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Zubik v. Sebelius

United States District Court, W.D. Pennsylvania

November 27, 2012

Most Reverend David A. ZUBIK, Bishop of the Roman Catholic Diocese of Pittsburgh, as Trustee of The Roman Catholic Diocese of Pittsburgh, a Charitable Trust; The Roman Catholic Diocese of Pittsburgh; Catholic Charities of the Diocese of Pittsburgh, Inc., an affiliate nonprofit corporation of The Roman Catholic Diocese of Pittsburgh; and The Catholic Cemeteries Association of the Diocese of Pittsburgh, an affiliate nonprofit corporation of The Roman Catholic Diocese of Pittsburgh, Plaintiffs,
v.
Kathleen SEBELIUS, in her official capacity as Secretary of the U.S. Department of Health and Human Services; Hilda Solis, in her official capacity as Secretary of the U.S. Department of Labor; Timothy Geithner, in his official capacity as Secretary of the U.S. Department of Treasury; U.S. Department of Health and Human Services; U.S. Department of Labor; and U.S. Department of Treasury, Defendants.

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John D. Goetz, Leon F. Dejulius, Paul M. Pohl, Ira M. Karoll, Laura E. Ellsworth, Mary Pat Stahler, Jones Day, Rita Ferko Joyce, Diocese of Pittsburgh, Pittsburgh, PA, for Plaintiffs.

Bradley P. Humphreys, U.S. Department of Justice, Civil Division, Federal Programs, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER OF COURT

TERRENCE F. McVERRY, District Judge.

Presently pending before the Court is the DEFENDANTS' MOTION TO DISMISS, with brief in support (Document Nos. 17 and 18), the PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS (Document No. 27), and the REPLY IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS (Document No. 40). [1] The issues have been fully briefed and the matter is ripe for disposition.

Plaintiffs bring this action for declaratory and injunctive relief claiming that regulations promulgated pursuant to the Patient Protection and Affordable Care Act, Pub.L. No. 111-148, 124 Stat. 119 (March 23, 2010) (codified as amended in scattered sections of titles 21, 25, 26, 29 and 42 of the United States Code), as amended by the Health Care and Education Reconciliation Act of 2010, Pub.L. No. 111-152, 124 Stat. 1029 (March 30, 2010) (codified in scattered sections of titles 20, 26, and 42 of the United States Code) (collectively referred to as the " Affordable Care Act" or " ACA" ) violate the Religious Freedom Restoration Act (" RFRA" ), the First Amendment to the U.S. Constitution, and the Administrative Procedure Act (" APA" ). The Women's Health Amendment (" WHA" ) to the ACA, 42 U.S.C. § 300gg-13(a)(4) (March 23, 2010), requires covered employers to offer group health plans [2] that provide women with certain forms of preventive services, including " FDA-approved contraception methods" and contraceptive counseling.[3] " FDA-approved contraceptive methods" include oral contraceptives, " emergency contraceptive" abortifacients (such as Plan " B" and " Ella" ), and intrauterine devices. Legatus v. Sebelius, 901 F.Supp.2d 980, 2012 WL 5359630 (E.D.Mich. Oct. 31, 2012) (citing FDA, Birth Control Guide (Aug.2012) (available at http:// www. fda. gov/ For Consumers/ By Audience/ For Women/ ucm 18465)). Plaintiffs argue that requiring them to cover contraceptive services that their faith deems contrary to its religious tenets impinges upon their religious freedom.

Defendants have moved to dismiss the entire complaint [4] pursuant to

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Federal Rule of Civil Procedure 12(b)(1), arguing that Plaintiffs' claims are not ripe and that Plaintiffs lack standing. Plaintiffs strenuously oppose Defendants' motion contending that the ACA and its regulations are " final" and are causing immediate impact and cognizable injury to Plaintiffs.

After careful and deliberate consideration, the Court concludes that, in light of the clear and concrete steps that Defendants are taking to address the concerns of Plaintiffs, including their commitment not to enforce the challenged regulations against Plaintiffs while accommodations are under consideration, and in any event no sooner than January 2014, Plaintiffs' claims are not ripe for judicial review and that Plaintiffs have not alleged an injury in fact under existing law sufficient to establish standing. Therefore, for the reasons hereinafter stated, Defendants' motion to dismiss will be granted and Plaintiffs' Complaint will be dismissed without prejudice in its entirety.

Background[5]

A. The Parties

Plaintiff Most Reverend David A. Zubik, Bishop of The Roman Catholic Diocese of Pittsburgh, is the Trustee of The Roman Catholic Diocese of Pittsburgh (the " Diocese" ), a Pennsylvania Charitable Trust. The Diocese is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code. The Diocese is comprised of 206 parishes and their charitable trusts and employs over 140 people. The employees of the Diocese are individuals of all faiths.

The Diocese serves the community through its affiliated Catholic schools, which include approximately sixty-six (66) elementary schools, eleven (11) high schools, two (2) non-residential schools for individuals with disabilities, and various preschool programs. The Diocesan schools are open to and serve all children, without regard to the students' religion, race or financial condition. Complaint, ¶¶ 26-30.

The Diocese also provides numerous social services to the residents of its six-county community and assists the work of many other local organizations.

The Diocese operates a self-insured plan of health care coverage through the Catholic Employers Benefits Plan Delaware Trust (the " Catholic Employers Benefits Plan" ), which functions as the insurance company underwriting the medical care costs of covered employees, with all funding coming from the Diocese and its covered entities. The Catholic Employers Benefits Plan insures employees of the Diocese, all of the Diocesan parishes and schools, and several other affiliated entities.

The Diocesan health care plans are administered by Third Party Administrators,

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who are paid a flat fee for each covered individual for administering the plans but who do not pay for any services received by covered employees. The next Diocesan health care plan year begins January 1, 2013. The health care plans offered by the Diocese to its employees are all " grandfathered" [6] under the ACA.

Plaintiff Catholic Charities of the Diocese of Pittsburgh, Inc. (" Catholic Charities" ) is a non-profit corporation affiliated with the Diocese. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code. Catholic Charities is the primary social service agency of the Diocese. The mission of Catholic Charities is to serve all regardless of religious affiliation in their time of greatest need. Catholic Charities employs and serves individuals of all faiths.

Prior to July 1, 2012, Catholic Charities contracted with insurer Highmark Blue Cross Blue Shield to offer health care coverage to its employees. However, commencing on July 1, 2012, Catholic Charities' health care plan is covered by the Diocese's self-insurance, through the Catholic Employers Benefit Plan, and is administered by a Third Party Administrator. Catholic Charities' next health care plan year, under the Catholic Employers Benefit Plan, will begin on January 1, 2013.

Plaintiff Catholic Cemeteries maintains perpetual resting places for the deceased in sixteen (16) Association-owned cemeteries and provides burial-related services to individuals. While cemetery plots can only be owned by Catholics, deceased persons from any religion can be buried in the cemeteries. Whenever asked, Catholic Cemeteries also provides free burial space to indigents, as well as free products and services connected with a burial.

Additionally, Catholic Cemeteries also serves women and men dealing with issues of grief, anger, guilt, or forgiveness related to an abortion experience.

Employment at Catholic Cemeteries is not limited to Catholics and Catholic Cemeteries does not inquire into its employees' religious beliefs. Catholic Cemeteries provides its employees with four (4) health care plan options. All four health care plans are self-insured by the Catholic Employers Benefits Plan. The next plan year for Catholic Cemeteries' health care plan begins on January 1, 2013. Three of Catholic Cemeteries' health care plan options are grandfathered. One of Catholic Cemeteries' health care plan options is not grandfathered, as Catholic Cemeteries changed its insurer for that health care plan between March 23, 2010 and November 15, 2010, in part, to avoid adding contraceptive coverage to that plan. Complaint, at ¶¶ 64-79.

Defendants are the U.S. Department of Health and Human Services (" HHS" ), Kathleen Sebelius in her official capacity

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as Secretary of HHS, the U.S. Department of Labor (" DOL" ), Hilda L. Solis in her official capacity as Secretary of DOL, U.S. Department of Treasury, and Timothy F. Geithner in his official capacity as Secretary of Treasury. Collectively, Defendants are the departments and officials responsible for adopting, administering, and enforcing the regulations to which Plaintiffs object.

B. The Relevant Statutes and Regulations

This case is one of forty (40) lawsuits which challenge the ACA's preventive services regulations regarding their requirements relating to contraception. [7] See The Becket Fund for Religious Liberty-HHS Mandate Information Central, www. becketfund. org/ hhs information central (last visited November 26, 2012).

The ACA, signed into law on March 23, 2010, instituted a variety of alleged health care reforms. Most relevant to this lawsuit, the ACA requires group health care plans to provide no-cost coverage for " preventive care" and screening for women. 42 U.S.C. § 300gg-13(a)(4). The ACA did not, however, specifically define the contours of " preventive care." Rather, it delegated that responsibility to the Health Resources and Services Administration (" HRSA" ), an agency of HHS. On August 1, 2011, HRSA issued its Required Health Plan Coverage Guidelines that defined the scope of women's preventive services for purposes of the ACA. The HRSA Guidelines include, inter alia, " the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity." HRSA, Women's Preventive Services: Required Health Plan Coverage Guidelines at www. hrsa. gov/womens guidelines/.

However, the preventive care coverage requirement does not apply to grandfathered health plans and certain religious employers are exempt from any requirement to provide coverage for contraceptive services. See Interim Final Rules for

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Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under The Patient Protection and Affordable Care Act, 76 Fed.Reg. 46621 (Aug. 3, 2011). In order to qualify as a " religious employer," an employer must meet the following criteria:

(1) Has the inculcation of religious values as its purpose.
(2) primarily employs persons who share its ...

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