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INTRODUCTIONIn March 2010 President Obama enacted into law one of the most ambitious health care reforms this country has seen. As part of this plan, companies that provide health care coverage must include contraceptives as part of their plan, or else they face extraordinary fines and penalties. As of August 1, 2012, all health care plans were required to include this coverage. Subsequent to this contraceptive coverage mandate (the “Mandate” or “ACA Mandate"), many companies whose owners founded the company based on religious grounds filed suit praying for a primary injunction to not require them to cover these contraceptives. One of these businesses is Hobby Lobby, a family-run craft and hobby store founded under Evangelical Christian morals. Hobby Lobby brought this suit praying for an injunction to not require them to comply with the mandate. Hobby Lobby alleged that the contraception mandate violates the religious freedoms of the Green family, who oppose abortion and abortion-inducing drugs, including certain contraceptives. They brought this cause of action alleging that the Mandate violated their rights under the Free Exercise Clause as well as the Religious Freedom Restoration Act. PROCEDURAL HISTORY OF CASE AND PARTIESParties and Their AttorneysThe plaintiffs in this lawsuit are David Green, Barbara Green, Steve Green, Mart Green and Darsee Lett (the Green family). The Greens are committed evangelical Christians and they own and operate Hobby Lobby Stores, Inc. (“Hobby Lobby”). Hobby Lobby is a privately held retail business that is headquartered in Oklahoma City. Hobby Lobby currently operates over 500 stores in over 40 states and has over 13,000 full-time employees. Through various trusts, the Greens also own and operate Mardel, Inc. (“Mardel”), which is a privately held bookstore and education company headquartered in Hobby Lobby’s Oklahoma City building. Mardel sells a variety of Christian-themed materials and operates 35 stores in 7 states and has 373 full-time employees. The Green family believes that they are obligated to run their businesses in accordance with their faith. Pursuant to this belief, the Green family’s business practices reflect their faith in various ways. They employ full-time chaplains; they pay all of their employees above the minimum wage and provide benefits. Furthermore, the Green family monitors their business practices to insure they are all consistent with their beliefs and they give millions of dollars from their profits to fund missionaries and ministries around the world. Most well known of their practices, is that the Green family chooses to close all of their stores on Sundays, despite the loss in millions of dollars in annual sales. The Green family brought this suit because their religious beliefs forbid them from participating in, providing access to, paying for, training others to engage in, or otherwise supporting abortion-causing drugs and devices. By mandating that employers provide these drugs and devices in their health insurance plans, the Green family feels as though they have to choose between failing to abide by their religious beliefs, or paying exuberant fines and penalties. Representing the Green family were two attorneys from Hartzog, Conger, Cason & Neville: Charles E. Geister III, and Derek B. Ensminger. As a partner at the firm, Geister has spent over 25 years representing defendants in business, insurance and employment-related lawsuits. Ensminger, an associate, specializes in litigation and employment law. In this case, Eric S. Baxter, Lori H. Windham and Stuart K. Duncan served as co-counsel from the Becket Fund. The Becket Fund for Religious Liberty served as co-counsel in this case. The Becket Fund is a non-profit public-interest legal and education institute that seeks to help protect the free expression of all faiths. They serve as counsel or co-counsel in cases across the country in an effort to defend religious liberties. The named defendant in this case is Kathleen Sebelius. Sebelius is the Secretary of the United States Department of Health and Human Services (“HHS”). As such, she has the responsibility of operating and managing HHS. She was sued only in her official capacity. HHS is an executive agency of the United States government and is responsible for the promulgation, administration and enforcement of the contraceptive mandate. Michelle R. Bennett, a trial attorney for the U.S. Department of Justice (“DOJ”), represented the defendant in this case.As this paper will show, there has been a split in the circuits as to the relief granted. Hobby Lobby can face potential penalties of up to $1.3 million a day for not complying with the federal mandate. However, there have been forty-seven cases brought with similar facts asking for the same relief. The plaintiffs in all of these cases are speaking to voice the position that this mandate violates their freedom of religion guaranteed in the Constitution. This report will go through the history and current state of healthcare in the United States as well as the claims that the plaintiffs in these cases have made. We will then summarize a variety of cases as well as the results. Lastly, we will share what various individuals involved with these lawsuits and this field of law feels about these cases and what they think the future holds. HISTORY OF HEALTHCAREHealth Care in the United States Prior to ACAThe United States has the most expensive health care system in the world. In 2003, the American health care system cost was over 15 percent of the gross domestic product, or $5,711 for every man, woman, and child. In relation to the cost of health care, health insurance premiums have increased an average of 10% per year between 2000 and 2007. In contrast, the earnings of average workers have only increased by an average of 3.2% per year in the same time span. As a consequence of this high cost, 50.7 million Americans, or 16.7% of the population, were uninsured in 2009. Not surprisingly, the uninsured rate was higher among people with lower incomes. For instance, in 2009, 26.6% of people in households with annual incomes less than $25,000 had no health insurance coverage and the uninsured rate decreased as income levels increased with only 9.1% of people in households with incomes of $75,000 or more being uninsured. However, this is not an issue that only affects the unemployed. For example, in 2009, the uninsured rate for workers aged 18 to 64 was 20.2%, or 29.3 million uninsured workers.Moreover, the 2009 uninsured rate also varied by age. Specifically, the uninsured rate: for children under the age of 18 was 10%, for 18-24 year-olds was 30.4%, for 25-34 year-olds was 29.1%, for 35-44 year-olds was 21.7%, and for 45-64 year-olds was 16.1%. The reason for this rate of uninsured is up for political debate. However, despite the reason, rising insurance costs have contributed to a trend in which fewer employers are offering health insurance and the public is picking up the cost.As a result of the increased number of uninsured, the Kaiser Commission on Medicaid and the Uninsured (“KCMU”) estimated that the cost of providing health care to the uninsured was projected to be $84.3 billion in 2008. Of this $84.3, KCMU estimated that the uninsured would pay $30 billion out of pocket but that $54.3 billion would go uncompensated. Of the $54.3 billion that was estimated to be uncompensated, KCMU estimated that $42.9 billion was going be paid for by public funds. For these reasons, health care became a major issue in the 2008 presidential campaign.Enactment of the ACA and the Contraceptive MandateThus, in March 2010, Congress passed the Patient Protection and Affordable Care Act of 2010 (“ACA”). The purpose of the ACA was “to increase the number of Americans covered by health insurance and decrease the cost of health care.” The ACA, inter alia, reorganized, amended, and added to the Public Health Service Act’s (“PHS Act”) provision relating to group health insurance plans and health insurance issuers in the group and individual markets. The PHS Act, as amended by the ACA, requires that non-grandfathered group health plans and health insurance issuers offering group or individual health insurance coverage provide benefits for certain preventative health services without the imposition of cost sharing, such as preventative care and screening for all Food and Drug Administration (“FDA”) “approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” In deciding to include this contraception coverage mandate, Congress found that: (1) the use of preventive services, including contraception, results in a healthier population and reduces health care costs (for reasons related and unrelated to pregnancy); and (2) access to contraception improves the social and economic status of women. Thus, according to the contraception coverage mandate, commencing in plan years after August 1, 2012, and unless “grandfathered” or otherwise exempt, employee group health benefit plans and health insurance issuers must include coverage, without cost sharing, for all FDA approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity. FDA-approved contraceptive medicines and devices include barrier methods, implanted devices, hormonal methods, and emergency contraceptive “abortifacients,” such as “Plan B” (which prevents fertilization of the egg) and “Ella” (which stops or delays release of the egg). Employers with at least 50 employees that do not comply with the contraceptive mandate face fines and penalties in the form of a tax, and additional enforcement actions for non-compliance. First, failure to provide an employee health insurance plan is penalized with a fine in the amount equal to one-twelfth of $2000 multiplied by the number of full-time employees on a monthly basis. Further, failure to meet the group plan health requirements is penalized in the amount of $100 per day for each affected employee. Additionally, 29 U.S.C. § 1132 authorizes private enforcement suits for failure to meet the requirements of the Act.However, the ACA Mandate is subject to several exceptions. First, the Department of Health and Human Services (“HHS”) issued a regulation that exempts religious employers from the requirement of providing contraceptive services. The regulation defines the term “religious employer” as an employer that meets all of the following criteria: (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 non-profit organization as described in the Internal Revenue Code.Next, individuals are not required to terminate group health plans or health insurance coverage if they enrolled in such plans or for such coverage by March 23, 2010. More specifically, these grandfathered plans are not subject to the requirements of 42 U.S.C. § 300gg-13(a) or the ACA Mandate. ?Additionally, employers with fewer than 50 full-time employees are not subject to penalties and fines for failure to provide minimum essential coverage under an eligible employer-sponsored plan.? Finally, members of a recognized religious sect or division that conscientiously objects to the acceptance of public or private insurance funds and members of health care sharing ministries are exempt from the requirement to obtain minimum essential coverage.?In response to concerns from various organizations with religious objections to the contraceptive coverage mandate but which did not fit the definition of religious employer, “the Departments of Health and Human Services, Labor, and the Treasury propose[d] amendments to regulations regarding” the contraceptive coverage mandate in an Advance Notice of Proposed Rulemaking (“Advance Notice”). The agencies stated in the Advance Notice that the religious employer exemption would be broadened. In addition to the Advance Notice, HHS also issued guidance outlining a safe harbor for certain non-profit employers with religious objections to the contraceptive coverage mandate. The guidance grants certain non-profit employers with religious objections to the contraceptive coverage mandate an exemption from application of the mandate until August 1, 2013, by which time HHS expects to have finalized new rules and regulations broadening the definition of religious employer. ContraceptivesFDA-approved contraceptive medicines and devices include barrier methods, implanted devices, hormonal methods, and emergency contraceptive such as “Plan B” (which prevents fertilization of the egg) and “Ella” (which stops or delays release of the egg). The emergency contraceptives, such as Plan B and Ella, are the contraceptives often contested in these cases. Per the FDA, these emergency contraceptives are designed to help prevent pregnancy after birth control failure or unprotected sex. Plan B, as known as Plan B One-Step, Next Choice, and Levonorgestrel, consists of the hormone progestin and mainly works by stopping the release of an egg from the ovary. However, Plan B may also work by preventing fertilization of an egg or by preventing attachment to the uterus. Plan B is effective in 7 out of every 8 patients. Ella, also known as ulipristal acetate, is a pill that blocks the hormone progesterone. Ella works mainly by stopping or delaying the ovaries from releasing an egg, but it may also work by changing the lining of the uterus in order to prevent implantation. Ella is effective in 6 or 7 out of every 10 patients. Neither of these emergency contraceptives, Plan B or Ella, protect the patient from sexually transmitted diseases.FREE EXERCISE CLAUSEA provision of the Affordable Care Act mandates that health plans “provide coverage for and shall not impose any cost sharing requirements for ... with respect to women, such additional preventive care and screenings ... as provided for in comprehensive guidelines supported by the Health Resources and Services Administration,” and directs the Secretary of Health and Human Services to determine what would constitute “preventative care” under the mandate.On July 19, 2010, The Department of Health and Human Services, along with the Department of Treasury and the Department of Labor, published an interim final rule under the Affordable Care Act. The interim final rule required providers of group health insurance to cover preventive care for women as provided in guidelines to be published by the Health Resources and Services Administration at a later date. The Mandate also requires group health care plans and issuers to provide education and counseling for all women beneficiaries with reproductive capacity.The Patient Protection and Affordable Care Act requires employer insurance plans to offer coverage for the emergency contraceptive Plan B and other birth control products without copays. The plaintiffs in Hobby Lobby v. Sebelius argue that the plaintiffs’ sincerely held religious beliefs prohibits them from providing coverage or access to coverage for abortion-causing drugs or devices or related education and counseling. The plaintiffs argue that the mandate violates the religious freedoms of Green and his Family who oppose abortion and abortion-inducing drugs, including certain contraceptives.Moreover, the Plaintiffs also argue that the contraceptive mandate, and the defendants’ threatened enforcement of it, violates the plaintiffs’ rights secured to them by the Free Exercise Clause of the First Amendment to the United States Constitution.The First Amendment of the United States Constitution’s Free Exercise Clause states: “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.” The First Amendment is applicable to the states through the 14th Amendment. At a minimum, the First Amendment guarantees that the government may not coerce anyone to support or participate in religion or its exercise or otherwise act in a way which establishes a state religion or a religious faith or which tends to do so. Alternatively, the Free Exercise Clause also safeguards the free exercise of each person’s chosen form of religion.46 This clause has been interpreted by the Supreme Court to mean that the government is prohibited from interfering with or attempting to regulate any citizen’s religious beliefs. For example, the government must not coerce a citizen to affirm beliefs repugnant to his or her religion or conscience nor must they directly penalize or discriminate against a citizen for holding beliefs contrary to those held by anyone else. 47Religious beliefs do not need to be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection. 47 However, the Free Exercise Clause does not protect purely secular views or personal preferences. 47 The threshold inquiry the court asks is whether the conduct sought to be regulated is rooted in religious belief and whether those religious beliefs are sincerely held. In order to determine whether a proffered viewpoint is in fact religious or secular in nature the court uses some variation of these indicia: (1) an attempt to address fundamental and ultimate questions involving deep and imponderable matters; (2) a comprehensive belief system; and (3) the presence of formal and external signs like clergy and observance of holidays.48Since the clause’s purpose is to secure religious liberty in the individual by prohibiting invasions by the government, it is also necessary in a free exercise case for one to show the coercive effect of an enactment as it operates against him or her in the practice of a religion.On the other hand, the Supreme Court has said that the courts must balance unconstitutional prohibitions on the free exercise of religion and the government’s legitimate conduct of its own affairs.48 Therefore, under the Free Exercise Clause, the freedom of individual belief is absolute, but the freedom individual conduct is not. 48 The Free Exercise Clause does not require the government to conduct its internal affairs in ways that comport with the religious beliefs of particular citizens. 48Reynolds v. United States is the Supreme Court’s first decision on the free exercise clause in 1878. The Court in Reynolds affirmed a Mormon’s bigamy conviction thereby denying the concept that a general governmental regulatory scheme could ever violate the free exercise clause.50 The Court crafted a dichotomy between religious belief and religious practice: while laws “cannot interfere with mere religious belief and opinions, they may with practices.”50 For the next 90 years, the Court declined to sustain a claim that a general regulatory scheme violated the free exercise clause. In 1963, the Court upheld a free exercise challenge to a general regulation that effectively penalized religiously motivated conduct in Sherbert v. Werner.51 Under the Sherbert test, the free exercise clause required an exemption from government regulation that significantly burdened religious practice unless the regulation was justified by a compelling governmental interest and was the least restrictive means of achieving that interest.In 1972, the Court reaffirmed Sherbert’s principles in Wisconsin v. Yoder. The Court held that Wisconsin’s law criminalizing the failure to obey the state’s mandatory school attendance requirement could not be enforced against Amish families who refused to send their children to school beyond the eighth grade.51 However, after Yoder, the Court rejected every free exercise challenge to a general governmental regulation, except for those claims based on a denial of unemployment compensation benefits, governed directly by Sherbert.51Case Analysis – Issues under Free Exercise ClauseBefore the court looked to the question of whether Hobby Lobby could establish Free Exercise rights, they first discussed whether Hobby Lobby, as a corporation, has this right under the constitution. Although corporations have constitutional rights in certain circumstances, the rights of corporate persons and natural persons are not coextensive.The purpose of the free exercise clause is to “secure religious liberty in the individual by prohibiting any invasions thereof by civil authority.” Some religious organizations have been given protection under the free exercise clause because believers “exercise their religion through religious organizations.” However, the court found issue with this claim because Hobby Lobby and Mardel are not religious organizations. Instead, Hobby Lobby and Mardel were incorporated as for-profit secular companies. As such, the court found that neither company had constitutional free exercise rights as corporations and they could not, thus, establish a likelihood of success as to any constitutional claims they asserted. Thus, because the corporation could not establish free exercise rights under the Constitution, the court then looked to whether the Green family had these rights. The Court in Hobby Lobby examined whether Hobby Lobby could establish a free exercise constitutional violation by first determining what level of scrutiny to apply. If a law is both neutral and generally applicable, it only has to be rationally related to a legitimate governmental interest to survive a constitutional challenge.57 A law is neutral if its object is something other than the infringement or restriction of religious practices.57The plaintiffs argued that the Mandate is not neutral because it exempts some religious employers from compliance while compelling others to provide coverage for preventive services.57 The Court responded by stating that carving out an exemption for defined religious entities does not make a law non-neutral as to others.57 The religious employer exemption does not compromise the neutrality of the regulations by favoring certain religious employers over others.57 Rather, the religious employer exemption presents a strong argument in favor of neutrality. To hold that any religious exemption that is not all-inclusive renders a statute non-neutral would be to discourage the enactment of any such exemptions- and thus to restrict, rather than promote, freedom of religion.58 Therefore, the Court found that the Mandate is neutral.The second requirement of the constitutional test is that laws burdening religious practice must be of general applicability.58 The Free Exercise Clause protects religious observers against unequal treatment, and inequality results when a legislature decides that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation. 58 The plaintiffs argued that the Mandate is not generally applicable because of the numerous exemptions, including those for grandfathered plans and religious employers.58 The Court responded by stating that the Mandate does not pursue governmental interests only against conduct motivated by religious belief.58 The regulations in this case apply to all employers not falling under an exemption, regardless of those employers’ personal religious inclinations.58 Therefore the Court found that the Mandate was of general applicability.58As the Court concluded that the Mandate is neutral and of general applicability, it is subject only to rational basis scrutiny under the First Amendment58 Subsequently, the Court found that the preventive care coverage regulations the plaintiffs challenged were neutral laws of general applicability that are rationally related to a legitimate governmental objective. 58RELIGIOUS FREEDOM RESTORATION ACTReligious Freedom Restoration ActThe plaintiffs in Hobby Lobby v. Sebelius argue that the ACA Mandate and the Defendants’ threatened enforcement of the Mandate violate the plaintiffs’ rights secured to them by the Religious Freedom Restoration Act of 1993.For nearly three decades, constitutional jurisprudence in the United States held that the courts must determine whether a state statute violated the Free Exercise Clause according to the “compelling state interest” test, which the Supreme Court articulated in Sherbert v. Verner. In 1990, the Supreme Court held that a compelling reason was not necessary and that a free exercise claim was no defense against a criminal charge in Employment Div., Dept. of Human Resources of Oregon v. Smith. The Court in Smith, held that the government does not need to a law that is neutral and generally applicable on the basis of a compelling interest even if the law has the incidental effect of burdening a particular religious practice. 60 The Smith decision was seen as an abandonment of the “compelling interest” test and a weakening of the Supreme Court’s protection of free exercise. 61 Groups concerned with the potential loss of religious liberty urged Congress to take action. 61In response to the Smith decision, in 1993, Congress enacted the Religious Freedom Restoration Act of 1993 (“RFRA”). The law specifically reinstated the full decision in Sherbert and Yoder. The RFRA required government to prove it is acting in furtherance of a compelling state interest whenever government substantially burdens a person’s exercise of religion and that government is pursuing the least restrictive means to further that compelling state interest.The change was short-lived, however, as the Supreme Court invalidated the new federal law in City of Boerne v. Flores. In Boerne, the Court considered a RFRA claim brought by a Catholic church against a city, challenging the city’s ordinance requiring approval of construction on buildings in historic districts. The church, which was in a historic district, wanted to enlarge its building, but the city denied the construction permit. 66 The church claimed that under the RFRA, its free exercise of religion was being infringed.66 The district court decided that RFRA was unconstitutional because Congress exceeded its authority to enforce the Fourteenth Amendment.Nevertheless, the RFRA still remains the law with regard to the federal government.64 Because the law at issue in Boerne was a local ordinance, that decision declared RFRA unconstitutional at least as to state and local laws.67 Courts reviewing RFRA claims against federal laws after that decision have been divided as to whether the Supreme Court struck down RFRA as it applies to federal law.67 Some courts have held that RFRA was declared unconstitutional as to all laws, or have dismissed RFRA claims concerning federal laws as moots.67 Other courts have decided that the Court’s holding in Boerne was applicable only to RFRA claims concerning state laws and have applied the RFRA criteria to determine if a federal law has infringed on someone’s free exercise of religion.67 Given the lack of consensus among the courts as to the applicability of RFRA to federal law, the Supreme Court may revisit the statute and determine its scope.67 For now, the RFRA is a law aimed at preventing governmental burdens on religion, as opposed to private burdens.Case Analysis – Religious Freedom Restoration ActSimilar to the Free Exercise claim, the court first had to determine whether Hobby Lobby, as a corporation, was in a position to assert rights under RFRA. Although the free exercise clause specifically mentions the “individual,” RFRA does not include a specific definition of “person.” Here, the plaintiffs maintained that Hobby Lobby and Mardel qualify as “persons” based on the general definition in 1 U.S.C. § 1. That section provides that in determining any Act of Congress, the words “person” and “whoever” includes corporations. The section further informs the reader to use the context of the Act to determine the broader meaning. In this situation, the definition as provided in the Act does not seem to fit within the context. General business corporations do not, apart from their employees or owners, exercise religion. The context seems to indicate that general business corporations are not “persons” within the meaning of RFRA. The plaintiffs were not able to find any cases where a secular for-profit corporation was able to exercise religion under either the Free Exercise Clause or RFRA. The court found that Hobby Lobby, as a corporation, could not assert a claim under RFRA. The Court, then analyzed whether the Green family had a prima facie claim under the RFRA. The Court outlined that a plaintiff establishes a prima facie claim under RFRA by proving the following three elements: (1) a substantial burden imposed by the federal government on a (2) sincere (3) exercise of religion. Once the plaintiff establishes these elements, the burden shifts to the government to demonstrate that ‘application of the burden’ to the claimant ‘is in furtherance of a compelling governmental interest’ and is the least restrictive means of furthering that compelling governmental interest.The Court stated that the second and third elements of the plaintiffs’ prima facie case were not in dispute because no one questioned whether the Greens’ beliefs were sincerely held nor whether the mandate burdened, at least indirectly, the Greens’ own exercise of their sincerely held religious beliefs. 70 The critical question was whether the ACA Mandate imposed a “substantial” burden on the Greens for purposes of the RFRA. 70The plaintiffs argued that the Mandate substantially burdened their religious exercise by forcing them to choose between following their convictions and paying enormous fines. 70 The Court responded by evaluating the “directness factor. 70 The Court concluded that the Greens were unlikely to establish a “substantial burden” on them within the meaning of the RFRA. 70 The Court reasoned that the RFRA provisions do not apply to any burden of religious exercise, but rather, to a “substantial” burden on that exercise. 70 The Court further used the context of the RLUIPA, which states that a regulation that imposes a substantial burden on religious exercise is one that necessarily bears direct, primary and fundamental responsibility for rendering religious exercise impracticable. 70 Basically, a “substantial burden” on religious exercise is one that bears in some relatively direct manner on it. 70The Court stated that the plaintiffs complain of the particular burden that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by Hobby Lobby’s plan, subsidize someone else’s participation in an activity that is condemned by plaintiff’s religion. 70 The Court found that such an indirect and attenuated relationship appeared unlikely to establish the necessary “substantial burden.” 70 Moreover, while the meaning and reach of the term “substantial burden” in this context was considerably less than crystal clear, it appears to impose a requirement that the burden on religious exercise be more direct and personal than had been shown here as to the Greens and their management of nationwide general business corporations. Therefore, the Court found that the plaintiffs did not meet their prima facie burden under RFRA and did not demonstrate a probability of success as to their RFRA claims.RELATED CASESPosition Taken by injunction granting courtsIn the aftermath of Hobby Lobby, it has become clear that there is a circuit split in how this issue is to be addressed. On one side of the divide, stand the injunction granting courts, such as the Seventh Circuit, the Northern District of Illinois, and the District Court of the District of Columbia, the Eastern District of Missouri, the Western District of Missouri, the Eastern District of Michigan, and the District of Colorado. These courts have, in varying degrees, held that corporations have standing to assert both the free exercise rights and the RFRA claims of their owners when the religious beliefs of the owners and of the corporations are indistinguishable. Consequently, in analyzing the plaintiffs’ RFRA claims, these courts have found that, because the ACA’s contraceptive coverage mandate places direct substantial pressure on the plaintiffs, the plaintiffs’ religious exercise have been violated. Further, these courts have found that the government, while having compelling interests in promoting public health and ensuring equal access to health care, has either 1) failed to show that the ACA contraceptive mandate will further the government’s interests or 2) failed to prove that the contraceptive mandate is the least restrictive means of achieving the government’s interest. In the end, these courts have uniformly found that the Government’s health care interests were outweighed by the plaintiffs’, and public’s, interest in the rights afforded by the RFRA. Thus, these courts have granted preliminary injunctions.i) Tyndale House Publishers, Inc., et al. v. Kathleen Sebelius, Secretary of the United States Department of Health and Human Services, et al., 2012 WL 5817323 (D.D.C. Nov. 16, 2012).The plaintiffs, Tyndale House Publishers, Inc. (“Tyndale”) and its CEO, Mark D. Taylor, challenge the application of the regulations and penalties relating to an employer’s obligation to cover contraceptives under an employer health plan pursuant to the Patient Protection and Affordable Care Act as violating the Religious Freedom Restoration Act, the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment, the Due Process Clause of the Fifth Amendment, and the Administrative Procedure Act.The first named plaintiff, Tyndale, is a Christian publishing company founded by Dr. Kenneth Taylor and his wife. Tyndale employs 260 full-time employees, and provides them with health insurance through a self-insured health plan. Tyndale is 96.5% owned by the Tyndale House Foundation (“Foundation”), a non-profit religious entity. 8.4% of the Foundation’s shares are voting shares. The Foundation receives 96.5% of the all of Tyndale’s profits, approximately $38.8 million of the $40.2 million in profits since 2001. However, Tyndale is primarily directed by Tyndale Trust, which owns 84% of Tyndale’s voting shares. The second name plaintiff is Mark D. Taylor, the son of Kenneth Taylor. Mark Taylor is the president and CEO of Tyndale and the Foundation.The plaintiffs instituted this action on October 2, 2012. By requiring the plaintiffs to provide for certain contraceptive care, the plaintiffs allege that the defendants have violated their rights under the RFRA, and the First and Fifth Amendments. The Plaintiffs have now moved for a preliminary injunction and assert that they face imminent harm because their refusal to comply with ACA will subject them to “draconian penalties.”The Court first addressed whether the Plaintiffs had standing to pursue their RFRA claim. The Court declined to address the question of whether for-profit corporations can exercise religion within the meaning of the RFRA and the Free Exercise Clause. Instead, the Court addressed whether Tyndale had standing to assert the free exercise right of its owners. The Court analyzed Tyndale’s corporate structure and noted that its two goals where “to direct [Tyndale’s] proceeds to religious charity and educational non-profit work” and “to ensure that the direction of [Tyndale] will remain…faithful to his religious beliefs and Christian educational vision even after his passing.” The Court noted that evidence showed that the beliefs of Tyndale and its owners are indistinguishable. The Court found that Tyndale was a closely held corporation owned by four entities united by their Christian faith, each of which plays a distinct role in achieving shared, religious objectives. The Court found that it had no reason to doubt that Tyndale’s religious objection to providing insurance coverage for certain contraceptives reflects the beliefs of Tyndale’s owners. Further, the Court noted that there was not any dispute that Tyndale’s primary owner can “exercise religion” in its own right, given that it is a non-profit religious organization. Thus, the Court found that because Tyndale does “not present any free exercise rights of its own different or greater than its owners’ rights,” it has “standing to assert the free exercise rights of its owners.”The Court viewed the rights of Tyndale’s owners as the basis for the RFRA claim and found that Tyndale made a satisfactory showing for Article III standing. Further, the Court noted that even if Tyndale did not have free exercise standing, it would have standing to assert its owners’ free exercise rights under the third-party standing doctrine.Turning to the plaintiff’s RFRA claim the Court noted that the RFRA forbids the government from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government can “demonstrate [] that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” The Court noted that under the RFRA, “exercise of religion” is defined as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Thus, to determine whether the contraceptive coverage mandate substantially burdens the plaintiffs' religious exercise, the Court must consider whether the government action “puts ‘substantial pressure on [the] adherent[s] to modify [their] behavior and to violate [their] beliefs.’?“ The Court noted that Government action could substantially burden a plaintiff's religious exercise even if the law only results in the plaintiff being forced to forego a government benefit.In its analysis, the Court noted that Tyndale provides direct coverage to its employees through a self-insured plan in which “Tyndale acts as its own insurer.” The Court found this to be significant because it removes any degree of separation that would have been caused if Tyndale had contracted a third party insurance plan to provide health care services to its employees. Thus, the Court found that the contraceptive coverage mandate puts substantial pressure directly on the plaintiffs to violate their religious beliefs against the provision of coverage for the three contraceptives at issue. Therefore, the requirement to provide such coverage directly burdens the plaintiffs' religious objection to providing such coverage. Because it is the coverage, not just the use, of the contraceptives at issue to which the plaintiffs object, it is irrelevant that the use of the contraceptives depends on the independent decisions of third parties. And even if this burden could be characterized as “indirect,” the Supreme Court has indicated that indirectness is not a barrier to finding a substantial burden.The Court thus found that the plaintiffs showed that the contraceptive coverage mandate substantially burdens their religious exercise. The Court next considered whether the mandate could, nevertheless, be applied to the plaintiffs because it serves a compelling government interest and is the least restrictive means to accomplish the government’s interest. In doing so, the Court noted that if a plaintiff demonstrates a substantial burden on its religious exercise, the RFRA requires that the government then demonstrate that it has “a compelling governmental interest” justifying the burden. In this case, the defendants claimed that the government has two compelling interests regarding the application of the contraceptive coverage mandate. First, the defendants claimed an interest in promoting public health. Second, the defendants claimed an interest in providing employed women with access to health care on par with employed men.However, the Court noted that “while the defendants have broad, compelling interests in both promoting public health and ensuring that women have equal access to health care, the question that this Court must answer under the RFRA here is whether the government has shown that requiring the plaintiffs to provide the contraceptives to which they object—Plan B, Ella, and intrauterine devices (as well as education and counseling regarding the same)—will further the government's compelling interests in promoting public health and in providing women equal access to health care.”However, the Court found that there was no specific finding that the government?must?ensure that Plan B, Ella, and intrauterine devices, as opposed to other forms of contraception, be covered under the plaintiffs' health plan in order to further the government's compelling interests.? Thus, the Court concluded that the government did not show that the application of the contraceptive coverage mandate to the plaintiffs furthers its compelling interests and, consequently, it decided not to review the third prong of the RFRA test—whether the government has chosen the least restrictive means to further its compelling interest.Before reaching its holding, the Court noted that, although there is a public interest in the uniform application of the ACA and the contraceptive coverage mandate, there is also a public interest in ensuring that the rights secured under the First Amendment and, by extension, the RFRA, are protected. The Court concluded by noting that where the “regulations at issue include exemptions and other provisions excluding a large number of people from the scope of the regulations, and the government has failed to show a compelling interest furthered by the enforcement of those regulations…the public has little interest in the ‘uniform application’ of the regulations.” Thus, the Court granted the plaintiffs' motion for a preliminary injunction.ii) Am. Pulverizer Co. v. U.S. Dept. of Health & Human Services, 12-3459-CV-S-RED, 2012 WL 6951316 (W.D. Mo. Dec. 20, 2012)In American Pulverizer, Paul and Henry Griesediek (the “Griesedieks”) own and control?American Pulverizer?Co., Springfield Iron and Metal, LLC, Hustler Conveyor Co., and City Welding (“Griesedieck Companies”), businesses involved in wholesale scrap metal recycling and the manufacturing of related machines. The Griesedieks are Evangelical Christians who believe that the use of contraceptive services is contrary to their religious beliefs. The Griesediek Companies employ approximately 150 employees who were covered by three separate health insurance policies that, at the time of suit, provided contraceptive services. Each plan had a renewal date of January 1, 2013. However, the Griesedieks wished to change their health insurance policies so that the policies do not provide certain contraceptive services and are consistent with their religious beliefs.The Griesediek Companies do not qualify as a religious employer under the terms of the ACA, cannot qualify for the government's temporary safe harbor provision for non-profit entities, and, finally, because of changes made to the Griesediek Companies' health insurance plans, do not fall under the “grandfathered” status of the ACA. Accordingly, on January 1, 2013, the Griesedieks were faced with the choice of providing their employees with health insurance policies that include the contraceptive services required by the ACA or incurring fines for not complying with the requirements of the ACA. Accordingly, Plaintiffs argued that the ACA violates their rights under the RFRA.The Court noted that the Plaintiffs have demonstrated that, on January 1, 2013, they would be forced to either: provide their employees with health insurance policies that include the contraceptive services required by the ACA, which is against their religious beliefs, or incur fines for not complying with the requirements of the ACA. ?Accordingly, the Court found that Plaintiffs have adequately established that they will suffer imminent irreparable harm absent injunctive relief. Accordingly, the Court noted that this factor favored the entry of injunctive relief. The Court also found that the Plaintiffs would sustain a greater injury if the Court did not grant the injunction, as compared to the Government if the injunction were granted. Similar to Tyndale, the Court also found that the Government’s healthcare interests are outweighed by the public’s interest in the rights afforded by the RFRA. Thus, the Court granted the Plaintiffs’ Motion for a Preliminary Injunction.iii) Monaghan v. Sebelius, 12-15488, 2012 WL 6738476 (E.D. Mich. Dec. 30, 2012)In Monaghan, the owner and sole shareholder of secular, for-profit property management company and the company brought action against federal government agencies charged with implementing and administering the contraception coverage mandate provision of the ACA, and against the individuals heading those agencies, alleging that the mandate violated the Administrative Procedure Act (“APA”), the RFRA, and the First Amendment. Plaintiff Thomas Monaghan (“Monaghan”) is the owner and sole shareholder of Plaintiff Domino’s Farms Corp. (“DF”), a secular, for-profit property management company. Monaghan, a member of the Catholic Church, asserted that his Catholic beliefs are in line with Pope Paul VI's 1968 encyclical Humanae Vitae, which states that “any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation, whether as an end or as a means”—including contraception—is a grave sin. Thus, Monaghan contended that his compliance with the Mandate would require him to violate his religious beliefs because the Mandate forces him, and/or the corporation he controls, to pay for, provide, facilitate, or otherwise support contraception, sterilization and to some extent, abortion. If DF does not provide the mandated contraceptive coverage, Plaintiffs estimate that DF will be required to pay approximately $200,000 per year as a tax and/or penalty. Monaghan stated that he did not want to forego providing health coverage because doing so would impact DF's ability to compete with other companies that offer such coverage, and its employees would have to obtain expensive individual policies in the private marketplace. Consequently, Plaintiffs brought this suit on December 14, 2012 and, on December 21, 2012, filed the instant Emergency Motion for a Temporary Restraining Order relative to their RFRA and First Amendment free exercise, free speech, and free association claims, seeking to enjoin the Government from enforcing the mandate against Plaintiffs.Regarding the RFRA claim, the Court held that the Plaintiff showed that abiding by the contraceptive coverage mandate would substantially burden his exercise of religion while the Government failed to satisfy its burden of showing that its actions were narrowly tailored to serve a compelling interest. Therefore, the Court found that the Plaintiffs established at least some likelihood of succeeding on the merits of their RFRA claim. The Court also found that irreparable harm could result to the Plaintiff because Monoghan’s claims involve a First Amendment right, and because the Court found some likelihood that Plaintiffs' RFRA claim would succeed on the merits. Lastly, the Court noted that it was in the best public interest to ensure that the Plaintiff is not compelled to act in conflict with her religious beliefs. The District Court found that: Monoghan had standing to bring the RFRA claim; Monoghan had some likelihood of success on the merits of the RFRA claim; Monoghan would likely suffer irreparable harm in absence of temporary restraining order; public interest supported temporary restraining order; and balance of harms favored the temporary restraining order.iv. Sharpe Holdings, Inc. v. U.S. Dept. of Health & Human Services, 2:12-CV-92-DDN, 2012 WL 6738489 (E.D. Mo. Dec. 31, 2012)In Sharpe, the plaintiffs sought immediate injunctive relief prohibiting defendants from applying and enforcing against plaintiffs certain portions of the ACA. The Plaintiff, Sharpe Holdings, Inc. (“Sharpe Holdings”), is a Missouri corporation employing more than 50 full-time individuals in industries including farming, dairy, creamery, and cheese making. Sharpe Holdings offers health insurance to employees through a self-insured program. Plaintiff Charles N. Sharpe is the founder, owner, chairman of the board, and chief executive officer of Sharpe Holdings and sets all policies governing the business conduct of Sharpe Holdings. In accordance with their religious beliefs and practices, the individual plaintiffs oppose the use, funding, provision, or support of abortion on demand and believe that the use of Plan B, Ella, and copper IUDs constitutes such abortion on demand. In their complaint, plaintiffs alleged violations of the RFRA, the First Amendment's Free Exercise and Establishment Clauses, the right against compelled speech, the right of expressive association, and the Administrative Procedure Act. The Plaintiffs sought the following: (a) declarations by the court that the ACA Mandate and defendants' enforcement thereof violate the First and Fifth Amendments, RFRA, and the Administrative Procedure Act; (b) an order prohibiting defendants' enforcement of the ACA Mandate with respect to Plan B, Ella, copper IUDs, and related education and counseling; and (c) costs and reasonable attorney and expert fees under 42 U.S.C. § 1988.The Court granted the Plaintiffs request for a temporary restraining order.v. Korte v. Sebelius, 12-3841, 2012 WL 6757353 (7th Cir. 2012); Grote Industries, LLC v. Sebelius, 4:12-CV-00134-SEB, 2013 WL 53736 (S.D. Ind. 2013)The 7th Circuit Court of Appeals decided to consolidate two cases involving employers seeking a preliminary injunction against the enforcement of the ACA”s mandate to provide insurance for contraceptives. Grote v. Sebelius involved a family-run business that abided by Catholic principles. Grote Industries manufactures vehicle safety systems and employs 1,148 full-time employees working at various locations. Before the effective date of the ACA Mandate, the Grote Industries health insurance plan was self-insured and did not cover abortion drugs, contraception, or sterilization. The plaintiffs in Korte v. Sebelius own a construction firm with roughly 90 full time employees. While the majority of the employees belong to a union, which sponsors their health-insurance plan, the firm provides a group health-insurance plan for the remaining employees. The Kortes are Roman Catholic and try to manage their company in a manner consistent with the Catholic faith. In August 2012, they discovered their company’s current health-insurance plan provided coverage for contraception and the Kortes brought this action to terminate the coverage and substitute a health plan that conforms to the requirements of the Catholic faith. In both of these cases the respective families argued that the Mandate violates their rights under the Religious Freedom Restoration Act (RFRA), the First Amendment’s Free Exercise, Establishment, and Speech Clauses, the Fifth Amendment’s Due Process Clause; and the Administrative Procedure Act. In both cases, the district court denied their claims, however, they both appealed and the appellate court took the case relying solely on the RFRA claim. Specifically, the plaintiffs contended that the legal duties imposed on them by the contraception mandate conflict with the religious duties required by their faith and they could not comply with both. The mandate in question would compel them to materially cooperate in a moral wrong contrary to the teachings of their church and levies severe financial penalties if they do not comply. In these cases, both plaintiffs used a strict scrutiny argument maintaining that the mandate substantially burdens their free exercise right. Here, the government did not succeed in meeting their burden of demonstrating that requiring religious objectors to provide cost-free contraception coverage is the least restrictive means of increasing access to contraception. In both cases, the appellate court held that the plaintiffs established a reasonable likelihood of success on the merits of their RFRA claims and that they would suffer irreparable harm absent an injunction. vi. Triune Health Group v. U.S. Dept. of Health & Human Services et al., 1:12-cv-06756 (N.D. Ill. Jan. 03, 2013).Plaintiffs Christopher and Mary Anne Yep (the “Yeps”) are faithful adherents of the Roman Catholic religion. The Yeps own and control Plaintiff Triune Health Group, Inc. (“Triune”), a for-profit corporation. Triune is a corporation that specializes in facilitating the re-entry of injured workers into the workforce. The Plaintiffs filed a motion for preliminary injunction aiming to prevent the Defendant from requiring the Plaintiffs to provide contraception methods that the Plaintiffs believe are against their religion. The Court noted that the Seventh Circuit, had recently granted a preliminary injunction, pending appeal, in favor of a for-profit employer challenging the ACA’s preventative care mandate on the same grounds as presented here. See Korte et al. v. Sebelius et al., No. 12-3841 (7th Cir. Dec. 28, 2012). The Court further noted that the plaintiffs in the present case, as in Korte, challenge the ACA under the RFRA, the First and Fifth Amendments, and the Administrative Procedure Act. The Court also noted the similar factual situation between the plaintiffs in Korte and in the case at bar. Specifically, Triune and the Yeps discovered this summer that the company’s health insurance plan covered women’s health services that contradict the owners’ deeply held religious beliefs, and therefore sought an injunction from the application of the ACA in order to enroll in a conscience-compliant plan on January 1, 2013. The Triune Court noted that the Seventh Circuit concluded that the Korte plaintiffs established a reasonable likelihood of success on the merits and irreparable harm, with the balance of harms tipping in their favor. In light of this binding precedent, the Triune Court granted Triune’s motion for a preliminary injunction.vii. O'Brien v. U.S. Dept. of Health and Human Services, 4:12-CV-476 CEJ, 2012 WL 4481208 (E.D. Mo. 2012)In O’Brien v. U.S. Dept. of Health and Human Services, the plaintiff is Catholic and owns O’Brien Industrial Holdings, LLC (OIH). As a secular, for-profit employer, OIH does not satisfy the definition of “religious employer” as to be exempted from the ACA Mandate. When OIH began sponsoring a group health insurance plan, coverage of contraceptive services was included contrary to the company’s practice and intentions. Similar to the above cases, with the health insurance renewal on January 1, 2013, the plaintiff was faced with a choice between complying with the ACA in violation of his religious beliefs, or paying fines that would have a crippling effect on his company. The RFRA forbids government from “substantially burdening a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government “demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” In order to succeed on an RFRA claim, the plaintiff must allege a substantial burden on their religious exercise. Though the US District Court for the Eastern Division of Missouri denied plaintiff’s prayer for relief, the appellant’s motion for stay pending appeal was granted. viii. Newland v. Sebelius, 881 F. Supp. 2d 1287 (D. Colo. 2012)In Newland v. Sebelius, the plaintiffs, the Newland family, own a Colorado S-Corp that manufactures and distributes heating, ventilation, and air conditioning products and equipment. The Newlands adhere to Catholic principles and want to run Hercules in a manner that reflects their sincerely held religious beliefs. Furthermore, Newland recently made two amendments to their articles of incorporation reflecting the role of religion in corporate governance. They maintain a self-insured group plan for employees as part of fulfilling their organizational mission and catholic beliefs. Their self-insured plan does not cover abortion drugs, contraception, or sterilization. In response to the ACA Mandate requiring health insurance plans to include these contraceptives, plaintiffs filed suit challenging the women’s preventative coverage mandate as violative of RFRA, the First Amendment, the Fifth Amendment and the Administrative Procedure Act. The court here again used a strict scrutiny standard in opining that the harm to the government from non-enforcement “pales in comparison to the possible infringement upon the Newland’s constitutional and statutory rights.” ix. Legatus v. Sebelius, 12-12061, 2012 WL 5359630 (E.D. Mich. 2012)In Legatus v. Sebelius, the US District Court for the Eastern District of Michigan granted an injunction against the HHS contraceptive mandate. Similar to Newland, the plaintiffs were a Catholic Family that runs a supply company. The court, again, used a strict scrutiny standard and argued that imposing the mandate would place a substantial burden on the Plaintiff’s religious freedom. Furthermore, the court opined that it’s not enough that the government has a compelling interest in broadening contraceptive access; it needs to have a compelling interest in forcing the individual plaintiff to violate his conscience to achieve that objective. The Judge concluded by saying that not granting the injunction would be far more damaging to the suit going forward since denying the injunction would functionally operate as a loss on the merits for the Plaintiffs. Position Taken by Courts Denying InjunctionsIn the following cases, the courts denied the plaintiff’s motions for preliminary injunction. Each plaintiff brought suit against the Health and Human Services alleging that the Patient Protection and Affordable Care Act violated their religious freedom rights under the RFRA or the Free Exercise Clause. The main issue in each of these cases is whether the court should grant the plaintiffs injunctive relief that would stay the application of the contraceptive coverage requirements to them during the pendency of their cases. The courts here analyzed each of the plaintiffs’ motions under the four-factor test outlined under Leary v. Daeschner. The Court denied the preliminary injunctions based on these four factors: (1) the likelihood of the plaintiffs’ ultimate success on the merits; (2) the threat of irreparable harm to the plaintiffs in the absence of relief; (3) the balance between that harm and the harm that relief may cause the non-moving party; and (4) the public interest.When balancing the four factors together, none of the courts found in favor of the plaintiffs. Moreover, none of the courts found that the plaintiffs could establish a likelihood success on the merits of the case. Following is a brief summary of the factual background of each case, which showcases the similarities to the factual background of Hobby Lobby. i. Annex Med., Inc. v. Sebelius, CIV. 12-2804 DSD/SER, 2013 WL 101927 (D. Minn. 2013)In Annex Medical v. Sebelius, the Court denied the plaintiff’s motion for preliminary injunction. Annex is a Minnesota-based corporation that manufactures medical devices. Part of Annex’s mission statement provides that the company strives “to manufacture medical products of high quality and good value, while conducting business in a way that is pleasing to God and is faithful to Biblical principles and values.” Lind is the President and Chief Executive Officer of Annex and a devout Catholic. Lind discovered that Annex’s health care plan provided Contraceptive Services. In response, Lind requested that Blue Cross modify Annex’s plan to exclude Contraceptive Services. Blue Cross was unable to make any changes because it requires group health plans with fewer than fifty subscribers to provide Contraceptive Services. Annex and Lind moved for a preliminary injunction arguing that the Mandate violates the Religious Freedom Restoration Act. ii. Autocam Corp. v. Sebelius, 1:12-CV-1096, 2012 WL 6845677 (W.D. Mich. 2012)In Autocam Corp v. Sebelius, the court concluded that the plaintiffs were not entitled to the preliminary injunction they sought. Plaintiff John Kennedy is the president and chief executive officer of Autocam and an owner of Autocam. Kennedy’s family members are also owners of Autocam. The Kennedy plaintiffs are adherents of the Catholic faith. According to the plaintiffs, Catholic teachings prohibit the Plaintiffs from participating in, paying for, training others to engage in, or otherwise cooperating in the practice of contraception, including abortifacient contraception, and sterilization. The plaintiff’s plan is designed to exclude contraception, including abortifacient contraception, sterilization, and counseling relating to the same because Plaintiffs seek to do business in a manner fully consistent with their religious convictions. Plaintiffs claim that the requirements under the Mandate violate RFRA and their rights of free exercise and freedom of speech under the First Amendment.iii. Conestoga Wood Specialties Corp. v. Sebelius, CIV.A. 12-6744, 2013 WL 140110 (E.D. Pa. 2013)In Conestoga Wood Specialties v. Sebelius, the Court found that the plaintiffs did not meet their burden under the four factor test and therefore the court denied the plaintiffs motion for preliminary injunctive relief. The plaintiff, Conestoga Wood Specialties Corporation (“Conestoga”), is a closely held, for-profit Pennsylvania corporation that manufactures wood cabinets and wood specialty products. The plaintiffs, the Hahans, are shareholders and maintain various positions on the board of directors. The corporation presently employs approximately 950 full-time employees. The Hahns are practicing Mennonite Christians whose faith requires them to operate Conestoga in accordance with their religious beliefs and moral principles. The plaintiffs alleged that they must choose between providing coverage to employees for abortifacient contraception, which they contend violates their right to religious freedom, or pay significant financial penalties. The plaintiffs brought suit under the RFRA, the free exercise clause and the free speech clause. INTERVIEWSAs part of the case analysis, we set out to contact and interview the attorneys: i) involved with case, such as the DOJ attorney who argued the case in the district court, ii) representing the view of the HHS, such as the HHS Region V Director, and iii) who are specialists in the field of benefits law. The purpose of contacting these attorneys was to gain insight as to what it was like to represent the positions they advocated for, to learn their background, to find out if they believed that litigation was an effective tool for social change, and to ask what they believed would be the effects of Hobby Lobby.i. Michelle BennettMs. Bennett is the DOJ attorney that tried the case in the district court. We contacted Ms. Bennett, via email, and asked if she would be willing to discuss Hobby Lobby with us for a class project. Unfortunately, on February 13, 2013, Ms. Bennett responded to our request and noted that she was restricted from commenting on a pending case.ii. Kyle DuncanMr. Duncan was the lead attorney from the Becket Fund that tried this case. The Becket Fund is a nonprofit law firm dedicated to protecting the religious liberties of individuals and organizations from all different faiths. Mr. Duncan began his career helping individuals and organizations protect their religious freedoms by teaching constitutional law at the University of Mississippi Law School. His primary focus there was on separation of church and state. From there, he served as the Solicitor General and appellate chief of the Louisiana Department of Justice. During his time as the Solicitor General, Mr. Duncan met individuals from the Becket Fund and decided to join the organization as general counsel. Mr. Duncan chose to work for the Becket Fund because they represent individuals and organizations from all different faiths. Rather than taking every case in which an individual or organization alleges that their religious liberties have been infringed upon, the Becket Fund practices strategic litigation as they only decide to take cases that make powerful claims that could change things for more than just that one case. Mr. Duncan and the Becket Fund Staff sought after the Hobby Lobby v. Sebelius case because it represented, what they felt, was a whole range of cases where business owners had integrated their faith into their organization. This case was the beginning of the cases where these businesses, built on religion, sued in order to not have to follow the ACA mandate. In discussing the case, Mr. Duncan wanted to make clear that the Hobby Lobby case was not a case about women’s rights or whether businesses should or should not offer contraceptive coverage in their health insurance plans. Throughout the litigation process, he wanted to make it known that this is a case about whether people actually have the right to practice their religion freely. When asked whether he felt that his beliefs played a role in his cases, Mr. Duncan said that his beliefs were important, but not specific to the case. He believes that everyone should be able to practice his or her religion freely and that is why he decided to work for the Becket Fund in the first place. Mr. Duncan spoke about how the media played a role in this case. He said the most important thing, when dealing with the media, is to make sure they know what your point of view is, not necessarily that they agree with your point of view. In this case, he felt that the media did a great job of portraying what Hobby Lobby’s point of view was and not obscuring it so much so that the public did not know what the case was about. He was happy with the way that the media represented the case as a question of religious liberty, not a question of whether or not the government has a role in providing contraception coverage. Mr. Duncan would not have changed anything about the way they proceeded with this lawsuit. Although they were disappointed with the rulings so far, they have appealed and filed their appellate brief in the 10th Circuit Court of Appeals. The arguments in the brief focus primarily on the Religious Freedom Restoration Act claims. The Affordable Care Act represents a huge expansion of the federal government into the health care field. Although, Mr. Duncan feels the ACA does a lot to help individuals without insurance, he also thinks that it conflicts with individual’s rights. He iterated that there is a relationship between individuals’ consciences and the healthcare they want to undergo or provide. He said that one of the problems with the ACA is that it will not let people opt out if they feel that the treatment or coverage does not coincide with their beliefs. Generally, the constitution has provided for some leeway with regards to war or punishment, but, he feels that the ACA does not allow for any leeway and that’s a problem. That is why he feels so strongly that Hobby Lobby has a legitimate case and he will continue to fight for them. Despite some of the negative rulings so far, Mr. Duncan feels that more and more lawsuits are going to be filed under the same theory as Hobby Lobby’s. More and more individuals and businesses are realizing that the ACA mandate does not coincide with their beliefs and they are filling and will continue to file suits to protect their religious liberties. iii. Kenneth MunsonWe attempted to discuss the case with HHS and contacted Region 5 Director, Mr. Kenneth Munson. However, after a few exchanged emails and phone calls, Mr. Munson’s assistant, Erica Regalado, informed us that our proposed questions to Mr. Munson had been forwarded to the HHS Office of the General Counsel for a recommendation on whether to respond/follow-up. On February 14, 2013, Suzanne Krohn with the HHS responded and informed us that it was not appropriate for Mr. Munson to discuss pending department litigation.iv. Thomas M. White Thomas White is a Partner in Rimon’s Employee Benefits and Executive Compensation, Healthcare, and Employment Law practice groups.? Mr. White has extensive experience in the development, documentation and administration of executive compensation programs and employee benefit plans, including pension, profit sharing, 401(k) and ESOP plans, and health and welfare benefit programs. Mr. White represents private sector plan sponsors as well as Taft-Hartley trustees, governmental units and benefit plans and has assisted financial firms in designing investment funds that have been marketed to private sector and governmental plan investors. Mr. White has also assisted plans in negotiating the terms of their alternative investment holdings and has also designed master 401(k) and VEBA programs for union represented employees. Mr. White has advised governmental clients and union represented employers and plans on their post-retirement welfare plan obligations (OPEB). Mr. White has also advised state legislators and municipal officials in examining methodologies to deal with the underfunded status of their pension and retiree health care plans. Currently, Mr. White also serves as an adjunct faculty member of the Chicago-Kent College of Law where he teaches an ERISA course.?Regarding his views on the ACA, generally, Mr. White understands the desire to extend health care to people who do not have it, but he believes that doing so is a tremendous administrative burden that comes with an additional cost. Specifically regarding Hobby Lobby, Mr. White thinks that institutions most likely to prevail in similar cases will be churches and organizations that are very closely affiliated with churches. He does not think that other business will be able to win before the Supreme Court because he doubts that incorporated businesses’ have First Amendment religious rights. However, he does leave open a possibility that unincorporated businesses’, or partnerships, may have a better chance of making a successful argument that they have First Amendment religious rights. Additionally, he thinks that the Supreme Court will take into mind that allowing business enterprises to opt out of the ACA will ultimately weaken the health care system. In the end, Mr. White believes that the ACA may end up like “a piece of Swiss Cheese,” in that the Supreme Court will allow some organizations to opt out. Mr. White also notes that federal law trumps private opinion in regard to things that are within Congress’ purview. Thus, he believes that the ACA trumps a private business’ choice to not provide particular health care options. However, Mr. White cautions that it is too early to tell what the Supreme Court will do when it is presented with this issue. Thus, he is unsure as to how Hobby Lobby, or similar cases, will affect benefits law in the coming years.Simply from the two interviews, one can realize that there are many different sides to this issue. Mr. Duncan believes that, although the ACA has the potential to do a lot of good, there should be some leeway. He will continue to fight for Hobby Lobby because he feels that every person and organization should be able to practice their religion as they wish. Mr. White notes that benefits attorneys do not know what will happen with the ACA Mandate, but that he, personally, thinks it is valid and that the Supreme Court will uphold it. ?Otherwise, the ACA would end up becoming a piece of Swiss cheese.AFTERMATHFollowing the district court’s decision in Hobby Lobby, the Plaintiffs appealed and filed a motion for injunction pending resolution of appeal in the Tenth Circuit. Citing the district court’s decision, the Tenth Circuit denied the Plaintiffs’ motion for injunction pending resolution of appeal. Subsequently, the Plaintiffs applied to Supreme Court’s Circuit Justice for an injunction pending appellate review. On December 26, the Circuit Justice for the Tenth Circuit, Justice Sotomayer, denied the application for an injunction pending appellate review. In denying the appeal, Justice Sotomayer found that the plaintiffs did not satisfy the demanding standard for the extraordinary relief they sought. More importantly, Justice Sotomayer gave an impression of what the Supreme Court may hold if the RFRA and free exercise claims are brought before it, on the merits. Specifically, Justice Sotomayer noted that the Supreme Court has not previously addressed similar RFRA or free exercise claims brought by closely held for-profit corporations and their controlling shareholders alleging that the mandatory provision of certain employee benefits substantially burdens their exercise of religion. However, she did note that the Supreme Court has rejected a free exercise claim brought by an individual Amish employer who argued that paying Social Security taxes for his employees interfered with his exercise of religion. Thus, providing a small amount of support to the belief that the Supreme Court would uphold the contraceptive mandate if Hobby Lobby, or a similar case, appeared before the Court.In regard to the injunctive relief, Justice Sotomayer noted that the lower courts have diverged on whether to grant temporary injunctive relief to similarly situated plaintiffs raising similar claims but that no court had yet issued a final decision granting permanent relief with respect to such claims. Moreover, Justice Sotomayer noted that, while the applicants alleged that they would face irreparable harm if they were forced to choose between complying with the contraception-coverage requirement and paying significant fines, she found that they could not show that an injunction was necessary or appropriate. Lastly, Justice Sotomayer noted that, even without an injunction pending appeal, the applicants could continue their challenge to the regulations in the lower courts and if necessary, following a final judgment, they could file a petition for a writ of certiorari in the Supreme Court. Thus, Justice Sotomayer’s decision ensured that the issue will continue at a deliberate pace through the appellate system.CONCLUSIONHobby Lobby released a statement in late 2012 that it would be delaying the start of its health plan. Hobby Lobby is able to postpone the start of the “plan year” for its employees health plan for several months. However, the brief statement did not explain how the delay would help it bypass the August 2012 effective date of the ACA Mandate or whether the postponement would leave Hobby Lobby employees without health care coverage. The company’s general counsel, Peter M. Dobelbower, simply stated, “Hobby Lobby will continue to vigorously defend its religious liberty and oppose the mandate and any penalties.” This, in conjunction with both the circuit split and Justice Sotomayer’s cryptic decision, points to a reasonable inference that Hobby Lobby is headed to the Supreme Court. How the Supreme Court will decide is anybody’s guess. However, one thing is reasonably certain: the longer the ambiguity of the ACA Mandate legality lasts, the more dockets will be filed on behalf of employers who are more tangential in their relation to religious organizations, the nefarious “slippery slope.” ................
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