United States District Court, D. Colorado
DR. JAMES C. DOBSON, and FAMILY TALK, Plaintiffs,
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; THOMAS E. PEREZ, in his official capacity as Secretary of the United States Department of Labor; JACOB J. LEW, in his official capacity as Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY, Defendants.
ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION
ROBERT E. BLACKBURN, District Judge.
This matter is before me on the Plaintiffs' Motion for Preliminary Injunction and Certificate of Compliance re: Consultation on Motion [#18] filed January 21, 2014. The defendants filed a response [#30], and the plaintiffs filed a reply [#36]. In addition, the defendants filed a notice of supplemental authority [#34]. Having considered carefully all relevant evidence educed, all reasons stated, all arguments advanced, all authorities cited, and all apposite law, I find and conclude that the motion for preliminary injunction should be granted.
I have jurisdiction over this case under 28 U.S.C. § 1331 (federal question).
The plaintiffs, Dr. James C. Dobson and Family Talk, challenge certain requirements imposed on group health plans by the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) (Affordable Care Act or ACA). Specifically, the plaintiffs challenge the requirement that the group health plan for employees of Family Talk or, in the alternative, another entity, provide coverage for drugs, devices, procedures, or related education and counseling that may destroy human life after fertilization of the egg of a mother and either before or after the implantation of a fertilized egg in the uterus of its mother. The plaintiffs contend that any participation by them in the implementation of this required coverage imposes a substantial burden on the exercise of their religious beliefs and violates their rights under the First Amendment of the Constitution of the United States and under the Religious Freedom Restoration Act (RFRA).
Family Talk is a religious corporation "formed for the express purposes of spreading and propagating the Gospel of Jesus Christ and to provide Christ-oriented advice, counsel, guidance and education to parents and children and to speak to cultural issues that affect the family." Family Talk believes that God has condemned the intentional destruction of innocent human life. Family Talk holds, as a matter of religious conviction, that it would be sinful and immoral for the organization intentionally to participate in, pay for, facilitate, enable, or otherwise support access to abortion or early destruction of human life. Family Talk holds that one of the prohibitions of the Ten Commandments ("thou shalt not murder") precludes them from facilitating, assisting in, or enabling the coverage of arrangements for payments for drugs that can and do destroy very young human beings in the womb.
Verified Complaint [#1], filed December 10, 2013, ¶ 3.
Dr. James C. Dobson is a believing and practicing Evangelical Christian. Dr. Dobson is the Founder, President and Chairman of the Board of Directors of Family Talk. Dr. Dobson and Family Talk morally reject, as an abortion, the prevention of implantation of an early human embryo, and therefore they oppose the facilitation of "contraceptives" that can cause such an effect.
Id., ¶ 2. Dr. Dobson executed the verification in the Verified Complaint [#1], at page 51.
The ACA requires many health insurance plans to provide coverage for women's "preventative care and screenings [as]... provided for in comprehensive guidelines supported by the Health Resources and Services Administration[.]" See 42 U.S.C. § 300gg-13(a)(4). The details of this requirement are expatiated in regulations adopted to implement the statutory requirement. 29 C.F.R. § 147.130 (a)(1)(iv) states the basic requirement, with reference to other resources for the details. This requirement now includes "all Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity." Health Resources & Services Administration, "Women's Preventive Services Guidelines, " www.hrsa.gov/womensguidelines (visited April 10, 2014). I will refer to this aspect of the ACA and regulations as the Preventative Care Coverage Requirement.
The plaintiffs object to a portion of the Preventative Care Coverage Requirement. The religious objections of the plaintiffs are limited to coverage for drugs, devices, or procedures that may destroy human life after fertilization of the egg of a mother and either before or after the implantation of a fertilized egg in the uterus of its mother, as well as any related counseling or education. The objections of the plaintiffs include surgical abortion, the so-called morning after pill, also know as Plan B, the week afer pill, also known as ella, and intra uterine devices.
After the enactment of the ACA, the government adopted administrative regulations which provide a religious exemption from the Preventative Care Coverage Requirement. The current regulations provide an exemption from the Preventative Care Coverage Requirement for organizations like Family Talk. The exemption relevant to this case includes the following four criteria, all of which must be satisfied for the exemption to be applicable:
(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered under § 147.130(a)(1)(iv) on account of religious objections.
(2) The organization is organized and operates as a nonprofit entity.
(3) The organization holds itself out as a religious organization.
(4) The organization self-certifies, in a form and manner specified by the Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section, and makes such self-certification available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this section applies. The self-certification must be executed by a person authorized to make the certification on behalf of the organization, and must be maintained in a manner consistent with the record retention requirements under section 107 of the Employee Retirement Income Security Act of 1974.
29 C.F.R. § 2590.715-2713A. An organization that satisfies these quadripartite criteria is considered an "eligible organization." Under 29 C.F.R. § 2590.715-2713A (b), an eligible organization is deemed to have complied with the requirements of the Preventative Care Coverage Requirement. An eligible organization is "not required to contract, arrange, pay, or refer for contraceptive coverage...." See Coverage of Certain Preventive Services Under the Affordable Care Act, 78 FR 39870-01, 39874 (section II(B)(2)).
The process necessary to invoke the exemption is relatively simple. The organization seeking the exemption must complete and execute a short form certifying that it meets the first three criteria. The form, titled EBSA Form 700 - Certification,  requires the organization to provide its name, the name of the individual authorized to make the certification for the organization, and the mailing address, email address, and phone number for that individual. In the case of an organization with a self-insured health plan, such as Family Talk, the organization must deliver the Exemption Form to the third-party administrator (TPA) of its plan along with a list of the employees of the organization.
Once the Exemption Form is properly completed, executed, and delivered, the eligible organization is not obligated to comply with the Mandate and is not obligated to administer or pay for the coverages required by the Mandate. Rather, the Exemption Form "shall be treated as a designation of the third party administrator as the plan administrator" for any "contraceptive services required to be covered" under the Preventative Care Coverage Requirement "to which the eligible organization objects on religious grounds...." 29 C.F.R. § 2510.3-16 (b). The TPA then is obligated to provide or arrange for separate payments for contraceptive services for persons insured by the plan as required by the ACA. The TPA is reimbursed for costs it incurs when it provides such coverage.
After the TPA receives the Exemption Form, it must notify female employees who are covered by the health plan of the eligible organization that the TPA will cover and administer the preventive services required by the ACA, including the services that are the subject of the Mandate. 29 C.F.R. § 2590.715-2713A (d). Self-insured eligible organizations "must not, directly or indirectly, seek to interfere with a third party administrator's arrangements to provide or arrange separate payments for contraceptive services for participants or beneficiaries, and must not, directly or indirectly, seek to influence the third party administrator's decision to make any such arrangements." 29 C.F.R. § 2590.715-2713A (b)(1)(iii).
In short, when an eligible organization properly completes, executes, and delivers the Exemption Form, the organization is not obligated to comply with the Mandate. The organization is not required to administer or fund health insurance coverages required by the Mandate. Instead, the third party administrator of the health plan of the organization must arrange to provide those coverages.
The next plan year for the Family Talk employee health insurance plan begins on May 1, 2014. According to the plaintiffs, they now face a choice: (1) they can violate their religious beliefs and provide the health insurance coverage required by the Mandate; (2) they can violate their religious beliefs and stop providing health insurance coverage for the employees of Family Talk; (3) they can continue to provide health insurance coverage without the coverages required by the Mandate - and face prodigious penalties; or (4) they can violate their sincerely held religious beliefs and complete, execute, and deliver the Exemption Form.
In the view of the plaintiffs, the fourth option, the Exemption Form, triggers a process which facilitates and enables the provision of the religiously objectionable insurance coverages required by the Mandate. Taking an action which initiates such a process, the plaintiffs contend, violates their religious beliefs. Notably, failure to provide the coverages required by the Mandate, failure to execute the Exemption Form, and cancellation of the health insurance plan of Family Talk to avoid the Mandate subjects Family talk to substantial, ...