, ) ) vs. ) Case No. 13-3528 ) U.S. DEPARTMENT OF HHS, et al., ) ) Appellees. ) APPELLANTS’ MOTION FOR A PRELIMINARY INJUNCTION PENDING APPEAL PURSUANT TO RULE 8, FED. R. APP. P. Timothy Belz #MO-31808 J. Matthew Belz #MO-61088 OTTSEN, LEGGAT & BELZ, L.C. 112 South Hanley, Second Floor St. Louis, Missouri 63105-3418 Phone: (314) 726-2800 Facsimile: (314) 863-3821 Thomas L. Brejcha Peter Breen THOMAS MORE SOCIETY 19 S. La Salle Street, Suite 603 Chicago, IL 60603 Phone: (312) 782-1680 Kevin Edward White KEVIN EDWARD WHITE & ASSOCIATES 77 W. Wacker Drive, Suite 4800 Chicago, IL 60601 Phone: (312) 606-8602 Attorneys for Appellants Paul Wieland and Teresa Wieland

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I. Introduction And Summary Of Argument Beginning January 1, 2014, the Patient Protection and Affordable Care Act (“ACA”) and implementing regulations require that Paul and Teresa Wieland provide health coverage to their dependents—three daughters, ages 13, 18 and 19— including coverage for contraceptives, abortion-inducing drugs, sterilization and related counseling (“Mandate”). This coverage, abhorrent to the Wielands’ Catholic religion, is mandated to continue until their dependent daughters are 24. To date, this Court and three other circuits have held that for-profit employers are likely to prevail on their claims under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq., that their religious freedom is substantially burdened when forced by the government to provide such coverage to employees.1 The Wielands’ religious freedom, as an employee (Paul), and as parents (Paul and Teresa), is also protected under RFRA—and every bit as much as an employer’s. This Court ruled in Annex Med. v. Sebelius, 2013 WL 1276025 (8th Cir. 2013) and O’Brien v. U.S. Dep’t of HHS, Order, No. 12-3357 (8th Cir. Nov. 28, 2012) that for-profit employers were entitled, pending resolution of their appeals,2
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! "!Forty-four (44) for-profit lawsuits have been filed, of which thirty-two (32) have

resulted in injunctive relief against the Mandate and six (6) in denials, with the remainder undecided or otherwise disposed of. The Beckett Fund, available at (last visited Nov. 24, 2013). Like this Court, other circuit courts have granted for-profit employers preliminary injunctions pending appeal, thus temporarily reversing district court denials of

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to injunctive relief against enforcement of the Mandate. The employers claimed that the Mandate requires, under pain of fines, that they provide coverage to employees that includes religiously abhorrent contraceptive coverage. Prior to August 1, 2013, the Wielands’ health plan excluded contraceptive coverage. But on that date, Paul Wieland’s plan provider, the state-run Missouri Consolidated Health Care Plan (“MCHCP”), moved the Wielands into an ACAcompliant plan that includes the objectionable coverage, citing the ACA as the reason. Thus, as in the employer cases, the ACA is not just imposing on the Wielands’ daughters objectionable coverage for contraception and abortifacients; it is also forcing Paul and Teresa Wieland themselves to facilitate and participate in the provision of such religiously abhorrent coverage to their children. II. Procedural Background On August 14, 2013, the Wielands filed a Complaint alleging that the Mandate violates RFRA, among other laws. R. 1. On August 20, they filed a

preliminary injunctions in similar cases. Grote v. Sebelius, 708 F.3d 850 (7th Cir. 2013); Korte v. Sebelius, 2012 WL 6757353 (7th Cir. 2012); Gilardi v. U.S. Dep’t of Health & Human Servs., No. 13-5069 (D.C. Cir. Mar. 29, 2013) (Dkt. # 24). These preliminary injunctions pending appeal have recently been followed by decisions, after full hearing, in favor of the RFRA claimants. Korte v. Sebelius, ___ F.3d ___, 2013 WL 5960692, *24 (7th Cir. Nov. 8, 2013) (consolidating Grote and Korte, supra, and reversing and remanding both cases with instructions to enter preliminary injunctions for the RFRA claimants); Gilardi v. Dept. of HHS, ___ F.3d ___, 2013 WL 5854246, *8 (D.C. Cir. Nov. 1, 2013) (reversing district court’s denial of preliminary injunction).

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motion for injunctive relief, requesting that the government be enjoined from requiring them to provide contraceptive coverage to their daughters. On October 16, the district court dismissed Plaintiffs’ Complaint, with prejudice. On October 29, the district court denied the Wielands’ motion, filed pursuant to Fed. R. App. P. 8, to enjoin enforcement of the Mandate pending this appeal. III. Factual Background A. The ACA, The Mandate And Its Exceptions As of January 1, 2014, the ACA requires, under pain of fines, that the Wielands provide health coverage for themselves and their dependents. 26 U.S.C. § 5000A(a), (c).3 Absent such coverage, the Wielands will be subject to such fines whether or not they actually claim their daughters as dependents on their tax returns, 78 Fed. Reg. 53646, 53657 (August 30, 2013), until their daughters are 24. Id.; 26 U.S.C. 152. The coverage required includes all FDA-approved “contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.’’ 77 Fed. Reg. 8725 (Feb. 15, 2012). Not everyone is required to comply with this Mandate. “Grandfathered” plans, i.e., plans that have not undergone any of a defined set of changes, are

In Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012), the Court upheld this “individual mandate.” Justice Ginsburg cautioned, however, that “[a] mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause.” Id. at 2624 (Ginsburg, J., concurring in part, dissenting in part).

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exempt. See 75 Fed. Reg. 41726, 41731 (July 19, 2010). Also exempt are “religious employers.” 78 Fed. Reg. 39870, 39874 (July 2, 2013). Because employers with fewer than fifty full-time employees have no obligation to provide health coverage, they are also effectively exempt from the Mandate. 26 U.S.C. § 4980H(c)(2)(A). And individuals who are members of a “recognized religious sect or division” that conscientiously objects to any acceptance of public or private insurance funds, or are members of a “health care sharing ministry,” are exempt from the requirement to obtain any coverage, and thus are also effectively exempt from the Mandate. 26 U.S.C. §§ 5000A(d)(2)(A)(i), (ii), (B)(ii). As a result, and by the government’s own estimates, the challenged regulations contain exemptions that exclude upwards of “tens of millions of people” from contraceptive coverage. Hobby Lobby Stores v. Sebelius, 723 F.3d 1114, 1143 (10th Cir. 2013). But there are no exemptions for the Wielands. B. The Wielands4 The Wielands have three daughters, ages 13, 18 and 19. As devout Catholics, the Wielands sincerely believe that life begins at conception, is sacred and worthy of protection, and that therefore abortifacients are gravely immoral. So, too, are contraception and sterilization. Their Catholic faith prohibits them from participating, directly or indirectly, in providing coverage for contraception,

The facts contained herein are supported by the declarations of Paul Wieland, R. 4-1 and 40-1.

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sterilization, or abortifacients, such as Plan B (the “morning-after pill”), ella (the “week-after pill”), and copper IUDs. As a member of the Missouri House of Representatives, Paul Wieland’s family’s health insurance coverage is an earned benefit. Coverage is provided by the State of Missouri, through MCHCP. Paul and Teresa Wieland pay a portion of the premiums for this coverage; the State pays the remainder. Between January 2011, when the Wielands’ coverage began, and August 1, 2013, their plan did not include coverage for contraceptives. This was because the Wielands opted out of such coverage per their statutory right. Mo. Rev. Stat. § 191.724. On July 16, 2013, the MCHCP board concluded that the opt-out was “in direct conflict with the ‘contraceptive mandate’ in the Affordable Care Act” and would accordingly be discontinued. Ex. 1, MCHCP Minutes, July 16, 2013, p. 6. On July 18, 2013, MCHCP sent the Wielands a letter giving notice that “[e]ffective August 1, 2013, you will be placed in the corresponding medical plan that includes contraception and sterilization coverage in accordance with federal law.” Ex. 2. IV. ARGUMENT The standard for injunctions pending appeal is identical to the preliminary injunction standard. Shrink Missouri Gov’t PAC v. Adams, 151 F.3d 763, 764 (8th Cir. 1998). This familiar standard is set out in Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1991) (en banc). The Wielands satisfy all four

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factors. But first, they address the issue of standing, which is where the district court erred legally and clearly erred to the extent it made any factual findings. A. The Wielands Have Standing. 1. The Wielands Have Demonstrated A Causal Link Between the ACA And Their Injury. The district court found a lack of causation between the ACA, on the one hand, and MCHCP shifting the Wielands to a plan that includes contraceptive coverage, on the other: “First . . . [b]ecause Plaintiffs’ alleged injuries are linked with the independent discretionary actions of the State and MCHCP, neither of which are parties to this action or before this Court, they allege only indirect causation between the Mandate and their alleged injuries.”5 Ex. 3, Order, Oct. 16, 2013, pp. 5-6. This was error. The shift was not discretionary, but required by the ACA. To satisfy the causation requirement of standing, the Wielands’ must show that their “injury is ‘fairly traceable’ to the actions of the defendant.” Bennett v. Spear, 520 U.S. 154, 162 (1997) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561 (1992)). While “it does not suffice if the injury complained of is ‘th[e] result [of] the independent action of some third party not before the court,’ . . . that does not exclude injury [to the Wielands] produced by determinative or

The Wielands informed the district court that, despite the fact that the State and MCHCP were mere conduits for the federal government’s regulation and not the cause of the Wielands’ injury, they had no objection to adding the State or MCHCP as parties if the court so desired. R. 28, p. 4, n. 2. The court responded by dismissing the Wielands’ case, without a hearing and with prejudice.

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coercive effect [by the ACA] upon the action of someone else [MCHCP].” Id. at 169 (citing Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976) and Lujan, at 560-61) (bracketed content added). Courts should not “equate[] injury ‘fairly traceable’ to the defendant with injury as to which the defendant's actions are the very last step in the chain of causation.” Bennett, at 168-69. The district court’s references to “the discretionary actions of the State and MCHCP” and “indirect causation” (Ex. 3, pp. 5-6) were erroneous because there was no such discretion, but rather only affirmative, unattenuated causation from Defendants’ threatened enforcement of the ACA to MCHCP to the Wielands. MCHCP’s action, converting the Wielands’ plan to one that included contraceptive coverage, was required by federal law. The Mandate complained of removes any possible discretion on the part of Missouri officials or MCHCP. MCHCP admitted this, in a July 18, 2013 letter to the Wielands stating that MCHCP was shifting the Wielands to a health plan that included the abhorrent contraceptive coverage, explaining that under federal law “MCHCP must provide contraception and sterilization coverage in all medical plans it offers.” Ex. 2. MCHCP’s official minutes from July 16, 2013, just two days before the letter to the Wielands was mailed, also affirmed the ACA as the sole motivating cause: Before the board today are emergency rescissions for 22 CSR 10-2.130 and 22 CSR 10-3.130, titled Additional Plan Options, as well as corresponding proposed rule rescissions as required by law. The effect of this rule rescission is to eliminate MCHCP plans without contraceptive coverage. 7
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This rule change is necessary in light of the recent court decision issued May 22, 2013, and became [sic] final June 22, 2013, that invalidated various provisions of SB 749 enacted last September requiring health carriers and group health plans in Missouri to offer a health benefit plan option that excluded coverage for contraception and sterilization to employees in Missouri if those services were contrary to the employee’s religious beliefs or moral convictions. The recent federal court decision concluded the provisions containing that requirement were void under the United States Constitution and in direct conflict with the “contraceptive mandate” in the Affordable Care Act unless an employer is exempt from this requirement under federal law. MCHCP is subject to the same provisions of federal law that require the offering of contraceptives at zero cost sharing. MCHCP does not qualify for any federal exemption from this requirement. To continue offering a plan that is contrary to federal law puts MCHCP and its assets at risk. Therefore, MCHCP staff recommends that the board authorize the Executive Director to file emergency and proposed rule rescissions of 22 CSR 10-2.130 and 22 CSR 10-3.130, to be effective as soon as possible and to take all necessary steps to implement the elimination of the no contraceptive plans, moving affected individuals from the plan they chose without contraception to the same plan with contraception and notifying these members of the change, the reason for the change and the impact of this change on them. If the Board approves this action, we anticipate the changes will be effective Aug. 1 so that we are able to hit the July 30 payroll for any prospective premium adjustments. Ex. 1, MCHCP Minutes, July 16, 2013, pp. 6-7 (emphasis added).6 7 The direct link between the Mandate and MCHCP changing the Wielands’ plan is undeniable. There were no “independent discretionary actions.” MCHCP changed the plan in order to avoid violating the ACA and facing fines.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 6 !The “recent court decision” referred to in the minutes is Missouri Ins. Coal. v.

Huff, 2013 WL 2250430 (E.D. Mo. May 22, 2013), discussed infra.

The emergency rescission, which cites the ACA, is attached hereto as Exhibit 4. 8
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The district court stated that “Plaintiffs suggest that the district court’s decision in Missouri Insurance Coalition v. Huff, 2013 WL 2250430 (E.D. Mo. May 22, 2013), establishes causation.” Ex. 3, p. 7. The Plaintiffs made no such suggestion, citing Huff in their briefs to note only that (a) the decision did not address the rights of employees under another opt-out statute, Mo. Rev. Stat. § 191.724, and (b) the case clarified for MCHCP—as evidenced in the official board minutes—that portions of Mo. Rev. Stat. § 376.1199 were preempted by the ACA and thus there was no contraceptive coverage opt-out ability for non-exempt individuals and entities under that statute. R. 4, p. 1, n.1; R. 28, p. 5. Moreover, the injurious fines the Wielands face if they do not provide the religiously abhorrent coverage to their daughters, are also “traceable” to the ACA. Hobby Lobby, at 1126 (standing found because Hobby Lobby “face[d] an imminent loss of money, traceable to the contraceptive-coverage requirement.”). 2. The Requested Relief Would Redress Plaintiffs’ Injury. Still on the issue of standing, the district court said, “Second, the Court will consider whether Plaintiffs sufficiently allege facts which, if true, would show that their injuries are likely to be redressed by the remedy they seek.” Ex. 3, p. 9. The court cited Allen v. Wright, 468 U.S. 737, 758-59 (1984), for the proposition that likelihood of redress must be “more than speculative.” Then, against the uncontroverted facts, it found the Wielands’ prospects for redress speculative. Id.

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To support this finding, the court first found that the State and MCHCP “would retain discretion not to offer Mr. Wieland a health plan that excludes contraception and abortion.” Id. This too is error. If and when the requested injunction is granted, Mo. Rev. Stat. § 191.724 (Ex. 5) affirmatively requires that MCHCP and the State allow the Wielands to opt out of contraceptive coverage. In addition to § 191.724.2-3 prohibiting discrimination against objecting individuals, § 191.724.4 specifically bars “governmental entit[ies]” and “entit[ies] acting in a governmental capacity,” such as the State-created MCHCP, from compelling others to obtain religiously abhorrent contraceptive coverage, or discriminating against objecting individuals (e.g., by refusing to offer contraceptive-free coverage to employees who are eligible under a religious exemption—granted judicially or administratively). There could be no more blatant case of discrimination than for MCHCP to say, “If you want contraceptive coverage we will provide you a policy, but if you don’t want contraceptive coverage, even for religious reasons, we will not provide you a policy.” MCHCP thus will have to provide the Wielands with contraceptive-free coverage. Inexplicably, the district court rejected the argument that the for-profit employers, which have been successful within the Eighth Circuit, face the same issue—finding an insurance company that will give them a contraceptive-free plan. The court below argued “that the plaintiffs in those matters were employers

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who themselves were required to provide contraception coverage in the health plans they offered their employees.” Ex. 3, pp. 9-10. This distinction does nothing to refute the Wielands’ point—that Annex Medical, for instance, obtained an injunction but it, like the Wielands, still must find a carrier to provide such a plan. Even if arguendo the district court’s distinction had merit,8 it runs out of merit for certain on January 1, 2014,9 when the individual mandate, running directly and immediately to the Wielands, requires that Paul and Teresa Wieland provide health coverage (and thus contraceptive coverage) to their daughters just as employers must for employees. In Annex Medical, this Court noted that Annex Medical had, as of January 2013, been “unable to secure a plan without the objectionable coverage, because the statute and regulations require all insurers to include such coverage in all group plans.” Annex Med., at *1. But even with its injunction, Annex Medical must find a carrier that provides contraceptive-free coverage, and this without a

The district court’s distinction without a difference is also factually incorrect. Stuart Lind (of Annex Medical) and Frank O’Brien (of O’Brien Industrial Holdings) are among those given injunctions by this Court, and Charles Sharpe (owner) and Rita Wilson and Judi Schaefer (employees) of Sharpe Holdings are among those given injunctions by the Eastern District. See generally Annex Medical; O’Brien; Sharpe Holdings v. U.S. Dept. of HHS, 2012 WL 6738489 (E.D. Mo. 2012). None of these individuals is specifically regulated by the Mandate, yet there was standing to sue. This is because the question under RFRA is whether religious exercise is burdened, without regard to how direct or indirect the burden is.

Prior to January 1, 2014, Plaintiffs provide health coverage to their daughters in significant part because of their religious duty to do so. R. 40-1, ¶ 2.

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Minnesota statute comparable to Mo. Rev. Stat. § 191.724. The Eighth Circuit nevertheless granted Annex Medical an injunction.10 Although redressability for the Wielands is certain, given the opt-out rights guaranteed by Mo. Rev. Stat. § 191.724, the prospect of redress does not have to be inevitable to give rise to Article III standing. Redressability requirements are satisfied if the requested relief provides “a significant increase in the likelihood that the plaintiff would obtain relief that directly redresses the injury suffered.” Utah v. Evans, 536 U.S. 452, 464 (2002) (emphasis added); Metro. Washington Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 265 (1991) (finding standing where requested relief makes redress “likely”). MCHCP has shown how it acts without the ACA: it provided the Wielands with a contraceptive-free policy. If the Wielands’ requested relief is granted, there is not a scintilla of evidence that MCHCP will not again provide such coverage. Indeed, § 191.724 requires it. And even if § 191.724 did not, a court-ordered exemption for the Wielands would “provide a significant increase in the likelyhood” of obtaining a satisfactory plan. Evans, at 464. For example, American Mfg

Although there were no insurance companies who were parties in Annex Medical, the Eighth Circuit issued an injunction which granted protection to the health insurance companies that would offer contraceptive-free insurance to the plaintiffs: “The appellees are enjoined, pending resolution of this appeal, from enforcing the mandate of 42 U.S.C. § 300gg–13(a)(4) and its implementing regulations against Lind, Annex Medical, and any health insurance issuer when offering group health insurance coverage to Annex Medical.” Annex Med., at *3 (emphasis added).

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Company in Minnesota was able to use its April 2013 injunction to obtain contraceptive-free coverage from its carrier, Medica. Ex. 6, Declaration of Gregory E. Hall. Finally, as of January 1, 2014, the requested injunction will provide a separate and independent form of direct, unattenuated redress to the Wielands, namely: the Defendants will be forbidden from imposing a fine on the Wielands for failing to provide their daughters with the religiously abhorrent coverage. B. Plaintiffs Are Likely To Prevail On The Merits Of Their RFRA Claim. The government may substantially burden the exercise of religion under RFRA only if “it 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.” 42 U.S.C. § 2000bb1(b). In other words, the government must satisfy strict scrutiny. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430 (2006). 1. The Contraceptive Mandate Imposes A Substantial Burden On Plaintiffs’ Religious Exercise. To trigger RFRA’s protections, the Wielands must show that a federal policy or action substantially burdens their sincerely held religious beliefs. United States v. Ali, 682 F.3d 705, 709 (8th Cir. 2012). A federal law “substantially burdens” an exercise of religion if it compels one “to perform acts undeniably at

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odds with fundamental tenets of [one’s] religious beliefs,” Wisconsin v. Yoder, 406 U.S. 205, 218 (1972), or “put[s] substantial pressure on an adherent to modify his behavior and violate his beliefs.” Thomas v. Review Board, 450 U.S. 707, 71618 (1981). “[T]he burden analysis does not turn on whether the government mandate operates directly or indirectly, but on the coercion the claimant feels to violate his beliefs.” Hobby Lobby, 723 F.3d at 1139 (emphasis added). “The question for us is not whether compliance with the contraception mandate can be reconciled with the teachings of the Catholic Church. That's a question of religious conscience for the Kortes and the Grotes to decide.” Korte v. Sebelius, ___ F.3d ___, 2013 WL 5960692, *24 (7th Cir. Nov. 8, 2013). Under the Mandate the Wielands face a cruel choice. They must (a) violate their sincerely held religious opposition to contraceptives, sterilization and abortifacients by paying for, providing, or otherwise participating in the provision of coverage for such services to their three daughters, or (b) forgo health insurance altogether and face fines. As the D.C. Circuit stated in the for-profit employer context: the Wielands “can either abide by the sacred tenets of their faith” and pay fines, or they can “become complicit in a grave moral wrong.” Gilardi v. Dept. of HHS, 2013 WL 5854246, *8 (D.C. Cir. 2013); see also Korte, at *22-25. The Plaintiffs’ complaint is not just an abstract objection to contraceptives. “The religious-liberty violation at issue here inheres in the coerced coverage of

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contraception, abortifacients, sterilization, and related services, not—or perhaps more precisely, not only—in the later purchase or use of contraception or related services.” Korte, at *24 (emphasis in original). At issue is Paul and Teresa Wieland’s desire not to either do evil or facilitate others in doing evil, in violation of their faith. In other contexts, Defendants acknowledge that paying for, providing, or subsidizing contraceptive services impermissibly burdens “the religious beliefs of certain religious employers.” 76 Fed. Reg. 46621, 46623 (Aug. 3, 2011); 77 Fed. Reg. 8725 (Feb. 15, 2012). They cannot explain why the same burden is permissible when imposed on individual believers like the Wielands. Defendants respect the religious liberty of the Catholic Church but not of Catholics. 2. The Mandate Does Not Pass Strict Scrutiny. RFRA imposes “the most rigorous of scrutiny,” Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546 (1993), and “the most demanding test known to constitutional law,” City of Boerne v. Flores, 521 U.S. 507, 534 (1997). Preliminary injunctions were granted in Annex Medical and O’Brien, meaning the Mandate necessarily did not pass the Eighth Circuit’s strict scrutiny, for purposes of a preliminary injunction. Other circuits agree. Korte, at *25-26 (7th Cir.); Gilardi, at *23-32 (D.C. Cir.); Hobby Lobby, at 1143-44 (10th Circuit). Even in those circuits denying injunctions (the Third and Sixth), none

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has found that the Mandate survives strict scrutiny.11 The district court here did not reach strict scrutiny analysis, having ruled that the Wielands lacked standing. a. Defendants Cannot Demonstrate A Compelling Governmental Interest. “[E]ven at the preliminary injunction stage, RFRA requires the government to demonstrate that mandating a plaintiff’s compliance with the contraceptivecoverage requirement is ‘the least restrictive means of advancing a compelling interest.’” Hobby Lobby, at 1143 (citing O Centro, 546 U.S. at 423) (emphasis in original). “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.” O Centro, at 430. “[T]he Government’s mere invocation of the general characteristics of [the proscribed drugs] cannot carry the day.” Id., at 432. The government’s interest must be compelling as to “these claimants.” Korte, at *25 (emphasis in original). The government must prove “some substantial threat to public safety, peace, or order” in not exempting the religious claimant. Yoder, at 230. Defendants originally proffered two compelling governmental interests for the Mandate: a) public health, and b) gender equity goals. 77 Fed. Reg. 8725, 8729 (Feb. 15, 2012). They now also assert the interest of ensuring “a workable

The Sixth and Third Circuit injunction denials are not relevant to this case, as they turned on whether for-profit employers can exercise religious beliefs.

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insurance system.” R. 31, pp. 1, 6, 9. Circuit courts have found the “public health” and “gender equality” interests to be prima facie insufficient to show a compelling interest is at stake. “By stating the public interest so generally, the government guaranties that the mandate will flunk that [compelling interest] test.” Korte, at *25, relying on O Centro, 546 U.S. at 431; see also Hobby Lobby, at 1143 (finding courts must “look[] beyond” such “broadly formulated interests justifying the general applicability of government mandates”); Gilardi, at *24 (“[T]he government does little to demonstrate a nexus between this [identical] array of issues and the mandate.”) (bracketed content added). The D.C. Circuit also dismissed the government’s new argument, that exemptions from the Mandate pose a grave threat to a “workable insurance system”: What exactly is the government trying to ameliorate? Is it the integrity of “the health and insurance markets”? Surely, that cannot be the answer; the comprehensive sweep of the Affordable Care Act will remain intact with or without the mandate. Gilardi, at *25. Also fatal to the Defendants’ compelling interest claim are the tens of millions of employees they have exempted from the Mandate to date. Under strict scrutiny jurisprudence “a law cannot be regarded as protecting an interest of the highest order . . . when it leaves appreciable damage to that supposedly vital interest unprohibited.” Lukumi, 508 U.S. at 547 (citations and internal quotation marks omitted). “If the peyote exemption in O Centro, which applied to ‘hundreds 17
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of thousands of Native Americans,’ . . . was enough to undermine the government’s compelling interest argument in that case, we conclude the exemption for the millions of individuals here must dictate a similar result.” Hobby Lobby, at 1143; Korte, at *26. b. The Mandate Is Not The Least Restrictive Means To Achieving Defendants’ Interests. If the government “has open to it a less drastic way of satisfying its legitimate interests, it may not choose a [regulatory] scheme that broadly stifles the exercise of fundamental personal liberties.” Anderson v. Celebrezze, 460 U.S. 780, 806 (1983). The government cannot meet its least-restrictive-means burden “unless it demonstrates that it has actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice.” Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir. 2005); see also Korte, at *26. That the government could accomplish the Mandate’s goals in a myriad of other ways, to date not disputed, is fatal. For example, the government could: 1) offer tax deductions or credits for the purchase of contraceptives; 2) offer separate coverage for contraceptives; 3) reimburse citizens who pay out-of-pocket for contraceptives; 4) provide these products and services directly to citizens; 5) offer grants to private-sector entities to provide contraceptives free or at subsidized rates; or 6) provide incentives for pharmaceutical companies to provide such products free or at subsidized rates through pharmacies, doctor’s offices, and health clinics. See 18
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Korte, at *26 (listing examples of alternatives the government could pursue to deliver free contraceptives without forcing the participation of those with religious objections). Exempting the Wielands here would merely add incrementally to the government’s list of exemptions already granted to other religious objectors, and would represent only an infinitesimal addition to the government’s list of millions who are exempted for whatever reason from obtaining or providing others with the religiously abhorrent coverage. As the Tenth Circuit stated: Accommodations for religion frequently operate by lifting a burden from the accommodated party and placing it elsewhere. The government itself has even taken this step with the contraceptive-coverage requirement by accommodating certain religious employers, at the expense of their employees. That is part of accommodating religion— and is RFRA’s basic purpose. Hobby Lobby, at 1144-45. The Mandate flunks strict scrutiny. Korte, at *25. V. CONCLUSION AND REQUESTED RELIEF Paul and Teresa Wieland are, accordingly, likely to prevail on the merits. The other Dataphase factors—irreparable harm to the Wielands, balancing against harms to others, and consideration of the public interest—have not troubled other courts, including the Eighth Circuit, in similar cases, and are not in question here once likelihood of success is determined. As the Seventh Circuit recently held: Here, the analysis begins and ends with the likelihood of success on the merits of the RFRA claim. On the strength of that claim alone, preliminary injunctive relief is warranted; there is no need to remand for the district courts to weigh the injunction equities. Korte, at *7. 19
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WHEREFORE, pursuant to Fed. R. App. P. 8, Paul Wieland and Teresa Wieland request a preliminary injunction, pending resolution of this appeal: (a) enjoining Defendants from requiring that Paul Wieland or Teresa Wieland obtain or provide dependents with health care coverage that includes coverage for contraception, sterilization and counseling as set forth in 42 U.S.C. 300gg-13(a)(4) and 77 Fed. Reg. 8725 (“contraceptive coverage”); (b) enjoining Defendants from requiring that health care coverage provided to Paul Wieland or Teresa Wieland or through them to their dependents include such contraceptive coverage; and (c) further enjoining Defendants from requiring that a group health plan or health insurance issuer, when providing health care coverage to Paul Wieland or Teresa Wieland and their dependents, include such contraceptive coverage in such health care coverage.12


See the preliminary injunction pending appeal issued by this Court in Annex Med. v. Sebelius, at *3. As in Annex, this provision grants relief to the Wielands and appropriate reassurance to their group health plan or health insurance issuer. 20
Appellate Case: 13-3528 Page: 21 Date Filed: 11/25/2013 Entry ID: 4099391

Respectfully submitted this 25th day of November, 2013. /s/ Timothy Belz Timothy Belz #MO-31808 J. Matthew Belz #MO-61088 OTTSEN, LEGGAT & BELZ, L.C. 112 South Hanley, Second Floor St. Louis, Missouri 63105-3418 Phone: (314) 726-2800 Facsimile: (314) 863-3821 Thomas L. Brejcha Peter Breen THOMAS MORE SOCIETY 19 S. La Salle Street, Suite 603 Chicago, IL 60603 Phone: (312) 782-1680 Kevin Edward White KEVIN EDWARD WHITE & ASSOCIATES 77 W. Wacker Drive, Suite 4800 Chicago, IL 60601 Phone: (312) 606-8602 Attorneys for Appellants Paul and Teresa Wieland Certificate of Service I hereby certify that on November 25, 2013, the foregoing was filed electronically with the Clerk of the Court for the Eighth Circuit Court of Appeals to be served upon: Michelle Bennett Mark B. Stern United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Room 7310 Washington, D.C. 20530 /s/ Timothy Belz 21
Appellate Case: 13-3528 Page: 22 Date Filed: 11/25/2013 Entry ID: 4099391

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