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Annex Medical v Sebelius - Emergency Motion for Preliminary Injunction

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					                  UNITED STATES COURT OF APPEALS
                       FOR THE EIGTH CIRCUIT

ANNEX MEDICAL, INC.; STUART
LIND, and TOM JANAS

                                    Appellants,
   v.                                             Civ. No. 13-1118

KATHLEEN SEBELIUS, in her official
capacity as Secretary of the United States
Department of Health and Human Services;
HILDA SOLIS, in her official capacity as         APPELLANTS’ EMERGENCY
Secretary of the United States Department of           MOTION FOR
Labor; TIMOTHY GEITHNER, in his                  PRELIMINARY INJUNCTION
official capacity as Secretary of the United         PENDING APPEAL
States Department of the Treasury; UNITED
STATES DEPARTMENT OF HEALTH
AND HUMAN SERVICES; UNITED
STATES DEPARTMENT OF LABOR;
and UNITED STATES DEPARTMENT
OF THE TREASURY,
                                      Appellees.

   Emergency Motion for Preliminary Injunction Pending Appeal

Erick G. Kaardal (Minn. 229647)              Kaylan L. Phillips (Ind. 30405-84)
Mohrman & Kaardal, P.A.                      Noel H. Johnson (Wisc. 1068004)*
33 South Sixth Street, Suite 4100            ActRight Legal Foundation
Minneapolis MN 55402                         209 West Main Street
Telephone: (612) 341-1074                    Plainfield, Indiana 46168
Facsimile: (612) 341-1076                    Telephone (202) 683-9405
kaardal@mklaw.com                            Facsimile (888) 815-5641
Lead Counsel for Plaintiffs                  kphillips@actright.com
                                             njohnson@actright.com
                                             *Admission application filed.




  Appellate Case: 13-1118   Page: 1     Date Filed: 01/18/2013 Entry ID: 3996140
      Pursuant to Federal Rule of Appellate Procedure 8, Annex Medical, Inc. and

Stuart Lind (together, “Lind”) move for a preliminary injunction pending appeal

against enforcement of certain mandatory coverage provisions of the Patient

Protection and Affordable Care Act of 2010 (“ACA”), Pub. L. No. 111-148, 124

Stat. 119 (2010), requiring that all non-grandfathered, non-exempt, group health

plans include coverage, without cost-sharing, for all Food and Drug Administration

approved contraceptive methods, sterilization procedures and patient education and

counseling. See 42 U.S.C. § 300gg-13(a)(4); 76 Fed. Reg. 46621–26 (Aug. 3,

2011) (the “Mandate”).

      The Mandate has made it impossible for Lind to conduct business in

accordance with his Catholic faith. If he continues offering health insurance, he

must pay for insurance coverage that violates his sincerely-held religious beliefs. If

he excludes this coverage, he must pay substantial monetary fines. Eliminating

insurance altogether provides Lind no relief, for it requires him to neglect his

religiously-held duty to provide for the needs of Annex Medical’s employees and

will place his company at a competitive disadvantage. Accordingly, both options

will substantially burden Lind’s exercise of religion.

      The Mandate has stripped Lind of any choice to select a group health plan

that conforms to his religious beliefs. Therefore, to avoid the grave sin of

cooperating with contraception and abortifacients, Lind has determined that he


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  Appellate Case: 13-1118     Page: 2       Date Filed: 01/18/2013 Entry ID: 3996140
must discontinue his group health plan. Absent relief from this Court, insurance

coverage for Lind’s employees will terminate on January 31, 2013, forcing Lind

to act contrary to his religious beliefs. Lind therefore seeks preliminary relief from

this Court to enjoin the Mandate pending his appeal, preserving his ability to offer

health insurance and his statutory rights under the Religious Freedom Restoration

Act (“RFRA”), 42 U.S.C. § 2000bb et. seq. Given the urgent nature of this matter,

Lind requests that this motion be given expedited consideration.

                               Procedural History

      On November 2, 2012, appellants Annex Medical, Inc. and Stuart Lind,

along with plaintiff Tom Janas, filed a Verified Complaint, alleging the Mandate

violates RFRA, the First Amendment to the United States Constitution, and the

Administrative Procedures Act (hereafter “VC,” attached as Exhibit A). On

November 21, 2012, Lind moved for a preliminary injunction on his claim that the

Mandate violates RFRA (attached as Exhibit B). On January 8, 2013, this Court

denied Lind’s motion for a preliminary injunction (hereafter “the Order,” attached

as Exhibit C). On January 11, 2013, Lind filed a Notice of Appeal of the January

8th Order (attached as Exhibit I) and contemporaneously moved to enjoin the

Mandate pending appeal of the Order (Memorandum in Support attached as

Exhibit G), a request the district court denied on January 17, 2013 (attached as




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  Appellate Case: 13-1118     Page: 3       Date Filed: 01/18/2013 Entry ID: 3996140
Exhibit D). Lind now asks this Court to enjoin the Mandate pending his appeal of

the Order.

                               Factual Background

       I.    Annex Medical and Stuart Lind

       The facts of this case are not in dispute. Annex Medical, Inc. is a Minnesota-

based manufacturer of medical devices owned and operated by Stuart Lind. (VC ¶

35-36, 66, 69.) Lind is a devout Catholic who is steadfastly committed to following

the religious, ethical and moral teachings of the Catholic Church in his private life

as well as his operation of Annex Medical.1 (VC ¶¶ 45-46, 70.)

       The Catholic Church teaches and Lind believes that contraception,

sterilization, abortion and use of abortifacient drugs are intrinsically evil and

immoral because they are capable of preventing and destroying a human life. (VC

¶ 49.) It is not just use of these things that is sinful, but also “cooperation” with

them, meaning that anyone who provides for or facilitates access to contraception

is also guilty of a sin. (VC ¶ 51; Declaration of Father John Echert (“Echert Decl.”)

¶ 5, attached as Exhibit E.) Lind therefore sincerely believes it is immoral and

sinful to intentionally participate in, pay for, facilitate access to, or otherwise

support contraception, sterilization, abortifacient drugs, and related education and

1
 Lind has adopted mission statements that commit his companies to “conducting
business in a way that is pleasing to God and is faithful to Biblical principles and
values.” (VC ¶ 71.)

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counseling through their inclusion through his group health plan, as is required by

the Mandate. (VC ¶ 54-55; Echert Decl. ¶ 7.)

       Lind also sincerely believes he has a duty to provide for the needs of his

employees. (VC ¶ 58; Echert Decl. ¶ 8 (“Catholic social teaching supports the

principle that workers have a right to a just wage and certain social benefits

intended to ensure the life and health of workers.”)) As part of his commitment to

fulfilling this moral and religious duty, Lind has provided a group health insurance

plan for his employees and their families. (VC ¶ 59.)

       After hearing of the national controversy surrounding the Mandate, Lind

discovered that his current group health plan inadvertently provides coverage for

abortions, abortifacient drugs, sterilization and contraception. 2 (VC ¶¶ 82-84;

Declaration of Stuart Lind (“Lind Decl.”) ¶ 20, attached as Exhibit F.) Lind has

since taken numerous steps to exclude this coverage (VC ¶¶ 65, 85, 87-88);

however, because the Mandate requires all insurance issuers to include Mandate-

compliant coverage in all group health plans purchased after August 1, 2012, see

42 U.S.C. § 300gg-13; 77 Fed. Reg. at 8725-26, Lind is now stripped of any choice

to select a new group health plan that provides coverage in line with his Catholic
2
  Annex Medical’s group plan is not currently subject to the Mandate because its
plan year began prior to the Mandate’s August 1, 2012 effective date. See 77 Fed.
Reg. 8725, 8726 (Feb. 15, 2012). Therefore, these drugs and services are being
provided at cost to the employee. Inevitably though, Annex Medical will be
required to provide them at no cost when its group plan becomes subject to the
Mandate on the date of its next schedule annual renewal or around July 1, 2013. Id.

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    Appellate Case: 13-1118   Page: 5       Date Filed: 01/18/2013 Entry ID: 3996140
faith. Thus, Lind cannot provide a group health plan without violating his religious

beliefs. (VC ¶ 89.)

      The option to discontinue health coverage without incurring monetary

penalties provides Lind no relief. As explained, Lind believes he has a moral and

religious duty to provide health care for Annex Medical’s employees and he does

so as an exercise of his religious beliefs. (VC ¶¶ 58-59, 91; Lind Decl. ¶ 10.) Yet

the Mandate has forced Lind to make a choice: comply with the Mandate or

discontinue his insurance. After several consultations with his pastor, Lind

determined he must discontinue Annex Medical’s group health plan to avoid

violating his conscience with respect to contraception and abortifacients. (VC ¶¶

91-93; Lind Decl. ¶¶ 31-32; Echert Decl. ¶ 4.) Absent immediate relief from this

Court, Annex Medical’s group health plan will terminate on January 31, 2013 and

Lind will be irreparably harmed.

      II.    The Mandate and Its Exemptions

      The statutory and regulatory background of the Mandate is laid out in the

district court decision. (Ex. C at 94-95.) In short, the Mandate requires all non-

grandfathered, non-exempt, group health plans and insurance issuers offering

group health plans to provide coverage, at no cost, for women’s “preventive care

and screenings,” 42 U.S.C. § 300gg-13(a)(4), defined by the Health Resources and

Services Administration (“HRSA”) to include “[a]ll Food and Drug Administration


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  Appellate Case: 13-1118     Page: 6       Date Filed: 01/18/2013 Entry ID: 3996140
approved contraceptive methods, sterilization procedures, and patient education

and counseling….” Health Resources and Services Administration, WOMEN’S

PREVENTIVE SERVICES: REQUIRED HEALTH PLAN COVERAGE GUIDELINES, available

at http://www.hrsa.gov/womensguidelines/ (last visited Jan. 17, 2013).

       Not all employers must comply with the Mandate. Group health plans in

existence on or before March 23, 2010 are considered “grandfathered,” and exempt

from the Mandate indefinitely if they comply with certain coverage requirements.3

Employers with fewer than fifty employees are exempted from the ACA’s

requirement to provide employee health insurance coverage, 26 U.S.C. §

4980H(a), and are therefore exempt from the Mandate. However, all employers

that offer a group health plan, such as Lind, must comply with the Mandate or face

substantial fines and penalties. See 26 U.S.C. § 4980D (imposing $100 per-day,

per-employee fine); 29 U.S.C. § 1132(a) (providing for civil enforcement actions

brought by the Department of Labor and insurance plan participants).

       Appellees have also exempted certain non-profit employers they define as

“religious,” 45 C.F.R. § 147.130 (a)(iv)(A) and (B), and individuals of certain

religions who object to the acceptance of insurance benefits, 26 U.S.C. §§

3
  See 42 U.S.C. § 18011(a)(2); 45 C.F.R. § 147.140; 75 Fed. Reg. 34538, 34545
(June 17, 2010); see also HealthReform.gov, “Fact Sheet: Keeping the Health Plan
You Have: The Affordable Care Act and “Grandfathered” Health Plans,”
http://www.healthreform.gov/newsroom/keeping_the_health_plan_you_have.html
(last visited Jan. 17, 2013).

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    Appellate Case: 13-1118   Page: 7       Date Filed: 01/18/2013 Entry ID: 3996140
5000A(d)(2)(a)(i); 1402(g)(1). Yet, despite his sincere religious objections, the

Mandate makes no exceptions for Lind and other religiously-motivated business

owners.

                                      Argument

      I.     Injunction Pending Appeal Standard.

      The injunction pending appeal standard is identical to the preliminary

injunction standard. Shrink Missouri Gov’t PAC v. Adams, 151 F.3d 763, 764 (8th

Cir. 1998). The “issuance of a preliminary injunction depends upon a ‘flexible’

consideration of (1) the threat of irreparable harm to the moving party; (2)

balancing this harm with any injury an injunction would inflict on other interested

parties; (3) the probability that the moving party would succeed on the merits; and

(4) the effect on the public interest.” Minnesota Citizens Concerned for Life, Inc. v.

Swanson, 692 F.3d 864, 870 (8th Cir. 2012) (“MCCL”) (quoting Dataphase Sys.,

Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1991) (en banc)). “When a

Plaintiff has shown a likely violation of his or her First Amendment rights, the

other requirements for obtaining a preliminary injunction are generally deemed to

have been satisfied.” MCCL, 692 F.3d at 870 (internal citations and quotations

omitted). Lind satisfies all four of the injunctive relief factors.




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  Appellate Case: 13-1118      Page: 8       Date Filed: 01/18/2013 Entry ID: 3996140
   II.      Lind is Substantially Likely to Succeed on the Merits of His RFRA
            Claim.

            A. The District Court Erred in Not Applying This Court’s
               Preliminary Injunction Entered in O’Brien v. HHS.

         On November 28, 2012, in substantially similar circumstances, a motions

panel of this Court enjoined the Mandate pending appeal on the grounds that the

appellants had satisfied the requirements for a preliminary injunction on their claim

that the Mandate violates RFRA. O’Brien v. HHS, 2012 U.S. App. LEXIS 26633

(8th Cir. Nov. 28, 2012) (order granting “APPELLANTS’ MOTION FOR A

PRELIMINARY INJUNCTION PENDING APPEAL” (App. Doc. 14)).

         Nevertheless, the district court was “uncertain of how to interpret the Eighth

Circuit’s treatment of O’Brien.” (Ex. C at 95 n.8.) Because the “O’Brien panel did

not provide a rationale for its decision,” the district court found that it could not

“interpret the stay pending appeal as indicating a likelihood of success on the

merits.” (Id. at 101-02.) Therefore, the district court independently analyzed Lind’s

claims, ultimately denying his request for injunctive relief based largely on the

reasoning of the lower court in O’Brien v. HHS, 2012 U.S. Dist. LEXIS 140097

(E.D. Mo. Sept. 28, 2012), appeal docketed, No. 12-3357 (8th Cir. Oct. 4, 2012).

         The district court’s independent analysis was unnecessary and improper in

light of the Eighth Circuit’s injunction in O’Brien. There, the Eighth Circuit was

clear that it was granting the “Appellants’ motion,” which requested injunctive


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  Appellate Case: 13-1118       Page: 9       Date Filed: 01/18/2013 Entry ID: 3996140
relief pending appeal on the grounds that appellants satisfied the preliminary

injunction factors on their RFRA claim. In fact, in appellees’ opposition to

appellants’ motion for a preliminary injunction pending appeal before the district

court (Doc. 45), counsel for appellees conceded that “the effect of the [O’Brien]

motions panel’s order was to enjoin application of the preventive services coverage

regulations to the plaintiffs in that case.” (Ex. H at 158.)

      Despite this concession, the district court, in denying appellants’ motion for

injunction pending appeal, explained that “the one-sentence motions panel decision

can also be interpreted as staying the enforcement of the judgment of the district

court pending appeal.” (Ex. D at 111 n.1.) Therefore, the court maintained “that

O’Brien does not necessitate a finding that plaintiffs have established a likelihood

of success on the merits in the underlying action.” (Id.)

      However, the district court’s interpretation is inconsistent with the text of the

order, which clearly states that it is granting “Appellants’ motion,” which sought

preliminary injunction relief pending appeal. While the standards for an injunction

pending appeal are identical to the preliminary injunction standards, with the

former, “[t]he most important of the Dataphase factors is the appellants’ likelihood

of success on the merits.” Adams, 151 F.3d at 764. Had the Eighth Circuit panel

believed that the O’Brien appellants had failed to meet their burden for a

preliminary injunction, there would have been no basis to grant the appellants’


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motion. As Lind is similarly situated to the O’Brien appellants, the O’Brien panel’s

order means Lind too has satisfied the requirements for a preliminary injunction

pending appeal.4

           B. The Mandate Imposes a Substantial Burden On Lind’s Religious
              Exercise under RFRA.

        The Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et.

seq., was enacted to “to restore the compelling interest test as set forth in Sherbert

v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and

to guarantee its application in all cases where free exercise of religion is

substantially burdened.” 42 U.S.C. § 2000bb-(b)(1). The federal government is

strictly prohibited from “substantially burden[ing] a person’s exercise of religion

even if the burden results from a rule of general applicability.” Id. § 2000bb-1(a).

RFRA recognizes only one exception, which “requires the Government to satisfy

the compelling interest test—‘to demonstrate that application of the burden to the

person—(1) is in furtherance of a compelling governmental interest; and (2) is the

least restrictive means of furthering that compelling governmental interest.’”

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424

(2006) (quoting 42 U.S.C § 2000bb-1(b)). The government may not use a

“categorical approach” to satisfy the compelling interest test; rather, RFRA
4
  Even if not binding on the lower court, the O’Brien panel’s order severely
undermines the lower court’s reasoning in O’Brien, and the district court thus erred
in relying on it to reject Lind’s RFRA claim.

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requires the government to satisfy the compelling interest test “through application

of the challenged law to … the particular claimant [5] whose sincere exercise of

religion is being substantially burdened.” O Centro, 546 U.S. at 430-31.

        Supreme Court precedent demonstrates what constitutes a substantial burden

on religious exercise. In Sherbert, the appellant was denied unemployment benefits

due to her refusal to work on Saturday, the Sabbath Day of her faith. 374 U.S. at

399-401. The Court found this placed an impermissible burden on her free exercise

of religion because it “force[d] her to choose between following the precepts of her

religion and forfeiting benefits, on the one hand, and abandoning one of the

precepts of her religion in order to accept work, on the other hand.” Id. at 404.


5
  While the district court declined to decide whether Annex Medical could
independently exercise religion, (Order at 13 n.9), the district court did not
question Lind’s standing to challenge the Mandate under RFRA. Indeed, Lind’s
claims are proper on several grounds. Case law makes clear that the businesses
independently enjoy free-exercise rights. United States v. Lee, 455 U.S. 252 (1982)
(adjudicating free-exercise claim of for-profit employer); Donovan v. Tony and
Susan Alamo Foundation, 722 F.2d 397 (8th Cir. 1983), aff’d, 471 U.S. 290 (1985)
(adjudicating free-exercise claim of non-profit corporation engaged in
“commercial dealings”); McClure v. Sports and Health Club, Inc., 370 N.W.2d
844, 850 (Minn. 1985) (sports and health club could assert free-exercise claims).
       In addition, a for-profit corporation may assert free-exercise rights as a
“pass-through instrumentality” of its owners. Stormans, Inc. v. Selecky, 586 F.3d
1109 (9th Cir. 2009) (adjudicating free-exercise claim of close-held, for-profit
pharmacy corporation); EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610 (9th
Cir. 1988) (for-profit corporation could assert free exercise rights of owners); see
also, e.g., Legatus v. Sebelius, 2012 U.S. Dist. LEXIS 156144, *11 (E.D. Mich.
Oct. 31, 2012) (permitting for-profit corporation to challenge mandate as “pass-
through instrumentality” of it owners).

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Even though the government did not “directly compel” the appellant to work on

Saturday in violation of her faith, the Court found the “pressure” on her to do so

was “unmistakable.” Id.

      In Yoder, Amish parents whose religious beliefs required that they educate

their children at home after the eighth grade were fined at least five dollars each for

violating Wisconsin’s compulsory school-attendance law. 406 U.S. at 208. The

Court affirmed the lower court’s decision to strike the law, finding that it created a

“severe” and “inescapable” impact on the practice of the Amish religion because it

“affirmatively compels them, under threat of criminal sanction, to perform acts

undeniably at odds with fundamental tenets of their religious beliefs.” Id. at 218.

      Also instructive is Thomas v. Review Bd. of Ind. Employment Sec. Div., 450

U.S. 707 (1981). There, a Jehovah’s Witness was denied unemployment benefits

because he quit his job that required him to produce armaments in violation of his

religious beliefs against working on the production of weapons. Id. at 710-11. The

Court reemphasized that even “indirect” compulsion to violate one’s beliefs

constitutes a substantial burden on free exercise of religion.

      “Where the state conditions receipt of an important benefit upon
      conduct proscribed by a religious faith, or where it denies such a
      benefit because of conduct mandated by religious belief, thereby
      putting substantial pressure on an adherent to modify his behavior and
      to violate his beliefs, a burden upon religion exists.”

Id. at 717-18.


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      As in Yoder, the Mandate “affirmatively compels” Lind to “perform acts

undeniably at odds with fundamental tenets of [his] religious beliefs,” 450 U.S. at

218—he must include cost-free coverage for contraception, sterilization, and

abortifacient drugs in any group health plan he offers. This is more than a

substantial burden; it is essentially a requirement that he conduct business in a way

that violates his faith. See United States v. Ali, 682 F.3d 705, 709-10 (8th Cir.

2012) (substantial burden exists where regulation “meaningfully curtail[s] a

person’s ability to express adherence to his or her faith”). The consequences for

offering a non-compliant group health plan are substantial—(1) a $100 per day, per

employee, 26 U.S.C. § 4980D, dwarfing the five dollar fine the Yoder Court

viewed as creating a “severe” and “inescapable” impact on practice of the Amish

religion, Yoder, 406 U.S. at 218; and (2) civil enforcement actions brought by the

Department of Labor and insurance plan participants, 29 U.S.C. § 1132(a).

      Lind’s “option” to terminate Annex Medical’s health care plan without

incurring monetary penalties does not eliminate the substantial burden on his

religious exercise for the consequences of doing so likewise put “substantial

pressure” on him to purchase insurance and provide contraception, sterilization and




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abortifacient drugs—in other words, to “modify his behavior and to violate his

beliefs. Thomas, 450 U.S. at 718.6

        These burdens are far more substantial than those the Supreme Court has

previous struck. In Sherbert, the appellant’s religious observance of her Sabbath

rendered her merely ineligible for unemployment benefits, yet the Court found her

ineligibility placed “unmistakable” pressure on her to forego that observance. Id. at

404. See also Thomas, 450 U.S. at 717 (finding the “coercive impact” on free

exercise “indistinguishable from Sherbert”).

        Lind’s inadvertent inclusion of contraception and abortifacient drugs in

Annex Medical’s current group plan necessitates that he finds a group plan that

excludes this coverage right now. Yet the Mandate has made that impossible.

Appellees have stripped Lind of any choice to select a group plan that accords with

his beliefs because the Mandate requires all insurance issuers to include Mandate-

compliant coverage in all group health plans purchased after August 1, 2012. See

42 U.S.C. § 300gg-13; 77 Fed. Reg. at 8725-26.

        The Mandate has thus forced Lind’s hand. He has concluded he must, absent

relief from this Court, terminate Annex Medical’s group health plan, and endure

6
  The availability of “exit options” does not alter the “substantial burden” analysis.
Of course, the Yoders could have moved their family out of Wisconsin and to a
state where they would not have not faced penalties for removing their children
from public schools. This “option” did not alter the Court’s opinion that the five
dollar fine created a “substantial burden” on the Yoder’s free exercise of religion.

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the substantial burdens noted above, to avoid violating his sincerely-held belief

against cooperation with contraception, sterilization and abortifacient drugs.

      Thus, as in Sherbert, the Mandate has put Lind to a choice. But unlike

Sherbert, Lind must choose between two exercises of religion—fulfill his

religiously-held duty to provide employee health care and violate his beliefs with

respect to contraception or abstain from cooperation with contraception and violate

his religiously-held duty to provide employee health care. Not only does this

choice force Lind to “modify his behavior and to violate his beliefs,” Thomas, 450

U.S. at 718, i.e., impose a substantial burden, it imposes an unconstitutional

condition on his free exercise rights. Simmons v. United States, 390 U.S. 377, 394

(1968) (finding it “intolerable that one constitutional right should have to be

surrendered in order to assert another”).

      The district court did not question the sincerity of Lind’s beliefs, yet

concluded that the Mandate did not substantially burden Lind’s exercise of those

beliefs. The court erred in several respects. First, relying on O’Brien, the court

erroneously concluded that any burden created by the Mandate depends on

“someone else’s participation in an activity that is condemned by plaintiffs’

religion.” (Ex. C at 102-03.) As the Seventh Circuit recognized, “[t]he

religious-liberty violation at issue here inheres in the coerced coverage of

contraception, abortifacients, sterilization, and related services, not—or perhaps


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more precisely, not only—in the later purchase or use of contraception or related

services.” Korte, 2012 U.S. App. LEXIS 26734 at *10. Therefore, it is irrelevant to

the substantial burden analysis that Lind remains free to refrain from using

contraception himself or discourage his employees to do likewise. (Ex. C at 102.)

Of course, the Mandate does not force anyone to use contraception, but it clearly

forces Lind to directly subsidize it in violation if his religious beliefs.7

        Second, in finding that the Mandate does not substantially burden Lind’s

exercise of religion, the court impermissibly rewrote Lind’s faith. “It is not within

the judicial function and judicial competence to inquire” whether an adherent is

correctly understanding his religious doctrine as “[c]ourts are not arbiters of

scriptural interpretation.” Thomas, 450 U.S. at 716. Accordingly, when a plaintiff

claims his religion is substantially burdened by a particular regulation, courts

simply accept that contention as true. See, e.g., Lee, 455 U.S. at 257 (“We

therefore accept appellee’s contention that both payment and receipt of social

security benefits is forbidden by the Amish faith.”); Hamilton v. Schriro, 74 F.3d

1545, 1552 (8th Cir. 1996) (“[W]e assume that the regulations and policies at issue

in the present case substantially burden Hamilton’s exercise of his religion.”). Had
7
 Appellees acknowledge that the Mandate directly burdens religious exercise.
Appellees have already exempted some “religious employers” who object to
covering contraception services, 45 C.F.R. § 147.130(a)(1)(iv)(A)-(B), and are
developing changes to the Mandate that would further “accommodat[e] non-
exempt, non-profit religious organizations’ religious objections to covering
contraception services.” 77 Fed. Reg. 16501, 16503 (March 21, 2012).

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the court accepted Lind’s interpretation of his own faith, as it must, it would have

found that the Mandate imposes a substantial burden on Lind’s religious exercise.

        Lastly, whether the Mandate is characterized as “direct” or “indirect,” (Ex. C

at 98-99, 103), is irrelevant as to whether it imposes a substantial burden on Lind’s

religious exercise. The Supreme Court long ago rejected any distinction between

“direct” and “indirect” burdens. In Sherbert, there was no “direct” requirement to

work on the Sabbath, but a denial of unemployment benefits for not doing so was

deemed substantially burdensome and the equivalent of “a fine…for…Saturday

worship.” 374 U.S. at 404. In Thomas, no “direct” requirement to manufacture

armaments existed, but the plaintiff was denied unemployment benefits for

refusing such work. The “compulsion…[was] indirect [but] the infringement upon

free exercise [was] nonetheless substantial.” 450 U.S at 718. Where the “law

affirmatively compels” a violation of religious beliefs, as does the Mandate, the

Supreme Court has viewed even a five-dollar fine as creating a “severe” and

“inescapable” burden. Yoder, 406 U.S. at 208.

           C. The Mandate Fails Strict Scrutiny.

        Laws imposing substantial burdens must satisfy strict scrutiny.8 Appellees

must demonstrate that the Mandate “(1) is in furtherance of a compelling


8
 Having found the Mandate not substantially burdensome, the district court did not
subject it to RFRA’s compelling interest test. (Ex. C at 105.)

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governmental interest; and (2) is the least restrictive means of furthering that

compelling governmental interest.” 42 U.S.C. 2000bb-1(b)(1)-(2).

      Appellees proffered two compelling interest before the district court:

promoting the public health and equalizing women’s health care. Even assuming

the Mandate promotes these abstract interests, the Mandate must fail strict scrutiny.

Appellees’ interests cannot be considered “compelling” in light of the millions of

people appellees have voluntarily exempted from providing women’s preventive

care. By the appellees’ own calculation, approximately 191 million people belong

to health care plans that may be “grandfathered” under the ACA, and therefore

exempt from the Mandate. See Newland v. Sebelius, 2012 U.S. Dist. LEXIS

104835, *19 n.9 (D. Colo. July 27, 2012) (citing 75 Fed. Reg. at 34550). Appellees

have also exempted employers, such as Lind, with fewer than fifty employees, 26

U.S.C. § 4980H(a), and entities they define as “religious employers,” i.e. churches,

from compliance with the Mandate. 45 C.F.R. § 147.130(a)(iv)(A).

      Under strict scrutiny, “a law cannot be regarded as protecting an interest of

the highest order when it leaves appreciable damage to that supposedly vital

interest unprohibited.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520, 547 (1993) (quotations and citations omitted). Appellees therefore

cannot assert an interest “of the highest order” in forcing Lind to comply with the

Mandate and violate his beliefs because appellees have allowed “appreciable


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  Appellate Case: 13-1118    Page: 19        Date Filed: 01/18/2013 Entry ID: 3996140
damage” to the over 190 million individuals they have consciously exempted from

the Mandate. The Mandate must necessarily give way to Lind’s faith, as “[o]nly

those interests of the highest order and those not otherwise served can overbalance

legitimate claims to the free exercise of religion.” Yoder, 406 U.S. at 216.

      Even assuming appellees’ interests are compelling, they have failed to show

that forcing Lind to violate his religious beliefs is the least restrictive means to

ensure that women have access to preventive care at no cost. Most notably,

appellees do not explain why the government cannot provide contraception and

abortifactients directly to the small number of employees whose employers

exclude this coverage for religious reasons. Yet “[i]f a less restrictive alternative

would serve the Government’s purpose, the legislature must use that alternative.”

United States v. Playboy Entm’t Group, 529 U.S. 803, 813 (2000). Appellees

currently subsidize free contraception through Title X funding and Medicaid.

There is no reason appellees cannot subsidize the same coverage for women

working for exempted employers.

          D. The Remaining Preliminary Injunction Favors Favor Lind.

      Absent relief from this Court, Lind will be forced to either comply with the

Mandate or terminate his group health plan. In either event, his exercise of religion

will be substantially burdened and he will be irreparably harmed. Lowry ex rel.

Crow v. Watson Chapel Sch. Dist., 540 F.3d 752, 762 (8th Cir. 2008) (“The loss of


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  Appellate Case: 13-1118     Page: 20        Date Filed: 01/18/2013 Entry ID: 3996140
First Amendment freedoms, for even minimal periods of time, unquestionably

constitutes irreparable injury.”) Relief is needed right now, as Lind’s group health

plan will terminate on January 31, 2013 in order to avoid violating his beliefs with

respect to contraception and abortifacients.

      When First Amendment freedoms are infringed, the Eighth Circuit “view[s]

the balance clearly in favor of issuing the injunction” because irreparable harm

occurs otherwise. Iowa Right to Life Committee v. Williams, 187 F.3d 963, 970

(8th Cir. 1999). Appellees will face no harm from being prevented from enforcing

the Mandate against Annex Medical, a business appellees exempted from the

requirement to provide health insurance altogether. Lastly, because Lind has

demonstrated likely merits success, the public interest favors an injunction. Phelps-

Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008).




                                   Conclusion

      For the foregoing reasons, Annex Medical and Stuart Lind request this Court

to enter an injunction pending their appeal.




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  Appellate Case: 13-1118    Page: 21        Date Filed: 01/18/2013 Entry ID: 3996140
Dated: January 18, 2013


                                                s/Erick G. Kaardal
                                               Erick G. Kaardal (Minn. 229647)
                                               Mohrman & Kaardal, P.A.
                                               33 South Sixth Street, Suite 4100
                                               Minneapolis MN 55402
                                               Telephone: (612) 341-1074
                                               Facsimile: (612) 341-1076
                                               kaardal@mklaw.com
                                               Lead Counsel for Plaintiffs

                                               Kaylan L. Phillips (Ind. 30405-84)
                                               Noel H. Johnson (Wisc. 1068004)*
                                               ActRight Legal Foundation
                                               209 West Main Street
                                               Plainfield, Indiana 46168
                                               Telephone: (202) 683-9405
                                               Facsimile: (888) 815-5641
                                               kphillips@actright.com
                                               njohnson@actright.com
                                               Counsel for Plaintiffs
                                               *Admission application pending




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 Appellate Case: 13-1118   Page: 22        Date Filed: 01/18/2013 Entry ID: 3996140

				
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