October 27, Comments on Interim Final Rules on Coverage of Certain Preventive Services Under the Affordable Care Act, 79 Fed. Reg.

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1 October 27, 2014 Submitted Electronically Office of Health Plan Standards and Compliance Assistance Employee Benefits Security Administration Room N 5653 U.S. Department of Labor 200 Constitution Avenue, NW Washington, DC Attention: Preventive Services CMS 9939 IFC Re: Comments on Interim Final Rules on Coverage of Certain Preventive Services Under the Affordable Care Act, 79 Fed. Reg Dear Sir or Madam: Alliance Defending Freedom ( ADF ) respectfully submits the following comments on the interim final rules on coverage of certain preventive services under the Affordable Care Act ( ACA ). 79 Fed. Reg (Aug. 27, 2014). It does so on its own behalf and on behalf of The Cardinal Newman Society headquartered in Manassas, Virginia; Assumption College in Worcester, Massachusetts; Benedictine College in Atchison, Kansas; The Catholic University of America in Washington, District of Columbia; The College of Saint Mary Magdalen in Warner, New Hampshire; DeSales University in Center Valley, Pennsylvania; Holy Rosary Academy in Anchorage, Alaska; The Ignatius-Angelicum Liberal Studies Program, an online college program headquartered in San Francisco, California; The Institute for Psychological Sciences in Arlington, Virginia; John Paul the Great Catholic University in Escondido, California; St. Gregory s University in Shawnee, Oklahoma; St. Joseph s Catholic School in Greenville, South Carolina; Thomas Aquinas College in Santa Paula, California; Thomas More College of Liberal Arts in Merrimack, New Hampshire; the University of St. Thomas in Houston, Texas; Wyoming Catholic College in Lander, Wyoming; and the Society of Catholic Social Scientists, headquartered in Steubenville, Ohio. Interests of the Commenting Entities The Cardinal Newman Society, headquartered in Manassas, Virginia, is a non-profit organization established in 1993 for religious and educational purposes to promote and defend faithful Catholic education. The Society supports education that is faithful to the teaching and tradition of the Catholic Church; produces and disseminates research and publications on 1

2 developments and best practices in Catholic education; and keeps Catholic leaders and families informed of developments and challenges to Catholic education. Assumption College in Worcester, Massachusetts, is a Catholic college founded in 1904 by the Augustinians of the Assumption, a Catholic religious congregation of priests. It is currently governed by a board of trustees consisting of both religious and lay members. Benedictine College in Atchison, Kansas, is a Catholic college established in 1971 and affiliated with Mount St. Scholastica Monastery and St. Benedict s Abbey, Catholic religious communities of monks and sisters in the Order of St. Benedict. The Catholic University of America, located in Washington, District of Columbia, is the national university of the Catholic Church in the United States, founded in 1887 and sponsored by the bishops of the country with the approval of the Holy See. The College of Saint Mary Magdalen in Warner, New Hampshire, is a Catholic college founded in 1973 by Catholic lay people to provide a faithful Catholic education. DeSales University in Center Valley, Pennsylvania, is a Catholic university founded in 1965 and affiliated with the Oblates of Saint Francis de Sales, a Catholic religious congregation of priests and brothers. Holy Rosary Academy in Anchorage, Alaska, founded in 1987, is a classical, Catholic K- 12 school offering a college preparatory curriculum for high school students. The Ignatius-Angelicum Liberal Studies Program, headquartered in San Francisco, California, coordinates with home and distance learning programs to provide online, collegelevel, liberal arts courses from a Catholic perspective. The Institute for Psychological Sciences in Arlington, Virginia, is a Catholic graduate school of psychology founded in 1999 to base the scientific study of psychology on a Catholic understanding of the person, marriage and the family. John Paul the Great Catholic University in Escondido, California, is a Catholic university founded in 2003 by Catholic lay people to provide a faithful Catholic education. St. Gregory s University in Shawnee, Oklahoma, is a Catholic university founded in 1875 and affiliated with St. Gregory s Abbey, a Catholic religious community of monks. St. Joseph s Catholic School in Greenville, South Carolina, is a private Catholic middle and high school serving 670 students in grades six through twelve, founded in 1993 and governed by Catholic lay people dedicated to providing a faithful Catholic education. Thomas Aquinas College in Santa Paula, California, is a Catholic college founded in 1971 by Catholic lay people to provide a faithful Catholic education. 2

3 Thomas More College of Liberal Arts in Merrimack, New Hampshire, was founded in 1978 by Catholic laymen and combines intensive reading of the Great Books with lectures and seminar discussions, placing those works in their historical, cultural, and theological context. The University of St. Thomas in Houston, Texas, is a Catholic university founded in 1947 and affiliated with the Congregation of St. Basil, a Catholic religious congregation of priests and brothers. Wyoming Catholic College in Lander, Wyoming, is a Catholic college founded in 2005 founded by lay Catholics in association with the Bishop of Cheyenne, who is a member of the Board of Directors, to provide a faithful Catholic education. The Society of Catholic Social Scientists, founded in 1992 and headquartered at the Franciscan University of Steubenville in Steubenville, Ohio, is an association of Catholic scholars, professors, researchers, practitioners, and writers that combines objective scholarly analysis in the social sciences with fidelity to Catholic teaching. These entities on whose behalf this comment is submitted hold firmly to the teachings and practices of the Roman Catholic Church. All possess sincerely held religious beliefs protected by the First Amendment and RFRA. Through the Mandate, the federal government directly violates the religious liberty of organizations and individuals. It violates the right of individuals to act in accordance with their consciences and to fulfill meaningful vocations. These are summarized in the Catechism of the Catholic Church: 2108 The right to religious liberty is neither a moral license to adhere to error, nor a supposed right to error, (Cf. Leo XIII, Libertas praestantissimum 18; Pius XII, AAS 1953, 799.) but rather a natural right of the human person to civil liberty, i.e., immunity, within just limits, from external constraint in religious matters by political authorities. This natural right ought to be acknowledged in the juridical order of society in such a way that it constitutes a civil right. (Cf. Dignitatis Humanae 2) First, the common good presupposes respect for the person as such. In the name of the common good, public authorities are bound to respect the fundamental and inalienable rights of the human person. Society should permit each of its members to fulfill his vocation. In particular, the common good resides in the conditions for the exercise of the natural freedoms indispensable for the development of the human vocation. Such as the right to act according to a sound norm of conscience and to safeguard privacy, and rightful freedom also in matters of religion. (Gaudium et Spes 26 2.) 1910 Each human community possesses a common good which permits it to be recognized as such; it is in the political community that its most complete realization is found. It is in the role of the state to defend and promote the common good of civil society, its citizens, and intermediate bodies. 3

4 Sterilization, abortion and artificial means of preventing pregnancy are gravely sinful according to the clear teachings of the Catholic Church. These are summarized in the Catechism of the Catholic Church: 2270 Human life must be respected and protected absolutely from the moment of conception. From the first moment of his existence, a human being must be recognized as having the rights of a person among which is the inviolable right of every innocent being to life. Before I formed you in the womb I knew you, and before you were born I consecrated you. [Jer. 1:5] My frame was not hidden from you, when I was being made in secret, intricately wrought in the depths of the earth. [Ps. 139:15] 2271 Since the first century the Church has affirmed the moral evil of every procured abortion. This teaching has not changed and remains unchangeable. Direct abortion, that is to say, abortion willed either as an end or a means, is gravely contrary to the moral law: You shall not kill the embryo by abortion and shall not cause the newborn to perish. [Didache 2, 2: SCh 248, 148] God, the Lord of life, has entrusted to men the noble mission of safeguarding life, and men must carry it out in a manner worthy of themselves. Life must be protected with the utmost care from the moment of conception: abortion and infanticide are abominable crimes. [Gaudium et Spes 51 3] 2272 Formal cooperation in an abortion constitutes a grave offense. The Church attaches the canonical penalty of excommunication to this crime against human life. A person who procures a completed abortion incurs excommunication latae sententiae, by the very commission of the offense, and subject to the conditions provided by Canon Law Periodic continence, that is, the methods of birth regulation based on selfobservation and the use of infertile periods, is in conformity with the objective criteria of morality. [Humanae Vitae 16] These methods respect the bodies of the spouses, encourage tenderness between them, and favor the education of an authentic freedom. In contrast, every action which, whether in anticipation of the conjugal act, or in its accomplishment, or in the development of its natural consequences, proposes, whether as an end or as a means, to render procreation impossible is intrinsically evil: [Humanae Vitae 14] 4

5 Thus the innate language that expresses the total reciprocal selfgiving of husband and wife is overlaid, through contraception, by an objectively contradictory language, namely, that of not giving oneself totally to the other. This leads not only to a positive refusal to be open to life but also to a falsification of the inner truth of conjugal love, which is called upon to give itself in personal totality.... The difference, both anthropological and moral, between contraception and recourse to the rhythm of the cycle... involves in the final analysis two irreconcilable concepts of the human person and of human sexuality. [Familiaris Consortio 32] In Catholic teaching, abortion (which includes causing the death of human embryos from their fertilization/conception) is as much a violation of justice as it is a violation of morality. The Catholic Church teaches the equal right to life of all persons, a right that is fundamental to a free society: As far as the right to life is concerned, every innocent human being is absolutely equal to all others. This equality is the basis of all authentic social relationships which, to be truly such, can only be founded on truth and justice, recognizing and protecting every man and woman as a person and not as an object to be used. Before the moral norm which prohibits the direct taking of the life of an innocent human being there are no privileges or exceptions for anyone. It makes no difference whether one is the master of the world or the poorest of the poor on the face of the earth. Before the demands of morality we are all absolutely equal. [Evangelium Vitae 57] Catholic schools, colleges and universities are committed to these teachings according to the very nature of Catholic education. With regard to health insurance, all of the entities on whose behalf this document is submitted understand the Catholic mission in education to include the commitment to: provide adequate benefits to full-time employees, including health insurance, to ensure their well-being and physical health; ensure that students are protected financially and physically by adequate health insurance coverage; conform to Catholic teaching in all official actions and commitments, including the provision of health insurance coverage; encourage moral behavior among employees and students, according to the teachings of the Catholic Church; and promote an environment that is morally and physically healthy for students, including the expectation that students do not engage in sexual activity outside of marriage. 5

6 ADF is a non-profit, public interest legal organization dedicated to protecting religious liberty. We have been extensively involved in the litigation over the HHS Contraceptive Mandate, representing both for-profit closely held corporations, 1 as well as non-profit religious organizations. 2 The rights of many of our religious non-profit clients are implicated by the Mandate (finalized at 77 Fed. Reg (Feb. 15, 2012)), which illegally requires religious objectors to cover contraception (including some drugs and devices that can cause the demise of embryos prior to and sometimes after uterine implantation), as well as sterilization and associated patient education and counseling. The Mandate poses a direct violation of the rights of entities and individuals not to participate in such activities to which they have a religious objection. The interim final rules do not diminish the Mandate s violation of religious freedom: The interim final regulations do not change the scope and terms of the Mandate, which continues to require organizations to be morally complicit in the provision and use of drugs, devices, and procedures their religious convictions forbid. The narrow scope of the religious employer exemption, which extends only to churches, religious orders, and their integrated auxiliaries, remains unchanged. Religious organizations such as charities, institutions of higher education, and hospitals are still required under the Mandate to facilitate access to contraception or abortifacients despite their religious beliefs against doing so. At the same time, the government has made crafted other exemptions that deny the alleged benefits of the Mandate to millions of Americans, fatally undermining any contention that the Mandate advances some compelling interest. 1 See Conestoga Wood Specialties Corp. v. Burwell (Burwell v. Hobby Lobby Stores, Inc.), 134 S. Ct (U.S. June 30, 2014); Newland v. Burwell, 881 F. Supp. 2d 1287 (D. Colo. July 27, 2012), affirmed on appeal, No (10th Cir. Oct. 3, 2013), cert. denied, No (U.S. July 1, 2014); Grote Indus. LLC v. Burwell, 735 F.3d 654 (7th Cir. 2013), cert. denied sub nom. Burwell v. Korte, No (U.S. July 1, 2014); Annex Med., Inc. v. Burwell, 2013 WL (8th Cir. Feb. 1, 2013); Tyndale House Publishers, Inc. v. Burwell, 904 F. Supp. 2d 106 (D.D.C. 2012); Sioux Chief Mfg. Co. v. Burwell, No CV-W-ODS (W.D. Mo., injunction granted Feb. 28, 2013); Seneca Hardwood v. Burwell, 941 F. Supp. 2d (W.D. Pa., injunction granted Apr. 19, 2013); Trijicon, Inc. v. Burwell, No. 1:13-cv EGS (D.D.C. Aug. 14, 2013); Briscoe v. Burwell, No. 1:13-cv WYD-BNB (D. Colo. Sept. 6, 2013); gov t appeal dismissed Sept. 4, 2014 (10th Cir. order); Armstrong v. Burwell, No. 1:13-cv RBJ (D. Colo. Sept. 17, 2013); gov t appeal dismissed Sept. 4, 2014 (10th Cir. order); Midwest Fastener Corp. v. Burwell, No. 1:13-cv ESH (D.D.C. Oct. 16, 2013); Randy Reed Auto. Inc. v. Burwell, No. 5:13-cv-6117-SJ-ODS (W.D. Mo. Dec. 3, 2013). 2 See Geneva College v. Burwell, 988 F. Supp. 2d 511 (W.D. Pa. 2013); Southern Nazarene Univ. v. Burwell, 2013 WL (W.D. Okla. Dec. 23, 2013); Grace Schs. v. Burwell, 988 F. Supp. 2d 935 (N.D. Ind. Dec. 27, 2013); Dobson v. Burwell, 2014 WL (D. Colo. Apr. 17, 2014); Fellowship of Catholic Univ. Students v. Burwell, No. 1:13-cv MSK-KMT (D. Colo., injunction granted, Apr. 23, 2014); Dordt Coll. v. Burwell, 2014 WL (N.D. Iowa May 21, 2014); Louisiana Coll. v. Sebelius, 2014 WL (W.D. La. Aug. 13, 2014). 6

7 The interim final rule s augmented accommodation is misnamed: it still imposes contraceptive coverage through religious groups own insurance plans and insurance contracts. Religious groups plans still serve as the conduit through which objectionable drugs, devices, and counseling are provided to members of their communities. The rules continue to require that these entities take affirmative action: either through EBSA Form 700 or other written notice. And the result of either action is the same: the religious group s own insurer or plan administrator will provide the same objectionable coverage to the religious group s own employees (and, in the case of student plans, its students). The accommodation therefore uses the religious groups to deliver objectionable drugs and devices to their own plan participants through the insurance plans they provide. The additional of an alternative mechanism for invoking the accommodation does not diminish the substantial burden that the Mandate places on the employers religious exercise. The Mandate Violates the Religious Freedom Restoration Act The Religious Freedom Restoration Act (RFRA) provides that the [g]overnment shall not substantially burden a person s exercise of religion, even if the burden results from a rule of general applicability. 42 U.S.C. 2000bb-1. The government may substantially burden the exercise of religion only if the burden: (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest. Id. at (b). In Burwell v. Hobby Lobby, 134 S. Ct (U.S. June 30, 2014), the Supreme Court held that a government regulation substantially burdens a claimant s religious exercise under RFRA if it substantially pressures the claimant to violate its religious convictions. Id. at The employers challenging the Mandate in that case sincerely believe[d] that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial. Id. at The Court observed that the Mandate implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. Id. at The Court deemed it inappropriate to second-guess the claimant s moral assessment. The penalties for violating the Mandate undoubtedly impose substantial pressure upon objecting organizations to violate their beliefs. If an organization continues to provide health insurance consistent with its religious believes, it will face a fine of $100 per day per affected beneficiary, 26 U.S.C. 4980D, and to lawsuits by the Department of Labor, 29 U.S.C If an organization ceased providing employee health insurance altogether, it would not only interfere with the faith-driven commitment to providing health insurance for its employees, but would also be subject to an annual fine of $2,000 per full time employee after the first thirty employees, see 26 U.S.C. 4980H(a) & (c)(1). These fines are enormous and clearly impose a substantial burden. Hobby Lobby, 134 S. Ct. at

8 The interim rules provision of an additional way of invoking the accommodation obviously does not diminish the penalty for non-compliance. More significantly, it does not diminish the substantiality of the burden on religious exercise many organizations experience. The Mandate continues to hijack objecting religious groups own health plans, using them as mules to deliver morally unacceptable drugs, devices, and services to their own plan participants. The coverage is not delivered separate from the religious groups at all. And in the case of selfinsured religious groups, the interim rules admit that the coverage is delivered through the religious groups own health plan instrument. This is the contract by which the religious groups provide health coverage. Thus religious groups are being forced to enter contracts that provide objectionable coverage. In addition, the government s amended EBSA form 700 declares that when self-insured religious groups send their letter to HHS, that letter itself is a plan instrument requiring the coverage. Consequently, the augmented accommodation forces those religious groups to obligate their own plan administrators to do what the religious groups deem it immoral for them to do themselves. The interim rules are therefore false when they attempt to say accommodated groups will not contract for the coverage. In both insured and self-insured cases, the coverage flows because of the religious groups contract with their insurer or plan administrator, without which those entities would not provide contraceptive coverage to the religious groups plan participants. The notification that must be sent by objecting organizations eligible for the accommodation under the interim final rules are not mere statements of religious objection. If an employer elects to notify the government (as opposed to convey the self-certification to its insurer or third-party administrator), it must reveal the identity of its insurer or third-party administrator. The purpose is clear: it ensures that the contraceptive coverage is delivered by the objecting organization s own insurance arrangement to its employees. This is not a situation in which a religious non-profit organization merely tells the government it is religious, and then the government delivers contraception to the organization s employees by some independent means. Instead, the accommodation delivers contraceptive coverage specifically by means of the organization s own paid insurer and plan (which the ACA requires it to provide). It requires the organization to identify that insurer in its notice precisely so that its notice can cause the coverage to flow through the organization s provision of insurance. The government could, if it so desired, provide truly independent coverage not involving objecting religious organizations or their insurance arrangements. It could entirely exempt religious non-profit organizations from penalties just like it exempts churches, and then let any employee who works at a religious non-profit enter the government insurance exchange and receive a subsidized plan there that covers contraception. But the government insists on using religious organizations with sincere objections to providing contraceptive or abortifacient coverage as the mules that carry the objectionable coverage to its destination. In support of the reality that religious organizations own plans and coverage are the delivery mechanisms for the Mandate, it is important to note that the statutory mandate itself only authorizes the government to impose coverage of preventive services in a plan and an issuer offering... coverage. 42 U.S.C. 300gg-13(a)(4). Therefore it is necessarily true that 8

9 the Mandate accommodation, if it is legally authorized at all, imposes the mandate in the plans of religious organizations and in their issuer s provision of coverage. It is not possible to describe the accommodation as delivering contraception coverage separate from a religious organization s own plan and its own issuer s provision of coverage. Religious non-profits are being made to provide a plan and issuer that delivers contraception coverage in direct connection with that plan, to the people covered in that plan. Thus, the involvement of religious non-profits in the provision of objectionable coverage cannot be described as insubstantial, and the accommodation does not alleviate the Mandate s considerable burden on religious exercise. Federal courts around the country agree. In the vast majority of cases involving the Mandate where courts have considered the accommodation, the plaintiffs have received preliminary injunctions or injunctions pending appeal, by a count of Injunctions for non-profit organizations subject to the accommodation: 1. EWTN v. Burwell, No CC (11th Cir. June 30, 2014) (injunction pending appeal); 2. Geneva College v. Sebelius, 960 F. Supp. 2d 588 (W.D. Pa. June 18, 2013) (injunction for non-profit religious college s student health plan); 3. Most Reverend David A. Zubik v. Burwell, No. 2:13-cv AJS (W.D. Pa. Nov. 21, 2013) (injunction for non-profit Catholic organizations in Diocese of Pittsburgh); 4. Most Reverend Lawrence T. Persico v. Burwell, No. 1:13-cv AJS (W.D. Pa. Nov. 21, 2013) (injunction for non-profit Catholic organizations in Diocese of Erie); 5. Archdiocese of New York v. Sebelius, 987 F. Supp. 2d 232 (E.D.N.Y. 2013); 6. Legatus v. Burwell, No. 2:12-cv RHC-MJH (E.D. Mich. Dec. 20, 2013); 7. Reaching Souls Int l Inc. v. Burwell, No. 5:13-cv D (W.D. Okla. Dec. 20, 2013) (preliminary injunction for nearly 200 non-profit religious entities); 8. Geneva College v. Burwell, 988 F. Supp. 2d 511 (W.D. Pa. Dec. 23, 2013) (injunction for non-profit religious college s employee health plan); 9. Southern Nazarene University v. Burwell, 2013 WL (W.D. Okla. Dec. 23, 2013); 10. East Texas Baptist Univ. v. Burwell, 988 F. Supp. 2d 743 (S.D. Tex. 2013); 11. Grace Schools v. Burwell, 3:12-cv JD-CAN (N.D. Ind. Dec. 27, 2013); 12. Diocese of Fort Wayne-South Bend v. Burwell, No. 1:12-cv JD-RBC (N.D. Ind. Dec. 27, 2013); 13. Sharpe Holdings, Inc. v. U.S. Dep t of Health and Human Servs., No. 2:12 CV 92 DDN (E.D. Mo. Dec. 30, 2013) (injunction for non-profit religious organizations co-plaintiffs to Sharpe); 14. Ave Maria Foundation v. Burwell, No. 2:13-cv SJM-MAR (E.D. Mich. Dec. 30, 2013) (temporary restraining order for non-profit religious groups); 15. Priests for Life v. U.S. Dep t of Health and Human Servs., No (D.C. Cir. Dec. 31, 2013) (injunction pending appeal for non-profit religious group); 16. Archbishop of Washington v. Burwell, No (D.C. Cir. Dec. 31, 2013) (injunction pending appeal for non-profit religious groups); 17. Catholic Diocese of Beaumont v. Burwell, No. 1:13-cv-709-RC (E.D. Tex. Dec. 31, 2013); 18. Roman Catholic Diocese of Fort Worth v. Burwell, No. 4:12-cv Y (N.D. Tex. Dec. 31, 2013); 19. Little Sisters of the Poor Home for the Aged v. Burwell, No. 13A691 (S. Ct. Jan. 24, 2014) (injunction pending appeal for hundreds of non-profit religious groups); 20. Archdiocese of Atlanta v. Burwell, No. 1:12-cv WSD (N.D. Ga. Mar. 26, 2014); 21. Dobson v. Burwell, No. 1:13-cv REB-CBS (D. Colo. Apr. 17, 2014); 22. FOCUS v. Burwell, No. 1:13-cv MSK-KMT (D. Colo. Apr. 23, 2014); 23. Union University v. Burwell, No. 1:14-cv JDB-EGB (W.D. Tenn. Apr. 29, 2014); 24. Dordt College v. Burwell, No. 5:13-cv MWB (N.D. Iowa May 21, 2014); 25. The Catholic Benefits Assn. LCA v. Burwell, No. 5:14-cv R (W.D. Okla. June 4, 2014) (injunction for non-profit religious groups and a for-profit religious publisher); 26. Brandt v. Burwell, No. 2:14-cv AJS (W.D. Pa. June 20, 2014); 27. Colorado Christian University v. Burwell, 1:13-cv REB-MJW (D. Colo. June 20, 2014); 9

10 As the Mandate clearly imposes a substantial burden on religious exercise, it must satisfy strict scrutiny under RFRA. 42 U.S.C. 2000bb-1(b). The Mandate must therefore advance interests of the highest order and must be narrowly tailored in pursuit of those interests. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993) (quotations omitted). But the Mandate still fails both parts of the test. The government s interests of equality and health are generic, undermined by vast exemptions, and unsupported by causal evidence. And the government could use less restrictive methods including those it already pursues. The government s many exceptions to the Mandate leave[] appreciable damage to its alleged interests unaddressed. As a result, its interests would not be adversely affected by granting an exemption to objecting entities. Lukumi, 508 U.S. at 547; Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, (2006); Wisconsin v. Yoder, 406 U.S. 205, 236 (1972). Churches, religious orders, and their integrated auxiliaries are exempt from the Mandate. 79 Fed. Reg. at 39,896 (defining the religious employer exemption ). The fact that churches are wholly exempt is telling: the government can hardly maintain that something sort of an exemption (e.g., the accommodation) imposes no burden (or an insubstantial one) on religious exercise. Moreover, there is no plausible explanation for exempting only churches but not other religious organizations with sincere religious beliefs against compliance with the Mandate. The government explained that it was exempting churches and related groups because, in its speculative view, their employees are more likely than other employers to employ people of the same faith who share the same objection. 78 Fed. Reg. at 39,887. In other words, if an employer s employees are likely to object to contraception, according to the government s best guess, then the Mandate need not be applied since the purpose of the Mandate is to advance health and equality in women who want it and will use it. 77 Fed. Reg. at 8,727. But many of our clients are devoutly religious entities whose employees share the same beliefs. The government cannot claim a compelling interest in imposing a Mandate on an employer whose employees demonstrably share the same objection to contraception, while exempting other religious groups based on pure speculation about what their employees believe. For all the government knows, religious non-profit employees are more likely than the employees of some churches to object to contraception coverage. Thus, there can be no compelling interest to impose the Mandate on non-profit religious organizations. 28. Catholic Charities Archdiocese of Philadelphia v. Sec y U.S. Dep t Health & Human Servs., No (3d Cir. June 27, 2014) (temporary injunction pending appeal); 29. Diocese of Cheyenne v. Burwell, No (10th Cir. June 30, 2014) (injunction pending appeal); 30. Archdiocese of St. Louis v. Burwell, No JAR (E.D. Mo. June 30, 2014); 31. Wheaton College v. Burwell, No. 13A1284 (U.S. July 3, 2014) (temporary injunction); 32. The Catholic Benefits Assn. LCA v. Burwell, No. 5:14-cv R (W.D. Okla. July 1, 2014) (injunction for non-profit religious groups); and 33. Louisiana College v. Burwell, 2014 WL (W.D. La. Aug. 13, 2014). But see University of Notre Dame v. Burwell, 743 F.3d 547 (7th Cir. 2014), and Michigan Catholic Conference v. Burwell, and Catholic Diocese of Nashville v. Burwell, 755 F.3d 372 (6th Cir. 2014) (appeal nos & ). 10

11 Aside from the narrow religious exemption for churches, the government has made two additional and even more sweeping exemptions affecting tens of millions of women. By the government s own choice, this Mandate does not apply to grandfathered plans through which tens of millions of women have health insurance coverage. See Hobby Lobby, 134 S. Ct. at [T]he interest here cannot be compelling because the contraceptive-coverage requirement presently does not apply to tens of millions of people. Hobby Lobby Stores v. Sebelius, 723 F.3d 1114, 1143 (10th Cir. 2013); see also Newland v. Sebelius, 881 F. Supp. 2d 1281, 1298 (D. Colo. July 27, 2012), affirmed on appeal, No (10th Cir. Oct. 3, 2013), cert. denied, No (U.S. July 1, 2014); Geneva Coll. v. Sebelius, 960 F. Supp. 2d 588, 600 (W.D. Pa. June 18, 2013). In fact, Congress itself deemed this Mandate not particularly significant, which is why it did not consider it sufficiently important to ensure that women in grandfathered plans receive it. Hobby Lobby, 134 S. Ct. at 2780 (quoting 75 Fed. Reg. 34,540 (2010)). It is not possible for a requirement to be simultaneously an interest of the highest order and, as the Supreme Court has declared and the government has admitted, not particularly significant. The government has no important interest in requiring devout religious organizations to comply with the Mandate while excluding millions of other women from its alleged benefits. The Mandate therefore violates RFRA, and the interim final rules have done nothing to change that. Furthermore, the government has less restrictive alternatives available to achieve its purported goals. Importantly, the Supreme Court noted that [t]he most straightforward way [of achieving its alleged interests] would be for the government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health insurance policies due to their employers religious objections. Hobby Lobby, 134 S. Ct. at This would certainly be less restrictive of the plaintiffs religious liberty, and HHS has not shown, see 2000bb-1(b)(2), that this is not a viable alternative. Id. Moreover, the Government has various other avenues to deliver contraceptive coverage, such as by expanding existing family planning programs to encompass people who work at non-exempt religious nonprofit organizations. The presence of viable less restrictive alternatives renders the Mandate, including the interim final rules, invalid under RFRA. The Mandate Violates The First Amendment. The Mandate also violates the Free Exercise Clause of the First Amendment because it is neither religiously neutral nor generally applicable, and as discussed above, it fails strict scrutiny. Smith established that burdens on religiously-motivated conduct are subject to strict scrutiny under the Free Exercise Clause when a regulation lacks neutrality or general applicability. Employment Div. Dep t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990). Both are missing here. Unlike Smith, which involved an across-the-board criminal prohibition on a 4 The ruling in Hobby Lobby is not limited to the four contraceptive methods that were at issue in that case, but it applies to the scope of any objection to the contraceptive Mandate, consistent with RFRA s protections. See 134 S. Ct. at 2759 (explaining that [t]here are other ways in which Congress or HHS could equally ensure than every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives ) (emphasis added). Even though in Hobby Lobby the religious objection was to only four methods of contraceptives, the Court broadly held that [t]he contraceptive mandate, as applied to closely held corporations, violates RFRA. Id. at

12 particular form of conduct, id. at 884, the vast exemptions discussed above fail to apply this Mandate to tens of millions of women. The Supreme Court has confirmed that the government violates Free Exercise rights when it selectively imposes burdens on religious conduct. Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1232 (11th Cir. 2004) (citing Lukumi, 508 U.S. 520). Indeed, categorical exclusions exacerbate the harm caused by discrimination against certain religious views. Fraternal Order of Police v. City of Newark, 170 F.3d 359, (3d Cir. 1999) (Alito, J.); see also Lukumi, 508 U.S. at 543 (noting a lack of general applicability when a regulation fail[s] to prohibit nonreligious conduct that endangers [the government s] interests in a similar or greater degree ). The government cannot refuse to extend a system of exemptions to cases of religious hardship without compelling reason. Id. at 537 (quotation omitted); Smith, 494 U.S. at 884 (quotation omitted). The First Amendment protects religious observers against [such] unequal treatment. Lukumi, 508 U.S. at 542 (quotation and alteration omitted). Consequently, the Mandate is subject to strict scrutiny, and as discussed above, it fails that test. For similar reasons, the Mandate also violates the Establishment Clause. A set of rules that makes explicit and deliberate distinctions between different religious organizations in order to burden some and not others violates the Establishment Clause. Larson v. Valente, 456 U.S. 228, 246 n.23 (1982) By their very nature, the distinctions [among religious organizations] engender a risk of politicizing religion Id. at 253 (quoting Walz v. Tax Comm'n, 397 U.S. 664, 695 (1970)). The Establishment Clause guard[s] against government distinctions inviting undue fragmentation among religious groups, as evidenced by the continuing debate respecting birth control and abortion laws. Id. (quoting Walz, 397 U.S. at 695). The government instead must treat individual religions and religious institutions without discrimination or preference. Colorado Christian Univ. v. Weaver, 534 F.3d 1245, 1257 (10th Cir. 2008) (quoting New York Const., art. XXXVIII, reprinted in 5 The Founders Constitution at 75). The government gerrymandered this Mandate, religiously and non-religiously, by its grandfathering exemption, its church exemption, its disparate treatment of non-erisa church plans, and its accommodation in the interim final rules. What Justice Kennedy said about RFRA is equally true of the Establishment Clause: it is inconsistent with the insistence of an agency such as HHS on distinguishing between different religious believers burdening one while accommodating the other. Hobby Lobby, 134 S. Ct. at 2786 (Kennedy, J., concurring). The Accommodation Provided in the Interim Final Rules Is Illegal Because It Lacks Statutory Authorization, and Therefore Violates the Administrative Procedure Act The premise behind these and previous interim rules is that the religious group s own insurer s provision of morally objectionable items to the entity s employees in connection with the religious group s plan is somehow separate from the religious group. This assertion is absurd on its face, because of the inherent and proximate connections between the religious groups and the coverage to which they object. 12

13 But if the coverage really could be called separate, the interim rules would be invalid and illegal under the Administrative Procedure Act as being in excess of statutory jurisdiction [or] authority and not in accordance with law. 5 U.S.C. 706(2). The statutory mandate under which the rules are being issued declares that [a] group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for the items in question. 42 U.S.C. 300gg-13(a). Necessarily then, what the Mandate requires is coverage, and applies to an insurance issuer only in the group health plan or coverage that it is offering. The statute does not, for example, authorize the government to tell an insurance company to go down onto the street and offer contraceptive payments to random passers-by. To the extent the Mandate applies to issuers, it applies to them in their own coverage. If that were not true, the interim rules would exceed the government s statutory authority under 300gg-13(a). That statute does not authorize a mandate of payments separate from coverage that the issuer is already providing in the group plan. The payments must either be through the plan, or they are not statutorily authorized. The interim rules proposal for self-insured entities likewise violates the APA. Under the 2013 rule, self-insured employers were required to send their TPAs EBSA Form 700 which, by its explicit terms, is part of the contract ( instrument ) between the employer and the TPA, and which imposes on the TPA the specific obligation to cover the objectionable items. The government used this mechanism because it wanted to coerce TPAs, but it had no statutory authority to do so, since TPAs are neither plans, nor issuers, under 42 U.S.C. 300gg-13(a) which only authorizes a mandate on plans and issuers, not on TPAs, whom the statute does not mention. So it forced the religious organization to designate obligations forcing the TPA to provide the coverage in an official instrument of the religious organization s health plan. This allowed the government to claim authority to coerce the TPA under ERISA 3(16), 29 U.S.C. 1002(16). But the government realized in litigation that this mechanism undermined its assertion that religious groups do not contract for objectionable coverage. A plan instrument is a contract. Any entity forced to sign a plan instrument that designates a TPA with contraceptive coverage obligations under ERISA 3(16) is by definition contracting for objectionable coverage. Under the interim rule at issue here, a self-insured employer may send the government a letter telling it who its TPA is. Upon receipt of that letter, the Department of Labor will write to the TPA ordering it to provide contraceptive payments. This raises what ought to be a natural question for a government concerned about the rule of law: By what authority is this coercion imposed on the TPA? The interim rule says the government can do so because its own notification to the TPA will be an instrument under which the plan is operated and shall supersede any earlier designation. 79 Fed. Reg. at 51,905. This interpretation is lawless on its face. Neither ERISA nor the ACA authorizes the government to unilaterally create or amend instruments under which self-insured plans are operated. Such instruments are by definition contracts between employers and their TPAs, to which the government is not a party. The Mandate in 42 U.S.C. 300gg-13(a) lets the 13

14 government force the employers plans or issuers to provide the coverage in the plan: meaning, the employers themselves, who are plan trustees and are self-insured. But the statute does not even mention coercion of the plan s TPA. ERISA, in turn, only places obligations on the TPA if the plan instrument created by the employers and the TPA designates it to do so. 29 U.S.C. 1002(16). In fact, ERISA 3(16) specifically indicates that the government can only name a plan administrator if the plan instrument has not already done so. In the case of a religious group that set up its health plan to exclude contraceptive coverage, by definition the plan instrument did not designate the TPA to cover the items. Search ERISA far and wide, and no language will be found empowering the government to reach into a self-insured plan and unilaterally amend the instrument to compel a TPA to provide contraceptive coverage (much less to do so against the plan sponsor s express provisions otherwise). Consequently, if the interim rules are to be taken at their word, they too violate the Administrative Procedure Act for being in excess of statutory jurisdiction [or] authority and not in accordance with law. 5 U.S.C. 706(2). If, instead, the government were to declare (as it does in its amended EBSA form 700) that it can coerce the TPA because the religious group s letter to HHS is actually the mechanism that puts the coverage in the religious own plan instrument under ERISA 3(16), then this makes the new accommodation identical to the original Form 700. Thus, as noted above, no attenuation could be alleged between the religious group and the objectionable coverage, since the accommodation forces the religious group to contract for the contraceptive coverage. In that case the government s semantic regulatory attempt to claim there is no substantial burden is a smokescreen. Indeed this interpretation seems to be the most plausible, since the government itself has admitted it in its new EBSA form 700, amended after the interim rules were published. The government declares that [t]his form or a notice to the Secretary is an instrument under which the plan is operated. (Emphasis added). Under any interpretation of the interim rules, the government is forcing a self-insured religious group to offer a health plan whose plan instrument provides contraceptive coverage. For all these reasons, the interim rule is inadequate. All entities with religious or moral objections to the contraceptive Mandate should be fully exempt. Very truly yours, Gregory S. Baylor Matthew S. Bowman 14