Amicus Curiae Brief — Conestoga Wood Specialties Corp. v. Sebelius

Suprome Sout, U.S,

FILED

RECORD JAN 28 25"4

fl

— Nos. 13-354, 13-856 | ones oc par cic

IN THE

Supreme Court of the Anited States

KATHLEEN SEBELIUS, SECRETARY OF HEALTH

& HUMAN SERVICES, et al.,

Petitioners,

¥.

Hossy LOBBY STORES, INC., et al.,

Respondents,

CONESTOGA WOOD SPECIALTIES CORP., et al.,

Petitioners,

Vv.

KATHLEEN SEBELIUS, et al.,

Respondents.

On Writs of Certiorari to the

United States Courts of Appeals

for the Tenth and Third Circuit

BRIEF AMICUS CURIAE OF

AMERICAN JEWISH COMMITTEE AND

JEWISH COUNCIL FOR PUBLIC AFFAIRS

IN SUPPORT OF THE GOVERNMENT

MARC D. STERN

Counsel of Record

AMERICAN JEWISH COMMITTEE

165 East 56th Street

New York, New York 10022

(212) 891-1480

sternm@ajc.org

VALSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. oF

Lew Library

TABLE OF CONTENTS

TAREE OF BUTT RAED -00csc000scccsceccresecevenseess

SPUR CP MAINE wessesevesrsnnonccessosvcscoonseveneses

SUMMARY OF ARGUMENT ..............22:2::c:ee0eee

Laws Substantially Burdening Religious

Liberty Are Properly Subject to RFRA’s

Particularized Compelling Interest

The Mandate as Applied to Claimants

Significantly Furthers the Government’s

Compelling Interests in Promoting

Gender Equality and Advancing

, | ______EE LE EO arr

A. Application of the Mandate to

Claimants Furthers the Govern-

ment’s Compelling Interest in

Promoting Gender Equality.................

B. Application of the Mandate to

Claimants Furthers the Govern-

ments Compelling Interest in

Promoting Public Health.....................

C. The Religious Employer Exemption

and Other Exemptions to _ the

Mandate Do Not Diminish the

Government's Compelling Interests...

1. The Religious Employer

Exemption Does Not Reduce

the Government's Compelling

STINT siauisnessetasosensiscsaidlnsisiaelplceanctaneadean

12

18

‘i

TABLE OF CONTENTS—Continued

Page

2. The Grandfather Rule and 50-

Employee Requirement Do Not

Reduce the Government’s

Compelling Interests....................+. 22

Ill. The Mandate Is the Government’s Least

Restrictive Means oof Promoting

Gender Equality and _ Protecting

Women’s Healt b............. cece cc ceceecsceceseecececs 26

A. The Mandate Is Not Overbroad or

Underinclusive as Applied to

Ce cats 27

B. Claimants’ Proposed Alternatives Are

Not Less Restrictive Means of

Furthering the Same Interests ........... 31

I rind deninnsecchudtnevensknneatncsnsnvisscoensane 35

iti

TABLE OF AUTHORITIES

CASES Page(s)

Adarand Constructors, Inc. v. Pena, 515

TE iisictinssikiniinsaeiimncubnsduniiamiaeiile 7

Ashcroft v. Am. Civil Liberties Union, 542

ee ee iniitecniicnuicilabieesiiteniancbiabinnaicinae 26

Braunfeld v. Brown, 366 U.S. 599 (1961).... 29

Church of the Lukumi Babalu Aye, Inc. v.

City of Hialeah, 508 U.S. 520

GN istascidsunsinintscineseninaneiadinniianbins 8, 23, 26, 27

Conestoga Wood Specialties Corp. uv.

Sebelius, 724 F.3d 377 (3d Cir.

I criicish scan untinsidiinninnanstisnineaiaitakedoeventiaiulie 4, 8, 18,19

Eisenstadt v. Baird, 405 U.S. 438 (1972) .... 10

Employment Div., Dep’t of Human Res. v.

Smith, 494 U.S. 872 (1990).................0. 1, 6,7

Florida Star v. B.J.F., 491 U.S. 524 (1989). 23

Fowler v. Crawford, 534 F.3d 931 (8th Cir.

et ieiense nits Richard oidiashadinaai detaniliia taddbadicibnids 31

Gilardi v. U.S. Dept. of Health and Human

Services, 733 F.3d 1208 (D.C. Cir.

IE snicnsisitsisiciesinicsniiletiieistescbcaipemabiiiedbiimetanaindins 27, 30, 32

Gonzales v. O Centro Espirita Beneficente

Uniao Do Vegtal, 546 US. 418

Pe knistes nnsctnisasianitbinecnisscnabtnedsuibabatsebeiiainol passim

Griswold v. Connecticut, 381 U.S. 479

SU isbistscnthsisnsimacincsaiacdaviidaliaialiccganetutdeaanahiaeieen 10

Grote v. Sebelius, 708 F.3d 850 (7th Cir.

SE cilitscicnsundiseceitaniaialehepincchebbaaiaiaiaduaidaaiad 24

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Grutter v. Bollinger, 539 U.S. 306 (2003)... j

Hamilton v. Schriro, 74 F.3d 1545 (8th Cir.

AERTS NECN cee een ee ee 31

Hobby Lobby v. Sebelius, 723 F.3d 1114

ESS er eneors 4,8,19

Kleindienst v. Mandel, 408 U.S. 753 (1972) 12

Korte v. Sebelius, 735 F.3d 654 (7th Cir.

STENT cerinciskcischicuidiciuehasionsatieiiniebibiiiammindienmenitinieai passim

Legatus v. Sebelius, 901 F.Supp.2d 980

CREE. BRERA. FIDE cvenctinnsnesesscsenssososs 10, 11, 24, 33

May v. Baldwin, 109 F.3d 557 (9th Cir.

I icisiistacslascisdihisnsinseiehesacnientdabatiiliaeniaiaaiitanens 31

Mead v. Holder, 766 F. Supp.2d 16 (D.D.C.

TIE iicestiahasbcnecdhaabastcesiltascaiannaellbdianasiesliaomniicentieues 12

Newland v. Sebelius, 881 F. Supp.2d 1287

ee Se 19

Planned Parenthood v. Casey, 505 U.S. 833

EERE Ra rE ee ae ee 10

Regents of Univ. of Cal. v. Bakke, 438 U.S.

RSS IE CEN ae eee ere na 12

Roberts v. United States Jaycees, 468 U.S.

SEES SARE Me erren esNeae eee Oe Oe 9

Roman Catholic Archbishop of Washington

v. Sebelius, No. 13-1441 (ABJ), --- F.

Supp.2d -——, 2013 WL 6729515 (D.D.C.

IIs dentecussicl cians ilenstalaapeadligdeanpisbodonlialiieniten 23, 25

Vv

TABLE OF AUTHORITIES—Continued

Page(s)

Spratt v. R.I. Dep’t of Corr. , 482 F.3d 33 (1st

eee 31

Thomas v. Collins, 323 U.S. 516 (1945)....... 8

United States v. Alvarez, 132 S. Ct. 2537

del da his dedi cneiesieanisnemeehidinabioans 26

United States v. Lee, 455 U.S. 252 (1982)...passim

United States v. Wilgus, 638 F.3d 1274

TT EN CRE Ea 31

Wisconsin v. Yoder, 406 U.S. 205 (1972) ..... 7

CONSTITUTION

| een passim

STATUTES

FE eae 28

ss acninsnnmintnanneniioanniusiiunneaiisinn 18, 23

I TE diciiitdcistin-nnasavennescthasniesatensaonns 18

aa ncnsinsetennts-pecemeeanionaioitnsine 18

45 C.F.R. § 147.130(aXivXB)........0.002..-.. 18, 20, 21

i scans cnneeticnsinusinainnia 18

BF ee © BGT. TIED) cer enesaserercecccsrssssepse 18, 20, 21

Americans with Disabilities Act of 1990,

Oe Ie OF EID wivinvscesprnccnsccnsesascsassiven 21

Civil Rights Act of 1964, Title VII, § 702, 42

Ry ID vncsenccnssnercevensereastisessones 21

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Religious Freedom Restoration Act of 1993,

107 Stat. 1488, as amended, 42 U.S.C.

§$§ 2OOODh ef seq............ccccccceeeeeeceeeereeeeeees passim

42 U.S.C. § 2000bb(b)(1).............. sachliaitii 7

42 U.S.C. § 2000bb-1(a) «0000... ee eee 5,7

42 U.S.C. § 2000bb-1(b) ......... eee 5,7

42 U.S.C. § 2000bb-1(b)(2)........ ee 26

Patient Protection and Affordable Care Act,

Pub. L. No. 111-148 (March 23, 2010) ....passim

COURT FILINGS

Brief of The American Jewish Committee,

et al. in Support of Respondents, Dept. of

Human Resources v. Hibbs, No. 01-1368,

2002 WL 31444460 (Oct. 25, 2002) .......... 2

OTHER AUTHORITIES

75 Fed. Reg. 34540 (June 17, 2010)............. 24

75 Fed. Reg. 34541 (June 17, 2010)............. 23

75 Fed. Reg. 34552 (June 17, 2010)............. 25

78 Fed. Reg. 39870 (July 2, 2013)................ 4

78 Fed. Reg. 39872 (July 2, 2013).................. passim

78 Fed. Reg. 39873 (July 2, 2013)............... passim

78 Fed. Reg. 39874 (July 2, 2013)................ 21

vii

TABLE OF AUTHORITIES—Continued

Page(s)

A. Conde-Aguledo, et al., Birth Spacing and

Risk of Adverse Perinatal Outcomes—A

Meta-Analysis, 295(15) JAMA 1809-23

A. Sonfield, et al., U.S. Insurance Coverage

of Contraceptives and the Impact of

Contraceptive Coverage Mandates, 36(2)

Perspectives on Sexual and Reproductive

BERT FI Fe CED cxcensnescesseprevevcvosensoseosse 24-25

A. Ziebarth & K.A. Hansen, Hormonal

emergency contraception: a_ clinical

primer, 60(3) J. of the S.D. State Med.

EE snstcccsincitiacaasininbinidinininenitienaite 17

B. Zhu, Effect of Interpregnancy Interval on

Birth Outcomes: Findings from Recent

U.S. Studies, 89 Int J. of Gynecology &

Obstetrics S25-S33 (2005) ..................2200 15

Bureau of Labor Statistics, National

Occupational Employment and Wage

Estimates, United States (May 2012)

(available online at http/Avww.bls.gov/

oes/current/oes_nat.htm#00-000)............. 21

Bureau of Labor Statistics, Table B-la.

Employees on nonfarm payrolls by

industry sector and selected industry

detail, seasonally adjusted (Jan. 10,

2014) (available online at http://Avwww.

bls.gov/web/empsit/ceseebla.htm)............ 22

TABLE OF AUTHORITIES—Continued

Page(s)

C. Dailard, Special Analysis: The Cost of

Contraceptive Insurance Coverage,

Guttmacher Rep. on Public Policy (March

SIT isinriissniiseinnsiishieasgeesissieaiinladibediabindiaennniiasidentadidaben 16

C. Goldin & L. Katz, Career and Marriage

in the Age of the Pill, 90(2) Am. Econ.

Be, EE sicsicticeninnsaiessieetiminnaninnmnson 10

C. Goldin & L.F. Katz, The Power of the

Pill: Oral Contraceptives and Women’s

Career and Marriage Decisions, 110(4) J.

of Pol. Econ. 730-70 (2002) ...................022. 10, 11

“Contraceptive Care Mandate,” Health

Resources and Services Administration

Guidelines, 77 Fed. Reg. 8725 (Feb. 15,

ITI cinissos haiuciceanliidccnaicidensidnneddiniaadabinmammiaiassbaneiiel passim

E. Fuentes-Afflick & N. Hessol, Inter-

pregnancy Interval and the Risk of

Premature Infants, 95(3) Obstetrics &

Gynecology 383-90 (2000).....................000 15

F. Davidhoff & J. Trussell, Plan B and the

Politics of Doubt, 296 JAMA 1775 (2006) 17

Guttmacher Inst., Fact Sheet: Contracep-

tive Use in the United States (Aug. 2013) 13-14

Guttmacher Inst., Fact Sheet: Facts on

Unintended Pregnancy in the United

is, ii Rscahicssnnecieuananiienekanniibtenins 17

ix

TABLE OF AUTHORITIES—Continued

Page(s)

Inst. of Medicine, Committee on Preven-

tive Services for Women, Clinical

Preventive Services for Women: Closing

Ls | EE passim

J. Arons & L. Rosenthal, Center for

American Progress, Facts About the

Health Insurance Compensation Gap

I et tinsinwssnpiccscisncisinnincinisclinieiesiinnsuicieddeinitn

J. Bongaarts & C. Westoff, The Potential

Role of Contraception in Reducing

Abortion, 31(3) Studies in Family

J.D. Gipson, et al., The Effects of

Unintended Pregnancy on Infant, Child

and Parental Health: A Review of the

Literature, 3&1) Studies on Family

J. Frost, et al., Contraceptive Needs and

Services, National and State Data, 2008

BE ictennniinnsticnasniniatuiabiaitahaienienitainions

J. Peipert, et al., Preventing Unintended

Pregnancies by Providing No-Cost

Contraception, 120(6) Obstetrics &

Gynecology 1291-97 (2012)..............c000000-

MJ. Bailey, More Power to the Pill: The

Impact of Contraceptive Freedom on

Women’s Life Cycle Labor Supply, 121(1)

9-10

15

14

16

15

10

x

TABLE OF AUTHORITIES—Continued

Page(s)

M.J. Bailey, et al., The Opt-In Revolution?

Contraception and the Gender Gap in

Wages, 4 Am. Econ. J.: Applied Econ. 225

Nat] Women’s Law Center, Guaranteeing

Coverage of Contraceptives: Past &

PE GE, Bg TIE iaiitretncstcnimcsddensdnesatens

R. Bonoan & JS. Gonen, Promoting

Healthy Pregnancies: Counseling and

Contraception as the First Step,

Washington Business Group on Health,

Family Health in Brief, Issue No. 3

R. Sawhill, et al., An Ounce of Prevention:

Policy Prescriptions to Reduce the

Prevalence of Fragile Families, 202)

Future of Children 133-55 (2010).............

Religious Freedom Restoration Act of 1993:

Hearing on S. 2969 Before the H. Comm.

on the Judiciary, 103d Cong. 1 (1993) .....

W. Mosher & J. Jones, Centers for Disease

Control, Nat’]. Ctr. for Health Statistics,

Use of Contraception in the United States:

1928-2008 (Aug.2010) .........2......:eeeeeeeeeeee

“Women’s Health Amendment,” S. Amdt.

2791 to S. Amdt. 2786 to H.R. 3590, The

Service Members Home Ownership Tax

16

16

14

Act of 2009, 111th Cong. 1 (Dec. 3, 2009) 13, 33

INTEREST OF AMICI’

The American Jewish Committee (“AJC”) is a

national organization with more than 125,000

members and supporters and 22 regional offices

nationwide. It was founded in 1906 to protect the civil

and religious rights of American Jews. AJC views both

religious liberty and the equal rights of women as

basic American values essential to its core mission. In

those rare instances where these interests may clash,

as in this case, AJC believes rigorous scrutiny under

the compelling interest standard is appropriate to

uphold the equality and dignity of women while

preserving and safeguarding sincerely held principles

of faith.

AJC has a long-standing commitment to religious

freedom. AJC was one of the original supporters of the

Religious Freedom Restoration Act of 1993, 107 Stat.

1488, as amended, 42 U.S.C. §§ 2000bb et seq.

(“RFRA”), restoring the compelling interest test in

response to Employment Div., Dept. of Human

Resources of Ore. v. Smith, 494 U.S. 872 (1990). As

AJC explained at the time, the absence of strong

protections for freedom of religion in the wake of

Smith invited governments to “run roughshod over

religious conviction.” See Religious Freedom

Restoration Act of 1993: Hearing on S. 2969 Before the

H. Comm. on the Judiciary, 103d Cong. 1 (1993)

(statement of Rev. Oliver S. Thomas, appearing on

behalf of the Baptist Joint Committee on Public

Affairs and the American Jewish Committee). AJC

? No counsel for a party authored this brief in whole or in part,

and no party or counsel for a party made a monetary contribution

intended to fund its preparation or submission. No person other

than amici and their counsel made a monetary contribution to

the preparation or submission of this brief.

2

views the protections afforded by RFRA as no less

important today than at the time of its enactment.

AJC’s commitment to equality for women is likewise

integral to its history and mission. AJC regularly files

amicus briefs before this Court and others in

opposition to unequal treatment of women and other

forms of gender bias. See, eg., Dept. of Human

Resources v. Hibbs, No. 01-1368, 2002 WL 31444460

(Oct. 25, 2002), Brief of The American Jewish

Committee, et al. in Support of Respondents.

Additionally, through its Jacob Blaustein Institute for

the Advancement of Human Rights, AJC has been a

leading voice calling attention to human rights issues

of core importance to the Jewish community, including

the promotion of equality for women in the United

States and around the globe.

The Jewish Council for Public Affairs (“JCPA”), the

coordinating body of 16 national and 125 local Jewish

community relations organizations, was founded in

1944 by the Jewish Federation system to safeguard

the rights of Jews throughout the world and to protect,

preserve, and promote a pluralistic society. JCPA

believes that reproductive health decisions are best

made by individuals in consultation with their

families and health care professionals and based on

personal religious beliefs. JCPA also believes that

restrictions on the right to choose and lack of access to

services threaten this constitutionally protected

individual right.

Thus, AJC and JCPA stand at the intersection of the

competing interests in this case—religious freedom

and equality and reproductive freedom for women—

and are equally committed to both interests. AJC and

JCPA submit this brief to aid the Court in the difficult

task of balancing the government’s interest in

3

promoting equality for women and public health

against the religious liberty of those who oppose, on

religious grounds, mandatory coverage for certain

types of contraceptive care mandated under the

Health Resources and Services Administration

(“HRSA”) Guidelines, 77 Fed. Reg. 8725 (Feb. 15,

2012) (the “Mandate”), pursuant to the Patient

Protection and Affordable Care Act, Pub. L. No. 111-

148 (March 23, 2010) (“ACA”).

AJC and JCPA take no position on whether (i) a for-

profit corporation has Free Exercise rights under the

First Amendment or RFRA, or (ii) the Mandate

imposes a substantial burden on religious practices.

Rather, the question of concern to AJC and JCPA is,

assuming the Mandate could be found to impinge upon

the religious practices of those subject to its

requirements, does it do so in furtherance of a

compelling governmental interest and is it the least

restrictive means of furthering that compelling

governmental interest? AJC and JCPA respectfully

submits that the Mandate furthers the government’s

compelling interests in promoting women’s equality

and public health in the least restrictive means

available. Accordingly, AJC and JCPA support the

government’s position and oppose granting for-profit

corporations an exception to the Mandate under

RFRA?

2 AJC previously filed an amicus curiae brief pertaining to the

parties’ respective petitions for writ of certiorari, arguing that

although the petitions meet the criteria for review, it would be

better to defer review until the records could be more fully devel-

oped. Nonetheless, the Court having granted certiorari, AJC sub-

mits that the present records satisfy the government’s burden

under RFRA.

4

SUMMARY OF ARGUMENT

This appeal presents the rare situation in which the

government’s important interests in promoting gender

equality and public health are alleged to be in conflict

with the religious liberty of corporations asserting

religious objections to the government’s policies. The

claimants in these consolidated cases, Hobby Lobby

Stores, Inc. (“Hobby Lobby”), Mardel, Inc. (“Mardel”),

Conestoga Wood Specialties Corp. (“Conestoga”), and

their owners (collectively, “Claimants”), seek an

exemption under RFRA from the Mandate’s require-

ment that Claimants offer health insurance benefits

providing full coverage for all Food and Drug

Administration (“FDA”) approved contraceptive

methods, sterilization procedures, and patient

education and counseling for women with reproductive

capacity. See 77 Fed. Reg. 8725 (Feb. 15, 2012); 78 Fed.

Reg. 39870 (July 2, 2013).

Claimants object to the Mandate on religious

grounds, stating that it forces them to violate their

sincerely held religious beliefs against drugs and

devices that they believe to be abortifacients. Different

corporations opposing the Mandate under RFRA have

asserted different combinations of objections, ranging

from those who oppose specific drugs or devices to

those opposing all contraception in any form. Hobby

Lobby and Mardel, for example, oppose two types

of intrauterine devices and the emergency contra-

ceptives commonly known as Plan B and Ella, while

Conestoga opposes only Plan B and Ella. See Hobby

Lobby v. Sebelius, 723 F.3d 1114, 1123 (10th Cir.

2013); Conestoga Wood Specialties Corp. v. Sebelius,

724 F.3d 377, 382 (3d Cir. 2013).

Assuming (without advocating for or against the

view) that corporations have Free Exercise rights

5

under the First Amendment, and that the Mandate

imposes a substantial burden on their religious

practices, RFRA requires evaluation of the parties’

important competing interests under the compelling

interest standard. This requires a showing by the

government that the Mandate (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).

That stringent burden has been met in this case.

The Mandate furthers two compelling governmental}

interests as applied to Claimants and their employees.

First, it promotes gender equality by closing the

wide disparity in out-of-pocket medical costs incurred

by women in funding their own reproductive health

needs, which, improves the social and economic

standing of women. Second, it meaningfully enhances

public health by reducing the negative health costs of

unintended pregnancy, improving birth spacing, and

reducing the number of women seeking invasive

abortions. Contraceptive coverage also provides

significant cost savings.

These are not abstract interests; they are partic-

ularized to Claimants and their employees. The

Mandate reduces gender-based cost disparities and

provides public health benefits to each employee who

gains coverage for contraceptive care. All employees

deprived of this coverage, whether in whole or in part

depending on the scope of the particular religious

objection asserted, will thus suffer a direct detriment.

The availability of certain other statutory and

regulatory exemptions to the ACA and the Mandate

does not diminish the governments compelling

interests; those exemptions involve separate interests,

6

and do not detract from the Mandate’s promotion of

equality and public health.

The Mandate is, moreover, the least restrictive

means available to further the government’s interests.

The Mandate cannot function as intended unless it is

applied evenly to all statutorily eligible employers and

employees; each ad hoc exemption based on religious

objections excludes employees from the coverage they

would otherwise receive, deprives them of the

economic and medical benefits of coverage, and under-

mines the Mandate as a comprehensive system

designed to provide uniform benefits to covered

employees. Claimaints’ proposed alternatives impose

an unworkable patchwork quilt of insurmountable

administrative burdens upon the government, would

be substantially and materially less effective than the

Mandate, and may well fail even to address Claimants’

own religious objections. For these reasons, Claimants

are not entitled to an exemption from the Mandate

under RFRA.

ARGUMENT

L Laws Substantially Burdening Religious

Liberty Are Properly Subject to RFRA’s

Particularized Compelling Interest Review

Congress passed RFRA in 1993 in reaction to Smith,

which declared that the Free Exercise Clause of the

First Amendment does not prohibit governments from

burdening religious practices through generally

applicable laws. 494 U.S. at 890. Smith held that the

First Amendment does not require judges to engage in

a case-by-case assessment of the religious burdens

imposed by facially constitutional laws. Id. RFRA

responded by adopting “a statutory rule comparable to

the constitutional rule rejected in Smith.” Gonzales v.

7

O Centro Espirita Beneficente Uniao Do Vegtal, 546

U.S. 418, 424 (2006).

RFRA prohibits the federal government from

substantially burdening a person’s exercise of religion,

“even if the burden results from a rule of general

applicability,” unless it can “demonstrate that applica-

tion 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).

This is the same “compelling interest” test previously

set forth in Sherbert v. Verner, 374 U.S. 398 (1963),

and Wisconsin v. Yoder, 406 U.S. 205 (1972), prior to

the Court’s ruling in Smith. See 42 U.S.C. § 2000bb(bX 1).

The compelling interest test contemplates a “focused”

rather than a “categorical” approach. O Centro, 546 U.S.

at 430. The government must “demonstrate that

the compelling interest test is satisfied through

application of the challenged law ‘to the person’—the

particular claimant whose sincere exercise of religion

is being substantially burdened.” Jd. at 430-31

(quoting 42 U.S.C. § 2000bb-1(b)). The Court therefore

looks “beyond broadly formulated interests justifying

the general applicability of government mandates”

and scrutinizes “the asserted harm of granting specific

exemptions to particular religious claimants.” Id. at

431. Put simply, “context matters.” Id. at 431-32

(quoting Grutter v. Bollinger, 539 U.S. 306, 327 (2003);

Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 228

(1995)).

This brief takes no position on whether a

corporation has Free Exercise rights under the First

Amendment or RFRA, nor on whether the Mandate

imposes a substantial burden on the Free Exercise

rights alleged. Rather, assuming the Mandate could be

8

found to substantially burden the religious practices

of those subject to its requirements, this brief

undertakes a focused, context-specific analysis of the

Mandate’s application to Claimants to assess whether

it is the least restrictive means of furthering the

compelling interests advanced by the government,

which it is.

li. The Mandate as Applied to Claimants

Significantly Furthers the Government’s

Compelling Interests in Promoting Gender

Equality and Advancing Women’s Health

The Mandate furthers compelling government

interests with respect to all employees (and covered

family members of employees) who come within its

scope, including Claimants’ employees. Hobby Lobby

has approximately 13,000 full-time employees in over

500 stores, Mardel has just under 400 employees, and

Conestoga has approximately 950 employees. See

Hobby Lobby, 723 at 1122; Conestoga, 724 F.3d at 381.

These more than 14,000 individuals and their covered

family members experience direct and material

benefits from the Mandate, furthering the govern-

ment’s interests in promoting gender equality and

public health. These are interests “of the highest

order,” Church of the Lukumi Babalu Aye, Inc. v. City

of Hialeah, 508 U.S. 520, 546 (1993), and “paramount

interests,” Thomas v. Collins, 323 U.S. 516, 530

(1945), not in the abstract, but specifically as applied

to Claimants and their employees. Granting Claimants

their requested RFRA exemptions would thus weaken

the government’s particularized interest in promoting

equality and public health for these employees.

9

A. Application cf the Mandate to Claimants

Furthers the Government’s Compelling

Interest in Promoting Gender Equality

The Mandate is a powerful tool for promoting and

extending the reach of gender equality. The United

States has a compelling interest in “removing the

barriers to economic advancement and political

and social integration that have historically plagued

certain disadvantaged groups, including women.”

Roberts v. United States Jaycees, 468 U.S. 609, 626

(1984). This interest extends to “[a]lssuring women

equal access to. . . goods, privileges, and advantages”

enjoyed by men. Jd. Providing full contraceptive

coverage to Claimants’ employees specifically advances

the ACA’s larger goal of providing women with equal

access to the privileges and advantages of full health

coverage.

The ACA “acknowledges that both existing health

coverage and existing preventive services recom-

mendations often did not adequately serve the unique

health needs of women.” 78 Fed. Reg. at 39873. A

disparity prevailed in health coverage, which “placed

women in the workforce at a disadvantage compared

to their male coworkers.” Id. “Even with employer-

based coverage, women have higher out-of-pocket

medical costs than men. Overall, women of reproduc-

tive age spend 68 percent more out of pocket than men

on health care, in part because their reproductive

health care needs require more frequent health care

visits and are not always adequately covered by their

insurance. Among women insured by employer-based

plans, oral contraceptives alone account for one-third

of their total out-of-pocket health care spending.”

Korte v. Sebelius, 735 F.3d 654, 724 (7th Cir. 2013)

(Rovner, J., dissenting) (quoting J. Arons & L.

10

Rosenthal, Center for American Progress, Facts About

the Health Insurance Compensation Gap (June 2012)).

The Mandate closes this gap.

Full contraceptive coverage is an inseparable part

of the ACA’s cost-equalizing goal. Multiple studies

show access to contraception “improves the social and

economic status of women.” 78 Fed. Reg. at 39873

(citing C. Goldin & L. Katz, Career and Marriage in

the Age of the Pill, 90(2) Am. Econ. Rev. 461-65 (2000);

C. Goldin & L.F. Katz, The Power of the Pill: Oral

Contraceptives and Women’s Career and Marriage

Decisions, 110(4) J. of Pol. Econ. 730-70 (2002); M.J.

Bailey, More Power to the Pill: The Impact of

Contraceptive Freedom on Women’s Life Cycle Labor

Supply, 121(1) Q. J. Econ. 289-320 (2006)). By reducing

unplanned pregnancy and the accompanying financial

strain, expense, and potential loss of employment,

access to contraception has “highly significant

impacts” on the economic well-being of women. Korte,

735 F.3d at 725 (Rovner, J. dissenting) (citing Inst. of

Medicine, Committee on Preventive Services for

Women, Clinical Preventive Services for Women:

Closing the Gaps, p. 103 (2011)). As this Court has

observed, “[t]he ability of women to participate equally

in the economic and social life of the Nation has been

facilitated by their ability to control their reproductive

lives.” Planned Parenthood v. Casey, 505 U.S. 833, 835

(1992)). See also Griswold v. Connecticut, 381 U.S. 479,

485 (1965); Eisenstadt v. Baird, 405 U.S. 438, 453-54

(1972).5

’ The availability of oral contraception, for example, “played an

important role in increasing the presence of women in the

workforce, bringing them into more direct economic competition

with men, and eventually improving women’s wages.” Legatus v.

Sebelius, 901 F. Supp.2d 980, 992-93 (E.D. Mich. 2012) (citing

11

This is not an abstract interest; it is particularized

in its application to Claimants and their employees.

Lack of coverage for any preventive service, including

contraception, generates “significant out-of-pocket

expenses for women,” and full coverage “is particularly

critical to addressing the gender disparity of concern

here.” 78 Fed. Reg. at 39873 (citing Clinical Preventive

Services for Women, at p. 19). The Mandate reduces

the economic disparity of contraceptive costs for each

woman who, by virtue of the Mandate’s requirements,

gains access to contraception she otherwise might not

be able to afford, or could only afford at much greater

out-of-pocket expense. At the same time, if deprived of

the full coverage otherwise available under the

Mandate, it is “unproven and unclear” how employees

could “alternatively acquire, without cost-sharing, the

full range of FDA-approved contraceptive methods in

the absence of the [Mandate].” Legatus v. Sebelius, 901

F.Supp.2d 980, 995 (E.D. Mich. 2012).

If Claimants are granted an exemption to the

Mandate under RFRA, therefore, more than 14,000

employees (or their covered family members) will be

deprived in whole or in part of contraceptive coverage,

imposing upon them and their covered family

members the continuing burden of the out-of-pocket

health cost disparity and the resulting consequences

of gender inequality that the Mandate seeks to

address. This is not a speculative social harm; the

M.J. Bailey, et al., The Opt-In Revolution? Contraception and the

Gender Gap in Wages, 4 Am. Econ. J.: Applied Econ. 225 (2012);

Goldin & Katz, The Power of the Pill). Though not all parties

seeking a RFRA exemption oppose oral contraception, it provides

one example of how restricting coverage to any FDA-approved

method of contraception exposes women to adverse economic

consequences.

12

consequences are specific to each woman deprived of

full coverage for contraceptive methods she would

otherwise obtain.

B. Application of the Mandate to Claimants

Furthers the Government’s Compelling

Interest in Promoting Public Health

The government also has “a compelling interest in

safeguarding the public health by regulating the

health care and insurance markets.” Mead v. Holder,

766 F. Supp.2d 16, 43 (D.D.C. 2011). See also Regents

of Univ. of Cal. v. Bakke, 438 U.S. 265, 310 (1978);

Kleindienst v. Mandel, 408 U.S. 753, 783-84 (1972).

That interest is particularly meaningful here, where

the Mandate is directed to providing women with full

coverage for contraceptive methods shown to enhance

public health.

The role of full contraceptive coverage in promoting

public health begins with the ACA’s larger goal of

expanding access to all preventive health care. The

ACA reflects a determination by Congress that

coverage of recommended preventive services “is

necessary to achieve access to basic health care for

more Americans.” 78 Fed. Reg. at 39872. Individuals

“are more likely to use preventive services if they do

not have to satisfy cost-sharing requirements (such as

a copayment, coinsurance, or a deductible).” Jd. These

services “result[}] in a healthier population and

reduce[] health care costs by helping individuals avoid

preventable conditions and receive treatment earlier.”

Id. (citing Clinical Preventive Services for Women, at

p. 16). Full coverage of preventive services thus helps

“either prevent illness altogether or facilitate

detection at an earlier stage when it is more amenable

to treatment, thereby reducing the direct and indirect

costs of illness otherwise borne by the insured, his

13

family, his employer, his insurer, medical providers,

and the government.” Korte, 735 F.3d at 724 (Rovner,

J., dissenting).

With respect to contraceptive coverage, the Mandate

results from the Women’s Health Amendment to the

ACA, introduced by Senator Barbara Mikulski, to

expand the range of required preventive care “to

include a separate set of preventive services for

women.” Id. The amendment recognized “that many

women forego preventive screenings for the conditions

that statistically are most likely to result in their

death—breast, cervical, colorectal, ovarian and lung

cancer, and heart and vascular disease—either

because they lack insurance, the services are not

covered by their insurance plans, or because the large

copayments required by their insurance companies for

these screenings are beyond their financial means.” Jd.

The adoption of the Women’s Health Amendment

“recognized that women have unique health care

needs,” which “include contraceptive services.” 78 Fed.

Reg. at 39872 (citing S. Amdt. 2791 to S. Amdt. 2786

to H.R. 3590 (Service Members Home Ownership Tax

Act of 2009) (Dec. 3, 2009); Clinical Preventive Services

for Women, at p. 9).

The inclusion of contraception in preventive services

for women “should come as no surprise,” as “[njinety-

nine percent of American women aged 15 to 44 who

have engaged in sex with men have used at least one

form of birth control,” and “[a] woman’s ability to

control whether and when she will become pregnant

has highly significant impacts on her health, her

child’s health, and the economic well-being of herself

and her family.” Korte, 735 F.3d at 725 (Rovner, J.,

dissenting) (citing Clinical Preventive Services for

Women, at p. 103); Guttmacher Inst., Fact Sheet:

14

Contraceptive Use in the United States, at 1 (Aug.

2013); W. Mosher & J. Jones, Centers for Disease

Control, Nat'l. Ctr. for Health Statistics, Use of Con-

traception in the United States: 1928-2008, pp. 5, 15,

& Table 1 (Aug. 2010)).

The documented public health benefits of the

Mandate include:

Reducing Unintended Pregnancy: “[Wlomen

experiencing an unintended pregnancy may

not immediately be aware that they are

pregnant, and thus delay prenatal care. * * *

Studies show a greater risk of preterm birth

and low birth weight among unintended

pregnancies.” 78 Fed. Reg. at 39872 (citing

J.D. Gipson, et al., The Effects of Unintended

Pregnancy on Infant, Child and Parental

Health: A Review of the Literature, 391)

Studies in Family Planning 18-38 (2008)). See

also Korte, 735 F.3d at 725 (Rovner, J.,

dissenting) (citing Clinical Preventive Services

for Women, at p. 103) (“Unintended pregnancies

pose risks to both mother and fetus in that a

woman, neither planning to be pregnant nor

realizing that she is, may both delay prenatal

care and continue practices (including smoking

and drinking) that endanger the health of the

developing fetus.”).

Improving Birth Spacing: “[C]ontraceptive use

helps women improve birth spacing and

therefore avoid the increased risk of adverse

pregnancy outcomes that comes with preg-

nancies that are too closely spaced. Short

interpregnancy intervals in particular have

been associated with low birth weight, prema-

turity, and small-for-gestational age births.”

15

78 Fed. Reg. at 39872 (citing A. Conde-Aguledo,

et al., Birth Spacing and Risk of Adverse

Perinatal Outcomes—A Meta-Analysis, 295(15)

JAMA 1809-23 (2006); B. Zhu, Effect of

Interpregnancy Interval on Birth Outcomes:

Findings from Recent U.S. Studies, 89 Int J.

of Gynecology & Obstetrics S25-S33 (2005); E.

Fuentes-Afflick & N. Hessol, Interpregnancy

Interval and the Risk of Premature Infants,

95(3) Obstetrics & Gynecology 383-90 (2000)).

See also Korte, 735 F.3d at 725 (Rovner, J.,

dissenting) (citing Clinical Preventive Services

for Women, at p. 103) (“Intervals between

pregnancies also matter, as pregnancies com-

mencing less than eighteen months after a

prior delivery pose higher risks of pre-term

births and low birth weight.”).

Reducing Invasive Abortions: “[B)y reducing

the number of unintended pregnancies, contra-

ceptives reduce the number of women seeking

abortions.” 78 Fed. Reg. at 39872 (citing

Clinical Preventive Services for Women, at p.

105; J. Peipert, et al., Preventing Unintended

Pregnancies by Providing No-Cost Contracep-

tion, 120(6) Obstetrics & Gynecology 1291-97

(2012); J. Bongaarts & C. Westoff, The Potential

Role of Contraception in Reducing Abortion,

31(3) Studies in Family Planning 193-202

(2000)). See also Korte, 735 F.3d at 725-26

(Rovner, J., dissenting) (citations omitted)

(“(U]nintended and unwanted pregnancies

naturally account for the lion’s share of

induced abortions.”).

16

e Other Medical Benefits: Contraceptives have

“medical benefits for women who are contrain-

dicated for pregnancy, and there are demon-

strated preventive health benefits from

contraceptives relating to conditions other

than pregnancy (for example, prevention of

certain cancers, menstrual disorders, and

acne).” 78 Fed. Reg. at 39872 (citing Clinical

Preventive Services for Women, at p. 107). See

also Korte, 735 F.3d at 725 (Rovner, J.,

dissenting) (citing Clinical Preventive Services

for Women, at pp. 103-04) (“Pregnancy is con-

traindicated altogether for women with certain

health conditions.”).

Contraceptive coverage has also been shown to pro-

vide significant cost savings to health plans, due to the

economic effect of reducing unintended pregnancies. A

2000 study “estimated that it would cost 15 to 17 per-

cent more not to provide contraceptive coverage in

employee health plans than to provide such coverage”

after accounting for direct and indirect costs. 78 Fed.

Reg. at 39872 (citing R. Bonoan & J.S. Gonen, Promoting

Healthy Pregnancies: Counseling and Contraception

as the First Step, Washington Business Group on

Health, Family Health in Brief, Issue No. 3 (August

2000)).*

* These findings have been borne out by experiences adding

contraceptive coverage to the Federal Employees Health Benefits

Program and by multiple cost savings analyses. See 78 Fed. Reg.

at 39872-73 (citing C. Dailard, Special Analysis: The Cost of Con-

traceptive Insurance Coverage, Guttmacher Rep. on Public Policy

(March 2003); R. Sawhill, et al., An Ounce of Prevention: Policy

Prescriptions to Reduce the Prevalence of Fragile Families, 20(2)

Future of Children 133-55 (2010); J. Frost, et al., Contraceptive

Needs and Services, National and State Data, 2008 Update

(2010)).

17

Again, this public health benefit is not abstract; it is

specific in its application to Claimants and their

employees. Depriving Claimants’ employees and

covered family members of contraceptive coverage

under the Mandate through a RFRA exemption either

deprives them of the direct health benefits of

contraceptive coverage or obligates them to incur the

unequal out-of-pocket costs of funding their own

preventive services. The specific impact upon any

individual employee may vary depending on the scope

of the employer’s religious objection and the particular

contraceptive needs of the employee, but it cannot be

questioned that more than 14,000 employees working

for Claimants, as well as their covered family

members, would be deprived in whole or in part of the

public health benefits of full contraceptive coverage.

Even where, as in this case, Claimants’ religious

objections are limited to specific methods of post-coital

emergency contraception such as Plan B, the public

health consequences are very real. Plan B and similar

emergency contraceptive measures reduce unintended

pregnancies and induced abortions where primary

contraception fails or is not used, and reduces state

and federal healthcare expenditures. A. Ziebarth &

K.A. Hansen, Hormonal emergency contraception: a

clinical primer, 6(3) J. of the S.D. State Med. Ass’n 99

(2007); F. Davidhoff & J. Trussell, Plan B and the

Politics of Doubt, 296 JAMA 1775, 1775 (2006). Its

efficacy is time-sensitive and access is important;

delaying the first dose even by several hours

substantially increases the likelihood of pregnancy,

and its efficacy diminishes linearly with time. Jd. Even

See also Korte, 735 F.3d at 725 (Rovner, J., dissenting) (citing

Guttmacher Inst., Fact Sheet: Facts on Unintended Pregnancy in

the United States (Oct. 2013)).

18

a limited religious objection, therefore, has the conse-

quence of impeding access to emergency contraceptive

methods necessary to the Mandate’s public health

objectives.

C. The Religious Employer Exemption and

Other Exemptions to the Mandate Do

Not Diminish the Government’s Compel-

ling Interests

Notwithstanding the demonstrated and particular-

ized benefits of the Mandate in promoting the govern-

ment’s interests in gender equality and public health,

Claimants and several courts have nonetheless argued

that these are merely abstract interests, and have

questioned their vitality as compelling interests. This

argument relies upon the Court’s statement in O Cen-

tro that the “invocation” of a “general interest in pro-

moting public health and safety” or similarly “broadly

formulated interests” are “not enough” to satisfy

RFRA’s compelling interest test. See, e.g., Conestoga,

724 F.3d at 413 (Jordan, J., dissenting) (quoting O

Centro, 546 U.S. at 41, 435, 438). The “existence of

numerous exemptions” already made to the Mandate—

such as for religious employers, see 45 C.F .R. §§ 147.130,

147.131,° “grandfathered” plans, 42 U.S.C. § 18011,

and employers with fewer than 50 full time employees,

26 U.S.C. § 4980H—is then cited as evidence of its

® The regulations include both an “exemption” for religious

employers who, inter alia, have as their purpose the inculcation

of religious values and primarily employ persons shz-ing their

religious tenets, 45 C.F.R. § 147.13QaXivXB), and an “accommo-

dation” for religious employers who, inter alia, are organized and

operate as nonprofit entities and hold themselves out as religious

organizations, 45 C.F_R. § 147.131(b). Houses of worship would

generally fall in the first category, while religious colleges or

schools may satisfy the second.

19

“arbitrary underinclusiveness” and as proof that

no “compelling interest” would be undermined by

extending a “similar exception” to a “similarly situated

plaintiff.” Conestoga, 724 F.3d at 413-14 (Jordan, J.,

dissenting) (citing O Centro, 546 U.S.at 433; Newland

v. Sebelius, 881 F. Supp.2d 1287, 1297 (D. Colo. 2012)).

See also Hobby Lobby, 723 F.3d at 1143-44; Korte, 735

F.3d at 686.

This attempt to employ O Centro to diminish the

compelling nature of the government’s interests under

the Mandate is fundamentally misplaced. O Centro is

both qualitatively and quantitatively inapposite to the

present case. There, the Court could not reconcile the

Controlled Substances Act’s statutory exemption for

religious use of mescaline in peyote, applicable to

“hundreds of thousands of Native Americans practic-

ing their faith,” with the government’s refusal to grant

“a similar exception for the 130 or so American mem-

bers of the UDV who want to practice theirs.” 546 U.S.

at 433. The Court found that the “mere invocation of

the general characteristics” of controlled substances

“cannot carry the day.” Id. at 432.

O Centro thus dealt with the broad assertion of a

general law enforcement interest to prevent conduct

by a tiny group of individuals which was indistinguish-

able from essentially identical conduct already

exempted from the law’s reach as to hundreds of

thousands of others. Here, by contrast Claimants are

attempting to block the provision of benefits to third

parties by invoking dissimilar exceptions with a nar-

rower reach and entirely distinct focus from that pro-

posed by Claimants’ requested RFRA opt-out.

Unlike O Centro, this is not a case in which hostility

or indifference to one group’s sincere religious beliefs

has manifested in capricious burdens on religious

20

practice. Nor do the exemptions to the Mandate

for religious employers, “grandfathered” plans, and

employers with fewer than 50 full time employees

evidence the kind of extreme “arbitrary underinclu-

siveness” of a “similarly situated” party from an excep-

tion already afforded to many others on indistinguishable

grounds. Rather, the Court is being asked to craft an

entirely new exception to the Mandate, with profound

and singularly harmful consequences compromising

its public policy objectives.

1. The Religious Employer Exemption

Does Not Reduce the Government’s

Compelling Interests

Beginning with the religious employer exemption,

the regulatory record is clear that the government

granted an exemption to the Mandate for religious

employers due to the inextricable connection between

their religious objections to the Mandate and their

core religious purpose. Unlike a for-profit corporation,

which may arguably hold the religious viewpoint of its

owners but exists for a separate, predominantly

economic purpose, a religious employer exists for

a religious purpose and its objections to the Mandate

arise from that religious purpose. See 45 C.F.R.

$$ 147.130(aXivXB), 147.131(b). There is “a demon-

strable difference between a not-for-profit employer

whose mission is expressly defined by religious goals

and a secular corporation whose business is commerce

for profit.” Korte, 735 F.3d at 729 (Rovner, J., dissent-

ing). Among other obvious differences, employees of a

religious employer are on unequivocal notice of their

employer's religious principles, while employees of a

for-profit corporation may be entirely unaware of their

employer's religious views.

21

The overt and predominantly religious purpose of

non-profit religious employers not only magnifies the

importance of their objection, but diminishes the

likelihood of competing views between the employer

and its employees on the subject of contraception.

“Houses of worship and their integrated auxiliaries

that object to contraceptive coverage on religious

grounds are more likely than other employers to

employ people of the same faith who share the same

objection, and who would therefore be less likely than

other people to use contraceptive services even if such

services were covered under their plan.” 78 Fed. Reg.

at 39874. This type of exemption is “a feature common

to any number of federal statutes, including Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e—1(a),

and the Americans with Disabilities Act of 1990, 42

U.S.C. §§ 12113(d)[.]” Korte, 735 F.3d at 729 (Rovner,

J., dissenting).

Moreover, unlike O Centro, where the Court

extended an exemption already applied to hundreds of

thousands of individuals to an additional 170 persons,

here the Court is being asked to take an exemption of

very limited applicability and offer it to an exponen-

tially larger population. Religious workers comprise a

negligible proportion of the United States workforce.

The most recent data from the Bureau of Labor

Statistics estimate religious workers to be only 0.054%

of the workforce. See Bureau of Labor Statistics,

National Occupational Employment and Wage Esti-

mates, United States (May 2012) (available online at

http://www.bls.gov/oes/current/oes_nat.htm#00-000).®

® The Bureau of Labor Statistics’ definition of religious employ-

ment likely differs in some respects from the standards used to

define the religious employer exemption and accommodation to

the Mandate, see 45 C.F.R. $§ 147.13QaXivXB), 147.131(b), but

22

By comparison, the for-profit private sector accounts

for more than 83% of the total workforce. See Bureau

of Labor Statistics, Table B-1a. Employees on nonfarm

payrolls by industry sector and selected industry detail,

seasonally adjusted (Jan. 10, 2014) (available online at

http://www.bls.gov/web/empsit/ ceseebla.htm).

This is not a “slippery slope”; the numerical conse-

quences are immediate. Granting a RFRA exemption

to Claimants alone and depriving their more than

14,000 employees of coverage would materially add to

the very modest anticipated impact of the existing

religious employer exemption. Moreover, even assum-

ing only a small percentage of other private employers

invoke similar RFRA exemptions, the impact in terms

of employees excluded from coverage under the Man-

date could be multiplied by magnitudes of hundreds or

thousands. As discussed in the two preceding sections,

each employee excluded from contraceptive benefits

she would otherwise use suffers adverse consequences

through exclusion from the Mandate’s equalizing

effects and its promotion of women’s health. By

expanding the reach of the very limited religious

employer exemption far beyond its intended scope and

regulatory purpose, therefore, Claimants would fun-

damentally compromise the goals of the Mandate.

2. The Grandfather Rule and 50-Employee

Requirement Do Not Reduce the Gov-

ernment’s Compelling Interests

Turning to the exemptions for “grandfathered”

plans and employers with fewer than 50 full time

employees, these are not even arguably “similar” to

is nonetheless illustrative of the difference in magnitude between

the existing regulatory exemption and Claimants’ proposed

RFRA exemption.

23

Claimants’ proposed RFRA exemptions, nor are

Claimants “similarly situated.” Neither rule has any-

thing to do with coverage of contraception. The “grand-

father” rule is “designed to ease the transition of the

healthcare industry into the reforms established by

the [ACA] by allowing for gradual implementation of

reforms through a reasonable grandfathering rule.” 75

Fed. Reg. at 34541 (June 17, 2010). The 50-employee

requirement is the minimum threshold for an

employer to be subject to the requirements of the ACA;

employers with fewer than 50 employees are not

required to provide workplace coverage to their

employees at all, with or without contraception. 26

U.S.C. § 4980H. These “are not specific exemptions to

the contraceptive mandate; instead, they are general

exemptions to the mandate that employers comply

with all of the ACA’s new essential minimum coverage

requirements.” Roman Catholic Archbishop of

Washington v. Sebelius, No. 13-1441 (ABJ), --- F.

Supp.2d ---, 2013 WL 6729515, *30 (D.D.C. 2013).

By seeking to use these exemptions to justify a new

exception to the Mandate, Claimants appear to be

arguing that, unless all employers are subject to the

Mandate, the exclusion of any employer from its terms

cannot be seen as contrary to a truly “compelling”

government interest. That is a non sequitur. This is

not a case in which Congress has left “appreciable

damage to [a] supposedly vital interest unprohibited.”

Lukumi, 508 U.S. at 547 (quoting Florida Star v.

B.J.F., 491 U.S. 524, 641-42 (1989) (Scalia, J., concur-

ring in part)). The fact that Congress has adopted a

reasonable transition plan through a grandfathering

rule, and drawn economically sustainable boundaries

around the scope of the ACA through the 50-employee

24

requirement, cannot be construed as inflicting “appre-

ciable damage” on its interests in promoting gender

equality and public health.

The grandfathering rule “balances [the ACA’s]

objective of preserving the ability to maintain existing

coverage with the goals of expanding access to and

improving the quality of health coverage.” 75 Fed. Reg.

at 34540. Gradual implementation of the ACA “does

not appear to be indicative of how important the

Government considers the interests of regulating

public health and furthering gender equality.”

Legatus, 901 F. Supp.2d at 994. Nor does it denigrate

the importance of any religious practices. Rather, it

“seems to be a reasonable plan for instituting an

incredibly complex health care law while balancing

competing interests.” Id. To hold otherwise would

“perversely encourage Congress in the future to

require immediate and draconian enforcement of all

provisions of similar laws, without regard to prag-

matic considerations, simply in order to preserve

‘compelling interest’ status.” Id.

Moreover, it is virtually certain that a substantial

majority of the grandfathered plans already provide

contraceptive coverage. Even before the Mandate took

effect, twenty-eight states had adopted mandates

requiring insurers to include coverage of prescription

contraceptives. Grote v. Sebelius, 708 F.3d 850, 865

(7th Cir. 2013) (Rovner, J., dissenting) (citing Nat'l

Women’s Law Center, Guaranteeing Coverage of

Contraceptives: Past & Present (Aug. 1, 2012)). And a

2002 study found that more than 89 percent of insured

plans covered contraceptives. 78 Fed. Reg. at 39873

(citing A. Sonfield, et al., U.S. Insurance Coverage of

Contraceptives and the Impact of Contraceptive

Coverage Mandates, 36(2) Perspectives on Sexual and

25

Reproductive Health 72-79 (2002)). In all events, the

government estimated that grandfathered plans

would relinquish their status over time, with between

33% and 69% estimated to do so by 2013. 75 Fed. Reg.

at 34552. Whatever “damage” the grandfathering rule

may be causing, therefore, is not appreciable and is

diminishing over time.

Likewise, the 50-employee requirement does not

arbitrarily exclude employees from contraceptive

coverage; it acknowledges the “financial burdens

associated with workplace health plans,” and adopts

an “entirely practical, logical, and justifiable accom-

modation to the financial needs of small employers,

particularly in the first phase of a national effort to

expand access to healthcare.” Korte, 735 F.3d at 728

(Rovner, J., dissenting). Employees of these employers

are not left without contraceptive coverage. Instead,

like part-time employees, self-employed, and unem-

ployed persons, they are “steered to the insurance

exchanges established under the ACA, where the

government offers subsidies to those who cannot

shoulder the full cost of insurance on their own.” Id.

Thus, neither the grandfathering rule nor the 50-

employee requirement appreciably diminishes the

government’s compelling interests in pursuing gender

equality and public health through contraceptive

coverage under the Mandate. They “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.” Roman Catholic Archbishop of

Washington, 2013 WL 6729515, at *30.

26

Ill. The Mandate Is the Government’s Least

Restrictive Means of Promoting Gender

Equality and Protecting Women’s Health

Having established the government’s compelling

interests in gender equality and public health under

the Mandate, the next step under RFRA’s compelling

interest test is to evaluate whether application of the

Mandate to Claimants is the least restrictive means of

furthering these interests. 42 U.S.C. § 2000bb—1(b)(2).

This Court has employed different methods of

measuring whether application of a challenged policy

constitutes the least restrictive means of furthering its

purpose. One method is to consider whether the

challenged policy is “overbroad” or “underinclusive.”

Lukumi, 508 U.S. at 546. Another method, often

applied in the context of protected speech, is to ask

whether the policy is the “least restrictive means

among available, effective alternatives.” United States

v. Alvarez, 132 S. Ct. 2537, 2551 (2012) (quoting

Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656,

666 (2004)).

Here, under either measure, applying the Mandate

to Claimants and denying them a RFRA exemption is

the least restrictive means to further the government’s

interests. The Mandate is neither overbroad nor

underinclusive; its goals cannot be achieved less

restrictively by granting RFRA exemptions to for-

profit religious objectors, as the effectiveness of the

policy depends upon mandatory, comprehensive

national participation. Likewise, Claimants’ proposed

alternatives are not remotely workable as means of

accomplishing the same interests, and may not even

address Claimants’ own religious objections.

27

A. The Mandate Is Not Overbroad or Under-

inclusive as Applied to Claimants

Claimants’ position that the Mandate is overbroad

or underinclusive, and therefore fails the least

restrictive means test under Lukumi, largely overlaps

the argument addressed in the preceding section that

the government’s interests are not sufficiently “com-

pelling” due to the existence of other exemptions. See

Section ILC, supra. And it suffers from the same

erroneous reasoning. The argument describes the

mandate as “self-defeating” because it “faills) to

prohibit nonreligious conduct that endangers [its

asserted] interests in a similar or greater degree” by

granting “small businesses, businesses with grandfa-

thered plans (albeit temporarily), and an array of

other employers” an exemption from the Mandate or

the ACA. See, e.g., Gilardi v. U.S. Dept. of Health and

Human Services, 733 F.3d 1208, 1222 (D.C. Cir. 2013).

The errors in this mischaracterization of the

grandfathering rule, 50-employee requirement, and

religious employer exemption as “self-defeating,” and

the fundamental flaws in the assumption that the

exemptions “endanger[}” the government’s interests in

gender equality and public health in a “similar or

greater degree,” have already been addressed and

need not be repeated here. See Section II.C, supra. As

discussed above, none of the current exemptions are

contrary to the government’s interests in a generally

applicable contraceptive mandate as a means of pro-

moting women’s equality and health. Jd. Accordingly,

they do not render the Mandate overbroad or underin-

clusive.

Moreover, this Court already considered and

rejected the same argument in United States v. Lee,

455 U.S. 252 (1982). There, the Court considered

28

whether imposition of Social Security taxes is

unconstitutional as applied to persons of the Amish y

faith, who object on religious grounds -to receipt of

public insurance benefits and to payment of taxes to

support public insurance funds. Id. at 254. Notably,

Congress had already provided a statutory exception

accommodating self-employed Amish and members of

other religious groups with similar beliefs. Jd. at 255

(citing 26 U.S.C. § 1402(g)). This exception was

unavailable to the claimant in Lee, because it extended

only to the self-employed, not employers and employees,

leading the claimant to seek a constitutional exemp-

tion. Id. at 256.

The Court rejected the requested exemption, hold-

ing that the requested judicial narrowing of the Social

Security statute’s general rules of applicability was

incompatible with the government’s compelling inter-

est in preserving a “nationwide” system which “serves

the public interest by providing a comprehensive

insurance system with a variety of benefits available

to all participants, with costs shared by employers and

employees.” Jd. at 258. The Court observed that “man-

datory participation is indispensable to the fiscal

vitality of the social security system,” as providing for

“voluntary participation” by religious objectors in a

“comprehensive national social security system” would

be “almost a contradiction in terms and difficult, if not

impossible, to administer.” Id.

The Court further held that accommodating the

Amish belief and granting a constitutional exemption

to participation in the Social Security system would

“unduly interfere with fulfillment of the governmental

interest,” notwithstanding the existing statutory

exception for self-employed Amish. Id. at 259-60. The

Court observed, “To maintain an organized society

29

that guarantees religious freedom to a great variety of

faiths requires that some religious practices yield to

the common good. Religious beliefs can be accommo-

dated .. . but there is a point at which accommodation

would ‘radically restrict the operating latitude of the

legislature.” Id. at 259 (quoting Braunfeld v. Brown,

366 U.S. 599, 606 (1961)). Attempting to accommodate

a nationwide system with “myriad exceptions flowing

from a wide variety of religious beliefs” would impede

its ability to function. Id. at 259-60.

Thus, while “Congress and the courts have been

sensitive to the needs flowing from the Free Exercise

Clause,” every person “cannot be shielded from all the

burdens incident to exercising every aspect of the right

to practice religious beliefs.” Id. at 261. “When

followers of a particular sect enter into commercial

activity as a matter of choice, the limits they accept on

their own conduct as a matter of conscience and faith

are not to be 8 pe imposed on the statutory schemes

which are binding on others in that activity.” Id.

Here, much like the claimant in Lee, Claimants seek

a religious exception carving themselves out from a

comprehensive nationwide system of insurance

designed to serve the public interest by providing

uniform contraceptive coverage benefits. Yet by

eliminating coverage, whether in whole or in part, for

preventive contraception, Claimants’ proposed RFRA

opt-out would immediately undermine the Mandate’s

basic purpose and interests by imposing “a significant

barrier to access to contraception.” 78 Fed. Reg. at

39873.

Claimants’ requested exemption to the Mandate

cannot be reconciled with the government’s direct

interests in promoting gender equality and public

health for Claimants’ employees, whose own beliefs

30

and interests are left unaccounted in Claimants’

proposed relief. Nor can the government plausibly be

expected to find adequate ad hoc work-arounds to

accommodate Claimants’ religious objections, much

less the “myriad” other exceptions flowing “from a

wide variety of religious beliefs.” Lee, 455 U.S. at 259-

60. Claimants cannot superimpose their limits of

conscience and faith to unduly interfere with both the

basic purpose and administration of the Mandate. See

id. at 261.

Courts allowing RFRA exemptions to the Mandate

have acknowledged Lee and recognized the “private

veto” concern associated with granting such religious

exemptions, but state that Lee requires proof of “the

incompatibility of the requested religious exemption”

with the statute, to such a degree as to “render the

statutory scheme unworkable.” See, e.g., Gilardi, 733

F.3d at 1223. It is suggested that depriving employees

of contraceptive coverage under the Mandate would

not render the entire scheme unworkable, because

they “will still receive an array of services” apart from

the objected contraception methods, which “by and

large fulfills the statutory command for insurers to

provide gender-specific preventive care.” Id. at 1224.

That is too glib by half. The benefits to women’s

equality and public health arising from the Mandate

are not generalized to “gender-speciic preventive

care” writ large; they are particularized to full coverage

of contraceptive care, based on the consensus

recommendations of an independent panel of medical

experts. See Sections II.A, B, supra; Clinical Preven-

tive Services for Women, at pp. 9, 103-07. Depriving

Claimants’ employees (as well as other similarly situ-

ated private employees) of full contraceptive coverage

thus deprives them of an entire category of medical

31

care with acknowledged and demonstrable economic

and medical benefits, which cannot be recovered

through the provision of unrelated “gender-specific

preventive care.” Id. Even other methods of contracep-

tion do not provide the same health benefits as emer-

gency post-coital contraception such as Plan B and

Ella. See Section II.B, supra. A RFRA exemption, even

a limited one, thus renders the Mandate unworkable

by depriving large numbers of employees, including all

of Claimants’ employees, of the coverage benefits the

Mandate is designed to provide on a nationwide, uni-

form basis.

B. Claimants’ Proposed Alternatives Are

Not Less Restrictive Means of Furthering

the Same Interests

Turning to the second method—a comparison of the

Mandate against available, effective alternatives—in

the dozens of RFRA cases brought by private

corporations seeking exemptions from the Mandate,

no alternative has emerged that is remotely workable

and would effectively further the same compelling

interests in a less restrictive manner. The analysis of

available, effective alternatives does not obligate the

government to refute “every conceivable option” that

“the ingenuity of the human mind, especially if freed

from the practical constraints of policymaking and

politics,” could imagine. United States v. Wilgus, 638

F.3d 1274, 1288-89 (10th Cir. 2011) (quoting Hamilton

v. Schriro, 74 F.3d 1545, 1556 (8th Cir. 1996)).’

Nonetheless, given the volume of RFRA litigation

arising in response to the Mandate, it is reasonable to

7 See also Fowler v. Crawford, 534 F.3d 931, 940 (8th Cir.

2008); Spratt v. R.I. Dep’t of Corr., 482 F.3d 33, 41 n. 11 (1st Cir.

2007); May v. Baldwin, 109 F.3d 557, 563 (9th Cir. 1997).

32

expect that any alternative that could plausibly be

conceived has at this point been proposed.

Here, Claimants’ alternatives all involve some

variation of publicly-funded contraception programs,

through (i) expanded funding of existing federal or

state government subsidized contraception programs,

(ii) tax credits to women forced to incur the costs of

buying their own contraception, (iii) a government-

offered free or subsidized contraception coverage plan,

or (iv) incentives to insurance or pharmaceutical

companies to offer contraceptives to vulnerable popu-

lations. See, e.g., Conestoga Br., at pp. 63-64. The D.C.

and Seventh Circuits have accepted similar proposals

as “less restrictive” means of achieving the same ends

as the Mandate. See Korte, 735 F.3d at 686; Gilardi,

733 F.3d at 1222. They are mistaken. The proposed

alternatives are wholly unworkable and may not even

adequately address Claimants’ own religious objec-

tions.

With respect to workability, as noted in Lee, it is

“difficult, if not impossible, to administer” ad hoc

exclusions to accommodate a “myriad” of objections

stemming “from a wide variety of religious beliefs.”

455 U.S. at 258-60. Claimants’ altegnatives describe

outcomes, not implementation. It is easy enough to

assert that employees excluded from contraceptive

coverage as a consequence of RFRA opt-outs could

receive alternative coverage through existing contra-

ception programs, tax credits, a new coverage plan, or

incentives to private industry, but the burden to

devise, enact, fund, and implement these new or

expanded programs would fall on the government.

As concerned this Court in Lee, it would be difficult

if not impossible for the government to track individ-

33

ual employees excluded from different types of cover-

age due to case-specific RFRA religious objections, to

identify the specific methods of contraception for

which each of these employees has been denied

coverage, to devise new coverages to make up these

employee-specific gaps, to inform the employees of

their alternative options, to secure enrollment and

participation in these alternative options, or to fund

these programs from the public coffers. When the pro-

posed alternatives are scrutinized, a “host of adminis-

trative and logistical problems” emerge, raising

serious questions as to their workability. Legatus, 901

F.Supp.2d at 995-96. It is “not feasible to expect the

government to establish a public insurance option that

picks up responsibility for the crazy-quilt of individual

services that any individual employer might find

incompatible with his individual religious beliefs.”

Korte, 735 F.3d at 727 (Rovner, J., dissenting).

Even if Claimants’ proposed alternatives could be

enacted and implemented, which they cannot, they

could not work even remotely as effectively as the

Mandate. The provision of comprehensive preventive

care for women under the Mandate, including full

coverage of all methods of contraception, is designed to

redress “a history of gender-based inequalities in

healthcare and health insurance.” Korte, 735 F.3d at

727 (Rovner, J., dissenting). Carving out contraceptive

coverage in whole or in part and requiring it to

be provided separately, in addition to requiring

“[aldditional transaction costs,” also “reinforces the

very disparities that motivated the [Women’s Health]

Amendment” by segregating contraception from

standard insurance coverage and “stigmatiz[ing]} both

these services and the employees who wish to access

them.” Id. It is difficult to see how a segregated

contraception program requiring separate enrollment

34

and participation could secure anywhere close to the

same level of adoption as full coverage of contraceptive

services as part of standard preventive insurance

coverage.

Additionally, it is questionable whether Claimants’

alternatives even address Claimants’ own religious

objections to the Mandate, much less whether they

would address other corporations’ objections, insofar

as the alternatives only shift Claimants’ financial

support of the objectionable contraceptives from one

pocket to another. Conestoga, for example, objects to

the Mandate’s command “to buy a healthcare policy

that funds abortifacients in conflict with their

religious beliefs regarding the destruction of human

life.” Conestoga Br., at p. 13. From this statement, the

religious objection arises from compulsory funding of

the contraceptive methods at issue. Yet Claimants’

alternatives would all require the diversion of public

funds from other uses to fund the same abortifacients

for Claimants’ employees, with Claimants’ tax dollars

thus being used in place of health insurance costs to

pay for the objectionable methods of contraception.

Conestoga has not taken the position that it finds

compulsory funding of abortifacients through its tax

dollars less religiously objectionable than compulsory

funding through healthcare policies. Nor could it make

that claim on behalf of other religious objectors. As the

Court observed in Lee, there is no “principled way” to

distinguish between “general taxes” used to fund

religiously objectionable activities and taxes imposed

under the Social Security Act. 455 U.S. at 260.

Similarly, Claimants’ proposed alternatives do little

more than change the funding source without

eliminating the objectionable compulsory funding of

abortifacients.

35

Thus, whether measured by the standard of over-

breadth, underinclusiveness, or available, effective

alternatives, the Mandate is the least restrictive

means of furthering the government’s compelling

interests in promoting gender equality and public

health through full coverage of all methods of

contraception.

CONCLUSION

A nation as large, diverse, and religiously inclusive

as the United States simply could not function if it

were required to accommodate every citizen’s religious

objections under all circumstances. Where the govern-

ment undertakes action in furtherance of an important

interest, but which is offensive to the sincerely held

religious beliefs of some of its citizens, as is the case

here, RFRA prescribes the rigorous standard under

which the competing claims must be analyzed. And

where the government meets its burden, as it has in

this case, of demonstrating that its actions are both in

furtherance of a compelling governmental interest and

the least restrictive means of doing so, it may proceed.

Here, the Mandate furthers the compelling interests

of promoting women’s equality and improving the

public health through coverage of preventive contra-

ceptive care without cost sharing. It is the least re-

strictive means of furthering these interests. For these

reasons, the Court should reject Claimants’ requests

to be exempted from the Mandate under RFRA.

Respectfully submitted,

MARC D. STERN

Counsel of Record

AMERICAN JEWISH COMMITTEE

165 East 56th Street

New York, New York 10022

(212) 891-1480

sternm@ajc.org