriminatory object may also exist where the

26 It was this articulation of the Constitution’s religious protection that prompted Congress

to bring religion back into the equation with RFRA. See Holy Land Found., 333 F.3d at 166–67.

RFRA is statutory, however, and therefore has no bearing on the claims asserted under the Free

Exercise Clause.

52

challenged provision, in operation, targets religious practice in general, or certain religions’

practices specifically, for unfavorable treatment. Id. at 534 (noting that the Free Exercise Clause

also “‘forbids subtle departures from neutrality’ and ‘covert suppression of particular religious

beliefs’”).

Here, plaintiffs do not argue that the text of the contraceptive mandate is facially

discriminatory, and the Court finds nothing in the language of the contraceptive mandate that

would suggest that it is not neutral towards religion. See id. at 531. Instead, plaintiffs assert that

the law is not neutral because “the Mandate was part of a conscious political strategy to

marginalize and delegitimize Plaintiffs’ religious views on contraception by holding them up for

ridicule on the national stage.” Pls.’ Mot. at 31. None of plaintiffs’ arguments relate to the

actual effects of the contraceptive mandate or suggest that, as applied, the contraceptive mandate

only burdens – and thus targets – religion. Because a lack of neutrality towards religion must be

evident in the practical effects of the challenged provision – not just in what a party claims was

in the minds of those who influenced or promulgated it – and because the contraceptive mandate

does not operate to single out religion in general, or any religions specifically, for unfavorable

treatment, it is neutral for purposes of the First Amendment.

Indeed, the availability of a religious employer exemption that completely exempts the

Catholic Church from the requirements of the contraceptive mandate cuts against the conclusion

that the contraceptive mandate was specifically designed to oppress those of the Catholic faith as

plaintiffs suggest. See id. The Church employs over 2,100 individuals in the District of

Columbia alone. See Aff. of Archdiocese ¶ 8.

Moreover, the contraceptive mandate applies equally to religious and nonreligious

employers. It does not operate, as the Supreme Court put it in Lukumi, so “that almost the only

53

conduct subject to [the ordinances was] the religious exercise” of a specific church. 508 U.S. at

535. All employers that offer a healthcare plan – whether they do so voluntarily or by virtue of

the ACA, and whether they are religious or nonreligious – must include cost-free coverage of a

range of preventive services, including contraceptive services, in their plans. 27 This makes the

law neutral. See Am. Family Ass’n v. FCC, 365 F.3d 1156, 1171 (D.C. Cir. 2004) (noting that

the point system FCC used to award noncommercial education broadcast licenses was neutral

because “the rule on its face appear[ed] also to disadvantage nonreligious centralized

broadcasting networks” and therefore did not place a burden “on religious organizations ‘but

almost no others’”).

The fact that many nonreligious employers may have provided coverage for

contraceptive services prior to the contraceptive mandate does not change the analysis. The

contraceptive mandate imposes a new burden on employers who already provide contraceptive

services coverage – they must now provide contraceptive services coverage for free – and it

eliminates the right of those employers to change their mind. Because the practical effect of the

contraceptive mandate is to treat religious and nonreligious employers the same, that weighs in

favor of finding the provision to be neutral towards religion.

27 That some employers may be exempt from this requirement because they qualify for the

“grandfathered-plan exemption” does not change the conclusion that the contraceptive mandate

imposes an equal burden on religious and nonreligious employers. Not only is the

grandfathered-plan exemption of temporary duration and therefore only allows qualifying plans

to avoid compliance with the contraceptive mandate for a limited time, the grandfathered-plan

exemption is available to both religious and nonreligious employers equally. It therefore does

not operate to impermissibly target religion for unfavorable treatment. See Am. Family Ass’n,

365 F.3d at 1171 (noting that any discrimination against decentralized organizations in the

FCC’s point system was felt by both religious and nonreligious employers and any “differential

impact . . . on . . . religion [was] neither . . . severe and targeted nor so unrelated to the FCC’s

legitimate regulatory interests as to be a religious gerrymander”).

54

The finding of neutrality is also supported by the fact that the mandate’s requirements are

closely related to its stated goals. 28 See Lukumi, 508 U.S. at 538. The final rules state that the

purpose of the contraceptive mandate is to facilitate access to cost-free contraceptive services,

which defendants have determined will help to improve the health of women and newborn

children, decrease healthcare coverage cost disparities among women and men, and foster great

equality for women in the workplace. 78 Fed. Reg. at 39872–73, 39887. Whether or not one

agrees that access to cost-free contraceptive services will actually produce those desired

outcomes, the contraceptive mandate’s requirements are aimed at promoting those asserted

interests and are not so unrelated as to arouse suspicion. Cf. Lukumi, 508 U.S. at 538–39

(expressing concern that ordinances banning animal sacrifice prohibited more religious conduct

than was necessary to prevent improper disposal of animal remains or to prevent animal cruelty).

Thus, the contraceptive mandate is neutral in its practical effect, and it is related to its specified,

neutral regulatory interests.

Plaintiffs point to statements by defendant Sebelius and by a key supporter of

California’s contraception statute, and they allege that there was a pro-choice bias on the part of

the IOM committee. See Pls.’ Mot. at 31–32. But those circumstances do not necessarily reflect

28 Although the D.C. Circuit found that the government’s interests in public health and

equal access to healthcare for women are not compelling interests and that the contraceptive

mandate is not narrowly tailored to achieve those interests, Gilardi, 733 F.3d at 1219–24, those

interests may still serve as evidence of neutrality in this case because the Court is concerned not

with whether the contraceptive mandate survives strict scrutiny, but with whether the stated goals

are so unrelated to the regulatory mechanism as to raise suspicions that an otherwise neutral

regulation has more sinister purposes. For the reasons provided in this section, the Court is

convinced the contraceptive mandate has no ill intent toward religion or the Catholic Church.

55

hostility towards Catholicism. 29 And even though – if it can be shown to exist – the subjective

intent of the drafters may create an inference that the object of a law is not neutral towards

religion, Lukumi, 508 U.S. at 533, that inference is weakened when the law does not operate in a

nonneutral way. 30 See id. at 558 (Scalia, J., concurring) (“The First Amendment does not refer

to the purposes for which legislators enact laws, but to the effects of the laws enacted . . . .”);

United States v. O’Brien, 391 U.S. 367, 383 (1968) (“It is a familiar principle of constitutional

law that this Court will not strike down an otherwise constitutional statute on the basis of an

alleged illicit legislative motive.”); see also id. at 384 (“What motivates one legislator to make a

speech about a statute is not necessarily what motivates scores of others to enact it, and the

stakes are sufficiently high for us to eschew guesswork.”); City of Renton v. Playtime Theatres,

29 The statutory scheme itself suggests that Congress may have contemplated that HRSA’s

guidelines would include contraceptive services coverage. HRSA’s statutory authority is derived

from 42 U.S.C. § 300gg-13(a), which calls for coverage for preventive services, but then

specifically directs HRSA to enumerate recommended preventive services for women. 42

U.S.C. § 300gg-13(a)(4). Paragraph (1) of that section requires coverage of “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.” Id. § 300gg-13(a)(1). Because many women-

only preventive services, such as breast cancer screening, breastfeeding counseling, and cervical

cancer screening, already fall within paragraph (1), see USPSTF A and B Recommendations,

U.S. Preventive Services Task Force, http://www.uspreventiveservicestaskforce.org/

uspstf/uspsabrecs.htm (last visited December 3, 2013), one could conclude that Congress had

other women-only preventive services – such as contraceptive services – in mind. This further

reduces the likelihood that the regulation was specifically designed to target adherents of the

Catholic faith.

30 Defendant Sebelius’s use of sarcasm on the one occasion cited was, at most, insensitive,

and the statement of the California legislator who played no role in the adoption of the rule does

not bear on this case at all.

56

Inc., 475 U.S. 41, 47 (1986) (applying the same principle in the regulatory context). The Court

therefore finds that the contraceptive mandate is neutral towards religion. 31

B. The contraceptive mandate is generally applicable.

Plaintiffs argue that the contraceptive mandate is not generally applicable because there

are exemptions to its requirements, Pls.’ Mot. at 30, and they quote the sentence in Lukumi,

which states: “[I]n circumstances in which individualized exemptions from a general

requirement are available, the government may not refuse to extend that system to cases of

religious hardship without compelling reason.” 508 U.S. at 537, quoting Smith, 494 U.S. at 884

(internal quotation marks omitted). But the requirement of general applicability is not the same

thing as requiring a regulation to be universally applicable. See Gillette v. United States., 401

U.S. 437 (1971).

First of all, the quoted language is taken from the Supreme Court’s neutrality discussion

in Lukumi. Although inquiries into a regulation’s neutrality and general applicability tend to

overlap, Lukumi, 508 U.S. at 531, the observation appears to recognize that the application of

statutory or regulatory discretion to exempt all secular objectors, leaving the rule to be enforced

against a religious group only, would undermine its neutrality. Id. at 537 (explaining that the

government exercised its discretion to determine which animal killings were necessary and

therefore exempt in a way that “devalue[d] religious reasons for killing by judging them to be of

lesser import than nonreligious reasons”).

31 Despite plaintiffs’ arguments to the contrary, the contraceptive mandate does not single

out Catholicism for unfavorable treatment while leaving all other religions unaffected. It is

undisputed that the exemption is available to the Catholic Church, and that the availability of the

exemption for the religious-affiliated organizations turns on the nature of those organizations and

not the church with which they are affiliated.

57

But here, none of the exemptions to the contraceptive mandate are individualized, and

none of the exemptions require the government to exercise its discretion in a way that would

allow it to “devalue[] religious reasons for [not providing contraceptive services coverage] by

judging them to be of lesser import than nonreligious reasons.” See id. All of the exemptions

are available regardless of an employer’s religious leanings, and an employer’s ability to qualify

for an exemption is not based on any subjective determination by the government. See Am.

Family Ass’n, 365 F.3d at 1171 (“Even setting aside that nonreligious organizations also face

burdens from the rule, the burden the point system foists on religious organizations is relatively

modest” because “[t]here is nothing inherently related to religion in the point system’s criteria”).

Indeed, the availability of both the religious employer exemption and the accommodation for

nonprofit religious organizations demonstrates that the government is not devaluing religious

concerns, but rather, it is making efforts to accommodate them. 32

The Court in Lukumi acknowledged that it did “not define with precision the standard

used to evaluate whether a prohibition is of general application,” but it indicated that the inquiry

32 The Third Circuit’s decision in Fraternal Order of Police Newark Lodge No. 12 v. City of

Newark, 170 F.3d 359 (3d Cir. 1999) – even if it were binding on this Court – does not compel a

contrary conclusion. In that case, the court addressed whether a police department’s decision to

deny a religious exemption to its no beard policy violated the Free Exercise Clause and

determined that the policy was subject to heightened scrutiny because it was not generally

applicable. Id. at 365. But, the court did not simply look at the police department’s beard

policy, spot a secular exemption, and automatically decide that heightened scrutiny applied.

Instead, the existence of a nonreligious exemption for medical reasons gave the court pause

because the nonreligious exemption would undermine the stated goal of having uniform police

uniforms to the same extent as if the department allowed a religious exemption to that policy. Id.

at 366. Consequently, providing an exemption for medical reasons but not for religious reasons

aroused suspicion that the government was making “a value judgment in favor of secular

motivations, but not religious motivations.” Id. However, the court was not troubled by the

existence of an exemption for undercover police officers because undercover officers are not

held out as police to the public, which means that their appearance did not undermine uniformity

in police appearance. Id. Here, the only permanent exemption to the contraceptive mandate is

an exemption that respects religion.

58

should focus on whether the challenged provision is so underinclusive that it raises suspicions as

to whether it was actually designed to promote the proffered government interests. 508 U.S. at

543.

Here, the cited exceptions do not give rise to that sort of underinclusiveness. The

grandfathered-plan exemption and the small employer exemption are not specific exemptions to

the contraceptive mandate; instead, they are general exemptions to mandate that employers

comply with all of the ACA’s new essential minimum coverage requirements. These exemptions

to the employer mandate do not tend to show that the government has created so many specific

exemptions to the contraceptive rules to counteract their efficacy in promoting public health and

women’s equality. 33 Similarly, the one-year safe harbor delaying enforcement of the

contraceptive mandate is irrelevant when considering whether the contraceptive mandate is

underinclusive. The safe harbor was temporary and it will expire next month, thereby

eliminating any potential underinclusiveness caused by that “exemption.”

The only specific exemption to the contraceptive mandate – and therefore the only

potential source of underinclusiveness – is the religious employer exemption established by 45

C.F.R. § 147.131(a). The existence of a religious employer exemption, however, does not give

rise to the kind of underinclusiveness that concerned the Supreme Court. See Lukumi, 508 U.S.

at 543 (finding underinclusiveness where the ordinances “fail[ed] to prohibit nonreligious

conduct that endangers these interests in a similar or greater degree than Santeria sacrifice

does”). It is true that the definition of religious employer includes some religious organizations

and not others, but the purpose of the narrow definition was to narrow the group of employees

33 Moreover, to the extent that these exemptions are relevant to the general applicability

inquiry, they do not cut against a finding of general applicability because the grandfathered plan

exemption is of limited duration and the small employers exemption does not exempt a small

employer who voluntarily chooses to provide health insurance from the contraceptive mandate.

59

who would be carved out of the law. See 78 Fed. Reg. at 39874 (explaining that defendants

adopted a narrow definition of religious employer because it allowed them to respect religious

objections to contraceptive services “in a way that [did] not undermine the governmental

interests furthered by the contraceptive coverage requirement” because “[h]ouses of worship and

their integrated auxiliaries . . . are more likely than other employers to employ people of the

same faith who share the same objection [to contraceptive services], and who would therefore be

less likely than other people to use contraceptive services”). In other words, the religious

employer exemption was drafted narrowly in order to prevent the contraceptive mandate from

being underinclusive.

The Court finds, then, that the contraceptive mandate is generally applicable because

none of its exemptions create the type of individualized value assessment or underinclusiveness

that warrants a contrary finding. Since the contraceptive mandate is both neutral and generally

applicable, strict scrutiny is not triggered, and defendants are entitled to summary judgment on

Count II, plaintiffs’ Free Exercise Clause claim. 34

34 In their motion for preliminary injunction, plaintiffs cite Smith and briefly discuss the

language in that case that has been used to create a sort of hybrid theory of constitutional rights

that would trigger the application of heightened scrutiny. Pls.’ Mot. at 32. It is not clear,

however, from plaintiffs’ motion – or its subsequent motions that do not mention the hybrid

theory – whether plaintiffs intend to assert a separate claim under the hybrid rights theory. To

the extent that this was their intention, the Court finds that a hybrid rights claim must also fail.

In the D.C. Circuit, the hybrid rights theory may only trigger strict scrutiny where at least one of

the two asserted constitutional claims is viable. Henderson, 253 F.3d at 19 (noting that at least

one claim must be viable because the laws of mathematics teach us that “zero plus zero equals

zero”). As explained throughout this opinion, plaintiffs’ only viable constitutional claim is a

narrow count that does not go to the contraceptive mandate, but only challenges the ban on

attempts to influence a third-party administrator. See infra section IV. As this claim is

extremely narrow and does not overlap with plaintiffs’ other constitutional claims, the Court

declines to use the hybrid theory to trigger strict scrutiny in this case.

60

III. Defendants are entitled to summary judgment on plaintiffs’ compelled speech

claims in Count III. 35

The First Amendment Free Speech Clause provides that “Congress shall make no

law . . . abridging the freedom of speech.” U.S. Const. amend. I. It protects not only “the right

to speak freely,” but also “the right to refrain from speaking at all.” Wooley v. Maynard, 430

U.S. 705, 714 (1977); see also W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). It

therefore offers protection to parties subject to government compelled speech, permitting them in

certain situations to remain silent. See, e.g., Rumsfeld v. Forum for Academic & Institutional

Rights, Inc. (“FAIR”), 547 U.S. 47 (2006); Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622

(1994); Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974).

Here, plaintiffs claim that the contraceptive mandate unconstitutionally compels them to

speak in two ways: first, plaintiffs assert that the contraceptive mandate violates the First

Amendment because it compels them to provide, pay for, and facilitate access to counseling in

favor of the use of contraceptive services, which they do not support. Compl. ¶¶ 269–83; see

also Pls.’ Mot. at 33. Second, plaintiffs assert that the accommodation, in conjunction with the

contraceptive mandate, compels them to engage in speech – the self-certification form – that

simultaneously results in the provision of contraceptive services to which they object while

depriving them of the freedom to speak on the issue of abortion and contraception on their own

terms. Id. Although at bottom both claims deal with the constitutionality of compelled speech,

they differ enough to warrant separate treatment because the former addresses the government’s

ability to compel a party to support third-party speech whereas the latter alleges an imposition on

these plaintiffs. Neither aspect of the regulations offends the First Amendment.

35 The Archdiocese is completely exempt from the contraceptive mandate and therefore

cannot assert a compelled speech claim.

61

A. Providing access to counseling about contraceptive services through plaintiffs’

healthcare plan does not violate plaintiffs’ free speech rights. 36

Plaintiffs assert that the contraceptive mandate violates their free speech rights because it

compels them to provide, pay for, 37 and facilitate access to counseling that encourages,

promotes, or facilitates the use of contraceptive services. Compl. ¶ 275; see also Pls.’ Mot. at 33.

More specifically, they complain that, by compelling them to provide a health insurance plan that

covers third-party counseling on the topic of contraceptive services, the contraceptive mandate

forces plaintiffs to facilitate third-party speech in “favor of such practices” and therefore violates

plaintiffs’ free speech rights by forcing them to “speak” in a manner inconsistent with their

beliefs. Pls.’ Mot. at 33 (emphasis in original).

The Court notes at the outset that the definition of preventive services incorporated into

the mandate includes “patient education and counseling for all women with reproductive

36 To the extent that Catholic University asserts this argument as part of its compelled

speech claim, the argument fails because the contraceptive mandate does not require the

University to offer a health plan that includes contraceptive services coverage. See 29 C.F.R.

§ 2590.715–2713A(c)(2)(i)(A). Similarly, the facts do not support the argument that the church

plan plaintiffs are compelled to provide access to counseling about contraceptive services

because there is no indication that the coverage will be provided to their employees. See supra

section I.C. The only remaining plaintiff is Thomas Aquinas.

37 Throughout their briefs, plaintiffs imply that the contraceptive mandate requires them to

pay for their employees’ contraceptive services. That characterization is inaccurate in light of

the accommodation, for which all plaintiffs admittedly qualify. Compl. ¶ 10. Under the

accommodation, eligible organizations – including plaintiffs – are not required to pay for

contraceptive services. 29 C.F.R. § 2590.715–2713A(b)(1)(ii)(A), (b)(2), (c)(2). Moreover, the

regulations explicitly prohibit insurers or third-party administrators from passing the cost of

those services through to the employer. Id. § 2590.715–2713A(b)(2), (c)(2); 78 Fed. Reg. at

39877, 39879. The regulations provide for separate accounting of the money used to pay for

contraceptive services in order to ensure that plaintiffs’ fear that their other insurance premiums

would suspiciously increase does not come to fruition. 29 C.F.R. § 2590.715–2713A(d); 78 Fed.

Reg. at 39877, 39879. Thus, there can be no argument that the contraceptive mandate and the

accommodation violate plaintiffs’ free speech rights by requiring them to subsidize third-party

speech that has a content to which they object.

62

capacity,” and not advocacy “in favor of” anything, so plaintiffs’ characterization is not entirely

accurate. See Women’s Preventive Services Guidelines, HRSA, http://www.hrsa.gov/

womensguidelines/ (last visited Dec. 12, 2013). But assuming that, in some circumstances,

information and counseling about contraception could also include advice, encouragement, or

instructions, the Court will consider this claim on its merits. Since plaintiffs are not obliged to

personally deliver the counseling, 38 their claim is best understood as an objection to forced

accommodation of third-party speech.

The government violates the First Amendment when it compels “one speaker to host or

accommodate another speaker’s message.” FAIR, 547 U.S. at 63 (“Our compelled-speech cases

are not limited to the situation in which an individual must personally speak the government’s

message.”); see also Pacific Gas & Elec. Co v. Pub. Utils. Comm’n of Cal., 475 U.S. 1, 20–21

(1986) (plurality opinion); Tornillo, 418 U.S. at 258. This is so because such governmental

compulsion would deprive the compelled speaker of “the autonomy to choose the content of his

own message.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557,

573 (1995) (“[O]ne who chooses to speak may also decide ‘what not to say.’”).

In Rumsfeld v. FAIR, the Supreme Court concluded that a law requiring law schools to

provide military recruiters with equal access to their students by “hosting” the recruiters did not

violate the schools’ free speech rights. 547 U.S. at 61–68. In Hurley v. Irish-American Gay,

Lesbian and Bisexual Group of Boston, Inc., however, the Supreme Court reached the opposite

38 This is not a case where plaintiffs are being asked to personally convey a third-party or

government message. See Pacific Gas, 475 U.S. at 20–21; Tornillo, 418 U.S. at 258. They are

not disseminating counseling regarding the use of contraceptive services by handing out or

posting pre-made materials, and they are not engaging in the counseling themselves. In fact, the

regulations take pains to ensure that plaintiffs are in no way involved in the dissemination of

material regarding the coverage of contraceptive services. 29 C.F.R. § 2590.715–2713A(d); 78

Fed. Reg. at 39876, 39880. Consequently, cases like Pacific Gas and Tornillo are

distinguishable and do not govern this case.

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conclusion, finding that a Massachusetts law that, in effect, “require[d] private citizens who

organize a parade to include among the marchers a group imparting a message the organizers do

not wish to convey,” violated the parade organizers’ First Amendment free speech rights. 515

U.S. at 559.

In each case, the Court called for the same initial showing: (1) that the objecting party

itself was engaged in speech and (2) that accommodating the third-party speech would alter the

message of the objecting party’s speech. FAIR, 547 U.S. at 63; Hurley, 515 U.S. at 576–77; see

also PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 87 (1980). Without satisfying this

essential element, the Court suggested that there could be no compelled accommodation claim:

“The compelled-speech violation in each of our prior cases . . . resulted from the fact that the

complaining speaker’s own message was affected by the speech it was forced to accommodate.”

FAIR, 547 U.S. at 63.

The second factor considered by the Court in FAIR and Hurley was whether there was a

risk that the third party’s objectionable speech might be attributed to the objecting host speaker.

FAIR, 547 U.S. at 65; Hurley, 515 U.S. at 575; see also Turner Broad., 512 U.S. at 655;

PruneYard, 447 U.S. at 87. And the third factor considered by the Court was whether, as

applied, the provision compelling a host speaker to accommodate the other’s speech had any

legitimate, nonspeech related purpose. Hurley, 515 U.S. at 578.

Here, there is no evidence that the contraceptive mandate unconstitutionally requires

plaintiffs to accommodate objectionable third-party speech. Plaintiffs are not engaging in speech

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or inherently expressive conduct when they provide their employees with health insurance. 39 See

FAIR, 547 U.S. at 64 (noting that “accommodating the military’s message [did] not affect the

law schools’ speech, because the schools are not speaking when they host interviews and

recruiting receptions”). So plaintiffs’ compelled-accommodation claim is missing the first

essential element: plaintiffs’ own speech is not being used as the vehicle through which a third-

party’s speech is communicated. See FAIR, 547 U.S. at 63; Hurley, 515 U.S. at 576; PruneYard,

447 U.S. at 87; see also Hurley, 515 U.S. at 568, 572 (noting that “parades are . . . a form of

expression, not just motion,” and that “every participating unit [in the parade] affects the

message conveyed by the private organizers”). Therefore, the compelled-accommodation claim

in Count III fails.

Moreover, even if plaintiffs were engaging in speech that could be altered by the

availability of counseling for women about contraceptive services, any compelled

accommodation of that counseling is not constitutionally problematic. First, it is unlikely that

any objectionable third-party counseling would be attributed to plaintiffs simply because access

to that counseling was obtained through an employer-provided health insurance plan. The

Catholic Church is widely known to oppose the use of contraceptive services, and as plaintiffs

assert, their faith is central to everything they do. See Aff. of CCA ¶¶ 7, 14; Aff. of ACHS ¶¶ 7,

39 The conduct compelled by the employer mandate and contraceptive mandate is the

provision of health insurance to eligible employees that contains coverage for contraceptive

services. Although the First Amendment’s protections extend to inherently expressive conduct,

see, e.g., Texas v. Johnson, 491 U.S. 397, 404 (1989), providing health insurance is not

inherently expressive and is therefore not First Amendment speech. No insurance provider

intends “to convey a particularized message” by providing insurance, and there is virtually no

likelihood “that the message would be understood [as communicating a particular stance] by

those who viewed it.” Id.; see also FAIR, 547 U.S. at 64 (finding no third-party speech

accommodation problem because “a law school’s decision to allow recruiters on campus is not

inherently expressive” and instead is made to facilitate recruitment and “assist their students in

obtaining jobs,” not express a point of view). Consequently, this case does not involve speech or

inherently expressive conduct.

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14; Aff. of Don Bosco ¶¶ 7, 14; Aff. of Mary of Nazareth ¶¶ 7, 14; Aff. of Catholic Charities

¶¶ 7, 14; Aff. of ACHS ¶¶ 7, 14; Aff. of Victory Housing ¶¶ 7, 14; Aff. of CIC ¶¶ 7, 14; Aff. of

CUA ¶ 13; Aff. of TAC ¶ 11. Second, the contraceptive mandate has a legitimate, nonspeech-

related purpose of providing women with access to preventive services to improve the health of

women and newborn children, and it is devoid of any purpose to target speech. Plaintiffs remain

completely free to espouse their beliefs against the use of contraception as well as to encourage

their employees not to utilize those services. 40 So plaintiffs’ free speech claim is also missing

the other hallmarks of unconstitutional accommodation claims. The Court therefore concludes

that any requirement placed on plaintiffs to accommodate the speech of third-party healthcare

professionals does not interfere with plaintiffs’ speech and therefore does not violate plaintiffs’

First Amendment rights. 41

B. The self-certification form does not violate plaintiffs’ free speech rights.

Plaintiffs also argue that requiring them to file a self-certification form in order to invoke

the protections of the accommodation amounts to compelled speech in violation of their free

40 Plaintiffs argue that the freedom to express their beliefs outside the regulatory scheme

does not alleviate the compelled speech problem in this case. Pls.’ Opp. & Cross-Mot. at 36.

Although this Court recognizes that the freedom to express views in another context will not

prevent all compelled speech from being constitutionally suspect, the Supreme Court has

recognized that it is a factor that can be considered in determining whether there is a Free Speech

Clause violation. FAIR, 547 U.S. at 65 (finding no free speech violation because the law schools

remained free to say what they wished about the military’s objectionable policies); PruneYard,

447 U.S. at 87 (noting that the mall owners remained free to express their own ideas).

41 This conclusion is not weakened by plaintiffs’ argument that requiring them to

accommodate the speech of third-party counselors regarding the use of contraception violates

their free speech rights because it forces them to “affirm in one breath that which they deny in

the next.” Pls.’ Opp. & Cross-Mot. at 36, quoting Pacific Gas, 475 U.S. at 15–16. Plaintiffs are

not affirming anything: offering health insurance that includes coverage for contraceptive

services counseling is not speech. Moreover, under the terms of the accommodation, neither

Catholic University, the Archdiocese, nor any of the church plan plaintiffs would be providing

these services as part of their plans. To the extent that they are referring to the self-certification

form, the Court addresses that argument below.

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speech rights. Compl. ¶ 276; Pls.’ Mot. at 33. First, they state that the self-certification

requirement forces them “to engage in speech that triggers the provision of products and services

to which they object,” Pls.’ Opp. & Cross-Mot. at 37, and second, “it deprives them of the

freedom to speak on the issue of abortion and contraception on their own terms, at a time and

place of their own choosing, outside of the confines of the Government’s regulatory scheme.”

Pls.’ Mot. at 33–34. Neither argument, however, supports plaintiffs’ claim that the

accommodation’s self-certification requirement violates the Free Speech Clause.

1. Requiring plaintiffs to file a self-certification form that ultimately results in the

provision of contraceptive services coverage does not violate plaintiffs’ free

speech rights. 42

Plaintiffs point to the consequences of the self-certification form and argue that requiring

them to file the form is compelled speech because it makes their speech the “trigger” for the

provision of contraceptive services. Id. at 33. To support this consequence-based argument,

they direct this Court’s attention to the Supreme Court’s decision in Arizona Free Enterprise

Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011). See Pls.’ Opp. & Cross-Mot. at

37. Plaintiffs’ reliance on Bennett is misplaced.

In Bennett, the Supreme Court addressed the constitutionality of an Arizona law that gave

publicly financed political candidates matching funds for every dollar donated to, or spent on

behalf of, a privately funded candidate. 131 S. Ct. at 2813. The Court concluded that “the

matching funds provision ‘impose[d] an unprecedented penalty on any candidate who robustly

exercise[d] [his] First Amendment right[s]’” by creating a situation where, simply by engaging in

42 To the extent that the church plan plaintiffs assert this argument as part of their

compelled speech claim, the argument fails because there is no indication that filing the self-

certification form will result in the provision of contraceptive services coverage to the church

plan plaintiffs’ employees. See supra section I.C. As a result, “plaintiffs” in this subsection

refers only to Catholic University and Thomas Aquinas College.

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free speech, the privately funded candidate guaranteed that his or her opponent would receive a

cash subsidy from the state of Arizona. Id. at 2818, quoting Davis v. FEC, 554 U.S. 724, 739

(2008) (second and third alterations in original). In other words, the Court determined that the

law created a “trigger effect” by which a privately funded candidate’s speech was penalized, thus

resulting in a chilling effect on that political speech. Id. at 2824. Consequently, the Court

determined that strict scrutiny should apply even though the challenged law did not fit into the

typical compelled speech or subsidized speech fact pattern. Id.

The contraceptive mandate, the accommodation, and the self-certification form do not

create a similar penalty in this case. In Bennett, the publicly funded candidate was only entitled

to matching funds if the privately funded candidate expressed himself by expending his own

funds, so the privately funded candidate’s speech was the actual trigger for payment, and the

Court’s concern was that his speech would therefore be inhibited. Id. at 2821. Here, the self-

certification form is not the actual trigger for coverage of contraceptive services, and there is no

speech of the plaintiffs that is being chilled. Instead, the source of the contraceptive services

coverage is the ACA itself, which mandates that all health insurance plans that are not exempt

must include cost-free coverage for women’s preventive services. See 42 U.S.C. § 300gg-

13(a)(4). This statutory right to contraceptive services coverage exists and attaches prior to and

independent of any speech by an employer; any speech associated with the self-certification form

is merely designed to relieve the religious employer of any obligation to fund the services itself

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and to transfer the burden of providing the coverage. 43 Since there is nothing about the

consequences of filing the self-certification form that chills or inhibits plaintiffs’ speech, the

situation in this case is a far cry from the one in Bennett.

2. Compelling plaintiffs to state their religious objections to the provision of

contraceptive services coverage does not violate plaintiffs’ free speech rights.

In addition to their consequences-based argument, plaintiffs assert that the self-

certification form is unconstitutionally compelled speech “because it deprives them of the

freedom to speak on the issue of abortion and contraception on their own terms, at a time and

place of their own choosing, outside of the confines of the Government’s regulatory scheme.”

Pls.’ Mot. at 33–34. In other words, plaintiffs argue that the self-certification form is speech,

that it is compelled because they must file the form in order to receive the benefits of the

accommodation, and that it violates their free speech rights because they should be able to decide

when to speak and when to stay silent. Although it is well-settled that the Free Speech Clause

protects the freedom to speak as well as the freedom to remain silent, Barnette, 319 U.S. at 633–

34; see also Wooley, 430 U.S. at 714, the Court concludes that the self-certification form

requirement does not violate plaintiffs’ rights.

Under the regulations, the self-certification form must include the following information:

(1) that the self-certifying organization “opposes providing coverage for some or all of any

contraceptive services required to be covered under § 147.130(a)(1)(iv) on account of religious

43 It makes no difference to this Court’s analysis that plaintiffs may block access to

contraceptive services coverage by not filing the self-certification form – and therefore not

engaging in speech – and by agreeing instead to pay the applicable penalties. Once again, the

underlying statutory right to coverage for contraceptive services remains in existence despite

plaintiffs’ choice of whether to “speak;” regardless of whether the self-certification form is filed,

plaintiffs’ employees are entitled to cost-free contraceptive services coverage and plaintiff will

either have to provide that coverage, pay penalties, or file the self-certification form.

Consequently, this is simply not a case where some expressive act by plaintiffs is the absolute

and only trigger for consequences that are inimical to their interests as in Bennett.

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objections;” (2) that the organization “is organized and operates as a nonprofit;” and (3) that the

organization “holds itself out as a religious organization.” 29 C.F.R. § 2590.715–2713A(a).

Plaintiffs do not object to the content of these statements; instead, as discussed above, they

object that the consequence of these statements is the provision of coverage for contraceptive

services by others. Pls.’ Mot. at 9; see also Compl. ¶ 276 (“The U.S. Government Mandate

would compel Plaintiffs to issue a certification of their beliefs that, in turn, would result in the

provision of objectionable products and services to Plaintiffs’ employees.”).

Since it is undisputed that, to the extent the form transmits any content at all, it accurately

reflects plaintiffs’ beliefs, the First Amendment is not implicated. The Supreme Court has

explicitly stated that a compelled speech claim involves a situation where “an individual is

obliged personally to express a message he disagrees with, imposed by the government.”

Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 557 (2005) (emphasis added); see also FAIR,

547 U.S. at 62; Turner Broad., 512 U.S. at 641. And a review of other compelled speech

precedent further demonstrates that the free speech clause has been historically invoked to

protect against compelling an individual from speaking or endorsing a message with which the

speaker disagrees. See, e.g., Wooley, 430 U.S. at 715 (finding a free speech violation

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