United States District Court, E.D. Missouri, Northern Division
D. NOCE UNITED STATES MAGISTRATE JUDGE.
action is before the court on the motion of plaintiffs CNS
International Ministries (CNS) and Heartland Christian
College (HCC) for permanent injunction and declaratory relief
following remand from the United States Court of Appeals for
the Eighth Circuit and the United States Supreme Court. (Doc.
138). For the reasons set forth below, plaintiffs' motion
is granted. An appropriate Judgment Order is entered
action was commenced on December 20, 2012, by certain
individual and corporate for-profit plaintiffs against the
Department of Health and Human Services (HHS), the Secretary
of HHS, the Department of the Treasury, the Secretary of the
Treasury, the Department of Labor, and the Secretary of
Labor. These plaintiffs claim the Affordable Care
Act's contraceptive mandate violates the
Religious Freedom Restoration Act (RFRA); the Free Exercise
and Establishment Clauses of the First Amendment to the
Constitution of the United States; plaintiffs' freedoms
of speech and association guaranteed by the First Amendment;
and the Administrative Procedures Act, 5 U.S.C. §
706(2). They sought a declaration from the court
that the ACA's contraceptive mandate and its enforcement
violate the First Amendment, the Fifth Amendment, RFRA, and
the APA. They also sought an order prohibiting the
enforcement of the mandate against them and moved for a
temporary restraining order and a preliminary injunction on
December 20, 2012. This court issued a temporary restraining
order on December 31, 2012, and then a preliminary injunction
on June 28, 2013.
then amended their complaint to add CNS and HCC, both
non-profit organizations and the current movants, as
plaintiffs on December 4, 2013. The temporary restraining
order and the preliminary injunction were expanded to include
these plaintiffs on December 30, 2013, a decision defendants
appealed as to CNS and HCC in February 2014.
decisions by the United States Supreme Court and changing
regulations necessitated supplemental briefing and letters to
the United States Court of Appeals for the Eighth Circuit.
(Doc. 144 at 7). On September 17, 2015, that Court affirmed
this Court's decision in favor of CNS and HCC. Sharpe
Holdings, Inc. v. Dept. of Health and Human Serv., 801
F.3d 927 (8th Cir. 2015). This created a split in the
circuits, and the Supreme Court granted petitions for
certiorari brought by other religious claimants in similar
cases on November 6, 2015. Defendants filed their petition
for a writ of certiorari on December 15, 2015, which the
Supreme Court granted on June 16, 2016, vacating the Eighth
Circuit's decision and remanding for further proceedings.
It vacated all of the circuits' decisions on this issue,
and it required the parties find an alternative solution to
the problematic “augmented accommodation” in
place at the time. Zubik v. Burwell, 136 S.Ct. 1557,
1560 (2016). On June 22, 2016, pursuant to the Zubik
opinion, the Court of Appeals vacated its September 17, 2015
opinion and reopened the case.
October 6, 2017, the government issued new interim final
rules (new IFRs) that greatly expanded the scope of
permissible religious objections to the contraceptive
mandate. Accordingly, on October 13, 2017, defendants
dismissed their appeal. On November 17, 2017, plaintiffs
moved for a permanent injunction from this court. Defendants
objected on December 8, 2017, asserting that the new IFRs
rendered the matter moot and that a permanent injunction was
December 15, 2017, the United States District Court for the
Eastern District Court of Pennsylvania issued a preliminary
injunction barring the application of the new IFRs.
Pennsylvania v. Trump, 281 F.Supp.3d 553 (E.D. Pa.
2017) On December 21, 2017, the United States District Court
for the Northern District of California followed suit.
California v. Health and Human Services, 281
F.Supp.3d 806 (N.D. Cal. 2017). On December 22, 2017, in the
case at bar, the government subsequently dropped its mootness
challenge, declined to advance any substantive defense of the
“augmented accommodation, ” and adopted no
position as to the appropriateness of permanent injunctive
relief in this case. (Doc. 152 at 2).
Zubik, the Supreme Court directed that “the
parties on remand should be afforded an opportunity to arrive
at an approach going forward that accommodates
petitioners' religious exercise while at the same time
ensuring that women covered by petitioners' health plans
‘receive full and equal health coverage, including
contraceptive coverage.'” Zubik, 136 S.Ct.
at 1560. Shortly thereafter, the government expressed its
opinion that: “there [is] ‘no feasible approach .
. . at this time that would resolve the concerns of religious
objectors, while still ensuring that the affected women
receive full and equal health coverage, including
contraceptive coverage.'” California, 281
F.Supp.3d at 818 (quoting Department of Labor, FAQs about
Affordable Care Act Implementation Part 36 (Jan. 9,
2017)). Insofar as the new IFRs are now presented as the
government's position, they are presently enjoined from
enforcement by District Courts in Pennsylvania and
California. See Pennsylvania, 281 F.Supp.3d at 585;
California, 281 F.Supp.3d at 832.
the parties before this Court are “[returned] to the
state of affairs before October 6, 2017 . . . the exemption
and accommodation as they existed following the
Zubik remand remain in effect, as do any court
orders enjoining Defendants from enforcing those rules
against specific plaintiffs.” California, 281
F.Supp.3d at 832-33; see also Pennsylvania, 281
F.Supp.3d at 585 (“A preliminary injunction will
maintain the status quo: those with exemptions or
accommodations prior to October 6, 2017 will maintain their
status, those with injunctions preventing enforcement of the
Contraceptive Mandate will maintain their injunctions, but
those with coverage will maintain their coverage as
Court is mindful of the Supreme Court's statement that
expresses no view on the merits of the cases. In particular,
the Court does not decide whether petitioners' religious
exercise has been substantially burdened, whether the
Government has a compelling interest, or whether the current