FEDERAL COURT FILING: Preliminary injunctive relief on behalf of Missouri State Representative Paul Wieland and his wife Teresa in the couple’s lawsuit fighting Obamacare infringement

8/13/2019 FEDERAL COURT FILING: Preliminary injunctive relief on behalf of Missouri State Representative Paul Wieland and

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IN THE UNITED STATES COURT OF APPEALSFOR THE EIGHTH CIRCUIT

PAUL WIELAND and TERESA WIELAND, ))

Appellants, ))

vs. ) Case No. 13-3528)

U.S. DEPARTMENT OF HHS, et al., ))

Appellees. )

APPELLANTS MOTION FOR A PRELIMINARY INJUNCTION

PENDING APPEAL PURSUANT TO RULE 8, FED. R. APP. P.

Timothy Belz #MO-31808J. Matthew Belz #MO-61088OTTSEN , LEGGAT & BELZ , L.C.112 South Hanley, Second FloorSt. Louis, Missouri 63105-3418Phone: (314) 726-2800Facsimile: (314) [email protected]

Thomas L. BrejchaPeter BreenTHOMAS MORE SOCIETY 19 S. La Salle Street, Suite 603Chicago, IL 60603Phone: (312) 782-1680

Kevin Edward WhiteK EVIN EDWARD WHITE & ASSOCIATES 77 W. Wacker Drive, Suite 4800Chicago, IL 60601Phone: (312) 606-8602

Attorneys for AppellantsPaul Wieland and Teresa Wieland

Appellate Case: 13-3528 Page: 1 Date Filed: 11/25/2013 Entry ID: 4099391


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I. Introduction And Summary Of Argument

Beginning January 1, 2014, the Patient Protection and Affordable Care Act

(ACA) and implementing regulations require that Paul and Teresa Wieland pro-

vide health coverage to their dependentsthree daughters, ages 13, 18 and 19

including coverage for contraceptives, abortion-inducing drugs, sterilization and

related counseling (Mandate). This coverage, abhorrent to the Wielands

Catholic religion, is mandated to continue until their dependent daughters are 24.

To date, this Court and three other circuits have held that for-profit employers are

likely to prevail on their claims under the Religious Freedom Restoration Act

(RFRA), 42 U.S.C. 2000bb et seq., that their religious freedom is substantially

burdened when forced by the government to provide such coverage to employees. 1

The Wielands religious freedom, as an employee (Paul), and as parents (Paul and

Teresa), is also protected under RFRAand every bit as much as an employers.

This Court ruled in Annex Med. v. Sebelius , 2013 WL 1276025 (8th Cir.

2013) and OBrien v. U.S. Dept of HHS , Order, No. 12-3357 (8th Cir. Nov. 28,

2012) that for-profit employers were entitled, pending resolution of their appeals, 2

" Forty-four (44) for-profit lawsuits have been filed, of which thirty-two (32) haveresulted in injunctive relief against the Mandate and six (6) in denials, with theremainder undecided or otherwise disposed of. The Beckett Fund, available athttp://www.becketfund.org/hhsinformationcentral/ (last visited Nov. 24, 2013).

# Like this Court, other circuit courts have granted for-profit employers preliminaryinjunctions pending appeal, thus temporarily reversing district court denials of



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to injunctive relief against enforcement of the Mandate. The employers claimed

that the Mandate requires, under pain of fines, that they provide coverage to

employees that includes religiously abhorrent contraceptive coverage.

Prior to August 1, 2013, the Wielands health plan excluded contraceptive

coverage. But on that date, Paul Wielands plan provider, the state-run Missouri

Consolidated Health Care Plan (MCHCP), moved the Wielands into an ACA-

compliant plan that includes the objectionable coverage, citing the ACA as the

reason. Thus, as in the employer cases, the ACA is not just imposing on the Wie-

lands daughters objectionable coverage for contraception and abortifacients; it is

also forcing Paul and Teresa Wieland themselves to facilitate and participate in the

provision of such religiously abhorrent coverage to their children.

II. Procedural Background

On August 14, 2013, the Wielands filed a Complaint alleging that the

Mandate violates RFRA, among other laws. R. 1. On August 20, they filed a

preliminary injunctions in similar cases. Grote v. Sebelius , 708 F.3d 850 (7th Cir.2013); Korte v. Sebelius , 2012 WL 6757353 (7th Cir. 2012); Gilardi v. U.S. Deptof Health & Human Servs ., No. 13-5069 (D.C. Cir. Mar. 29, 2013) (Dkt. # 24).These preliminary injunctions pending appeal have recently been followed by

decisions, after full hearing, in favor of the RFRA claimants. Korte v. Sebelius, ___F.3d ___, 2013 WL 5960692, *24 (7th Cir. Nov. 8, 2013) (consolidating Grote and Korte, supra, and reversing and remanding both cases with instructions to enter preliminary injunctions for the RFRA claimants); Gilardi v. Dept . of HHS , ___F.3d ___, 2013 WL 5854246, *8 (D.C. Cir. Nov. 1, 2013) (reversing districtcourts denial of preliminary injunction).



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motion for injunctive relief, requesting that the government be enjoined from

requiring them to provide contraceptive coverage to their daughters. On October

16, the district court dismissed Plaintiffs Complaint, with prejudice.

On October 29, the district court denied the Wielands motion, filed pursuant

to Fed. R. App. P. 8, to enjoin enforcement of the Mandate pending this appeal.

III. Factual Background

A. The ACA, The Mandate And Its Exceptions

As of January 1, 2014, the ACA requires, under pain of fines, that the

Wielands provide health coverage for themselves and their dependents. 26 U.S.C.

5000A(a), (c). 3 Absent such coverage, the Wielands will be subject to such

fines whether or not they actually claim their daughters as dependents on their tax

returns, 78 Fed. Reg. 53646, 53657 (August 30, 2013), until their daughters are

24. Id .; 26 U.S.C. 152. The coverage required includes all FDA-approved con-

traceptive methods, sterilization procedures, and patient education and counseling

for all women with reproductive capacity. 77 Fed. Reg. 8725 (Feb. 15, 2012).

Not everyone is required to comply with this Mandate. Grandfathered

plans, i.e., plans that have not undergone any of a defined set of changes, are

3 In Natl Fedn of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012), the Court upheldthis individual mandate. Justice Ginsburg cautioned, however, that [a] mandateto purchase a particular product would be unconstitutional if, for example, the edictimpermissibly abridged the freedom of speech, interfered with the free exercise ofreligion, or infringed on a liberty interest protected by the Due Process Clause.

Id. at 2624 (Ginsburg, J., concurring in part, dissenting in part).



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exempt. See 75 Fed. Reg. 41726, 41731 (July 19, 2010). Also exempt are

religious employers. 78 Fed. Reg. 39870, 39874 (July 2, 2013). Because

employers with fewer than fifty full-time employees have no obligation to provide

health coverage, they are also effectively exempt from the Mandate. 26 U.S.C.

4980H(c)(2)(A). And individuals who are members of a recognized religious

sect or division that conscientiously objects to any acceptance of public or private

insurance funds, or are members of a health care sharing ministry, are exempt

from the requirement to obtain any coverage, and thus are also effectively exempt

from the Mandate. 26 U.S.C. 5000A(d)(2)(A)(i), (ii), (B)(ii).

As a result, and by the governments own estimates, the challenged

regulations contain exemptions that exclude upwards of tens of millions of

people from contraceptive coverage. Hobby Lobby Stores v. Sebelius, 723 F.3d

1114, 1143 (10th Cir. 2013). But there are no exemptions for the Wielands.

B. The Wielands 4

The Wielands have three daughters, ages 13, 18 and 19. As devout

Catholics, the Wielands sincerely believe that life begins at conception, is sacred

and worthy of protection, and that therefore abortifacients are gravely immoral. So,

too, are contraception and sterilization. Their Catholic faith prohibits them from

participating, directly or indirectly, in providing coverage for contraception,

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



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sterilization, or abortifacients, such as Plan B (the morning-after pill), ella (the

week-after pill), and copper IUDs.

As a member of the Missouri House of Representatives, Paul Wielands

familys health insurance coverage is an earned benefit. Coverage is provided by

the State of Missouri, through MCHCP. Paul and Teresa Wieland pay a portion of

the premiums for this coverage; the State pays the remainder.

Between January 2011, when the Wielands coverage began, and August 1,

2013, their plan did not include coverage for contraceptives. This was because the

Wielands opted out of such coverage per their statutory right. Mo. Rev. Stat.

191.724. On July 16, 2013, the MCHCP board concluded that the opt-out was in

direct conflict with the contraceptive mandate in the Affordable Care Act and

would accordingly be discontinued. Ex. 1, MCHCP Minutes, July 16, 2013, p. 6.

On July 18, 2013, MCHCP sent the Wielands a letter giving notice that [e]ffective

August 1, 2013, you will be placed in the corresponding medical plan that includes

contraception and sterilization coverage in accordance with federal law. Ex. 2.

IV. ARGUMENT

The standard for injunctions pending appeal is identical to the preliminary

injunction standard. Shrink Missouri Govt PAC v. Adams , 151 F.3d 763, 764 (8th

Cir. 1998). This familiar standard is set out in Dataphase Sys., Inc. v. C L Sys.,

Inc ., 640 F.2d 109, 114 (8th Cir. 1991) (en banc). The Wielands satisfy all four



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factors. But first, they address the issue of standing, which is where the district

court erred legally and clearly erred to the extent it made any factual findings.

A. The Wielands Have Standing.

1. The Wielands Have Demonstrated A Causal LinkBetween the ACA And Their Injury.

The district court found a lack of causation between the ACA, on the one

hand, and MCHCP shifting the Wielands to a plan that includes contraceptive cov-

erage, on the other: First . . . [b]ecause Plaintiffs alleged injuries are linked with

the independent discretionary actions of the State and MCHCP, neither of which

are parties to this action or before this Court, they allege only indirect causation

between the Mandate and their alleged injuries. 5 Ex. 3, Order, Oct. 16, 2013, pp.

5-6. This was error. The shift was not discretionary, but required by the ACA.

To satisfy the causation requirement of standing, the Wielands must show

that their injury is fairly traceable to the actions of the defendant. Bennett v.

Spear , 520 U.S. 154, 162 (1997) (citing Lujan v. Defenders of Wildlife, 504 U.S.

555, 560561 (1992)). While it does not suffice if the injury complained of is

th[e] result [of] the independent action of some third party not before the court,

. . . that does not exclude injury [to the Wielands] produced by determinative or

5 The Wielands informed the district court that, despite the fact that the State andMCHCP were mere conduits for the federal governments regulation and not thecause of the Wielands injury, they had no objection to adding the State orMCHCP as parties if the court so desired. R. 28, p. 4, n. 2. The court responded bydismissing the Wielands case, without a hearing and with prejudice.



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coercive effect [by the ACA] upon the action of someone else [MCHCP]. Id . at

169 (citing Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976) and

Lujan , at 560-61) (bracketed content added). Courts should not equate[] injury

fairly traceable to the defendant with injury as to which the defendant's actions

are the very last step in the chain of causation. Bennett, at 168-69.

The district courts references to the discretionary actions of the State and

MCHCP and indirect causation (Ex. 3, pp. 5-6) were erroneous because there

was no such discretion, but rather only affirmative, unattenuated causation from

Defendants threatened enforcement of the ACA to MCHCP to the Wielands.

MCHCPs action, converting the Wielands plan to one that included con-

traceptive coverage, was required by federal law . The Mandate complained of

removes any possible discretion on the part of Missouri officials or MCHCP.

MCHCP admitted this, in a July 18, 2013 letter to the Wielands stating that

MCHCP was shifting the Wielands to a health plan that included the abhorrent

contraceptive coverage, explaining that under federal law MCHCP must provide

contraception and sterilization coverage in all medical plans it offers. Ex. 2.

MCHCPs official minutes from July 16, 2013, just two days before the letter to

the Wielands was mailed, also affirmed the ACA as the sole motivating cause:

Before the board today are emergency rescissions for 22 CSR 10-2.130 and 22CSR 10-3.130, titled Additional Plan Options, as well as corresponding

proposed rule rescissions as required by law. The effect of this rule rescissionis to eliminate MCHCP plans without contraceptive coverage.



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This rule change is necessary in light of the recent court decision issued May22, 2013, and became [sic] final June 22, 2013, that invalidated various provi-sions of SB 749 enacted last September requiring health carriers and grouphealth plans in Missouri to offer a health benefit plan option that excludedcoverage for contraception and sterilization to employees in Missouri if thoseservices were contrary to the employees religious beliefs or moral convictions.The recent federal court decision concluded the provisions containing thatrequirement were void under the United States Constitution and in directconflict with the contraceptive mandate in the Affordable Care Actunless an employer is exempt from this requirement under federal law .

MCHCP is subject to the same provisions of federal law that require theoffering of contraceptives at zero cost sharing. MCHCP does not qualifyfor any federal exemption from this requirement. To continue offering aplan that is contrary to federal law puts MCHCP and its assets at risk.

Therefore, MCHCP staff recommends that the board authorize the ExecutiveDirector to file emergency and proposed rule rescissions of 22 CSR 10-2.130and 22 CSR 10-3.130, to be effective as soon as possible and to take all neces-sary steps to implement the elimination of the no contraceptive plans,moving affected individuals from the plan they chose without contracep-tion to the same plan with contraception and notifying these members ofthe change , the reason for the change and the impact of this change on them.

If the Board approves this action, we anticipate the changes will be effectiveAug. 1 so that we are able to hit the July 30 payroll for any prospective premium adjustments.

Ex. 1, MCHCP Minutes, July 16, 2013, pp. 6-7 (emphasis added). 6 7

The direct link between the Mandate and MCHCP changing the Wielands

plan is undeniable. There were no independent discretionary actions. MCHCP

changed the plan in order to avoid violating the ACA and facing fines.

6 The recent court decision referred to in the minutes is Missouri Ins. Coal. v. Huff , 2013 WL 2250430 (E.D. Mo. May 22, 2013), discussed infra .

7 The emergency rescission, which cites the ACA, is attached hereto as Exhibit 4.



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The district court stated that Plaintiffs suggest that the district courts

decision in Missouri Insurance Coalition v. Huff , 2013 WL 2250430 (E.D. Mo.

May 22, 2013), establishes causation. Ex. 3, p. 7. The Plaintiffs made no such

suggestion, citing Huff in their briefs to note only that (a) the decision did not

address the rights of employees under another opt-out statute, Mo. Rev. Stat.

191.724, and (b) the case clarified for MCHCPas evidenced in the official

board minutesthat portions of Mo. Rev. Stat. 376.1199 were preempted by the

ACA and thus there was no contraceptive coverage opt-out ability for non-exempt

individuals and entities under that statute. R. 4, p. 1, n.1; R. 28, p. 5.

Moreover, the injurious fines the Wielands face if they do not provide the

religiously abhorrent coverage to their daughters, are also traceable to the ACA.

Hobby Lobby , at 1126 (standing found because Hobby Lobby face[d] an

imminent loss of money, traceable to the contraceptive-coverage requirement.).

2. The Requested Relief Would Redress Plaintiffs Injury.

Still on the issue of standing, the district court said, Second, the Court will

consider whether Plaintiffs sufficiently allege facts which, if true, would show that

their injuries are likely to be redressed by the remedy they seek. Ex. 3, p. 9. The

court cited Allen v. Wright , 468 U.S. 737, 758-59 (1984), for the proposition that

likelihood of redress must be more than speculative. Then, against the

uncontroverted facts, it found the Wielands prospects for redress speculative. Id .



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To support this finding, the court first found that the State and MCHCP

would retain discretion not to offer Mr. Wieland a health plan that excludes

contraception and abortion. Id . This too is error.

If and when the requested injunction is granted, Mo. Rev. Stat. 191.724

(Ex. 5) affirmatively requires that MCHCP and the State allow the Wielands to

opt out of contraceptive coverage. In addition to 191.724.2-3 prohibiting dis-

crimination against objecting individuals, 191.724.4 specifically bars govern-

mental entit[ies] and entit[ies] acting in a governmental capacity, such as the

State-created MCHCP, from compelling others to obtain religiously abhorrent

contraceptive coverage, or discriminating against objecting individuals ( e.g., by

refusing to offer contraceptive-free coverage to employees who are eligible under

a religious exemptiongranted judicially or administratively). There could be no

more blatant case of discrimination than for MCHCP to say, If you want contra-

ceptive coverage we will provide you a policy, but if you dont want contraceptive

coverage, even for religious reasons, we will not provide you a policy. MCHCP

thus will have to provide the Wielands with contraceptive-free coverage.

Inexplicably, the district court rejected the argument that the for-profit

employers, which have been successful within the Eighth Circuit, face the same

issuefinding an insurance company that will give them a contraceptive-free

plan. The court below argued that the plaintiffs in those matters were employers



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who themselves were required to provide contraception coverage in the health

plans they offered their employees. Ex. 3, pp. 9-10. This distinction does nothing

to refute the Wielands pointthat Annex Medical, for instance, obtained an

injunction but it, like the Wielands, still must find a carrier to provide such a plan.

Even if arguendo the district courts distinction had merit, 8 it runs out of merit for

certain on January 1, 2014, 9 when the individual mandate, running directly and

immediately to the Wielands, requires that Paul and Teresa Wieland provide

health coverage (and thus contraceptive coverage) to their daughters just as

employers must for employees.

In Annex Medical, this Court noted that Annex Medical had, as of January

2013, been unable to secure a plan without the objectionable coverage, because

the statute and regulations require all insurers to include such coverage in all

group plans. Annex Med ., at *1. But even with its injunction, Annex Medical

must find a carrier that provides contraceptive-free coverage, and this without a

8 The district courts distinction without a difference is also factually incorrect.Stuart Lind (of Annex Medical) and Frank OBrien (of OBrien Industrial Hold-ings) are among those given injunctions by this Court, and Charles Sharpe (owner)and Rita Wilson and Judi Schaefer (employees) of Sharpe Holdings are amongthose given injunctions by the Eastern District. See generally Annex Medical ; OBrien ; Sharpe Holdings v. U.S. Dept. of HHS , 2012 WL 6738489 (E.D. Mo.2012). None of these individuals is specifically regulated by the Mandate, yet therewas standing to sue. This is because the question under RFRA is whether religiousexercise is burdened, without regard to how direct or indirect the burden is. 9 Prior to January 1, 2014, Plaintiffs provide health coverage to their daughters insignificant part because of their religious duty to do so. R. 40-1, 2.



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Minnesota statute comparable to Mo. Rev. Stat. 191.724. The Eighth Circuit

nevertheless granted Annex Medical an injunction. 10

Although redressability for the Wielands is certain, given the opt-out rights

guaranteed by Mo. Rev. Stat. 191.724, the prospect of redress does not have to

be inevitable to give rise to Article III standing. Redressability requirements are

satisfied if the requested relief provides a significant increase in the likelihood

that the plaintiff would obtain relief that directly redresses the injury suffered.

Utah v. Evans , 536 U.S. 452, 464 (2002) (emphasis added); Metro. Washington

Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc. , 501 U.S. 252, 265

(1991) (finding standing where requested relief makes redress likely).

MCHCP has shown how it acts without the ACA: it provided the Wielands

with a contraceptive-free policy. If the Wielands requested relief is granted, there

is not a scintilla of evidence that MCHCP will not again provide such coverage.

Indeed, 191.724 requires it . And even if 191.724 did not, a court-ordered

exemption for the Wielands would provide a significant increase in the likely-

hood of obtaining a satisfactory plan. Evans , at 464. For example, American Mfg

10 Although there were no insurance companies who were parties in Annex Medical ,the Eighth Circuit issued an injunction which granted protection to the health

insurance companies that would offer contraceptive-free insurance to the plaintiffs:The appellees are enjoined, pending resolution of this appeal, from enforcing themandate of 42 U.S.C. 300gg13(a)(4) and its implementing regulations againstLind, Annex Medical, and any health insurance issuer when offering group healthinsurance coverage to Annex Medical. Annex Med. , at *3 (emphasis added).



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Company in Minnesota was able to use its April 2013 injunction to obtain

contraceptive-free coverage from its carrier, Medica. Ex. 6, Declaration of

Gregory E. Hall.

Finally, as of January 1, 2014, the requested injunction will provide a

separate and independent form of direct, unattenuated redress to the Wielands,

namely: the Defendants will be forbidden from imposing a fine on the Wielands

for failing to provide their daughters with the religiously abhorrent coverage.

B. Plaintiffs Are Likely To PrevailOn The Merits Of Their RFRA Claim.

The government may substantially burden the exercise of religion under

RFRA only if it demonstrates that application of the burden to the person (1) is in

furtherance of a compelling governmental interest; and (2) is the least restrictive

means of furthering that compelling governmental interest. 42 U.S.C. 2000bb-

1(b). In other words, the government must satisfy strict scrutiny. Gonzales v. O

Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430 (2006).

1. The Contraceptive Mandate Imposes ASubstantial Burden On Plaintiffs Religious Exercise.

To trigger RFRAs protections, the Wielands must show that a federal

policy or action substantially burdens their sincerely held religious beliefs. United

States v. Ali, 682 F.3d 705, 709 (8th Cir. 2012). A federal law substantially

burdens an exercise of religion if it compels one to perform acts undeniably at



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odds with fundamental tenets of [ones] religious beliefs, Wisconsin v. Yoder ,

406 U.S. 205, 218 (1972), or put[s] substantial pressure on an adherent to modify

his behavior and violate his beliefs. Thomas v. Review Board, 450 U.S. 707, 716-

18 (1981). [T]he burden analysis does not turn on whether the government

mandate operates directly or indirectly , but on the coercion the claimant feels

to violate his beliefs. Hobby Lobby , 723 F.3d at 1139 (emphasis added). The

question for us is not whether compliance with the contraception mandate can be

reconciled with the teachings of the Catholic Church. That's a question of religious

conscience for the Kortes and the Grotes to decide. Korte v. Sebelius, ___ F.3d

___, 2013 WL 5960692, *24 (7th Cir. Nov. 8, 2013).

Under the Mandate the Wielands face a cruel choice. They must (a) violate

their sincerely held religious opposition to contraceptives, sterilization and

abortifacients by paying for, providing, or otherwise participating in the provision

of coverage for such services to their three daughters, or (b) forgo health insurance

altogether and face fines. As the D.C. Circuit stated in the for-profit employer

context: the Wielands can either abide by the sacred tenets of their faith and pay

fines, or they can become complicit in a grave moral wrong. Gilardi v. Dept . of

HHS , 2013 WL 5854246, *8 (D.C. Cir. 2013); see also Korte, at *22-25.

The Plaintiffs complaint is not just an abstract objection to contraceptives.

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



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

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

services. Korte, at *24 (emphasis in original). At issue is Paul and Teresa Wie-

lands desire not to either do evil or facilitate others in doing evil, in violation of

their faith. In other contexts, Defendants acknowledge that paying for, providing,

or subsidizing contraceptive services impermissibly burdens the religious beliefs

of certain religious employers. 76 Fed. Reg. 46621, 46623 (Aug. 3, 2011); 77

Fed. Reg. 8725 (Feb. 15, 2012). They cannot explain why the same burden is

permissible when imposed on individual believers like the Wielands. Defendants

respect the religious liberty of the Catholic Church but not of Catholics.

2. The Mandate Does Not Pass Strict Scrutiny.

RFRA imposes the most rigorous of scrutiny, Church of the Lukumi

Babalu Aye v. City of Hialeah, 508 U.S. 520, 546 (1993), and the most

demanding test known to constitutional law, City of Boerne v. Flores, 521 U.S.

507, 534 (1997). Preliminary injunctions were granted in Annex Medical and

OBrien , meaning the Mandate necessarily did not pass the Eighth Circuits strict

scrutiny, for purposes of a preliminary injunction. Other circuits agree. Korte, at

*25-26 (7th Cir.); Gilardi, at *23-32 (D.C. Cir.); Hobby Lobby, at 1143-44 (10th

Circuit). Even in those circuits denying injunctions (the Third and Sixth), none



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has found that the Mandate survives strict scrutiny. 11 The district court here did

not reach strict scrutiny analysis, having ruled that the Wielands lacked standing.

a. Defendants Cannot Demonstrate A Compelling Governmental Interest.

[E]ven at the preliminary injunction stage, RFRA requires the government

to demonstrate that mandating a plaintiffs compliance with the contraceptive-

coverage requirement is the least restrictive means of advancing a compelling

interest. Hobby Lobby , at 1143 (citing O Centro, 546 U.S. at 423) (emphasis in

original). RFRA requires the Government to demonstrate that the compelling

interest test is satisfied through application of the challenged law to the person

the particular claimant whose sincere exercise of religion is being substantially

burdened. O Centro, at 430. [T]he Governments mere invocation of the general

characteristics of [the proscribed drugs] cannot carry the day. Id., at 432. The

governments interest must be compelling as to these claimants. Korte, at *25

(emphasis in original) . The government must prove some substantial threat to

public safety, peace, or order in not exempting the religious claimant. Yoder, at

230.

Defendants originally proffered two compelling governmental interests for

the Mandate: a) public health, and b) gender equity goals. 77 Fed. Reg. 8725,

8729 (Feb. 15, 2012). They now also assert the interest of ensuring a workable

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



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insurance system. R. 31, pp. 1, 6, 9. Circuit courts have found the public

health and gender equality interests to be prima facie insufficient to show a

compelling interest is at stake. By stating the public interest so generally, the

government guaranties that the mandate will flunk that [compelling interest] test.

Korte, at *25, relying on O Centro, 546 U.S. at 431; see also Hobby Lobby , at

1143 (finding courts must look[] beyond such broadly formulated interests

justifying the general applicability of government mandates); Gilardi , at *24

([T]he government does little to demonstrate a nexus between this [identical]

array of issues and the mandate.) (bracketed content added).

The D.C. Circuit also dismissed the governments new argument, that ex-

emptions from the Mandate pose a grave threat to a workable insurance system:

What exactly is the government trying to ameliorate? Is it the integrity of thehealth and insurance markets? Surely, that cannot be the answer; thecomprehensive sweep of the Affordable Care Act will remain intact with orwithout the mandate.

Gilardi , at *25.

Also fatal to the Defendants compelling interest claim are the tens of

millions of employees they have exempted from the Mandate to date. Under strict

scrutiny jurisprudence a law cannot be regarded as protecting an interest of the

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

interest unprohibited. Lukumi, 508 U.S. at 547 (citations and internal quotation

marks omitted). If the peyote exemption in O Centro, which applied to hundreds



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of thousands of Native Americans, . . . was enough to undermine the govern-

ments compelling interest argument in that case, we conclude the exemption for

the millions of individuals here must dictate a similar result. Hobby Lobby , at

1143; Korte, at *26.

b. The Mandate Is Not The Least Restrictive MeansTo Achieving Defendants Interests.

If the government has open to it a less drastic way of satisfying its

legitimate interests, it may not choose a [regulatory] scheme that broadly stifles

the exercise of fundamental personal liberties. Anderson v. Celebrezze, 460 U.S.

780, 806 (1983). The government cannot meet its least-restrictive-means burden

unless it demonstrates that it has actually considered and rejected the efficacy of

less restrictive measures before adopting the challenged practice. Warsoldier v.

Woodford , 418 F.3d 989, 999 (9th Cir. 2005) ; see also Korte, at *26. That the

government could accomplish the Mandates goals in a myriad of other ways, to

date not disputed, is fatal. For example, the government could: 1) offer tax

deductions or credits for the purchase of contraceptives; 2) offer separate coverage

for contraceptives; 3) reimburse citizens who pay out-of-pocket for contracep-

tives; 4) provide these products and services directly to citizens; 5) offer grants to

private-sector entities to provide contraceptives free or at subsidized rates; or 6)

provide incentives for pharmaceutical companies to provide such products free or

at subsidized rates through pharmacies, doctors offices, and health clinics. See



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Korte, at *26 (listing examples of alternatives the government could pursue to

deliver free contraceptives without forcing the participation of those with religious

objections). Exempting the Wielands here would merely add incrementally to the

governments list of exemptions already granted to other religious objectors, and

would represent only an infinitesimal addition to the governments list of millions

who are exempted for whatever reason from obtaining or providing others with

the religiously abhorrent coverage. As the Tenth Circuit stated:

Accommodations for religion frequently operate by lifting a burden from theaccommodated party and placing it elsewhere. The government itself has eventaken this step with the contraceptive-coverage requirement by accommodatingcertain religious employers, at the expense of their employees. That is part ofaccommodating religion and is RFRAs basic purpose.

Hobby Lobby , at 1144-45. The Mandate flunks strict scrutiny. Korte, at *25.

V. CONCLUSION AND REQUESTED RELIEF

Paul and Teresa Wieland are, accordingly, likely to prevail on the merits.

The other Dataphase factorsirreparable harm to the Wielands, balancing against

harms to others, and consideration of the public interesthave not troubled other

courts, including the Eighth Circuit, in similar cases, and are not in question here

once likelihood of success is determined. As the Seventh Circuit recently held:

Here, the analysis begins and ends with the likelihood of success on the meritsof the RFRA claim. On the strength of that claim alone, preliminary injunctiverelief is warranted; there is no need to remand for the district courts to weighthe injunction equities.

Korte, at *7.



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20

WHEREFORE, pursuant to Fed. R. App. P. 8, Paul Wieland and Teresa

Wieland request a preliminary injunction, pending resolution of this appeal:

(a) enjoining Defendants from requiring that Paul Wieland or Teresa Wieland

obtain or provide dependents with health care coverage that includes

coverage for contraception, sterilization and counseling as set forth in 42

U.S.C. 300gg-13(a)(4) and 77 Fed. Reg. 8725 (contraceptive coverage);

(b) enjoining Defendants from requiring that health care coverage provided to

Paul Wieland or Teresa Wieland or through them to their dependents

include such contraceptive coverage; and

(c) further enjoining Defendants from requiring that a group health plan or

health insurance issuer, when providing health care coverage to Paul

Wieland or Teresa Wieland and their dependents, include such

contraceptive coverage in such health care coverage. 12

12 See the preliminary injunction pending appeal issued by this Court in Annex Med. v. Sebelius , at *3. As in Annex, this provision grants relief to the Wielandsand appropriate reassurance to their group health plan or health insurance issuer.



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Respectfully submitted this 25 th day of November, 2013.

/s/ Timothy BelzTimothy Belz #MO-31808J. Matthew Belz #MO-61088OTTSEN , LEGGAT & BELZ , L.C.112 South Hanley, Second FloorSt. Louis, Missouri 63105-3418Phone: (314) 726-2800Fac simile: (314) [email protected]

Thomas L. BrejchaPeter Breen

THOMAS MORE SOCIETY 19 S. La Salle Street, Suite 603Chicago, IL 60603Phone: (312) 782-1680

Kevin Edward WhiteK EVIN EDWARD WHITE & ASSOCIATES 77 W. Wacker Drive, Suite 4800Chicago, IL 60601Phone: (312) 606-8602

Attorneys for AppellantsPaul and Teresa Wieland

Certificate of Service

I hereby certify that on November 25, 2013, the foregoing was filedelectronically with the Clerk of the Court for the Eighth Circuit Court of Appealsto be served upon:

Michelle Bennett

Mark B. SternUnited States Department of JusticeCivil Division, Federal Programs Branch20 Massachusetts Avenue N.W. Room 7310Washington, D.C. 20530

/s/ Timothy Belz

Documents

FEDERAL COURT FILING: Preliminary injunctive relief on behalf of Missouri State Representative Paul Wieland and his wife Teresa in the couple’s lawsuit fighting Obamacare infringement