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Wheaton College v. Burwell

United States District Court, N.D. Illinois, Eastern Division

June 23, 2014

WHEATON COLLEGE, Plaintiff,
v.
SYLVIA MATHEWS BURWELL, et al., Defendants

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[Copyrighted Material Omitted]

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For Wheaton College, Plaintiff: Adele Auxier Keim, Mark Rienzi, PRO HAC VICE, The Becket Fund, Washington, DC; Christian Mark Poland, Bryan Cave, Chicago, IL.

For Sylvia Mathews Burwell, Secretary of the United States Department of Health and Human Services, United States Department of Health and Human Services, Thomas E Perez, United States Department of Labor, Jacob J. Lew, Sec of U.S. Dept of Treasury, United States Department of Treasury, Defendants: Julie Shana Saltman, LEAD ATTORNEY, U.S. Department of Justice, Civil Div., Office of Immigration Litigation, Washington, DC.

For American Civil Liberties Union, American Civil Liberties Union of Illinios, Amici: Lorie Chaiten, LEAD ATTORNEY, Richard Muniz, Roger Baldwin Foundation of ACLU, Inc., Chicago, IL; Brigitte Amiri, Jennifer Lee, PRO HAC VICE, American Civil Liberties Union Foundation, New York, NY; Daniel Mach, PRO HAC VICE, American Civil Liberties Union Foundation, Washington, DC.

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MEMORANDUM OPINION AND ORDER

Robert M. Dow, Jr., United States District Judge.

Plaintiff Wheaton College is a Christian liberal arts college that provides health

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insurance benefits to its employees and students and opposes abortion and abortifacient contraceptives on religious grounds. Plaintiff alleges that its religious beliefs will be impermissibly and substantially burdened by regulations promulgated pursuant to the Patient Protection and Affordable Care Act (" ACA" ) that require group health insurance plans to cover " all Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity." 78 Fed. Reg. 39870, 39870 (July 2, 2013) (" the Mandate" ). Plaintiff is eligible for an accommodation that would excuse it from complying with the Mandate, but alleges that it should be eligible for an exemption rather than an accommodation and, moreover, that complying with the procedures necessary to obtain an accommodation -- namely, completing and submitting to its third-party administrator " EBSA Form 700-Certification" -- will " make it morally complicit in the wrongful destruction of human life." Plaintiff argues that the Mandate violates the First Amendment and the Religious Freedom Restoration Act (" RFRA" ) and was enacted in violation of the Administrative Procedures Act (" APA" ). Plaintiff has requested a permanent injunction enjoining Defendants from enforcing the Mandate, which Defendants may enforce against Plaintiff as early as July 1, 2014.

Defendants (" the Government" ) moved to dismiss all sixteen counts of Plaintiff's complaint or, in the alternative, for summary judgment. See [25]. Plaintiff cross-moved for summary judgment on six counts, see [41], [44], and also sought additional discovery under Federal Rule of Civil Procedure 56(d) in the event that its cross-motion were denied. See [43]. The parties fully briefed these motions, and the Court has taken their submissions under advisement. Because (1) the Mandate will take effect for Plaintiff on July 1, 2014, and (2) two cases currently pending before the United States Supreme Court, Sebelius v. Hobby Lobby Stores, Inc., No. 13-354, and Conestoga Wood Specialties Corp. v. Sebelius, No. 13-356, may affect the ultimate resolution of at least some of Plaintiff's claims, Plaintiff has moved for a preliminary injunction with respect to each of the six counts on which it has cross-moved for summary judgment. See [57], [58]. The Government opposes the motion [59].[1]

For the reasons stated below, the Court respectfully denies Plaintiff's motions for preliminary injunction [57], [58]. To the extent that Hobby Lobby and Conestoga call into question any material aspect of the Seventh Circuit's controlling decision in University of Notre Dame v. Sebelius, 743 F.3d 547 (7th Cir. 2014), any party may file a motion for reconsideration of this order. This order is also subject to reconsideration on the Court's own motion.

This matter is set for a telephonic status conference on 6/30/2014 at 10:00 a.m.

I. Background

Plaintiff is a Christian liberal arts college located in Wheaton, Illinois. Plaintiff is not affiliated or associated with any one particular church, though it characterizes

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its beliefs as " Evangelical Protestant." [41] at 10. All members of Plaintiff's " community," i.e., its employees and students, " assent to [Plaintiff's] religious beliefs, including its beliefs about the sanctity of life." Id. at 3. Pursuant to its beliefs about the sanctity of life, Plaintiff opposes contraceptive methods that " may act by killing a human embryo," including emergency contraception like Plan B and ella. Id. " As part of its religious convictions, [Plaintiff] promotes the well-being and health of its students and employees * * * [by] provi[ding] generous health services and health insurance." [1] ¶ 38. The health insurance that Plaintiff currently offers covers some contraceptives but not those to which Plaintiff is religiously opposed. See [41] at 5. Plaintiff offers its health insurance pursuant to six plans: two insured HMO plans, a PPO plan,[2] two self-funded prescription drug plans, and an insured student health plan. See id. at 4. The " plan year" for Plaintiff's insurance plans begins on July 1, 2014. [1] ¶ ¶ 46, 155.

The Seventh Circuit recently provided a comprehensive discussion of the genesis and mechanics of the ACA, the Mandate, and the exemption and accommodation at issue here in University of Notre Dame v. Sebelius, 743 F.3d 547 (7th Cir. 2014). As the parties are familiar with -- and generally in agreement about -- these matters, and the Court anticipates addressing them more robustly in its upcoming summary judgment ruling, the Court incorporates the Seventh Circuit's discussion by reference and includes here only those background details most pertinent to the resolution of the instant motion.

The ACA requires employers with 50 or more full-time employees to provide health insurance for their full-time employees or pay a penalty on their federal tax return. See 26 U.S.C. § 4980H. The ACA also requires that non-exempt group health plans offer coverage for certain preventive services without cost-sharing requirements. See 42 U.S.C. § 300gg-13. These preventive services include " with respect to women, such additional preventive care and screenings * * * as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [HRSA]." 42 U.S.C. § 300gg-13(a)(4). The HRSA's guidelines include " [a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity." HHS, Women's Preventive Health Services Guidelines, http://www.hrsa.gov/womenshealthguid elines. Failure to provide the required coverage for contraception results in a variety of negative tax consequences to the employer, including a daily tax of $100 per day per individual " to whom such failure relates." 26 U.S.C. § § 4980D(a), (b)(1). Employers who do not provide insurance at all (despite being required to do so) face an annual tax of $2,000 per full-time employee. See 26 U.S.C. § 4980H. Plaintiff avers that it faces up to $34.8 million in annual tax penalties under these provisions.

As the Seventh Circuit explained in Notre Dame, " the government, some months after the enactment of the Affordable Care Act, created by administrative regulation an exemption from the guidelines." Notre Dame, 743 F.3d at 550. The exemption applies only to " religious employers," those that are " organized and operate[] as a ...


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