Brandt v. Burwell (43 F. Supp. 3d 462, 2014)

United States District Court for the Western District of Pennsylvania 2014-08-20

Internal Revenue Code The Public Health and Welfare

Citations

Full opinion text

MEMORANDUM OPINION RE: PLAINTIFFS’ MOTION FOR A PERMANENT INJUNCTION

ARTHUR J. SCHWAB, District Judge.

I. Introduction

Within the past year, this Court has had the opportunity to consider arguments associated with injunctions filed in two other cases brought by ' substantially similar Plaintiffs against the same Government Defendants. See Most Reverend David A. Zubik et al. v. Secretary of the U.S. Dept. of Health and Human Services, et. al. (case no. 13cvl459) (“the Zubik case”), and Most Reverend Lawrence T. Pérsico et. al v. Secretary of the U.S. Dept. of Health and Human Services, et al. (case no. 13cv303) (“the Pérsico case”).. The instant case, like the Zubik and Pérsico cases, challenges the application of the Patient Protection and Affordable Care Act (“ACA”). Specifically, the issue before this Court is whether the Diocese of Greensburg, which is exempt from the provisions of the ACA requiring employers to provide health insurance coverage for contraceptive products, services, and counseling (“the contraceptive mandate”), is divisible from its nonprofit, religious affiliated/related charitable and educational organizations which, under the current provisions, are compelled to facilitate/initiate coverage of contraceptive products-, services, and counseling via the “accommodation.”

On May 27, 2014, Plaintiffs in this case: Most Reverend Lawrence E. Brandt, Bishop of the Roman Catholic Diocese of Greensburg, as Trustee of the Roman Catholic Diocese of Greensburg, a Charitable Trust, the Roman Catholic Diocese of Greensburg as the Beneficial Owner of the Greensburg series of the Catholic Benefits Trust, Catholic Charities of the Diocese of Greensburg, and St. John the Evangelist Regional Catholic School filed a Complaint, in which they assert eight cases of action against Defendants: United States Departments of Health and Human Services (“HHS”), Labor, and the Treasury and their respective Secretaries. On May 30, 2014, Plaintiffs filed a Motion for Expedited Preliminary Injunction, which this Court granted, thereby enjoining Defendants from enforcing the contraceptive mandate, as codified in 45 C.F.R. 147.130(a)(l)(iv). See doc. nos. 16, 27. The Court immediately scheduled a permanent injunction hearing.

Plaintiffs contend that the contraceptive mandate, as applied via the “accommodation,” requires them to facilitate/initiate the process of providing health insurance coverage for abortion-inducing drugs, sterilization services, contraceptives, and related educational and counseling services (“contraceptive products, services and counseling”).

Plaintiffs allege that they must comply with the contraceptive mandate by July 1, 2014, or face substantial penalties. See doc. no. 1, ¶ 186. Plaintiffs also allege that their compliance with the contraceptive mandate, via the “accommodation” would require them to facilitate/initiate the process through which contraceptive products, services, and counseling would be provided to their employees and thereby violate their fundamental religious rights and liberties in violation of the Religious Freedom Restoration Act (“RFRA”) and the First Amendment to the United States Constitution.

Having previously issued a preliminary injunction in this case (as well as preliminary and permanent injunctions in the pri- or two issue-identical cases, which involved similar facts—including the same religious tenets—the same excellent counsel, the same causes of action advanced against the same Defendants, the same legal tests, and having heard the substantially same arguments from the Parties), this Court will endeavor to adopt by reference substantial, relevant portions its prior Zubik and Pérsico Opinions, when appropriate, for brevity and consistency.

After careful consideration of the Plaintiffs’ request for a permanent injunction, the Parties’ submissions, the testimony presented during an evidentiary hearing, the hearing exhibits, and the Parties’ oral arguments, the Court will issue a permanent injunction for the reasons more fully set forth herein.

II. Findings of Fact

A. Plaintiffs

Plaintiffs in this case are: (1) Reverend Lawrence E. Brandt, Bishop of the Roman Catholic Diocese of Greensburg, as Trustee of the Roman Catholic Diocese of Greensburg, a Charitable Trust (“the Bishop” or “Bishop Brandt”), (2) the Roman Catholic Diocese Of Greensburg as the Beneficial Owner of the Greensburg series of the Catholic Benefits Trust (the “Diocese” or “the Diocese of Greensburg”), (3) Catholic Charities Of The Diocese Of Greensburg (“Catholic Charities”), and (4) St. John the Evangelist Regional Catholic School (“St. John’s School”).

Plaintiffs are inter-related through their affiliation with the Roman Catholic Church and their sincerely-held religious beliefs and mission. Bishop Brandt is the spiritual leader of the Diocese of Greensburg and is responsible for the spiritual, charitable, and educational arms of that Diocese. Catholic Charities is a nonprofit corporation affiliated with the Diocese of Greens-burg with a principal place of administration in Greensburg, Pennsylvania. St. John’s School is a nonprofit corporation affiliated with the Diocese of Greensburg with a principal place of business in Union-town, Pennsylvania. The Diocese of Greensburg, Catholic Charities, and St. John’s School are organized exclusively for the charitable, religious and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code. Doc. no. 1, ¶¶ 9-12.

B. Plaintiffs’ Irreparable Injury

1. Injury to the Diocese

The Parties filed “Stipulations to Undisputed Fact” and “An Additional Stipulation to Undisputed Fact,” all of which the Court accepts as true and incorporates as part of its own factual findings. See doc. nos. 22, 29. The first undisputed and relevant fact is the Diocese of Greensburg provides health insurance coverage to the employees of its nonprofit, religious affiliated/related entities (such as Catholic Charities and St. John’s School), which are directed by the Diocese to implement the spiritual, charitable, and education mission of the Diocese.

Based up on the credible testimony of Bishop Brandt, as Trustee for the Plaintiff nonprofit, religious affiliated/related organizations, the practical results of the application of the contraceptive mandate, via the “accommodation,” would be that the Diocese would be required to either:

(a) provide its nonprofit, religious affiliated/related organizations with a separate insurance policy that covers contraceptive products, services, and counseling (which the Diocese refuses to do, according to the hearing testimony) (doc. no. 1, ¶ 117-119, 126, 132, 168); or (b) decline to continue offering health coverage to their nonprofit, religious affiliated/related organizations, which would force the nonprofit, religious affiliated/related organizations to enter into their own arrangements with a health insurance provider that would arrange no-cost coverage of contraceptive products, services, and counseling. Hearing Testimony, Bishop Brandt, doc. no. 40, pg. 43-44; Barbara Sabo, doc. no. 40, p. 58-59.

Simply stated, the Court finds that the contraceptive mandate would be unequally applied to Plaintiffs and would result in a division between the Dioceses and their nonprofit, religious affiliated/related spiritual/charitable/educational organizations that fulfill portions of the Diocese’s mission.

2. Injury as to Nonprofit, Religious Affiliated/Related Organizations

Based upon the credible testimony of Monsignor Raymond E. Riffle (Managing Director of Catholic Charities of the Diocese of Greensburg) and Christine Rosko-vensky (Principal of St. John’s School), their respective declarations, and the Stipulations of the Parties (doc. nos. 22 and 29), the nonprofit, religious affiliated/related organizations expelled from a Diocese’s health plan would be forced to choose one of the following courses of action:

(a) purchase health insurance coverage that includes contraceptive products, services, and counseling which would violate Catholic Charities’ and St. John’s School’s sincerely-held religious beliefs, according to the trial testimony. Cardinal Dolan Deposition pg. 25, lines 15-19, 23-25, pg, 26, lines 1-12;

(b) provide a self-certification to their third-party administrator (“TPA”), thus facilitating/initiating the process by which •the TPA will'obtain coverage for the contraceptive products, services, and counseling for the organizations’ employees (“the accommodation”) which the Bishop would refuse to permit. Plaintiffs’ Exhibit 10 “Self-Certification Form”; doc. no. 1 ¶ 151;

(c) drop health insurance coverage for employees (ie., fail to offer “full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan”) (ie., comprehensive coverage), and be subject to annual fines of $2,000 per full-time employee. See 26 U.S.C. § 4980H(a), (c)(1); or

(d) purchase health insurance coverage for full-time employees without contraceptive products, services, and counseling, and potentially be subject to a tax penalty of $100 per day per affected beneficiary. See 26 U.S.C. § 4980D(b); and Doc. no. 1, ¶ 170.

Any of these courses of action would harm the Diocese and their nonprofit, religious affiliated/related charitable and educational organizations. Potential effects of imposition of fines include: decreased donations, loss of employees to other employers, loss of services, and such fines may “close [the organizations’] doors, denying thousands in the local community its charitable services.” Declaration of Monsignor Riffle (Plaintiffs’ Exhibit 22), ¶¶ 35-36; Declaration of Christine Roskovensky (Plaintiffs’ Exhibit 23), ¶¶ 26-27. During the Injunction Hearing, credible testimony was presented that fines related to the contraceptive mandate will compel Plaintiff nonprofit, religious affiliated/related organizations to limit services or close. Hearing Testimony, Bishop Brandt, pg. 44; Monsignor Riffle, pg. 85.

Currently, Plaintiffs are experiencing and may continue to experience increased administrative burdens, lost personnel hours, and the fear of increased insurance premiums. Deposition of Cardinal Timothy Michael Dolan (Plaintiffs Exhibit 1), pg. 40, lines 22-25, pg. 41,1-7.

Failure to comply with the contraceptive mandate would also expose the organizations, and ultimately the Diocese, to civil actions by ERISA-covered plan participants for unpaid benefits, and enforcement actions by the Secretary of Labor. See 29 U.S.C. §§ 1132(a)(1)(B), 1132(a)(5), and 1132(b)(3). The Secretary of HHS may impose a civil monetary penalty for failure to provide certain required coverage. 42 U.S.C. § 300gg-22(b)(2)(C)(i). Failure to pay levied fines would subject Plaintiffs to additional fines and potential property liens. See 26 U.S.C. §§ 6321, 6672.

C. The Organization and Religious Mission of the Diocese

1. Organization of the Diocese

Bishop Brandt, in his capacity as Bishop and Trustee of the Diocese of Greensburg, manages 78 parishes and their charitable trusts. Doc. no. 1, ¶ 24. The Diocese provides services throughout four counties in Southwestern Pennsylvania—Armstrong, Fayette, Indiana, and Westmore-land—including a Catholic population of approximately 153,000 people. Id. Bishop Brandt oversees the “multifaceted” mission of spiritual, educational, and social service to residents of the Diocese and specifically oversees the mission of social service in his role as Chairman of the Membership Board of Catholic Charities. Id.

2. Religious Mission of the Diocese includes Good Works

Plaintiffs sincerely believe that religious worship, faith, and good works are essential and integral components of the Catholic faith and constitute the core mission of the Catholic Church. Hearing testimony of Bishop Brandt, p. 23 (“... the service of charity in the [C]hurch is a constitutive element of the [Cjhurch’s mission.”).

“The Church’s deepest nature is expressed in her three-fold responsibility: of proclaiming the word of God (keryg-ma-martyria), celebrating the sacraments (leitourgia), and exercising the ministry of charity (diakonia). These duties presuppose each other and are inseparable.” Plaintiffs Exhibit 4, “Apostolic Letter Issued ‘Motu Proprio’ on the Supreme Pontiff Benedict XVI on the Service of Charity,” pg. 1; and Plaintiffs Exhibit 1, Cardinal Dolan Deposition, pg. 36, lines 1-36, pg. 38, lines 11-13 (“That’s your daily life. That’s everything we do, dream, believe, breathe, wake, sleep, is our—is our faith.”).

D. Nonprofit Religious Affiliated/Related Organizations Charitable and Educational Organizations of the Diocese

1. Role of the Bishop in the Organizations

As the head of the Diocese of Greens-burg, Bishop Brandt carries out the “good works” of the Catholic Church through: educating children regardless of their religion, promoting spiritual growth (including conducting religious services, operating seminaries, and hosting religious orders), and providing community service to others regardless of the recipient’s religion or other factors. Doc. No. 1, ¶ 24-26; Plaintiffs’ Exhibit 25, ¶2. “[T]he Bishops, as successors of the Apostles, are charged with primary responsibility for carrying out in the particular Churches the service of charity[ ]; ... [T]he duty of charity [is] a responsibility incumbent upon the whole Church and upon each Bishop in his Diocese ----” Plaintiffs’ Exhibit 4, pg. 1. Bishops have a duty to prevent parishes and “diocesan structures” from taking actions at odds with the Church’s teachings. Plaintiffs’ Exhibit 4, Article 9, § 3 (“It is the duty of the diocesan Bishop and the respective parish priests to see that in this area the faithful are not led into error or misunderstanding; hence they are to prevent publicity being given through parish or diocesan structures to initiatives which, while presenting themselves as charitable, propose choices or methods at odds with the Church’s teaching.”). Bishops are also responsible for “ensuring] that in the activities and management of these activities, the norms of the Church’s universal, and particular law are respected, as well as the intentions of the faithful who made donations or bequests for these specific purposes.” Plaintiffs’ Exhibit 4, Article 4, § 8.

2. Catholic Schools

Education is an integral component of the Catholic faith. Doc. no. 1, ¶ 26. Hearing testimony, Bishop Brandt, pg. 26 (“[The Church operates these Catholic schools] [b]ecause there again, it’s part of our mission, our mission to teach.”)

The Diocese of Greensburg runs, organizes, and supervises approximately two high schools, two junior high schools, thirteen elementary schools, and various preschool programs. Doc. no. 1, ¶ 26. These schools educate approximately 2,800 students. Id. These schools are open to and serve all children, without regard to the students’ religion, race, or financial condition. Doc. no. 1, ¶ 27.

The elementary schools within the Diocese are not exclusive to Catholics, and approximately 60 percent of the students at Holy Trinity School identify themselves as non-Catholic and 40 percent of the students at Conn-Area Catholic School and the Cardinal Madia Academy identify themselves as non-Catholic. Doc. no. 1 ¶ 29. The contraceptive mandate, as applied via the “accommodation” and the “exemption,” will result in elementary schools within the Diocese being treated differently—certain elementary schools within the Diocese will be exempt from compliance with the regulations, while others will not. Doc. no. 1, ¶ 30.

St. John’s School is a Catholic elementary school in Uniontown, Pennsylvania that offers education for preschool through eighth grade. Doc. no. 1, ¶ 68. The' “primary purpose” of St. John’s School is to provide a school environment based on the values of the Catholic faith and “is an extension of the Diocese of Greensburg in educating and reinforcing the Catholic faith.” Plaintiffs’ Exhibit 23, Declaration of Christine Roskovensky, ¶ 7. Theology classes are held daily and are part of the age-appropriate curriculum in all grades at St. John’s School. Id. Students participate in: daily prayer, seasonal devotions, sacramental preparations, Mass, service projects throughout the school year, which are also important parts of the Catholic curriculum provided by St. John’s School. Id., ¶¶ 8-9.

St. John’s School is a charitable trust affiliated with the Diocese of Greensburg and its employees are insured under the Diocesan health plan. Doc. no. 1, ¶¶ 75, 77. The Bishop, in his role as trustee of St. John’s School, and the Diocese directly oversee the governance of St. John’s School. Doc. no. 1, ¶ 77. St. John’s School is not exempt from the contraceptive mandate because it is not an “integrated auxiliary” under the definition in 26 C.F.R. § 1.6033—2(h), and thus, does not qualify as a “religious employer” under the exemption to the contraceptive mandate. Doc. no. 1, ¶ 76.

3. Social Service Organizations

Providing social services to others is a central tenet of the Catholic faith. Hearing Testimony, Monsignor Riffle, pg. 64-65, lines 24-25, 1-10. These “good works” are integral to the practice of the Catholic faith. Hearing Testimony, Bishop Brandt, pg. 10-11 (“... we are charged to have the faith and then to take that faith out of the church and live it by translating it into good works, into service for- others; not just for Catholics, but also for everyone.”). Organizations that provide social services must be provided in conformity with the Catholic faith. Hearing Testimony, Bishop Brandt, pg. 21-22, lines 19-4 (“These organizations must be administered consistent with the tenets of the Catholic Church.”).

Consistent with the tenet of providing social services to the community at large, Catholic Charities is the primary social service agency of the Diocese of Greens-burg and provides social services to the residents of its four-county community. Hearing Testimony, Monsignor Riffle, pg. 65, lines 13-16. These services are provided without regard to national origin, .race, color, sex, religion, age, or disability. Id. Catholic Charities provides counseling services, adoption services, foster care services, and material assistance, among other services to the community. Hearing Testimony, Monsignor Riffle, pg. 65, lines 19-23. The material assistance services respond to about 180 telephone calls per day for food, clothing, diapers, shelter, and fuel for both for automobile and home. Hearing Testimony, Monsignor Riffle, pg. 66-67, lines 21-25, 1-3. Catholic Charities assists thousands of people annually. Hearing Testimony, Monsignor Riffle, pg. 67, lines 17-19.

E. Plaintiffs’ Employee Health Insurance Coverage

1. Religious Components of Employee Health Care

The sanctity of human life from conception to natural death and the dignity of all persons are central tenets of the Catechism of the Catholic Church. Hearing Testimony, Bishop Brandt, pg. 10, lines 13-17. The Catholic Church believes that health care is a basic right because of the sanctity and dignity of human life. See Cardinal Dolan Deposition (Plaintiffs’ Exhibit 1, doc. no. 39-1), pg. 28, lines 19-23; Hearing Testimony, Bishop Brandt, pg. 27, lines 10-18.

The Catholic Church also believes that contraception and abortion are prohibited, and Catholics cannot facilitate/initiate, directly or indirectly, the provision of abortions. Cardinal Dolan Deposition (Plaintiffs’ Exhibit 1, doc. no. 39-1), pg. 12, lines 11-16 (Abortion-inducing drugs, sterilization and contraceptives “are intrinsically evil.”); Plaintiffs’ Exhibit 3, “Ethical and Religious Directives for Catholic Health Care Services, United States Conference of Catholic Bishops November 17, 2009,” ¶¶ 45, 52 (“Abortion (that is, the directly intended termination of pregnancy before viability or the directly intended destruction of a viable fetus) is never permitted. Every procedure whose sole immediate effect is the termination of pregnancy before viability is an abortion, which, in its moral context, includes the interval between conception and implementation of the embryo. Catholic health care institutions are not to provide abortion services, even based upon the principle of material cooperation. In this context, Catholic health care institutions need to be concerned about the danger of scandal[] in any association with abortion providers.”).

This belief necessarily prohibits providing, subsidizing, initiating, or facilitating insurance coverage for abortion-inducing drugs, sterilization services, contraceptives, and related educational and counseling services. Declaration of Monsignor Larry Kulick, doc. no. 17-3, ¶¶ 12-16 (“One outgrowth of belief in human life and dignity is Plaintiffs’ well-established belief that [hjuman life must be respected and protected absolutely from the moment of conception____” Furthermore, Plaintiffs adhere to Catholic teachings that prohibit any action which “renderfs] procreation impossible” and which, more specifically, regard direct sterilization as “unacceptable.”); Plaintiffs’ Exhibit 3, doc. no. 39-3, pg. 28, ¶ 52 (“Catholic health institutions may not promote or condone contraceptive practices but should provide, for married couples and the medical staff who counsel them, instruction both about the Church’s teaching on responsible parenthood and in the methods of natural family planning.”).

2. Diocese of Greensburg and the Catholic Benefits Trust

The Diocese of Greensburg operates a self-insured health plan through the insurance obtained through the Catholic Benefits Trust (“Trust”). Complaint, doc. no. 1, ¶ 33; and Stipulation to Undisputed Facts, doc. no. 22, ¶ 1. The Trust was formed in June 2013 by an agreement between the Diocese of Greensburg, the Diocese of Al-toona-Johnstown, and the Diocese of Pittsburgh (the “Trust Agreement”), in an effort to pool resources with regard to health benefits. Id. The Trust was formed by the Diocese of Pittsburgh converting its Catholic Employers Benefits Plan Delaware Trust to a Delaware statutory trust and expanding the' Trust to include the Dioceses of Altoona-Johnstown and Greensburg. Id.

The three Dioceses are the Beneficial Owners of the Trust, which is split into three series: the Greensburg series, the Altoona-Johnstown series, and the Pittsburgh series. Complaint, doc. no. 1, ¶ 34; Stipulation to Undisputed Facts, doc. no. 22, ¶ 1. Each Diocese is the sole “Beneficial Owner” and sole beneficiary of its respective series. Id. Thus, Plaintiff Diocese of Greensburg is the sole Beneficial Owner and sole beneficiary of the Greens-burg series of the Trust. Id.

The Trust functions as the insurance company underwriting the covered employees’ medical costs with all funding coming from each respective Diocese and its covered affiliates. Complaint, doc. no. 1, ¶ 36; Stipulation to Undisputed Facts, doc. no. 22, ¶ 1. Approximately 600 employees at the Diocese of Greensburg and its “various related affiliated entities” are eligible for health coverage through the Trust. Complaint, doc. no. 1, ¶ 39; Stipulation to Undisputed Facts, doc. no. 22, ¶ 1. Of those 600 employees, approximately 400 employees participate and thus, the total number covered by the Trust plan amounts to 800—when dependants of covered employees are included in the count. Id.

The health care plan offered through the Catholic Benefits Trust is administered by TPAs. Complaint, doc. no. 1, ¶ 37; Stipulation to Undisputed Facts, doc. no. 22, ¶ 1. The Trust offers two health plan options (“lay basic” and “lay premium”) for the employees of the Diocese of Greensburg itself, Catholic Charities, and all other Diocesan-affiliated entities within the Diocese such as St. John’s School. Complaint, doc. no. 1, ¶¶ 38, 41; Declaration of Charles Quiggle, doc. no. 17-6, ¶ 6; Stipulation to Undisputed Facts, doc. no. 22, ¶ 1.

Consistent with the teachings of the Catholic Church, all of the Diocesan employee health plan and prescription options offered through the Trust, including those for its nonprofit, religious affiliated/related organizations, such as Catholic Charities, do not include coverage for abortion-inducing drugs, contraceptives, or sterilization, except when medically necessary. Deela-ration of Charles Quiggle, doc. no. 17-6, ¶ 9; Stipulation to Undisputed Facts, doc. no. 22, ¶ 1.

The Diocesan health plans offered to lay employees of the Diocese and lay employees of its affiliates (such as Catholic Charities and St. John’s School), are not “grandfathered” and therefore, do not meet the ACA’s definition of a “grandfathered” plan. Declaration of Charles Quiggle, doc. no. 17-6, ¶ 10; Stipulation to Undisputed Facts, doc. no. 22, ¶ 1. The next plan year for these health care plans began on July 1, 2014, and if this Court had not entered the Preliminary Injunction, Plaintiffs would have to have been prepared to comply with the regulations including the contraceptive mandate. Complaint, doc. no. 1, ¶ 40; Declaration of Charles Quig-gle, doc. no. 17-6, ¶¶ 11, 13; Stipulation to Undisputed Facts, doc. no. 22, ¶ 1.

3. Trust Agreement—See doc. no. 1, ¶¶ 46-49 and doc. no. 22, ¶ 1.

The Trust Agreement provides that “each Director” of the Board of Directors of the Trust shall be “appointed by the Bishop of each Diocese that is or becomes a Beneficial Owner” of the Trust. The Board of Directors is then responsible for “[t]he management of the Trust[.]” Thus, the Bishop is required to appoint a Director to the Board of the Trust with the knowledge that, under the contraceptive mandate, the Director must then allow the Trust directly to facilitate provision of the objectionable services for accommodated entities. The Bishop knows that his appointee will be forced to violate the Catholic faith.

While “all powers to manage the business and affairs of the Trust and each Series shall be exclusively vested in the Board and the Board may exercise all powers of the Trust[,]” “a majority of the Beneficial Owners may amend [the Trust] Agreement in writing at any time and thereby broaden or limit the Board’s power and authorityf,]” Accordingly, while the Board of Directors manages the daily affairs of the Trust, the Dioceses through their respective Bishops have ultimate decision-making authority and ultimately are forced directly to facilitate provision of the objectionable services to the employees of accommodated entities within the Trust.

The Diocese, as operator and sole Beneficial Owner of the Greensburg series of the Trust, decides whether an entity may continue to participate in the Trust. The Trust Agreement provides that “[e]ach Beneficial Owner may allow such Diocesan Entities to benefit in such Series in respect of which such Beneficial Owner is the holder of the sole interest in accordance with the terms and conditions established by such Beneficial Owner in consultation with its advisors.”

Because accommodated, non-grandfathered entities, like Plaintiff Catholic Charities and Plaintiff St. John School, currently participate in the Trust, the Diocese will directly facilitate coverage of the objectionable services for the employees of these accommodated entities if the Diocese permits these entities to continue to participate in the Trust. Thus, the Diocese now faces the decision of whether to expel these accommodated entities—ie., Catholic Charities and St. John’s School—from the Trust.

The Diocese, as sole beneficial owner, also is responsible for any fines incurred by accommodated entities like Catholic Charities and St. John’s School as a result of non-compliance with the contraceptive mandate. Under the Trust Agreement, “[a] particular Series shall be charged with the liabilities of that Series, and all expenses, costs, charges and reserves attributable to any particular Series shall be borne by such Series.”

F. Plaintiffs’ Religious Beliefs as to the Contraceptive Mandate

As previously noted, a tenet of the Catholic faith is the belief that human life must be preserved from conception through natural death. See generally Hearing Testimony, Bishop Brandt, pg. 10, lines 10-17; pg. 12, lines 11-24.

The ACA includes the provision that eight categories of preventative services for women must generally be covered by group health plans without cost sharing. Plaintiffs Exhibit 67, HRSA, Women’s Preventive Services Guidelines (Aug. 1, 2011), available at http://www.hrsa.gov/ womensguidelines. Plaintiffs only object to the category that includes “contraceptive methods and counseling,” which covers FDA approved “contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity,” claiming the “contraceptive methods and counseling” category which provides for such products, services, and counseling, violates their belief in the sanctity of human life. See generally Hearing Testimony, Bishop Brandt, pg. 10, lines 10-17; pg. 12, lines 11-24; pg. 16, 4-8.

Completing the self-certification form required by the contraceptive mandate’s “accommodation” also violates that tenet. Hearing Testimony, Bishop Brandt, pg. 35, lines 5-7 (“If I sign the self-certification form, automatically that triggers the TPAs being able to offer those preventive services to which we object and which we find immoral. ”) (emphasis added).

Bishop Brandt indicated that he would not sign the self-certification form as it would burden his and any other signer’s exercise of religion. Hearing Testimony, Bishop Brandt, pg. 36, lines 6-18 (Signing the form “involves material cooperation in conduct which is intrinsically evil. ”) (emphasis added); and pg. 37, lines 16-17 (“... I cannot sign that document, the self-certification document, because that is cooperating in moral evil.”) (emphasis added).

In explaining the burden that signing the self-certification form places upon him and those who would have to sign on behalf of Catholic Charities and St. John’s School, Bishop Brandt explained that although the “self[-]certification form may take only a few minutes to sign, it’s ramifications are eternal because it constitutes direct facilitation of moral evil.” Declaration of Bishop Brandt, doc. no. 17-7, ¶ 17 (emphasis added); Stipulation to Undisputed Facts, doc. no. 22, ¶ 1. During the injunction hearing, Bishop Brandt expounded on his declaration stating, “... it’s not how long the signature takes that’s important for us. It is what the signature triggers, the ramifications, the consequences that come from the signature.” Hearing Testimony, Bishop Brandt, pg. 40, lines 22-25 (emphasis added).

III. Statutory and Regulatory History

A. Introduction

In March 2010, Congress enacted the ACA. Patient Protection and Affordable Care Act, Pub.L. No. 111-148, 124 Stat. 119 (2010), and the Health Care and Education Reconciliation Act, Pub.L. No. 111— 152, 124 Stat. 1029 (2010).

The ACA established new requirements for “group health plan[s],” broadly defined as “employee welfare benefit plan[s]” within the meaning of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1002(1), that “provide[] medical care ... to employees or their dependents.” 42 U.S.C. § 300gg-91(a) (1).

Section 1001 of the ACA requires all group health plans and health insurance issuers that offer non-grandfathered, nonexempt group or individual health coverage to provide coverage for certain preventive services without cost-sharing, including, “[for] women, such additional preventive care and screenings ... as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [ (‘HRSA’) ].” 42 U.S.C. § 300gg-13(a)(4). The ACA provides that certain of its provisions apply to “grandfathered health plans” and certain of its provisions, including 42 U.S.C. § 300gg-13, do not apply to “grandfathered health plans.” 42 U.S.C. § 18011. The contraceptive mandate does not apply to qualifying “grandfathered” plans, and such plans are not required to comply with the preventive services coverage requirement of 42 U.S.C. § 300gg-13.

B. Regulatory Background

1. Rulemaking from July 2010 to March 2012

On July 19, 2010, Defendants issued interim final rules, incorporating the statutory requirement that group health plans provide coverage for women’s “preventive care.” 75 Fed.Reg. 41,726 (citing 42 U.S.C. § 300gg-13(a)(4)). These initial rules did not define “preventive care,” noting that “[t]he Department of HHS is developing these guidelines and expects to issue them no later than August 1, 2011.” Id. at 41,731. At that time, there were no existing HRSA guidelines relating to preventive care and screening for women.

The Department of Health and Human Services (“HHS”) tasked the Institute of Medicine (“IOM”), a non-governmental organization, with “review[ing] what preventive services are necessary for women’s health and well-being and should be considered in the development of comprehensive guidelines for preventive services for women.” IOM Report at 2. On July 19, 2011, the IOM Committee released a report entitled “Clinical Preventive Services for Women: Closing the Gaps 19-20, 109 (2011) (TOM Report’).” The IOM Report recommended that the HRSA guidelines include, among other things, “the full range of [FDA]-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity” (“Preventive Services”). IOM Report at 10-12. FDA-approved contraceptive methods include diaphragms, oral contraceptive pills, emergency contraceptives (such as Plan B and Ella), and intrauterine devices (“IUDs”). See id. at 105. The IOM Report included a dissent from Committee member Anthony Lo Sasso.

On August 1, 2011, HHS issued a press release announcing that it would adopt the recommendations of the IOM Report. U.S. Dept, of Health and Human Services, “Affordable Care Act Ensures Women Receive Preventive Services at No Additional Cost,” available at http://-www.hhs.gov/ news/press/2011pres/08/20110801b.html.

Also, on August 1, 2011, HRSA adopted guidelines consistent with IOM’s recommendations, encompassing all FDA-approved “contraceptive methods, sterilization procedures, and patient education and counseling,” as prescribed by a health care provider, subject to an exemption relating to certain religious employers authorized by regulations issued that same day (the “2011 amended interim final regulations”). See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines (“HRSA Guidelines”).

In August 2011, the Government issued interim final rules implementing the statutory requirement that group health plans provide coverage for women’s “preventive care and screenings ... as provided for in comprehensive guidelines supported by [HRSA].” 76 Fed.Reg. 46,621, 46,623 (Aug. 3, 2011).

The August 2011 interim final rules also amended the July 19, 2010 interim rules to provide HRSA additional discretion to exempt “religious employers” from the contraceptive coverage requirement. Id. To qualify for the religious employer exemption contained iri the 2011 amended interim final regulations, an employer had to meet the following criteria:

a. The inculcation of religious values is the purpose of the organization;

b. The organization primarily employs persons who share the religious tenets of the organization;

c. The organization serves primarily persons who share the religious tenets of the organization; and

d. The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended [i.e., an organization exempted from filing IRS Form 990].

Id. at 46,623. The Government sought “to provide for a religious accommodation that respects the unique relationship between a house of worship and its employees in ministerial positions.” Id.

In February 2012, the Government “finalize^, without change,” the “religious employer” exemption as originally proposed in the August 2011 interim final rules. 77 Fed.Reg. at 8,729 (Feb. 15, 2012). In February 2012, the Government also created a “one-year safe harbor from enforcement” for non-grandfathered group health plans sponsored by certain nonprofit organizations with religious objections to contraceptive coverage. See 77 Fed.Reg. 8725, 8726-28 (Feb. 15, 2012). The Government undertook a new rulemaking during the safe harbor period to adopt new regulations applicable to non-grandfathered nonprofit religious organizations with religious objections to covering Preventive Services. Id. at 8728.

On March 21, 2012, the Government issued an Advance Notice of Proposed Rule-making (“ANPRM”) that stated it was part of the Government’s effort “to develop alternative ways of providing contraceptive coverage without cost sharing in order to accommodate non-exempt, nonprofit religious organizations with religious objections to such coverage.” 77 Fed.Reg. 16,-501,16,503 (Mar. 21, 2012).

2. Rulemaking from February to July 2013

On February 1, 2013, the Government issued a Notice of Proposed Rulemaking (“NPRM”), setting forth a proposal that stated it was to “amend the criteria for the religious employer exemption to ensure that an otherwise exempt employer plan is not disqualified because the employer’s purposes extend beyond the inculcation of religious values or because the employer serves or hires people of different religious faiths,” and to “establish accommodations for health coverage established or maintained by eligible organizations, or arranged by eligible organizations that are religious institutions of higher education, with religious objections to contraceptive coverage.” See 78 Fed.Reg. 8456 (Feb. 6, 2013).

Defendants received over 400,000 comments (many of them standardized form letters) in response to the proposals set forth in the NPRM. 78 Fed.Reg. 39,870, 39,872 (July 2, 2013).

On June 28, 2013, the Government issued final rules adopting and/or modifying proposals in the NPRM. See 78 Fed.Reg. 39,870 (“Final Rule”). The regulations challenged here (the “2013 final rules”) include the new regulations issued by the Government and applicable to non-grandfathered, nonprofit religious organizations with religious objections to covering Preventive Services. See 78 Fed.Reg. 39,870; see also 77 Fed.Reg. 16,501 (ANPRM); 78 Fed.Reg. 8456 (NPRM).

a. The 2013 Final Rules’ “Religious Employer” Exemption

The Final Rule states that it simplify[ied] and clarifyfied] the definition of “religious employer.” 78 Fed.Reg. at 39,871. Under the new definition, an exempt “religious employer” is “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 78 Fed. Reg. 39874 (codified at 45 C.F.R. § 147.131(a)). The groups that are “refer[red] to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code,” are:

(i) churches, their integrated auxiliaries, and conventions or associations of churches, and

(iii) the exclusively religious activities of any religious order.

26 U.S.C. § 6033(a)(3)(A)(i) or (iii). Section 6033 of the Internal Revenue Code addresses whether and when nonprofit entities that are exempt from paying taxes under the Code must file “annual information [tax] return[s].” 26 C.F.R. § 1.6033-2(a).

The new definition of “religious employer” does “not expand the universe of religious employers that qualify for the exemption beyond that which was intended in the 2012 final regulations.” 78 Fed. Reg. at 39,874 (citing 78 Fed.Reg. 8461). Entities that are included in Section 6033(a)(3)(A) are exempt from filing an annual Form 990 with the IRS.

The 2013 final rules’ amendments to the religious employer exemption apply to group health plans and group health insurance issuers for plan years beginning on or after August 1, 2013. See id. at 39,871.

b. The 2013 Final Rules’ “Accommodation”

The 2013 final rules establish regulations regarding the contraceptive coverage requirement for group health plans established or maintained by “eligible organizations.” 78 Fed.Reg. at 39,875-80; 45 C.F.R. § 147.131(b).

An “eligible organization” is an organization that satisfies the following criteria:

(1)The organization opposes providing coverage for some or all of any contra- . ceptive services required to be covered under § 147.130(a)(l)(iv) on account of religious objections.

(2) The organization is organized and operates as a nonprofit entity.

(3) The organization holds itself out as a religious organization.

(4) The organization self-certifies, in a form and manner specified by the Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section, and makes such self-certification available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this section applies.

45 C.F.R. § 147.131(b); see also 78 Fed. Reg. at 39,874-75. The 2013 final rules state that an eligible organization is not required “to contract, arrange, pay, or refer for contraceptive coverage” to which it has religious objections. 78 Fed.Reg. at 39,874.

To be relieved of the obligations that otherwise apply to non-grandfathered, non-exempt employers, the 2013 final rules require that an eligible organization complete a self-certification form, certifying that it is an eligible organization, sign the form, and provide a copy of that self-certification to its insurer or TPA. Id. at 39.878-79.

For self-insured organizations, the self-certification “will afford the [TPA] notice of [its] obligations” under the 2013 final rules, “and will be treated as a designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits pursuant to section 3(16) of ERISA.” 78 Fed.Reg. at 39,879. Section 3(16) of ERISA provides the definition of “administrator” under ERISA. 29 U.S.C. § 1002(16).

Under the 2013 final rules, in the case of an eligible organization with a self-insured group health plan, the organization’s TPA, upon receipt of the self-certification, will provide or arrange separate payments for contraceptive services for participants and beneficiaries in the plan without cost-sharing, premium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or its plan. See id. at 39.879-80; 26 C.F.R. § 54.9815-2713A(b)(2), (c)(2).

Under the 2013 final rules, costs incurred by TPAs relating to the coverage of Preventive Services for employees of eligible organizations will be reimbursed through an adjustment to Federally-facilitated Exchange (FFE) user fees. See 78 Fed.Reg. at 39,880. The payments for Preventive Services required by the challenged regulations applicable to employer-sponsored health insurance plans are available to an employee only while the employee is on an organization’s health plan. 29 C.F.R. § 2590.715-2713; 45 C.F.R. § 147.131(c)(2)(i)(B).

Self-insured religious employers and eligible organizations are prohibited from “directly or indirectly, seekfing] to influence the[ir] third party administrator’s decision” to provide or procure Preventive Services. 26 C.F.R. § 54.9815-2713.

The 2013 final rules’ “accommodation” applies to group health plans and health insurance issuers for plan years beginning on or after January 1, 2014. See id. at 39,872.

IV. Summation of Findings of Fact

Based upon testimony presented at the injunction hearing, credibility determinations of the witnesses by this Court, and the sum of evidence presented in various forms, the Court finds that:

(1) Plaintiffs hold sincerely to the religious beliefs of the Catholic faith that:

(a) human life is sacred from conception to natural death;

(b) worship, faith, and good works are essential and integral to the practice of Catholicism (“faith without good works is dead”); and

(c) the facilitation of evil is as morally odious as the proliferation of evil.

(2) Plaintiffs will refuse to provide, directly or indirectly, employee health insurance coverage for contraceptive products, services, or counseling, because doing so would violate their sincerely-held religious beliefs.

(3) The nonprofit, religious affiliated/related Plaintiffs (Catholic Charities and St. John’s School) will not complete the self-certification form. These Plaintiffs will partake in this act of civil disobedience because to do otherwise—meaning signing the self-certification form—will initiate (“cause a process of action to begin”) and facilitate coverage of contraceptive products, services, and counseling by a TPA or health insurer. The act of signing the self-certification form will violate these Plaintiffs’ sincerely-held religious beliefs. Further, Bishop Brandt will direct these Plaintiffs not to complete the self-certification form.

(4) The nonprofit, religious affiliated/related Plaintiffs will be subject to substantial fines/penalties/“taxes” and other coercive governmental sanctions.

(5) The effect of the imposition of these fines/penalties/“taxes” will gravely impact Plaintiffs’ spiritual, charitable, and educational activities, and the individuals who rely on the Catholic Church’s nonprofit, religious affiliated/related organizations for the basic needs of food, shelter, and education, as well as other charitable programs. The fines/penalties/“taxes” also will negatively affect Plaintiffs’ financial situation because donors to these spiritual/charitable/educational organizations may not wish to donate funds when the funds could be diverted to the Government in the form of fines/penalties/“taxes.”

Y. Conclusions of Law

A. Overview

The Court begins by noting that on June 20, 2014, 2014 WL 2808910, the Court granted Plaintiffs’ Motion for an Expedited Preliminary Injunction. Doc. nos. 26-27. The Court did so without conducting a hearing based on the representations made by counsel for the Parties during a June 3, 2014 status conference. Counsel indicated that given the Court’s familiarity with the issues presented in the case from its experience in the Zubik and Pérsico matters, and in light of the very constricted time frame within which they had to comply with the “accommodation,” all Parties agreed to waive a preliminary hearing and have this Court decide the preliminary injunction matter solely on the written record. Status Conference Transcript, doc. no. 20, pg. 6-7, line 25, lines 1-4. In light of this agreement by the Parties, the Court ordered the Parties to prepare a Stipulation as to any undisputed facts—as they had done in the Pérsico and Zubik cases—and set a date for a permanent injunction hearing.

On June 6, 2014, in the Parties’ jointly filed “Stipulation to Undisputed Fact” (doc. no. 22), the Government conceded that: (1) Plaintiffs’ religious beliefs are sincerely held, and (2) Plaintiffs’ participation in the accommodation—specifically, signing the self-certification form—would violate their sincerely-held religious beliefs. The Government also stipulated that it did not dispute the factual allegations set forth in: the Complaint (doc. no. 1); the declaration of Monsignor Larry Kulick (doc. no. 17-3); the declaration of Monsignor Raymond Riffle (doc. no. 17-4); the declaration of Christine Roskovensky (doc. no. 17-5); the declaration of Charles Quig-gle (doc. no. 17-6); the declaration of Bishop Lawrence Brandt (doc. no. 17-7); and the “Preliminary. Injunction papers” (doc. nos. 16 and 17). Therefore, the Court ruled on Plaintiffs’ Motion for an Expedited Preliminary Injunction based on the facts set forth in those documents because they were (and are) uncontested. See doc. nos. 26-27, Memorandum Opinion and Order on Plaintiffs’ Motion for an Expedited Preliminary Injunction.

The Court’s decision in this case, like the Court’s decisions in Zubik and Pérsico, is guided by decisions in other Courts across the Country. In this instance, the most recent Supreme Court decision, Burwell v. Hobby Lobby Stores, Inc., 573 U.S. -, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014), is especially instructive on some—if not all—of the legal issues presented herein.

Although Hobby Lobby was decided in favor of for-profit, closely-held corporations (Hobby Lobby and Conestoga Wood Specialities) who were not offered an “accommodation” under the regulations, Hobby Lobby is still instructive. Plaintiffs here, like the plaintiffs in Hobby Lobby, challenged provisions relating to the contraceptive mandate of the ACA. Similarly, Plaintiffs here, like the plaintiffs in Hobby Lobby, assert that their religious freedom is violated by the contraceptive mandate, despite the fact that the Government provided Plaintiffs with an “accommodation” to the mandate. The only difference between these Plaintiffs and the Hobby Lobby plaintiffs arises out of the actions these Plaintiffs must take in order to comply with the “accommodation” to the contraceptive mandate as opposed to the actions that the Hobby Lobby plaintiffs had to take to comply with the mandate itself. Nonetheless, the analysis is generally the same: this Court is tasked with determining whether the law (in this case the “accommodation” provision of the contraceptive mandate) requires these Plaintiffs to take actions that violate their sincerely-held religious beliefs thereby burdening their freedom to exercise their religion.

In addition to the Hobby Lobby decision, this Court also notes that three days after publishing its Hobby Lobby decision, the United States Supreme Court granted an injunction pending appeal to Wheaton College in Wheaton College v. Burwell, — U.S.-, 134 S.Ct. 2806, 189 L.Ed.2d 856 (2014). Although the Court in Wheaton did not decide the “accommodation issue” on the merits—which is the seminal issue facing this Court in the instant case, as it was in Zubik and Pérsico—it did enjoin the Government from enforcing the challenged accommodation provisions and related regulations against Wheaton College, specifically the regulations related to the submission of EBSA Form 700—the very form at the heart of the issue in this case. Wheaton, 134 S.Ct. at 2807 (The Government is enjoined from enforcing against Wheaton College “the challenged provisions of the [ACA] and related regulations pending final disposition of appellate review. To meet the condition for injunction pending appeal, the applicant need not use the form prescribed by the Government, EBSA Form 700, and need not send copies to health insurance issuers or third-party administrators”).

Turning to the instant matter, Plaintiffs have requested that this Court grant a permanent injunction, arguing that the religious employer “accommodation,” which requires them to facilitate/initiate compliance with the contraceptive mandate, violates their rights under the RFRA and the Free Exercise Clause of the First Amendment.

B. Permanent Injunction Test

According to well-established principles of equity, “[a] plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 157, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010) citing eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006). See also Boring v. Google Inc., 362 Fed.Appx. 273, 282 (3d Cir.2010) (“Pennsylvania law provides that in order to establish the right to injunctive relief,- a plaintiff must establish that his right to relief is clear, that an injunction is necessary to avoid an injury that cannot be compensated by damages, and that greater injury will result from refusing rather than granting the relief requested.”); Shields v. Zuccarini, 254 F.3d 476, 482 (3d Cir.2001) (“In deciding whether to grant a permanent injunction, the district court must consider whether: (1) the moving party has shown actual success on the merits; (2) the moving party will be irreparably injured by the denial of injunctive relief; (3) the granting of the permanent injunction will result in even greater harm to the defendant; and (4) the injunction would be in the public interest.”).

There is no significant difference between the standards for a preliminary injunction and a permanent injunction. See Amoco Prod. Co. v. Village of Gambell, Alaska, 480 U.S. 531, 546 n. 12, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) (“The standard for a preliminary injunction is essentially the same as for a permanent injunction with the exception that the plaintiff must show a likelihood of success on the merits rather than actual success”). Plaintiffs’ standard of proof for a permanent injunction is the preponderance of the evidence standard for injunctive relief, or demonstration of a fact as “more likely than not.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (citing Herman & MacLean v. Huddleston, 459 U.S. 375, 390, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983)).

Accordingly, this Court has evaluated Plaintiffs’ request for a permanent injunction and considered their request under a preponderance of evidence standard. The Court concludes, based on its aforementioned findings of fact, that Plaintiffs have met their burden of proving success on the merits of their claim with respect to “Count I—Substantial Burden on Religious Exercise in Violation of RFRA” as explained more thoroughly infra. ,

1. Success on the Merits—RFRA

a. Background

Plaintiffs, in their Motion for Expedited Preliminary Injunction, asked this Court to enjoin Defendants from issuing, applying, and enforcing 42 U.S.C. § 300gg-13(a)(4) as further regulated by 45 C.F.R. § 147.130(a)(l)(iv) against Plaintiffs and their group health plans. Doc. no. 16. Section “III.B.2.” above, 45 C.F.R. § 147.130(a)(1)(iv) is the regulation that allows HRSA to “establish exemptions” from group health plans maintained by “religious employers” with respect “to any requirement to cover contraceptive services[.]” See 45 C.F.R. § 147.130(a)(1)(iv)(A). Id. As noted above, the Court granted Plaintiffs’ Motion for Expedited Preliminary Injunction. Doc. nos. 26-27.

After receiving hundreds of thousands of comments from the public, including religious individuals and entities, concerning the definition of “religious employer” for the benefit of receiving an “exemption” from the contraceptive mandate, the “final rule” promulgated by HRSA defined a “religious employer” as “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.... ” 45 C.F.R. § 147.131(a).

Again, as noted in Section “III.B.2.” above, the nonprofit entities included in the relevant portion of Section 6033 of the Internal Revenue Code are:

(i) churches, their integrated auxiliaries, and conventions or associations of churches,

(iii) the exclusively religious activities of any religious order.

26 U.S.C.A. § 6033(a)(3)(A).

Given this description, Plaintiffs in the instant cases (the nonprofit, religious affiliated/related entities) fail to meet the definition of a “religious employer” entitled to the “exemption.”

In response to concerns that the application of the religious employer “exemption” was too narrow, and instead of broadening the “exemption,” a second regulation was enacted that allowed for non-secular, nonprofit employers to receive an “accommodation,” whereby these entities could self-certify that they were “eligible organizations” and thereby avoid directly providing contraceptive products, services, and counseling.

As noted above, this “accommodation” is limited to “eligible organizations” that: (1) oppose providing coverage for some or all of any contraceptive services required to be covered under the contraceptive mandate “on account of religious objections[;]” (2) are organized and operate as a nonprofit entity; (3) hold themselves out as a religious organization; and (4) “self-certify,” in a form and manner specified by the Secretary, that it satisfies the criteria in (1) through (3) above. See 45 C.F.R. § 147.131(b); see also 78 Fed.Reg. at 39,-874-75. “The self-certification must be executed by a person authorized to make the certification on behalf of the organization, and must be maintained in a manner consistent with the record retention requirements under section 107 of the Employee Retirement Income Security Act of 1974.” Id.

Because the non-secular, nonprofit Plaintiffs in the instant cases meet the first three criteria of the “accommodation,” they need to “self-certify,” as required by the fourth criterion, to be deemed an “eligible organization” thereby entitling them to obtain the religious employer “accommodation.” It is the fourth criterion of the religious employer “accommodation” that Plaintiffs contend violates their rights under the RFRA and the First Amendment.

In order to qualify for the religious employer “accommodation,” and thus avoid directly providing or paying for contraceptive products, services, and counseling through their own health plans, Plaintiffs in these cases must self-certify that they: (1) oppose providing such contraceptive coverage on account of their religious objections; (2) are organized and operate as nonprofit entities; and (3) hold themselves out as a religious organization. This Court found as fact that Plaintiffs’ self-certification forms must be executed by the Bishop of Greensburg or at his directive.

b. Substantial Burden under the RFRA

Plaintiffs assert that by requiring self-certification and thereby facilitating or initiating the process of providing contraceptive products, services, and counseling, via a third party, the “accommodation,” violates their rights under the RFRA.

The RFRA provides, in pertinent part, as follows:

(a) In general

Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

(b) Exception

Government may substantially burden a person’s exercise of religion 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.A. § 2000bb-1.

This Court must look to what is meant by “substantial burden” under the RFRA. As the United States Supreme Court stated in Hobby Lobby, substantial burden is not to be determined by “whether the religious belief asserted in an RFRA ease is reasonable!;]” in fact, this Court “must not presume to determine ... the plausibility of a religious claim.” Hobby Lobby, 134 S.Ct. at 2778. Instead, in determining whether a substantial burden has been placed on these Plaintiffs, this Court’s own “ ‘narrow function ... in this context is to determine’ ” whether the line drawn reflects “ ‘an honest conviction,’ and there is no dispute that it does.” Hobby Lobby, 134 S.Ct. at 2779, quoting Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, at 716, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981) (internal citation omitted).

Here, the Government (adopting its pri- or arguments made in Zubik and Pérsico), argues that the “accommodation” merely requires the Bishop of Greensburg (or his designees) to sign the self-certification form, on behalf of the Diocese’s respective nonprofit, religious affiliated/related entities, and does not rise to the level of a “substantial burden,” as that term has been defined in connection with the RFRA. The Government argues that any impact on