Case: 18-15255, 04/16/2018, ID: 10838069, DktEntry: 35, Page 1 of 45

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 18-15144, 18-15166, 18-15255

The State of California, et al.,

Plaintiffs-Appellees,
v.
Alex M. Azar II, in his official capacity as Acting Secretary of the U.S.
Department of Health and Human Services, et al.,
Defendants-Appellants,
and
The Little Sisters of the Poor Jeanne Jugan Residence,
Intervenor-Defendant-Appellant,
and
March for Life Education and Defense Fund,
Intervenor-Defendant-Appellant.

AMICUS CURIAE BRIEF OF FIRST LIBERTY INSTITUTE

IN SUPPORT OF APPELLANTS

Appeal from the Judgment of the United States District Court for the
Northern District of California (Oakland)
Case No. 4:17-cv-05783-HSG

Stephanie N. Taub
Lea E. Patterson
FIRST LIBERTY INSTITUTE
2001 W. Plano Parkway, Suite 1600
Plano, TX 75075
Telephone: (972) 941-4444
staub@[Link]
lepatterson@[Link]
Counsel for Amicus Curiae
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TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................ ii

TABLE OF AUTHORITIES ..................................................................... iv

CORPORATE DISCLOSURE STATEMENT........................................... 1

STATEMENT OF COMPLIANCE WITH RULE 29(a)............................ 2

INTEREST OF AMICUS CURIAE ........................................................... 3

SUMMARY OF THE ARGUMENT.......................................................... 4

ARGUMENT .............................................................................................. 7

I. The Challenged IFR Will Not Affect Many of the Specific Entities

AAUW Asserts Will Drop Coverage. .................................................. 8

II. The IFR’s Exemption is Limited, Well-Defined, and Within the

Traditional Scope of Conscientious Exemption Laws. ...................... 16

A. The IFR Employs Time-Tested Religious Exemption Criteria to Limit

the Extent and Eligibility for Exemptions. ......................................... 17

B. Moral Exemptions Analogous to Religious Exemptions Are

Longstanding, Common, and Capable of Effective Administration. . 21

III. Most Businesses Are Incentivized to Retain Contraceptive Coverage.

............................................................................................................ 25

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A. For-Profit Corporations Manifesting Sincere Religious Beliefs Will

Be Comparatively Few and Far Between. .......................................... 26

B. Many, if Not Most, of the Organizations Seeking an Exemption Do

Not Object to All Forms of Contraception. ........................................ 28

C. Assuming that Employers Previously Using the Accommodation Will

Not Continue to Use that Accommodation Is Speculative at Best. .... 29

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TABLE OF AUTHORITIES

Cases

Archdiocese of St. Louis v. Hargan, No. 4:13-cv-02300, Doc. No. 77 (E.D.

Mo. Oct. 23, 2017) .................................................................................... 11

Ave Maria Found. v. Hargan, No. 2:13-cv-15198, Doc. No. 26 (E.D. Mich.

Feb. 2, 2018) ............................................................................................. 12

Ballard v. United States, 329 U.S. 187 (1946) ............................................. 20

Burwell v. Dordt Coll., 136 S. Ct. 2006 (2016) ............................................ 10

Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) .............. passim

California, et al. v. U.S. Dep’t of Health & Human Servs., et al., No. 17-cv-

05783-HSG (N.D. Cal. Dec. 21, 2017) ................................................... 4, 7

Catholic Benefits Ass’n v. Hargan, Nos. Civ-14-240-R and Civ-14-684-R,

Doc. No. 184 (W.D. Okla. Mar. 7, 2018) ................................................. 12

Catholic Charities Diocese of Ft. Worth, No. 4:12-cv-314, Doc. No. 127

(N.D. Tex. Jan. 11, 2018) .......................................................................... 12

Catholic Diocese of Biloxi, Inc. v. Burwell, No. 1:14-cv-00146, Doc. No. 32

(S.D. Miss. Oct. 23, 2017) ........................................................................ 11

Christian and Missionary Alliance Found., Inc. v. Burwell, No. 2:14-cv-580,

Doc. No. 79 (M.D. Fla. Nov. 3, 2017) ...................................................... 11

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Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520

(1993) ........................................................................................................ 19

Colo. Christian Univ. v. Sebelius, No. 13-cv-02105-REB-MJW (D. Colo.

June 20, 2014) ........................................................................................... 10

Conestoga Wood Specialties Corp. v. Sec’y of the U.S. Dep’t of Health &

Human Servs., 724 F.3d 377 (3d Cir. 2013) ............................................. 30

Diocese of Cheyenne v. Sebelius, No. 2:14-cv-00021, Doc. No. 64 (D. Wyo.

Oct. 24, 2017) ............................................................................................ 11

Diocese of Ft. Wayne-South Bend, Inc. v. Hargan, No. 1:12-cv-00159, Doc.

No. 136 (N.D. Ind. Oct. 23, 2017) ............................................................ 11

Dordt Coll. v. Sebelius, 22 F. Supp. 3d 934 (N.D. Iowa May 21, 2014) ..... 10

Dordt Coll. v. Burwell, No. 14-2726 (8th Cir. Oct. 27, 2017) ..................... 10

Dordt Coll. v. Sebelius, 801 F.3d 946 (8th Cir. 2015).................................. 10

Eternal Word Television Network, Inc. v. U.S. Dep't of Health & Human

Servs., No. 14-12696 (11th Cir. Oct. 3, 2016) .......................................... 11

Eternal Word Television Network, Inc. v. Sec’y of the U.S. Dep’t of Health

& Human Servs., 818 F.3d 1122 (11th Cir. 2016) .............................. 17, 20

Eternal Word Television Network, Inc. v. U.S. Dep’t of Health & Human

Servs., 756 F.3d 1339 (11th Cir. 2014) ..................................................... 11

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Geneva Coll., et al. v. Sebelius, No. 2:12-cv-00207, Doc. No. 84 (W.D. Pa.

Apr. 19, 2013) ........................................................................................... 12

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418

(2006) ........................................................................................................ 19

Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423 (1974) ...................... 7

Holt v. Hobbs, 135 S. Ct. 853 (2015) ........................................................... 19

Insight for Living Ministries v. Burwell, No. 4:14-cv-00675, Doc. No. 56

(E.D. Tex. Oct. 31, 2017) .......................................................................... 11

Los Angeles v. Lyons, 461 U.S. 95 (1983) ...................................................... 7

March for Life v. Burwell, 128 F. Supp. 3d 116 (D.D.C. Aug. 31, 2015) .... 24

Michigan Catholic Conf. v. Hargan, No. 1:13-cv-01247, Doc. No. 68 (W.D.

Mich. Nov. 2, 2017) .................................................................................. 11

Notre Dame Univ. v. Hargan, No. 3:13-cv-01276, Doc. No. 86 (N.D. Ind.,

Oct. 24, 2017) ............................................................................................ 11

O’Shea v. Littleton, 414 U.S. 488 (1974) ....................................................... 7

Persico v. Price, No. 1:13-cv-00303, Doc. No. 95 (W.D. Pa. Oct. 20, 2017)

................................................................................................................... 11

Reaching Souls Int’l v. Azar, No. 5:13-cv-1092-D, Doc. No. 95 (W.D. Okla.

Mar. 15, 2018) ........................................................................................... 12

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Roman Catholic Archdiocese of New York v. Hargan, No. 1:12-cv-02542,

Doc. No. 122 (E.D.N.Y. Oct. 17, 2017) .................................................... 11

School of the Ozarks v. U.S. Dep’t of Health and Human Servs., 86 F. Supp.

3d 1066 (W.D. Mo. Jan. 13, 2015)............................................................ 10

Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs., 2013 U.S.

Dist. LEXIS 181316 (E.D. Mo. Dec. 30, 2013) ........................................ 10

Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs., No. 2:12-cv-

00092-DDN, Doc. No. 57 (E.D. Mo. Sep. 30, 2013) ................................ 11

Sharpe Holdings, Inc. v. U.S. Dept. of Health & Human Servs., No. 2:12-cv-

00092-DDN, Doc. No. 160 (E.D. Mo. Dec. Mar. 28, 2018)..................... 10

The Catholic Diocese of Nashville v. Hargan, No. 3:13-cv-01303, Doc. No.

88 (M.D. Tenn. Jan. 29, 2018) .................................................................. 12

Triune Health Grp., Inc. v. U.S. Dep’t of Health & Human Servs., 2013 U.S.

Dist. LEXIS 107648 (N.D. Ill. Jan. 3, 2013) ............................................ 11

Union Univ. v. Sebelius, No. 1:14-cv-01079-STA-egb (W.D. Tenn. Apr. 29,

2014) ......................................................................................................... 10

United States v. Anderson, 854 F.3d 1033 (8th Cir. 2017)........................... 20

United States v. Ballard, 322 U.S. 78 (1944) ............................................... 20

United States v. Christie, 825 F.3d 1048 (9th Cir. 2016) ............................. 20

United States v. Seeger, 380 U.S. 163 (1965) .............................................. 22

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Welsh v. United States, 398 U.S. 333 (1970) ............................................... 22

Wheaton Coll. v. Azar, No. 1:13-cv-8910 (N.D. Ill. Feb. 22, 2018) ............ 10

Winter v. Nat. Res. Def. Council., Inc., 555 U.S. 7 (2008) ......................... 7, 8

Wisconsin v. Yoder, 406 U.S. 205 (1972) ..................................................... 19

Zubik v. Burwell, 136 S. Ct. 1557 (2016) ......................................... 10, 12, 30

Zubik v. Burwell, No. 2:13-cv-01459, Doc. No. 94 (W.D. Pa. Oct 20, 2017)

................................................................................................................... 12

Statutes

22 U.S.C. § 7631(d) ...................................................................................... 23

42 U.S.C. § 1396u-2(b)(3)(B)(i) ................................................................... 23

42 U.S.C. § 2000bb–2000bb-4 ..................................................................... 19

42 U.S.C. § 2000cc–2000cc-5 ...................................................................... 19

42 U.S.C. § 2996f(b)(8) ................................................................................ 23

42 U.S.C. § 300a-7(b)(1)–(e)........................................................................ 23

Other Authorities

42 C.F.R. § 422.206 ...................................................................................... 23

48 C.F.R. § 1609.7001 .................................................................................. 24

77 Fed. Reg. 8,727 (Feb. 15, 2012) .............................................................. 12

78 Fed. Reg. 39,871 (July 2, 2013) .............................................................. 12

82 Fed. Reg. 47,862 (Oct. 13, 2017) ...................................................... 22, 24

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82 Fed. Reg. 47,835 (Oct. 13, 2017) ................................................ 17, 28, 30

American Catholic Universities Notre Dame and Georgetown Will Continue

Contraceptive Coverage in Insurance Plans Following Expanded Federal

Exemption, Conscience Magazine (Jan. 11, 2018) ................................... 15

Brief for Defendant-Appellants Alex M. Azar II, et al., California, et al. v.

Azar, et al., No. 18-15255 ........................................................................... 8

Brief of Amicus Curiae Am. Ass’n of Univ. Women, et al., California, et

al., v. U.S. Dep’t of Health & Human Servs., et al., No. 17-cv-05783-HSG

(N.D. Cal. Dec. 21, 2017) .................................................................. passim

Brief of Intervenor-Defendant-Appellant March for Life, California, et al. v.

March for Life Educ. & Def. Fund, No. 18-15166 ............................... 8, 11

Catholic Health Ass’n of the U.S., Women’s Preventive Health Services

Final Rule (June 28, 2013) ........................................................................ 13

Catholic Health Association of the United States, News Releases and

Statements ................................................................................................. 14

David Gibson, Catholic Hospitals and Birth Control: CHA at Odds with

Catholic Bishops on Contraception Mandate, The Huffington Post (July

10, 2013) ................................................................................................... 13

DePaul University Division of Student Affairs, Health Insurance ................ 9

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Elizabeth Ash, Facing Student Pressure, Georgetown Continues

Contraception Coverage in Insurance Plans, The Hoya (Dec. 3, 2017) .. 15

Fed. R. App. P. 29 ...................................................................................... 1, 2

Geneva College, Geneva Lawsuit Information............................................. 29

Georgetown University, 2017–2018 United Healthcare Insurance Company

Student Injury and Sickness Insurance Plan Description of Benefits ....... 14

Guttmacher Institute, The Cost of Contraceptive Insurance Coverage,

Guttmacher Policy Review (Mar. 1, 2003) ............................................... 16

Inés San Martín, Head of Catholic Health Association Says “Excessive

Treatment” Burdens Patients, Families, Crux (Nov. 19, 2017) ............... 14

Jennifer Haberkorn, Two Years Later, Few Hobby Lobby Copycats Emerge,

Politico (October 11, 2016) ................................................................. 27, 28

Luke W Goodrich & Rachel N. Busick, Sex, Drugs, and Eagle Feathers: An

Empirical Study of Federal Religious Freedom Cases, 48 Seton Hall L.

Rev. 353, 356 (2018) ................................................................................. 27

Michael Sean Winters, Catholic Health Association Says It Can Live with

HHS Mandate, National Catholic Reporter (July 9, 2013) ....................... 13

Notre Dame Faculty, Students to Retain Birth Control Coverage, Catholic

News Agency (Nov. 7, 2017) .................................................................... 15

St. John’s University, Health Insurance ......................................................... 9

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St. Leo University, 2017–2018 Student Injury and Sickness Insurance Plan

................................................................................................................... 14

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CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. 29(a)(4)(A), amicus curiae First Liberty

Institute certifies that it is a non-profit organization. It has no parent

corporations and does not issue stock.

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STATEMENT OF COMPLIANCE WITH RULE 29(a)

This brief is submitted pursuant to Rule 29(a)(2) of the Federal Rules

of Appellate Procedure with the consent of all parties.

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INTEREST OF AMICUS CURIAE

First Liberty Institute is a nonprofit, public interest law firm dedicated

to the defending religious liberty for all Americans.1 First Liberty provides

pro bono legal representation to individuals and institutions of all faiths —

Catholic, Islamic, Jewish, Native American, Protestant, the Falun Gong, and

others.

Over the past six years, First Liberty has represented multiple faith-

based organizations that hold sincere religious objections to portions of the

contraception mandate. We have a strong interest in the outcome of this

litigation because government compulsion to violate one’s conscience or

sincerely held religious beliefs threatens the ability of religious individuals

to participate in the marketplace on equal terms as others. Because of our

representation of a broader range of religious perspectives than those of the

particular plaintiffs in this case, our interest in free exercise reaches beyond

this particular dispute. Precedent that tramples on the right of conscience for

one faith impacts all others.

1
No party or party’s counsel authored this brief in whole or in part or
contributed money that was intended to fund preparing or submitting the
brief. No person, other than the amicus curiae, its members, or its,
contributed money intended to fund preparation or submission of this brief.

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SUMMARY OF THE ARGUMENT

The district court erred in relying upon the brief of amicus curiae

American Association of University Women (“AAUW”) to find irreparable

harm. See D. Ct. Op. at 25–26 (citing D. Ct. Dkt. No. 72). This brief is

limited to controverting the unsubstantiated and wildly inflated allegations

of the AAUW amicus brief regarding the scope and impact of the challenged

Interim Final Rule (“IFR”).

First, AAUW’s analysis omits essential facts in order to exaggerate

the IFR’s impact. AAUW ignores the fact that many of the specific entities it

claims will drop contraceptive coverage as a direct result of the IFR will not

be affected by the IFR at all because they are already protected by pre-

existing settlements or injunctions or because they do not have a health plan

subject to the mandate in the first place. The remainder of AAUW’s list have

chosen to provide contraceptive coverage through the accommodation, and

others merely have Christian individuals in leadership positions. AAUW’s

speculation that accommodated organizations will suddenly find the

accommodation unsatisfactory is guesswork at most. Thus, the district court

erred by repeating AAUW’s conclusion that the IFR affects a “‘wide and

potentially boundless range’ of employers,” D. Ct. Op. at 26 (citing D. Ct.

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Dkt. No. 72), when its brief does not identify even a single employer that is

certain to drop coverage as a result of the IFR.

The brief next ignores essential limitations to the IFR in order to

exaggerate the scope of its impact. The exemption is limited to those with

“sincerely held” beliefs, a time-tested fixture of religious liberty law that has

protected individuals of predominately minority faiths for decades. Next, the

exemption only applies to the extent of the employer’s objection, ensuring

that its scope does not sweep more broadly than necessary to protect

conscience rights. Moreover, the continued availability of the

accommodation process further minimizes the IFR’s practical effect on

employees, because the accommodation process has proven an acceptable

alternative for many conscientious objectors.

Finally, the remainder of AAUW’s brief constitutes nothing more than

speculation, which is insufficient as a matter of law to establish irreparable

harm. For instance, AAUW speculates that entities will manufacture

insincere religious or moral beliefs in order to take advantage of the IFR —

even though it is far more costly for employers to cover pregnancy-related

costs rather than contraceptive costs, and therefore they have no financial

incentive to do so. Just as reality did not bear out predictions of vast

numbers of for-profit companies taking advantage of the Hobby Lobby

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decision, so too there is no reason to assume that swarms of companies will

feign religious beliefs in order to take advantage of the exemption.

The Court should vacate the district court’s preliminary injunction

because of its reliance on speculative predictions, including AAUW’s,

regarding irreparable harm.

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ARGUMENT

Preliminary injunctive relief is “an extraordinary remedy never

awarded as of right.” Winter v. Nat. Res. Def. Council., Inc., 555 U.S. 7, 24

(2008). A plaintiff must demonstrate all four of the following: “[1] that he is

likely to succeed on the merits, [2] that he is likely to suffer irreparable harm

in the absence of preliminary relief, [3] that the balance of equities tips in his

favor, and [4] that an injunction is in the public interest.” Id. at 20. With

respect to the irreparable harm prong, a preliminary injunction requires that

the plaintiff demonstrate “irreparable injury is likely in the absence of an

injunction,” not that irreparable harm is merely possible. Id. at 22 (citing Los

Angeles v. Lyons, 461 U.S. 95, 103 (1983); Granny Goose Foods, Inc. v.

Teamsters, 415 U.S. 423, 441 (1974); O’Shea v. Littleton, 414 U.S. 488, 502

(1974)).

In finding the appellee states to have shown a likelihood of irreparable

harm, the district court relied in part on AAUW’s characterization of the

2017 IFR’s scope. See D. Ct. Op. at 25–26 (citing to AAUW Brief for the

proposition that a “‘wide and potentially boundless range’ of employers . . .

‘will be able to claim religious or moral exemptions’ under the 2017 IFRs”).

For the reasons that follow, AAUW’s brief argues at most that it is possible

for some employers to drop coverage — a far cry from the required showing

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that irreparable harm to the appellee states is likely.2 See AAUW Br. at 7

(arguing that “[i]t is entirely possible” that many employers would drop

contraceptive coverage). The Supreme Court has expressly rejected a

“possibility” standard of irreparable harm. Winter, 555 U.S. at 22. As the

following will demonstrate, AAUW’s speculative conclusions do not

support the district court’s preliminary injunction.

I. The Challenged IFR Will Not Affect Many of the Specific Entities
AAUW Asserts Will Drop Coverage.

As detailed below, the number of employers AAUW deems likely to

drop contraception coverage as a result of the IFR is grossly inflated. Many

of the brief’s specifically listed employers will not be affected by the IFR at

all because they are already exempt from providing the coverage to which

they object by virtue of separate injunctions or settlements. See AAUW Br.

2
Even if it were shown that a wide range of employers would drop some or
all contraceptive coverage as a result of the IFR, that still would be
insufficient on its own to demonstrate a likelihood of harm to the states. See
Brief for Defendant-Appellants Alex M. Azar II, et al., California, et al. v.
Azar, et al., No. 18-15255 at 27–28 (explaining that the employer’s health
plan must no longer cover the employee’s chosen contraceptive method; the
employee must not be able to receive such coverage from an alternate source
such as a family member’s plan; the employee must be eligible for a state-
funded program; and the employee must take advantage of that program);
see also Brief of Intervenor-Defendant-Appellant March for Life,
California, et al. v. March for Life Educ. & Def. Fund, No. 18-15166 at 12–
13 (listing each required showing to establish economic injury).

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at 6–9, 11–13. Some of the entities, such as DePaul University and St.

John’s University, do not have student health plans subject to the mandate.3

Other entities already provide contraceptive coverage through the

accommodation and have specifically stated that they will continue to do so

under the new rules. The remainder of the entities AAUW identifies either

have chosen to invoke the accommodation in the past or merely have

Christians in leadership positions. See, e.g., AAUW Br. at 11, 13 (citing,

inter alia, Hobby Lobby and In-and-Out Burger). AAUW’s speculation that

these entities will suddenly find the accommodation insufficient and drop

contraceptive coverage is guesswork at best.

A table specifically listing employers and colleges AAUW lists as

likely to drop contraception coverage that are already exempt through

separate injunctions or settlements follows.

3
See DePaul University Division of Student Affairs, Health Insurance,
[Link]
wellness/Pages/[Link] (“While we do not provide a student
health insurance plan, we encourage students to explore their options in the
Healthcare Marketplace and work with local community organizations to
provide support.”) (last visited Apr. 14, 2018); St. John’s University, Health
Insurance, [Link]
aid/tuition/health-insurance (providing accident and sickness insurance only)
(last visited Apr. 14, 2018).

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Figure 1

Employer Citations
Geneva College See Zubik v. Burwell, 136 S. Ct. 1557 (2016) (prohibiting
penalties for noncompliance with contraception mandate
pending settlement negotiation).
Wheaton Wheaton Coll. v. Azar, No. 1:13-cv-8910, Doc. No. 119
College at 3 (N.D. Ill. Feb. 22, 2018) (granting permanent
injunction).
School of the School of the Ozarks v. U.S. Dep’t of Health and Human
Ozarks Servs., 86 F. Supp. 3d 1066 (W.D. Mo. Jan. 13, 2015)
(prohibiting penalties for noncompliance under Zubik).
Colorado Colo. Christian Univ. v. Sebelius, No. 13-cv-02105-
Christian REB-MJW, Doc. No. 70 at 18–20 (D. Colo. June 20,
University 2014) (granting preliminary injunction), appeal
dismissed sub nom Colo. Christian Univ. v. Price, et al.,
No. 14-1329 (10th Cir. Oct. 18, 2017).
East Texas See Zubik v. Burwell, 136 S. Ct. 1557 (2016) (prohibiting
Baptist penalties for noncompliance with mandate).
University
Union Union Univ. v. Sebelius, No. 1:14-cv-01079-STA-egb,
University Doc. No. 15 (W.D. Tenn. Apr. 29, 2014) (granting
preliminary injunction); Order of Dismissal, No.
[Link]v:01079-STA-egb, Doc. No. 25 (W.D. Tenn. Nov.
16, 2017) (noting settlement).
Dordt College Dordt Coll. v. Sebelius, 22 F. Supp. 3d 934 (N.D. Iowa
May 21, 2014) (granting preliminary injunction); Dordt
Coll. v. Sebelius, 801 F.3d 946 (8th Cir. 2015)
(upholding preliminary injunction), vacated and
remanded Burwell v. Dordt Coll., 136 S. Ct. 2006 (2016)
(prohibiting penalties under Zubik); Judgment, Dordt
Coll. v. Burwell, No. 14-2726 (8th Cir. Oct. 27, 2017)
(noting settlement).
Heartland See Sharpe Holdings, Inc. v. U.S. Dept. of Health &
Christian Human Servs., No. 2:12-cv-00092-DDN, Doc. No. 84,
College 2013 U.S. Dist. LEXIS 181316 (E.D. Mo. Dec. 30,
2013) (granting preliminary injunction); Id. No. 2:12-cv-
00092-DDN, Doc. No. 160 (E.D. Mo. Dec. Mar. 28,
2018) (granting permanent injunction).

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Sharpe See Sharpe Holdings, Inc. v. U.S. Dep’t of Health &

Holdings, Inc. Human Servs., No. 2:12-cv-00092-DDN, Doc. No. 57
(E.D. Mo. Sep. 30, 2013) (granting preliminary
injunction); id. Doc. No. 160 (E.D. Mo. Dec. Mar. 28,
2018) (granting permanent injunction).
Eternal Word See Eternal Word Television Network, Inc. v. U.S. Dep’t
Television of Health & Human Servs., 756 F.3d 1339 (11th Cir.
Network 2014), modified in Order of October 3, 2016, No. 14-
12696 (11th Cir. 2016) (prohibiting penalties under
Zubik).
See Triune Health Grp., Inc. v. U.S. Dep’t of Health &
Triune Health Human Servs., 2013 U.S. Dist. LEXIS 107648 (N.D. Ill.
Group Jan. 3, 2013) (granting preliminary injunction); motion
to dismiss pending, Case No. 1:12-cv-06756, Doc. No.
147.

Many nonprofit religious organizations, including those listed in the

above table, are exempted from contraceptive coverage or penalties through

pre-existing injunctive relief or settlements. 4 In 2012 and 2013, the

4
In addition to the employers AAUW specifically names, many other
employers challenging the mandate are not subject to it by settlement or
injunction. See March for Life Br. at 20–21 (citing Archdiocese of St. Louis
v. Hargan, No. 4:13-cv-02300, Doc. No. 77 (E.D. Mo. Oct. 23, 2017);
Brandt v. Price, No. 2:14-cv-00681, Doc. No. 58 (W.D. Pa. Oct. 20, 2017);
Catholic Diocese of Biloxi, Inc. v. Burwell, No. 1:14-cv-00146, Doc. No. 32
(S.D. Miss. Oct. 23, 2017); Christian and Missionary Alliance Found., Inc.
v. Burwell, No. 2:14-cv-580, Doc. No. 79 (M.D. Fla. Nov. 3, 2017); Diocese
of Cheyenne v. Sebelius, No. 2:14-cv-00021, Doc. No. 64 (D. Wyo. Oct. 24,
2017); Diocese of Ft. Wayne-South Bend, Inc. v. Hargan, No. 1:12-cv-
00159, Doc. No. 136 (N.D. Ind. Oct. 23, 2017); Insight for Living Ministries
v. Burwell, No. 4:14-cv-00675, Doc. No. 56 (E.D. Tex. Oct. 31, 2017);
Persico v. Price, No. 1:13-cv-00303, Doc. No. 95 (W.D. Pa. Oct. 20, 2017);
Michigan Catholic Conf. v. Hargan, No. 1:13-cv-01247, Doc. No. 68 (W.D.
Mich. Nov. 2, 2017); Notre Dame Univ. v. Hargan, No. 3:13-cv-01276,
Doc. No. 86 (N.D. Ind., Oct. 24, 2017); Roman Catholic Archdiocese of New
York v. Hargan, No. 1:12-cv-02542, Doc. No. 122 (E.D.N.Y. Oct. 17,

11
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Department provided “safe harbor” periods for these nonprofits during

which it refrained from enforcing the mandate. See 77 Fed. Reg. 8,727 (Feb.

15, 2012); 78 Fed. Reg. 39,871 (July 2, 2013). After that period elapsed,

many of these employers obtained preliminary relief pending litigation. See,

e.g., Geneva Coll., et al. v. Sebelius, No. 2:12-cv-00207, Doc. No. 84 (W.D.

Pa. Apr. 19, 2013). Ultimately, the Supreme Court’s order in Zubik

prevented the Government from penalizing the objecting entities for failing

to provide the notice to which they objected until the litigation was resolved.

Zubik, 136 S. Ct. at 1560. The Department has since settled many of these

cases. 5 By virtue of those agreements, many of the employers, both

nonprofit and for-profit, which AAUW lists are not and have not been

subject to the contraception mandate, the present litigation notwithstanding.

2017); Catholic Charities Diocese of Ft. Worth, No. 4:12-cv-314, Doc. No.
127 (N.D. Tex. Jan. 11, 2018); Ave Maria Found. v. Hargan, No. 2:13-cv-
15198, Doc. No. 26 (E.D. Mich. Feb. 2, 2018); The Catholic Diocese of
Nashville v. Hargan, No. 3:13-cv-01303, Doc. No. 88 (M.D. Tenn. Jan. 29,
2018); Zubik v. Burwell, No. 2:13-cv-01459, Doc. No. 94 (W.D. Pa. Oct 20,
2017); Catholic Benefits Ass’n v. Hargan, Nos. Civ-14-240-R and Civ-14-
684-R, Doc. No. 184 (W.D. Okla. Mar. 7, 2018); Reaching Souls Int’l v.
Azar, No. 5:13-cv-1092-D, Doc. No. 95 (W.D. Okla. Mar. 15, 2018)).
5
See supra Figure 1; see also, e.g., Zoe Tillman, The Trump Administration
Agreed to Pay More Than $3 Million in Legal Fees to Settle Contraception
Mandate Lawsuits, BuzzFeed News (Jan. 9, 2018),
[Link]
pay-more-than-3-million?utm_term=.lr1vG38ve#.ljyGEb4G8.

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The Interim Final Rule, therefore, did not suddenly allow these

entities to drop contraception coverage they already carried, and the

preliminary injunction, by the same token, does not require them to provide

it. Thus, the IFR itself has no impact upon employees of these entities

seeking contraception coverage. Regardless of the merits of the Appellee-

states’ claims, the IFR does not change the status quo for the employees of

many of the organizations AAUW lists.

Next, several employers AAUW lists have maintained coverage under

the accommodation through the current plan year, and some have stated an

intention to continue to use the accommodation notwithstanding the IFR’s

exemption. AAUW’s list includes Catholic hospitals under the Catholic

Hospital Association, DePaul University, Georgetown University, St. John’s

University, and St. Leo University. See AAUW Br. at 6–7. Notably, the

Catholic Hospital Association (“CHA”) departed from other Catholic groups

in 2014 and determined that the accommodation ameliorated its religious

objections. 6 In the wake of the IFR, CHA has not issued a statement

6
See Catholic Health Ass’n of the U.S., Women’s Preventive Health
Services Final Rule (June 28, 2013),
[Link]
final-rule; see also Michael Sean Winters, Catholic Health Association Says
It Can Live with HHS Mandate, National Catholic Reporter (July 9, 2013),
[Link]
association-says-it-can-live-hhs-mandate; David Gibson, Catholic Hospitals

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departing from this position, and AAUW’s assumption that it will suddenly

find the accommodation insufficient is speculative at best. 7 DePaul

University and St. John’s University do not provide student health insurance

plans subject to the mandate. See supra n.3. Moreover, health insurance

plans at St. Leo University8 and Georgetown University9 cover contraception

through the 2018 plan year. As a result, at the very least, students and

employees of these colleges face no impending threat, and AAUW can only

speculate that the colleges will drop coverage in the future. Indeed,

Georgetown announced in December that it intends to continue to use the

and Birth Control: CHA at Odds with Catholic Bishops on Contraception
Mandate, The Huffington Post (July 10, 2013),
[Link]
control_n_3568874.html.
7
See generally Catholic Health Association of the United States, News
Releases and Statements [Link]
(containing no statement on the 2017 IFR); Inés San Martín, Head of
Catholic Health Association Says “Excessive Treatment” Burdens Patients,
Families, Crux, (Nov. 19, 2017),
[Link]
association-says-excessive-treatment-burdens-patients-families/ (explaining
that “the accommodation worked very well for [Catholic Health
Association] members, because quite frankly, we’ve always done what
we’re doing now”).
8 See St. Leo University, 2017–2018 Student Injury and Sickness Insurance

Plan at 2, [Link]
2018_Student_Health_Insurance.pdf?t=1523376004023 (providing
contraceptive coverage through the accommodation).
9
See Georgetown University, 2017–2018 United Healthcare Insurance
Company Student Injury and Sickness Insurance Plan Description of
Benefits at 6,
[Link]

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accommodation process going forward, the new exemption

notwithstanding.10 As a result, individuals insured by these entities (and the

states in which they reside) will not be affected by the IFR at all.

Finally, AAUW devotes pages to listing large corporations that it

speculates could claim the exemption, “whether because of a religious CEO,

a religious board of directors, or any number of other influences.” AAUW

Br. at 11–13. Singling out companies because they have Christians in

leadership positions, without anything more, does not establish that these

companies will take any particular action with respect to the IFR any more

than singling out companies that have Jewish, Muslim, or Buddhist

individuals in leadership. Such religious profiling is not competent evidence

and should be disregarded by the Court.

10
See American Catholic Universities Notre Dame and Georgetown Will
Continue Contraceptive Coverage in Insurance Plans Following Expanded
Federal Exemption, Conscience Magazine (Jan. 11, 2018),
[Link]
dame-and-georgetown-will-continue-contraceptive-coverage-in-insurance-
plans-following-expanded-federal-exemption/; see also Elizabeth Ash,
Facing Student Pressure, Georgetown Continues Contraception Coverage in
Insurance Plans, The Hoya (Dec. 3, 2017), [Link]
student-pressure-georgetown-continue-covering-contraception-health-
insurance-plans/; Notre Dame Faculty, Students to Retain Birth Control
Coverage, Catholic News Agency (Nov. 7, 2017),
[Link]
retain-birth-control-coverage-86263.

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In sum, because many of the employers AAUW specifically lists were

already exempt from the mandate or chose to use the accommodation

process, the IFR did not alter the status quo and, thus, does not threaten

irreparable harm.

II. The IFR’s Exemption is Limited, Well-Defined, and Within the

Traditional Scope of Conscientious Exemption Laws.

As AAUW rightly concedes, claiming the exemption will not cause

businesses to save money. AAUW Br. at 14. According to one study, “not

covering contraceptives in employee health plans would cost employers 15–

17% more than providing such coverage.”11 Nevertheless, AAUW argues

that numerous companies will be clamoring to lose money by fraudulently

invoking the exemption. Cf. infra Part III (describing in practical terms why

few businesses are likely to invoke the exemption).

Even if there were a significant risk of fraudulent conscientious

exemption claims — which there is not — the IFR’s exemption includes two

important limitations that cabin its scope and thus minimize the risk of fraud.

Borrowing longstanding criteria from the religious liberty context, the

11
Guttmacher Institute, The Cost of Contraceptive Insurance Coverage,
Guttmacher Policy Review (Mar. 1, 2003),
[Link]
coverage.

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exemption is limited to the extent of the objection and only applies to

“sincerely held beliefs.” See 82 Fed. Reg. 47,835 (Oct. 13, 2017).

Consequently, AAUW’s speculation that the IFR will result in a mass

exodus of nefarious employers from the realm of contraception coverage is

unfounded.

A. The IFR Employs Time-Tested Religious Exemption Criteria to

Limit the Extent and Eligibility for Exemptions.

The IFR includes two important limitations: 1) the exemption will

apply only “to the extent that an entity . . . objects” to complying with the

contraceptive mandate; and 2) that objection must be made on the basis of

“sincerely held religious beliefs.” 82 F.R. 47,835 (Oct. 13, 2017). The first

limitation restricts the extent of the exemption to the precise objection at

hand. As a result, an objecting entity will only be exempt from providing

those specific services it objects to providing. The IFR does not extend

automatic blanket exemptions to providing any and all contraceptive

services. While some entities do object to providing any contraceptive

coverage, see, e.g., Eternal Word Television Network, Inc. v. Sec’y of the

U.S. Dep’t of Health & Human Servs., 818 F.3d 1122, 1136 (11th Cir.

2016), many object only to specific kinds of contraceptives, see, e.g., Hobby

Lobby, 134 S. Ct. at 2765–66 (explaining that Hobby Lobby and Conestoga

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Wood objected only to four of the twenty FDA approved contraceptives).

Such entities would still be required to provide those contraceptives to which

they do not object. Thus, even if an employer is eligible for an exemption

under the IFR, it does not necessarily mean that its employees will have no

contraceptive coverage. Indeed, they may well have insurance coverage for

the most widely used contraceptives.

Secondly, the IFR’s criterion that the religious belief underlying the

exemption request be “sincerely held” constrains the exemption’s breadth

and prevents unmerited exemptions. “Sincerely held” is a longstanding term

of art in the religious liberty context. The criterion prevents opportunistic

claimants pretending to hold a religious belief —if there were any such

claimants in this context — from taking advantage of a religious

accommodation for which they are not eligible.

Religious liberty and the laws that protect it are concerned with

genuine religious exercise, not pretended religious exercise. Accordingly, in

order to receive a religious accommodation, claimants must actually hold the

religious belief they claim to hold. See Hobby Lobby, 134 S. Ct. at 2774 n.28

(“To qualify for RFRA’s protection, an asserted belief must be ‘sincere’; a

corporation’s pretextual assertion of a religious belief in order to obtain an

exemption for financial reasons would fail.”). This “sincerely held” criterion

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 Case: 18-15255, 04/16/2018, ID: 10838069, DktEntry: 35, Page 30 of 45

dates back decades in the Free Exercise Clause context. See, e.g., Wisconsin

v. Yoder, 406 U.S. 205, 209 (1972) (considering sincerity in a free exercise

claim). Sincerity endures in modern Free Exercise claims. See, e.g., Church

of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993)

(considering sincerity in a free exercise claim).

Likewise, the Religious Freedom Restoration Act (“RFRA”), 42

U.S.C. § 2000bb–2000bb-4, and the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc–2000cc-5,

both require that the claimant sincerely hold the religious belief at issue. See

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418,

430–31 (2006) (“RFRA requires the Government to demonstrate that the

compelling interest test is satisfied through application of the challenged law

‘to the person’ -- the particular claimant whose sincere exercise of religion is

being substantially burdened.”) (citing 42 U.S.C. § 2000bb-1(b)); Holt v.

Hobbs, 135 S. Ct. 853, 862 (2015) (“RLUIPA protects ‘any exercise of

religion, whether or not compelled by, or central to, a system of religious

belief,’ [42 U.S.C.] § 2000cc-5(7)(A), but, of course, a prisoner’s request for

an accommodation must be sincerely based on a religious belief and not

some other motivation.”).

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Accordingly, determining whether a claimed religious belief is

sincerely held is hardly a novel endeavor. Courts have been applying this

criterion for decades. See, e.g., United States v. Ballard, 322 U.S. 78, 87–88

(1944), reversed on other grounds in Ballard v. United States, 329 U.S. 187

(1946) (finding the sincerity of mail fraud defendants’ religious claims an

appropriate jury question — whether the defendants in good faith believed

what they claimed, not whether those claims were factually true); United

States v. Anderson, 854 F.3d 1033, 1035 (8th Cir. 2017) (“We note that a

reasonable observer may legitimately question how plausible it is that

Anderson exercised a sincerely held religious belief by distributing

heroin.”); United States v. Christie, 825 F.3d 1048, 1056 (9th Cir. 2016)

(explaining that a prima facie case under RFRA requires claimants to

demonstrate, inter alia, “that they sincerely hold those beliefs [they claim to

espouse], and do not simply recite them for the purpose of draping religious

garb” over non-religiously-motivated activity).

Indeed, employers that hold religious beliefs tend to manifest those

beliefs clearly, publicly, and over time. Hobby Lobby, for example, included

its religious beliefs in its corporate charter and manifested those beliefs over

many years. See Hobby Lobby, 134 S. Ct. at 2766; see also EWTN, 818 F.3d

at 1135 (“EWTN is a non-profit worldwide Catholic media network founded

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 Case: 18-15255, 04/16/2018, ID: 10838069, DktEntry: 35, Page 32 of 45

in 1981 by Mother Mary Angelica, a Catholic nun. . . . Its programming

includes . . . television and radio shows that support EWTN’s mission of

‘serv[ing] the orthodox belief and teaching of the Church as proclaimed by

the Supreme Pontiff and his predecessors.’”). As a result, the government

may have reason to be suspicious of an employer that suddenly asserts a

religious belief to gain an exemption without having manifested any prior

indication of such beliefs.

By building in a “sincerely held” criterion, the IFR provides a

mechanism with which the government can evaluate and restrict employers

that do not genuinely hold a religious belief from taking advantage of the

religious accommodation under false pretenses. Thus, the IFR’s exemption

is designed to harmonize its authority under the ACA with its obligations

under RFRA without creating a free pass for employers that may falsely

assert a religious belief in order to serve some ulterior motive, as AAUW

implies will occur. See AAUW Br. at 4–5.

B. Moral Exemptions Analogous to Religious Exemptions Are

Longstanding, Common, and Capable of Effective
Administration.

Moreover, the addition of an exemption for employers that object to

providing contraceptive coverage due to sincerely held moral beliefs is an

appropriate and definable analogue to the religious exemption. It extends an

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 Case: 18-15255, 04/16/2018, ID: 10838069, DktEntry: 35, Page 33 of 45

exemption to employers conscientiously opposed to providing contraception,

but who may not derive this conviction from a religious source. 82 Fed. Reg.

47,862 (Oct. 13, 2017) (providing an exemption to contraceptive insurance

requirements for eligible entities to the extent of the objection based upon

“sincerely held moral convictions”).

The federal government has historically provided exemptions and

accommodations based on sincerely held moral beliefs as well as sincerely

held religious beliefs. For example, during World War I, the government

extended eligibility for religious exemptions from combatant military

service to include individuals who held “personal scruples against war.” See

United States v. Seeger, 380 U.S. 163, 171 (1965) (describing 1917

conscientious objector rules). From time to time, courts have had to

determine whether untraditional and abstract moral beliefs were sincere and

supported an exemption or accommodation. See, e.g., Seeger, 380 U.S. at

167–68, 183–84 (weighing the sincerity of claimants’ claimed beliefs and

explaining that a conscientious exemption to military service was

appropriate where “the claimed belief occup[ies] the same place in the life of

the objector as an orthodox belief in God holds in the life of one clearly

qualified for exemption”); Welsh v. United States, 398 U.S. 333, 340, 343–

44 (1970) (noting that conscientious objector held nontraditional beliefs

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 Case: 18-15255, 04/16/2018, ID: 10838069, DktEntry: 35, Page 34 of 45

“with the strength of traditional religious convictions” and finding that he

was entitled to an exemption).

Moreover, the IFR’s moral exemption is in good company because

conscientious exemptions encompassing both religious and moral beliefs are

standard in federal laws regulating the healthcare industry. See, e.g., 42

U.S.C. § 300a-7(b)(1)–(e) (protecting medical professionals and trainees’

right to refuse to perform or assist in performing a sterilization or abortion

procedure contrary to their “religious beliefs or moral convictions”); 42

U.S.C. § 2996f(b)(8) (preventing certain grant money from being used to

force individuals or institutions to provide abortions contrary to their

“religious beliefs or moral convictions”); 42 U.S.C. § 1396u-2(b)(3)(B)(i)

(protecting the right of Medicaid managed care organizations from being

forced to provide counseling or referrals against their “moral or religious”

objections); 22 U.S.C. § 7631(d) (protecting the right of entities receiving

HIV/AIDS relief funds to refuse to participate in any activity to which it has

“a religious or moral objection”). Other federal regulations likewise account

for moral objections. See, e.g., 42 C.F.R. § 422.206(b) (providing that

organizations offering Medicare Advantage plans are not required “to cover,

furnish, or pay for a particular counseling or referral service” if the

organization “[o]bjects to the provision of that service on moral or religious

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grounds”); 48 C.F.R. § 1609.7001(c)(7) (providing that health plan

sponsoring organizations are not required to discuss treatment options

inconsistent with “their professional judgment or ethical, moral or religious

beliefs”).

The IFR is no different and recognizes that a sincere belief’s origin in

moral conviction instead of religious belief renders that conviction no less

valid or deserving of an exemption. Also, like its religious counterpart, a

qualifying moral conviction must be sincerely held, and the resulting

exemption only applies to the extent of that conviction. 82 Fed. Reg. 47,862.

As a result, a qualifying moral exemption claim must be made in good faith

and must be specific enough to determine the extent of the applicable

exemption.

The March for Life exemplifies the kind of employer this exemption

is designed to accommodate. The March for Life “is a non-profit, non-

religious pro-life organization” that “holds as a foundational tenet the idea

that life begins at conception.” March for Life v. Burwell, 128 F. Supp. 3d

116, 122 (D.D.C. Aug. 31, 2015). Accordingly, the March for Life objects to

supporting abortion “in any way” and “opposes coverage in its health

insurance plan for contraceptive methods it deems ‘abortifacients.’” Id. It

also only employs individuals who share its opposition to abortion,

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 Case: 18-15255, 04/16/2018, ID: 10838069, DktEntry: 35, Page 36 of 45

including contraceptives it deems abortifacients, but these employees may

derive their objections from a variety of religious and moral backgrounds.

See id. at 123. Forcing such an entity to comply with the contraceptive

mandate would force it to violate the core tenet it exists to advocate. Such an

entity is tailor-made for a moral exemption.

Like religious objections, sincere moral objections regarding abortion

or contraception tend to be consistently and clearly manifested over time and

would thus be difficult to fabricate. See, e.g., id. The same limitations

discussed above with respect to religious objections apply to moral

objections, and the status of the objection as moral instead of religious does

not affect the government’s ability to determine whether the belief is

genuine. Accordingly, the moral exemption does not create a magnet for

fraud as AAUW implies. See AAUW Br. at 10.

III. Most Businesses Are Incentivized to Retain Contraceptive

Coverage.

AAUW’s assertion that, in practice, businesses will abandon

contraceptive coverage in droves is unfounded. First, financial deterrents and

practical limitations naturally prevent floods of new exemption claims,

especially in the for-profit context. Because of a lack of financial incentives,

for-profit corporations manifesting sincere religious or moral objections to

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insuring contraception will be comparatively few and far between.

Moreover, many organizations seeking an exemption do not seek exemption

from all contraceptive coverage. Finally, assuming that employers

previously using the accommodation will not continue to use that

accommodation is speculative at best. Far from threatening irreparable harm,

the IFR in practice will not lead to a “boundless” number of employers

dropping coverage. See AAUW Br. at 9.

A. For-Profit Corporations Manifesting Sincere Religious Beliefs

Will Be Comparatively Few and Far Between.

Contrary to AAUW’s implication, the number of for-profit

corporations eligible for an exemption under the IFR is comparatively small.

Corporations, closely held or otherwise, generally do not suddenly assert

religious or moral convictions they have not previously demonstrated.

As the Supreme Court noted in Hobby Lobby, corporations

manifesting religious beliefs are atypical:

[I]t seems unlikely that the sort of corporate giants to which HHS
refers will often assert RFRA claims. . . . [N]umerous practical
restraints would likely prevent that from occurring. For example, the
idea that unrelated shareholders—including institutional investors
with their own set of stakeholders—would agree to run a corporation
under the same religious beliefs seems improbable.

134 S. Ct. at 2774. Most corporations will not be able to manifest religious

beliefs simply because their constituent components will not agree on a

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 Case: 18-15255, 04/16/2018, ID: 10838069, DktEntry: 35, Page 38 of 45

single, unified religious identity or moral conviction and, indeed, will have

no particular reason to do so. See id. As a result, the for-profit businesses

capable of utilizing the exemptions are comparatively small in number. To

illustrate, AAUW points to as many as eighty for-profit businesses that may

apply for the exemption. AAUW Br. at 11. Even assuming this number is

correct, it is a drop in the bucket compared to the millions of for-profit

businesses that call the United States home.

After the Supreme Court’s decision in Hobby Lobby, the dire

predictions of for-profit companies claiming exemptions en masse did not

come to fruition. See Jennifer Haberkorn, Two Years Later, Few Hobby

Lobby Copycats Emerge, Politico (October 11, 2016),

[Link]

employers-229627; see also Luke W. Goodrich & Rachel N. Busick, Sex,

Drugs, and Eagle Feathers: An Empirical Study of Federal Religious

Freedom Cases, 48 Seton Hall L. Rev. 353, 356 (2018) (“Contrary to

predictions that Hobby Lobby would open the floodgates of religious liberty

litigation, these cases remain scarce, making up only 0.6% of the federal

docket. And contrary to predictions that religious people would be able to

wield Hobby Lobby as a trump card, successful cases are even scarcer.”).

Moreover, employers have a financial incentive to insure contraception,

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 Case: 18-15255, 04/16/2018, ID: 10838069, DktEntry: 35, Page 39 of 45

given the significant cost differential between contraception and pregnancy

care leave.12 A company asserting an exemption does not make a profit off

of it. See id. Thus, a company mindful of its bottom line will have no interest

in asserting an exemption when it does not hold a sincere belief.

B. Many, if Not Most, of the Organizations Seeking an Exemption

Do Not Object to All Forms of Contraception.

Moreover, of the companies AAUW lists, many object only to a few

contraceptive methods. See, e.g., Hobby Lobby, 134 S. Ct. at 2765; see

AAUW Br. at 11 (listing Hobby Lobby, among others). Because the

exemption only applies to the extent of the objection, see 82 Fed. Reg.

47,835, those companies will not be permitted to cease providing all

contraceptive coverage, even if they do not opt to use the accommodation

process. Although the AAUW implies that all or nearly all employers

seeking an exemption will be able to drop all contraceptive coverage

entirely, this is not the case. See Haberkorn, supra Part III A (describing

employers seeking exemptions after Hobby Lobby: “About half of the

companies and schools objected to covering all forms of contraception. The

other half objected to covering a particular approach — most often, to

12
Guttmacher Policy Review, supra note 11, (“[N]ot covering
contraceptives in employee health plans would cost employers 15–17%
more than providing such coverage.”).

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methods they equate to abortion, such as emergency contraception, including

the morning-after pill, and certain intrauterine devices.”); see, e.g., Geneva

College, Geneva Lawsuit Information,

[Link] (“Geneva has and intends to

continue to provide coverage for birth control drugs that act before

conception. The lawsuit is directed toward abortifacient drugs that, although

classified by the FDA as contraceptives, act to induce abortions after life has

begun. These include the drugs Plan B and Ella, sometimes referred to as

‘morning-after’ or ‘week-after’ pills.”). Emergency contraception accounts

for only 0.2% of all contraceptive use. See Guttmacher Institute, Fact Sheet:

Contraceptive Use in the United States (September 2016),

[Link]

Thus, employers objecting only to emergency contraception are willing to

provide the vast majority of contraceptive methods. Employees of such

organizations still have a large menu of insured contraceptives from which

to choose.

C. Assuming that Employers Previously Using the Accommodation

Will Not Continue to Use that Accommodation Is Speculative at
Best.

Finally, AAUW’s conclusion that a significant number of previously

accommodated employers will stop using the accommodation process in the

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future is based entirely on speculation. Although it acknowledges that many

employers have been satisfied with the accommodation, AAUW claims “[i]t

is entirely possible that many of these healthcare providers will seek to

eliminate contraceptive coverage for their employees and dependents under

the Exemption Rules.” AAUW Br. at 7. Yet, AAUW provides no indication

suggesting that the employers that have been satisfied with the existing

accommodation process will not continue to use that process. 13 The

administrative burdens and costs to the company are identical — in either

situation, the company provides a notice to HHS and does not have to pay

for the contraceptive coverage. See 82 Fed. Reg. 47,835. Employers

dissatisfied with the accommodation have made their objections to that

process clear already, see, e.g., Zubik v. Burwell, 136 S. Ct. 1557 (2016), and

some employers have even announced their intention to continue to use the

accommodation.14

At bottom, the claim that currently accommodated employers will

stop using the accommodation relies on the assumption that the

13
Indeed, AAUW cites businesses’ efforts to obtain accommodations for the
proposition that they will stop using the accommodation under the IFR. See
AAUW Br. at 11–12 (citing, e.g., Conestoga Wood Specialties Corp. v.
Sec’y of the U.S. Dep’t of Health & Human Servs., 724 F.3d 377 (3d Cir.
2013).
14
Conscience Magazine, supra note 10 (explaining that Georgetown
University and Notre Dame University will continue to use the
accommodation.).

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accommodated employers do not act in good faith. AAUW provides no

evidence that employers asserting religious objections do so from some

unseemly ulterior motive to harm its female employees’ careers. Indeed, any

of AAUW’s purportedly nefarious employers could have easily and more

cheaply accomplished such a goal by dropping all insurance coverage. See

Hobby Lobby, 134 S. Ct. at 2776. In short, AAUW’s implication that many

religious employers will choose to invoke the exemption out of a desire to

harm women, rather than because of their sincerely held religious beliefs, is

thinly veiled religious bigotry.

In sum, the federal government’s decision to maintain contraceptive

coverage requirements for the vast majority of employers, while allowing

religious and conscience exemptions for a minority of dissenters, strikes a

rational balance of conflicting interests. The state appellees and their amici

have not demonstrated that this balance poses a likelihood of irreparable

harm.

CONCLUSION

For the foregoing reasons, this Court should vacate the district court’s

preliminary injunction. s/ Stephanie N. Taub

Stephanie N. Taub
DATED: April 16, 2018.

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CERTIFICATE OF COMPLIANCE

In accordance with Rule 32(a)(7) of the Federal Rules of Appellate

Procedure, the undersigned certifies that the accompanying brief uses a 14-

point, proportionally spaced Times New Roman font.

The undersigned further certifies that the brief contains 6,264 words,

exclusive of the portions of the brief excepted by Rule 32(f) of the Federal

Rules of Appellate Procedure. The undersigned used Microsoft Word for

Mac Version 16.12 to compute the word count.

DATED: April 16, 2018.

s/ Stephanie N. Taub
Stephanie N. Taub

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STATEMENT OF RELATED CASES

This case, 18-15144, has been consolidated with Case Nos. 18-15166

and 18-15255. I certify that I know of no other related cases pending in this

Court.

s/ Stephanie N. Taub
Stephanie N. Taub

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk

of the Court of the United States Court of Appeals for the Ninth Circuit by

using the appellate CM/ECF system on April 16, 2018.

I certify that all parties in the case are registered CM/ECF users and

that service will be accomplished by the CM/ECF system.

DATED: April 16, 2018.

s/ Stephanie N. Taub
Stephanie N. Taub