I saw this first on Newsvine:
DOJ to Colorado Family: Give Up Your Religion or Your Business
From the linked article:
In response to the Justice Department’s argument that the Newlands can either give up practicing their religion or give up owning their business, the Alliance Defending Freedom, which is representing the family, said in a reply brief: "[T]o the extent the government is arguing that its mandate does not really burden the Newlands because they are free to abandon their jobs, their livelihoods, and their property so that others can take over Hercules and comply, this expulsion from business would be an extreme form of government burden.”
“The question is whether the government is going to tell people they have to abandon their faith in order to run a family business.”
- Matt Bowman, legal counsel for Alliance Defending Freedom
...Justice Department’s argument that the Newlands can either give up practicing their religion or give up owning their business...
As usual, the right-wing misquotes and spins went flying around the web. "The DOJ said..."; "Eric Holder said..."; etc.
There's just one problem. The DOJ didn't say that, Eric Holder didn't say that. Only the legal council for the Newlands did.
Here is what the DOJ actually said:
Note "Plaintiffs = The Newlands; "Defendants = DOJ etal; for ease if reading, I have edited out citations numbers, etc. They are available in the full DOJ Response here:
DOJ RESPONSE
INTRODUCTION -
Plaintiffs ask this Court to preliminarily enjoin regulations that are intended to ensure that women have access to health coverage, without cost-sharing, for certain preventive services that medical experts have deemed necessary for women’s health and well-being.
Plaintiffs’ challenge rests largely on the theory that a for-profit, secular corporation established to manufacture heating, ventilation, and air conditioning (“HVAC”) products can claim to exercise a religion and thereby avoid the reach of laws designed to regulate commercial activity.
This cannot be.
Indeed, the Supreme Court has recognized that, “[w]hen 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 superimposed on the statutory schemes which are binding on others in that activity.” Nor can the owners of a for-profit, secular company eliminate the legal separation provided by the corporate form to impose their personal religious beliefs on the corporate entity’s employees. To hold otherwise would permit for-profit, secular companies and their owners to become laws unto themselves, claiming countless exemptions from an untold number of general commercial laws designed to improve the health and well-being of individual employees based on an infinite variety of alleged religious beliefs. Such a system would not only be unworkable, it would also cripple the government’s ability to solve national problems through laws of general application.
This Court, therefore, should reject plaintiffs’ effort to bring about an unprecedented expansion of constitutional and statutory free exercise rights.
The preventive services coverage regulations that plaintiffs challenge require all group health plans and health insurance issuers that offer non-grandfathered group or individual health coverage to provide coverage for certain recommended preventive services without cost-sharing (such as a copayment, coinsurance, or a deductible).
1. As relevant here, except as to group health plans of certain non-profit religious employers (and group health insurance coverage sold in connection with those plans), the preventive services that must be covered include all Food and Drug Administration (“FDA”)-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity, as prescribed by a health care provider. The plaintiffs in this case are Hercules Industries, Inc., a Colorado corporation that manufactures HVAC products, and five owners and/or officers of the company.
2. Plaintiffs claim their sincerely held religious beliefs prohibit them from providing health coverage for contraceptive services. Plaintiffs seek to preliminarily enjoin the regulations as to them before August 2012 – the date on which plaintiffs allege they must begin arranging for Hercules Industries’s group health plan for the 2012 plan year.
Plaintiffs’ motion for preliminary injunction should be denied because plaintiffs have not shown that they are likely to succeed on the merits of their claims. Indeed, plaintiffs’ claims are all subject to dismissal for failure to state a claim upon which relief may be granted.
With respect to plaintiffs’ Religious Freedom Restoration Act (“RFRA”) claim, none of the plaintiffs can show, as each must, that the preventive
services coverage regulations impose a substantial rather than an incidental burden on religious exercise. Hercules Industries is a for-profit, secular employer, and a secular entity by definition does not practice religion.
The Newlands’ allegations of a burden on their own individual religious exercise fare no better, as the regulations that purportedly impose such a burden apply only to group health plans and health insurance issuers. The Newlands themselves are neither. It is well established that a corporation and its owners
are wholly separate entities, and the Court should not permit the Newlands to eliminate that legal separation to impose their personal religious beliefs on the corporate entity or its employees. The Newlands cannot use the corporate form alternatively as a shield and a sword, depending on which suits them in any given circumstance.
Furthermore, even if the preventive services coverage regulations were deemed to impose a substantial burden on any plaintiff’s religious exercise, the regulations would not violate RFRA because they are narrowly tailored to serve two compelling governmental interests: improving the health of women and children, and equalizing the provision of preventive care for women and men so that women who choose to do so can be a part of the workforce on an equal
playing field with men.
Plaintiffs’ First Amendment claims are equally meritless. The Free Exercise Clause does not prohibit a law that is neutral and generally applicable even if the law prescribes conduct that an individual’s religion proscribes. The preventive services coverage regulations fall within this rubric because they do not target, or selectively burden, religiously motivated conduct. The regulations apply to all non-exempt, nongrandfathered plans, not just those of employers with a religious affiliation.
Plaintiffs’ Establishment Clause claim, which rests primarily on the theory that the religious employer exemption discriminates among religions, is similarly flawed. The exemption distinguishes between organizations based on their purpose and composition; it does not favor one religion, denomination, or sect over another. The distinctions drawn by the exemption, therefore, simply do not violate the constitutional prohibition against denominational preferences.
Furthermore, the regulations do not violate plaintiffs’ free speech rights. The regulations compel conduct, not speech. They do not require plaintiffs to say anything; nor, as shown by this very lawsuit, do they prohibit plaintiffs from expressing to Hercules Industries’s employees or the public their views in
opposition to the use of contraceptive services. Indeed, the highest courts of both New York and California have upheld state laws that are similar to the preventive services coverage regulations against free exercise, Establishment Clause, and free speech challenges like those asserted by plaintiffs here.
Nor can plaintiffs succeed on their Fifth Amendment due process or Administrative Procedure Act (“APA”) claims. Plaintiffs fail to identify any vagueness
in the challenged regulations and, indeed, acknowledge that they understand how the regulations apply to Hercules Industries. Moreover, in promulgating the challenged regulations, defendants complied with the procedural requirements of the APA and carefully considered – and continue to consider – the impact of the regulations on all employers, including for-profit, secular employers like Hercules Industries.
Finally, even if plaintiffs could show a likelihood of success on the merits, the Court should not grant plaintiffs’ request for a preliminary injunction because the balance of equities tips toward defendants. Enjoining application of the regulations as to Hercules Industries would prevent defendants from effectuating Congress’s goals of improving the health of women and children and equalizing the coverage of preventive services for women and men. It would also harm the public, given the large number of employees at Hercules Industries – as well as any covered spouses and other dependents – who could suffer the negative health consequences that the regulations are intended to prevent.
For these reasons, the Court should deny plaintiffs’ motion for a preliminary injunction and grant defendants’ motion to dismiss this case in its entirety.
ARGUMENT
I. PLAINTIFFS’ FIRST AMENDED COMPLAINT FAILS TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED, AND PLAINTIFFS HAVE NOT SHOWN A LIKELIHOOD OF SUCCESS ON THE MERITS
A. Plaintiffs’ Religious Freedom Restoration Act Claim Is Without Merit And Should Be Dismissed
1. Plaintiffs have not sufficiently alleged that the preventive services coverage regulations substantially burden their religious exercise
The Newlands’ theory boils down to the claim that what’s done to the corporation (or the group health plan sponsored by the corporation) is also done to its officers and shareholders. But, as a legal matter, that is simply not so. The Newlands have voluntarily chosen to enter into commerce and elected to do so by establishing a forprofit corporation, which “is treated as a separate legal entity, unique from its officers, directors, and shareholders.” Those individuals thereby enjoy limited liability – “an inherent purpose of incorporation” – provided they respect the corporation’s separate existence and adhere to a standard of care.
As a Colorado corporation with a “perpetual” existence, Hercules Industries, Inc., has broad powers to conduct business, hold and transact property, and enter into contracts, among others. In the company’s employment relationships, for example, Hercules Industries – not its officers or shareholders – “is the employing party.” In short, Hercules Industries’s “separate status isolates the actions, profits, and debts of the corporation from the individuals who invest in and run the entity” – the Newlands. The Newlands should not be permitted to eliminate that legal separation only when it suits them, in order to impose their religious beliefs on the corporation’s group health plan or its 265 employees. Although the preventive services coverage regulations do not require the Newlands or Hercules Industries to provide contraceptive services directly, the Newlands’ complaint appears to be that, through their company’s group health plan and the benefits it provides to employees, plaintiffs will facilitate conduct (the use of contraceptives) that they find objectionable. But this complaint has no limits. A company provides numerous benefits, including a salary, to its employees and by doing so in some sense facilitates whatever use its employees make of those benefits. The owners of Hercules Industries have no right to control the choices of their company’s employees, many of whom may not share the Newlands’ religious beliefs. These employees have a legitimate interest in access to the preventive services coverage made available under the challenged regulations. In light of the Newlands’ choice to structure their company in such a way as to separate themselves from the corporate entity, the burden of which they complain is not a burden that establishes a violation of RFRA.
The D.C. Circuit’s recent decision in Seven-Sky v. Holder further confirms that there is no substantial burden here. There, the plaintiffs brought a RFRA challenge to the minimum coverage provision of the ACA, which, starting in 2014, will require most Americans to obtain qualifying health coverage or pay a tax penalty. The plaintiffs alleged that they “believe[] in trusting in God to protect [them] from illness or injury” and that they do not “want to be forced to buy . . . health insurance coverage.” In concluding that the minimum coverage provision does not substantially burden the plaintiffs’ religious practice, the court reasoned, among other things, that “Plaintiffs routinely contribute to other forms of insurance, such as Medicare, Social Security, and unemployment taxes, which present the same conflict with their belief that God will provide for their medical and financial needs.” The same is true in this case.
Plaintiffs presumably “routinely contribute to other” schemes that present the same conflict with their religious beliefs alleged here. A portion of plaintiffs’ taxes, for example, are used for Medicaid, a federal-state program that routinely pays for contraceptive services for the needy.
For these reasons, plaintiffs’ RFRA challenge should be rejected.
B. Plaintiffs’ First Amendment Claims Are Without Merit And Should Be Dismissed
1. The regulations do not violate the Free Exercise Clause
Plaintiffs’ free exercise claim fails at the outset because for-profit, secular employers generally, and Hercules Industries in particular, do not engage in any exercise of religion protected by the First Amendment.
Nevertheless, even if they did, the preventive services coverage regulations are neutral laws of general applicability and thus do not violate the Free Exercise Clause. And, to the extent the preventive services coverage regulations contain an exemption for certain religious employers, that exemption serves to accommodate religion, not to burden or disapprove of it. ... What plaintiffs are asserting here is not that the regulations favor nonreligion over religion, but rather that they do not favor religion enough. Such a claim is not cognizable under the First Amendment
2. The regulations do not violate the Establishment Clause
Plaintiffs claim that the preventive services coverage regulations violate the Establishment Clause because the religious employer exemption amounts to a
denominational preference forbidden by Larson v. Valente, and requires the government to unlawfully scrutinize an organization’s religious practices. Pls.’ Mot. at 24-26; see also id. at 22-23. Plaintiffs are wrong on both counts.
“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”
3. The regulations do not violate the Free Speech Clause
Plaintiffs’ free speech claim fares no better. The right to freedom of speech “prohibits the government from telling people what they must say.” But the preventive services coverage regulations do not require plaintiffs – or any other person, employer, or entity – to say anything. Contrary to plaintiffs’ assertion, the regulations do not require plaintiffs themselves to provide any education or counseling. Thus, the regulations are unlike the laws at issue in the cases on which plaintiffs rely. Those laws compelled speech.
Here, plaintiffs are not being required to “speak” at all. Nor do the preventive services coverage regulations limit what plaintiffs may say.
Plaintiffs remain free under the regulations to express to Hercules Industries’s employees (or anyone else) whatever views they may have on the use of contraceptive services (or any other health care services) as well as their views on the regulations’ requirement that certain group health plans and health insurance issuers cover certain contraceptive services. Indeed, plaintiffs may encourage Hercules Industries’s employees not to use contraceptive services. The preventive services regulations regulate conduct, not speech.
Because the preventive services coverage regulations do not compel any speech or expressive conduct, they do not violate the Free Speech Clause....
For these reasons, plaintiffs’ First Amendment claims fail.
C. The Court Should Dismiss Plaintiffs’ Fifth Amendment Due Process Clause Claim
Plaintiffs’ terse assertion that the preventive services coverage regulations violate the Fifth Amendment’s Due Process Clause is as puzzling as it is baseless. In the First Amended Complaint, plaintiffs not only fail to identify any purported vagueness in the challenged regulations; they show that the regulations are not vague at all as applied to Hercules Industries.
A law is not unconstitutionally vague unless it “fails to provide a person of ordinary intelligence fair notice of what is prohibited” or “is so standardless that it authorizes or encourages seriously discriminatory enforcement.”
Tellingly, the First Amended Complaint sets out plaintiffs’ due process claim in only general, conclusory terms. Rather than specify what they find vague in the preventive services coverage regulations, plaintiffs merely recite the above vagueness test and baldly assert that the regulations fail it. See First Am. Compl. ¶¶ 152-157. Such “‘labels and conclusions’” and “‘naked assertion[s]’” fall far short of stating a plausible claim for relief.
Further, the First Amended Complaint demonstrates that plaintiffs understand how the challenged regulations apply to Hercules Industries. Contrary to the premise of their vagueness claim, plaintiffs have no difficulty concluding that the regulations “impos[e] . . . requirements on Plaintiffs’ plan year beginning November 1, 2012.” Indeed, the First Amended Complaint methodically explains why Hercules Industries is “subject to” the preventive services coverage regulations and what those regulations require of the company.
D. The Court Should Dismiss Plaintiffs’ Administrative Procedure Act Claims
1. Issuance of the preventive services coverage regulations was procedurally proper. Plaintiffs’ claim that defendants failed to follow the procedures required by the APA in issuing the preventive services coverage regulations is baseless. The APA’s rulemaking provisions generally require that agencies
provide notice of a proposed rule, invite and consider public comments, and adopt a final rule that includes a statement of basis and purpose.
Defendants complied with these requirements.
On August 1, 2011, defendants issued an amendment to the interim final regulations authorizing HRSA to exempt group health plans sponsored by certain
religious employers (and associated group health insurance coverage) from any requirement to cover contraceptive services under HRSA’s guidelines. The amendment was issued pursuant to express statutory authority granting defendants discretion to promulgate regulations relating to health coverage on an interim final basis.3 Defendants requested comments for a period of sixty days on the amendment to the regulations and specifically on the definition of religious employer contained in the exemption authorized by the amendment. After receiving and carefully considering over 200,000 comments, defendants decided to adopt in final regulations the definition of religious employer contained in the amended interim final regulations and to create a temporary enforcement safe harbor period during which time defendants would consider additional amendments to the regulations to further accommodate religious organizations’ religious objections to providing contraception coverage.
Because defendants provided notice and an opportunity to comment on the amendment to the interim final regulations, they satisfied the APA’s procedural
requirements. To the extent plaintiffs challenge the amended interim final regulations on the ground that they were issued on an interim final basis, that argument is moot, as defendants have now finalized the amended interim final regulations after notice and opportunity for comment.
2. The regulations are neither arbitrary nor capricious
Plaintiffs also contend that defendants acted arbitrarily and capriciously by failing to exempt plaintiffs and other similar organizations from the scope of the preventive services coverage regulations. But plaintiffs’ contention is belied by defendants’ careful consideration of the scope of the religious employer exemption, which is intended to “reasonably balance the extension of any coverage of contraceptive services . . . to as many women as possible, while respecting the unique relationship between certain religious employers and their employees in certain religious positions.”
In response to comments on the amended interim final regulations, defendants “carefully considered whether to eliminate the religious employer exemption or to adopt an alternative definition of religious employer, including whether the exemption should be extended to a broader set of religiously-affiliated sponsors of group health plans and group insurance coverage.” Ultimately, defendants chose not to expand the exemption, as a broader exemption “would lead to more employees having to pay out of pocket for contraceptive services, thus making it less likely that they would use contraceptives, which would undermine the benefits described above.”
Defendants also explained that including a broader class of employers within the scope of the exemption “would subject their employees to the religious views of the employer, limiting access to contraceptives, and thereby inhibiting the use of contraceptive services and the benefits of preventive care.” Although plaintiffs may take issue with defendants’ purported omission of a discussion about for-profit corporate employers per se, plaintiffs cannot dispute that defendants’ conclusions in the final rules as applied to religiously-affiliated organizations could only apply with greater force to for-profit,secular corporations like Hercules Industries. ... Defendants’ consideration of the relevant concerns shows that they acted neither arbitrarily nor capriciously.
3. The preventive services coverage regulations do not violate federal restrictions relating to abortions
Plaintiffs also contend that the preventive services regulations violate the APA because they conflict with two federal prohibitions relating to abortions:
(1) section 1303(b)(1) of the ACA, and
(2) the Weldon Amendment to the Consolidated Appropriations Act of 2012.
Section 1303(b)(1)(A) of the ACA provides that “nothing in this title...shall be construed to require a qualified health plan to provide” abortion services. The Weldon Amendment denies funds made available in the Consolidated Appropriations Act of 2012 to any federal, state, or local agency, program, or government that “subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.”
Plaintiffs’ claim that the challenged regulations conflict with section 1303(b)(1) of the ACA should be dismissed at the outset because plaintiffs lack prudential standing to assert it. The doctrine of prudential standing requires that a plaintiff’s claim fall within “the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” The necessary link between plaintiffs and section 1303(b)(1) is missing
here. Section 1303(b)(1) protects health insurance issuers that offer qualified health plans. But plaintiffs do not allege that they are either health
insurance issuers or purchasers of a qualified health plan. Nor could they reasonably do
so. A “health insurance issuer” is an “insurance company, insurance service or insurance organization” that is “licensed to engage in the business of insurance in a State.” And plaintiffs do not purport to hold any such license. ... Thus, although plaintiffs might seek to relitigate this issue in the present context, the preventive services coverage regulations simply adopted a settled understanding of FDA-approved emergency contraceptives that is in accordance with existing federal laws prohibiting federal funding for certain abortions.
Such an approach cannot be deemed arbitrary or capricious or contrary to law when it is consistent with over a decade of regulatory policy and practice.
Plaintiffs additionally contend that the preventive services coverage regulations conflict with a provision of the Church Amendments, and thereby violate the APA. The provision plaintiffs cite states:
No individual shall be required to perform or assist in the performance of any part of a health service program or research activity funded in whole or
in part under a program administered by the Secretary of Health and Human Services if his performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions. ...
This provision has no application to the current dispute. Indeed, plaintiffs’ First Amended Complaint does not explain how the cited provision is in any
tension with the challenged regulations. Hercules Industries, by merely providing a health plan to its employees, does not “perform or assist in the performance” of a “health service program or research activity funded ... under a program administered by the Secretary of Health and Human Services.”
II. EVEN IF PLAINTIFFS COULD ESTABLISH A LIKELIHOOD OF SUCCESS ON THE MERITS, THEY ARE NOT ENTITLED TO PRELIMINARY INJUNCTIVE RELIEF
A. Plaintiffs Have Not Established Imminent Irreparable Harm
Plaintiffs argue incorrectly that the mere allegation of a potential RFRA or First Amendment violation – at some point in the future – is sufficient to establish irreparable harm. To obtain preliminary injunctive relief, plaintiffs must show that “the injury complained of is of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.” That a potential future harm may be irreparable is simply not enough; it must also be an imminent one.
Here, plaintiffs have failed to establish any actual or imminent statutory or constitutional injury resulting from the preventive services coverage regulations. Plaintiffs do not dispute that the challenged regulations will not apply to Hercules Industries until November 2012. And, although plaintiffs allege that they “must make insurance coverage decisions and logistical arrangements” before that time, such inconveniences are not the sort of “irreparable” injury that would justify the extraordinary remedy of injunctive relief.
Plaintiffs therefore have not met their burden to establish imminent irreparable harm.
B. Entry Of A Preliminary Injunction Would Adversely Affect The Interests Of Defendants And The Public
Plaintiffs contend that defendants would suffer no harm if the Court were to issue an injunction, and that an injunction is in the public interest. But
that is not the case. With regard to defendants, “there is inherent harm to an agency in preventing it from enforcing regulations that Congress found it in the public interest to direct that agency to develop and enforce.”
III. The PPACA and Defendants’ Mandate Thereunder
44. Under the PPACA, employers with over 50 full-time employees are required to provide a certain minimum level of health insurance to their employees.
45. Nearly all such plans must include “preventive services,” which must be offered with no cost-sharing by the employee.
46. On February 10, 2012, the Department of Health and Human Services finalized a rule (previously referred to in this Complaint as the Mandate) that imposes a definition of preventive services to include all FDA-approved “contraceptive” drugs, surgical sterilization, and education and counseling for such services.
62. The Mandate offers the possibility of a narrow exemption to religious employers, but only if they meet all of the following requirements:
(1) “The inculcation of religious values is the purpose of the organization”;
(2) “The organization primarily employs persons who share the religious tenets of the organization”;
(3) “The organization serves primarily persons who share the religious tenets of the organization”; and
(4) The organization is a church, an integrated auxiliary of a church, a convention or association of churches, or is an exclusively religious activity of a religious order, under Internal Revenue Code 6033(a)(1) and (a)(3)(A).
Plaintiffs are not “religious” enough under this definition in several respects, including but not limited to because they have purposes other than the “inculcation of religious values,” they do not primarily hire or serve Catholics, and because Hercules is not a church, integrated auxiliary of a particular church, convention or association of a church, or the exclusively religious activities of a religious order.
CONCLUSION
For the forgoing reasons, this Court should deny plaintiffs’ motion for a preliminary injunction and grant defendants’ motion to dismiss this case in its entirety.
FOOTNOTES
1 A grandfathered plan is one that was in existence on March 23, 2010 and that has not
undergone any of a defined set of changes. 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.715-
1251; 45 C.F.R. § 147.140.
2 The individual plaintiffs will be referred to collectively as “the Newlands.”
2. Even if there is a substantial burden, the preventive services coverage regulations serve compelling governmental interests and are the least restrictive means to achieve those interests
a. The regulations significantly advance compelling governmental interests in women’s health and equality
b. The regulations are the least restrictive means of advancing the Government’s compelling interests
c. The regulations are not underinclusive, but are carefully tailored to achieve the government’s compelling interests
20 Plaintiffs’ allegation regarding the salary paid to Hercules Industries’s employees – which defendants can only assume is meant to suggest that Hercules
Industries’s employees could purchase contraception should they choose to do so – is similarly misguided. It simply relies on a more severe form of cost-sharing (i.e., requiring employees to pay all of the costs of contraception) and would thus completely fail to achieve the purposes of the regulations.
21 Plaintiffs’ characterization of the preventive services coverage regulations as an intentional attempt to target non-insularly-focused religious objectors, see Pls.’ Mot. at 21-24, is mere rhetorical bluster. Plaintiffs provide no evidence to show that the regulations were designed as an assault on some religious objectors, as opposed to an effort to increase women’s access to and utilization of recommended preventive services. And plaintiffs cannot dispute that defendants have made efforts to accommodate religion in ways that will not undermine the goal of ensuring that women have access to coverage for recommended preventive services without cost-sharing. See supra pp. 34-35; 77 Fed. Reg. 16,503. This case, therefore, is a far cry from Lukumi, 508 U.S. 520, on which plaintiffs rely. In Lukumi, the legislature specifically targeted the religious exercise of members of a single church (Santeria) by enacting ordinances that used terms such as “sacrifice” and “ritual,” id. at 533-34, and prohibited few, if any, animal killings other than Santeria sacrifices, id. at 535-36. There is no evidence of a similar targeting of religious practice here.
22 Plaintiffs also point to purported exemptions for small employers and members of religious sects opposed to health insurance. As explained above at 20, however, these exceptions do not apply to the preventive services coverage regulations.
25 Plaintiffs stretch Colorado Christian University v. Weaver well beyond its facts in asserting that the case stands for the proposition that the
Establishment Clause prohibits the government from distinguishing between different types of organizations that adhere to the same religion. In Weaver, the court struck down a state law that provided scholarship funds for students to attend college, including religious colleges, but denied such funding to students attending colleges that were determined by the state on an ad hoc basis to be pervasively sectarian. Id. at 1250. The court’s decision was limited to “laws that facially regulate religious issues,” id. at 1257, and, particularly, those that do so in a way that denies
certain religious institutions public benefits that are afforded to all other institutions, whether secular or religious. The court in Weaver said nothing about the constitutionality of exemptions from generally applicable laws that are designed to accommodate religion, as opposed to discriminate against religion. Requiring that such exemptions apply to all organizations – no matter their purpose, composition, or religious character – would severely hamper the government’s ability to accommodate religion. See Amos, 483 U.S. at 334 (“There is ample room under the Establishment Clause for ‘benevolent’ neutrality which will permit religious exercise to exist without sponsorship and without interference.”); Catholic Charities of Sacramento, 85 P.3d at 79. Because the preventive services coverage regulations do not “facially regulate religious issues,” Weaver, 534 F.3d at 1257, and because the religious employer exemption serves to accommodate – rather than disadvantage – religion, Weaver is inapposite.
26 Moreover, unlike in Weaver, on which plaintiffs rely, the religious employer exemption does not require the government to “troll[] through” or “second-guess[]” any entity’s religious beliefs. 534 F.3d at 1261, 1266. Instead, the religious employer exemption utilizes “neutral, objective criteria” regarding the organization’s tax classification, purpose, and composition. Id. at 1266;
27 Even if the regulations discriminate among religions (and they do not), they are valid under the Establishment Clause, because they satisfy strict scrutiny. See supra pp. 15-35; Larson, 456 U.S. at 251-52.
28 Rather, if Hercules Industries decides to offer a non-grandfathered health plan to its employees, that plan must cover the costs of any education and counseling provided by medical professionals to its participants. It is the medical professionals who will be speaking, not plaintiffs. And the regulations do not purport to regulate the content of any education or counseling provided. Taken to its logical conclusion, plaintiffs’ assertion that the government cannot constitutionally require group health plans to provide coverage for education and counseling would stymie the government’s efforts to regulate health coverage entirely: a doctor’s visit invariably involves some communication between the patient and the doctor or other medical professional, and there may be many instances in which the entity providing the health coverage disagrees with the content of this communication.
29 As a corollary, plaintiffs cannot raise the due process rights of “other parties not before the Court.” ...see Humanitarian Law Project, (invoking “the rule that ‘[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others’”). And plaintiffs’ suggestion that the preventive services coverage regulations are overbroad is not only incorrect, but irrelevant to their due process claim, see Humanitarian Law Project, (“[A] Fifth Amendment vagueness challenge does not turn on whether a law applies to a substantial amount of protected expression.”).
30 Defendants also made a determination, in the alternative, that issuance of the regulations in interim final form was in the public interest, and thus, defendants had “good cause” to dispense with the APA’s notice-and-comment requirements.
32 “The conscience provisions contained in 42 U.S.C. § 300a-7 (collectively known as the ‘Church Amendments’) were enacted at various times during the 1970s to make clear that receipt of Federal funds did not require the recipients of such funds to perform abortions or sterilizations.”
34 Plaintiffs appear to suggest that it is defendants’ burden to establish that the public interest does not favor an injunction rather than plaintiffs’ burden to show that it does. Even putting aside the considerable evidence that such services are under-utilized because of their cost, the Court should also reject plaintiffs’ argument because it is plaintiffs’ burden, not defendants’, to demonstrate that “the injunction, if issued, would not be adverse to the public interest.”