United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge
case involves a dispute about the validity of two Interim
Final Rules (“IFRs”) issued by the United States
Department of Health and Human Services, the United States
Department of the Treasury and the United Stated Department
of Labor (collectively “defendants” or “the
departments”) on October 6, 2017. The Commonwealth of
Massachusetts (“plaintiff” or “the
Commonwealth”) alleges that the departments'
issuance of the IFRs violates the Administrative Procedure
Act (“APA”) and the United States Constitution.
The IFRs expand the religious exemption to the Affordable
Care Act's (“ACA”) contraceptive mandate and
create a new moral exemption to that mandate.
College, a “Christ-centered institution of higher
learning located in Sioux Center, Iowa, ” and March for
Life Education and Defense Fund (“March for
Life”), a “pro-life, non-sectarian advocacy
organization” located in Washington, D.C., are
employers that wish to avail themselves of, respectively, the
expanded religious exemption and the moral exemption. Both
employers seek to avoid having to provide certain hormonal
drugs and devices, perceived to be abortifacients, which are
required by the contraceptive mandate.
before the Court is the motion to intervene of Dordt College
and March for Life (collectively “putative
intervenors”). Because the putative intervenors have
failed to establish that their interests will not be
adequately represented by the named defendants, that motion
will be denied.
Dordt College and March for Life
College is a Reformed Christian institution of higher
education located in Sioux Center, Iowa. The College is a
non-denominational agency of the Christian Reformed Church of
North America (CRCNA). An incorporated society composed
primarily of the CRCNA owns and controls the College. The
College “unreservedly shares the Christian Reformed
Church's religious views regarding abortion.” That
includes the belief that the procurement of, participation
in, facilitation of, or payment for abortion (including
abortion-causing drugs and devices like Plan B and ella)
violate the Sixth Commandment and is inconsistent with the
dignity conferred by God on creatures made in His image.
College also fulfills its religious commitments by providing
health insurance to employees and their dependents and to
students through a student health plan. The employee health
plan offers various FDA-approved contraceptive methods but
“excludes ella and Plan B, which can and sometimes do
act as abortifacients.” March for Life is a nonprofit
advocacy group that exists “to oppose the destruction
of human life at any stage before birth, including by
abortifacient methods.” The organization,
“[based] on scientific fact and medical knowledge . . .
holds as a basic tenet that human life begins at
conception.” Accordingly, March for Life is morally
opposed to providing coverage for abortions or abortifacients
in its health insurance plan. The organization opposes
coverage of certain hormonal drugs and devices included in
the ACA's contraceptive mandate that “may prevent
or dislodge an implanted human embryo after fertilization,
thereby causing its death.” B. The
contraceptive mandate The ACA generally requires
that employer-sponsored healthcare plans include a range of
preventive care services on a no-cost basis (“the
preventive services requirement”). See 42
U.S.C. §§ 18022 & 300gg-13. That requirement
mandates no-cost coverage
with respect to women, . . . as provided for in comprehensive
guidelines supported by the Health Resources and Services
S. Amdt. 2791, 111th Congress (2009-2010).
instead of including specific preventive care services,
Congress delegated authority to HRSA, an agency within HHS.
HRSA and HHS enlisted the Institute of Medicine
(“IOM”), which convened a committee to assess
what preventive services should be included. The IOM
recommended that the services include
the full range of Food and Drug Administration-approved
contraceptive methods, sterilization procedures, and patient
education and counseling for women with reproductive
IOM Report at 104.
when the HRSA promulgated its Women's Preventive Services
Guidelines in August 2011, non-exempt employers became
required to provide “coverage, without cost sharing,
” for “[a]ll Food and Drug
Administration-approved contraceptive methods, sterilization
procedures, and patient education and counseling”
(“the contraceptive mandate”). Those guidelines
went into effect in August, 2012. The HRSA updated the
Women's Preventive Services Guidelines in December 2016,
reaffirming that the Guidelines should continue to require
full coverage for contraceptive care and services.
Accommodations for religious objections to the contraceptive
2011, the relevant federal Departments issued regulations
automatically exempting churches and their integrated
auxiliaries, conventions and associations of churches and the
exclusively religious activities of religious orders from the
contraceptive care requirement.
2013, the Departments issued regulations providing an
accommodation for objecting religious non-profit
organizations. The accommodation created a system whereby
insurers and third parties paid the full cost of
contraceptive care and employees received seamless coverage
(“the accommodation process”). That process was
expanded to cover closely held, for-profit companies in
response to Burwell v. Hobby Lobby Stores, Inc., 134
S.Ct. 2751 (2014), in which the Supreme Court held that the
contraceptive mandate violated the Religious Freedom
Restoration Act (“RFRA”) for certain
closely-held, for-profit employers. The Court held that the
“HHS contraceptive mandate substantially burden[ed] the
exercise of religion.” Id. at 2775 (internal
quotation omitted) (citing 42 U.S.C. § 2000bb-1(a)). The
accommodation process, the Court explained, was a “less
restrictive means” of furthering the government
interest and thus RFRA required that the accommodation be
expanded to include certain closely held corporations.
Id. at 2780.
separate series of cases, religious organizations such as
universities and healthcare providers that did not perform
“exclusively religious activities” challenged the
legality of the accommodation process itself. See Zubik
v. Burwell, 136 S.Ct. 1557 (2016). In May, 2016, those
cases were remanded to their respective circuit courts for
further consideration of whether the accommodation process
could be altered to address the religious employers'
concerns while still providing seamless contraceptive
coverage. In January, 2017, after reviewing more than 50, 000
comments, the Departments announced that the answer was
“No”. No alternative, the Departments explained,
would pose a lesser burden on religious exercise while
ensuring contraceptive coverage.