Annex Medical v Sebelius - Emergency Motion for Preliminary Injunction

8/20/2019 Annex Medical v Sebelius - Emergency Motion for Preliminary Injunction
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UNITED STATES COURT OF APPEALS
FOR THE EIGTH CIRCUIT
ANNEX MEDICAL, INC.; STUART
LIND, and TOM JANAS
Appellants, v.
KATHLEEN SEBELIUS, in her officialcapacity as Secretary of the United StatesDepartment of Health and Human Services;HILDA SOLIS, in her official capacity asSecretary of the United States Department of
Labor; TIMOTHY GEITHNER, in hisofficial capacity as Secretary of the UnitedStates Department of the Treasury; UNITEDSTATES DEPARTMENT OF HEALTH
AND HUMAN SERVICES; UNITED
STATES DEPARTMENT OF LABOR;
and UNITED STATES DEPARTMENTOF THE TREASURY,
Appellees.
Civ. No. 13-1118
APPELLANTS’ EMERGENCY
MOTION FOR
PRELIMINARY INJUNCTIONPENDING APPEAL
Emergency Motion for Preliminary Injunction Pending Appeal
Erick G. Kaardal (Minn. 229647)Mohrman & Kaardal, P.A.33 South Sixth Street, Suite 4100Minneapolis MN 55402Telephone: (612) 341-1074Facsimile: (612) 341-1076kaardal@mklaw.com
Lead Counsel for Plaintiffs
Kaylan L. Phillips (Ind. 30405-84) Noel H. Johnson (Wisc. 1068004)*ActRight Legal Foundation209 West Main StreetPlainfield, Indiana 46168Telephone (202) 683-9405Facsimile (888) 815-5641kphillips@actright.comnjohnson@actright.com*Admission application filed.
Appellate Case: 13-1118 Page: 1 Date Filed: 01/18/2013 Entry ID: 3996140

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Pursuant to Federal Rule of Appellate Procedure 8, Annex Medical, Inc. and
Stuart Lind (together, “Lind”) move for a preliminary injunction pending appeal
against enforcement of certain mandatory coverage provisions of the Patient
Protection and Affordable Care Act of 2010 (“ACA”), Pub. L. No. 111-148, 124
Stat. 119 (2010), requiring that all non-grandfathered, non-exempt, group health
plans include coverage, without cost-sharing, for all Food and Drug Administration
approved contraceptive methods, sterilization procedures and patient education and
counseling. See 42 U.S.C. § 300gg-13(a)(4); 76 Fed. Reg. 46621–26 (Aug. 3,
2011) (the “Mandate”).
The Mandate has made it impossible for Lind to conduct business in
accordance with his Catholic faith. If he continues offering health insurance, he
must pay for insurance coverage that violates his sincerely-held religious beliefs. If
he excludes this coverage, he must pay substantial monetary fines. Eliminating
insurance altogether provides Lind no relief, for it requires him to neglect his
religiously-held duty to provide for the needs of Annex Medical’s employees and
will place his company at a competitive disadvantage. Accordingly, both options
will substantially burden Lind’s exercise of religion.
The Mandate has stripped Lind of any choice to select a group health plan
that conforms to his religious beliefs. Therefore, to avoid the grave sin of
cooperating with contraception and abortifacients, Lind has determined that he

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must discontinue his group health plan. Absent relief from this Court, insurance
coverage for Lind’s employees will terminate on January 31, 2013, forcing Lind
to act contrary to his religious beliefs. Lind therefore seeks preliminary relief from
this Court to enjoin the Mandate pending his appeal, preserving his ability to offer
health insurance and his statutory rights under the Religious Freedom Restoration
Act (“RFRA”), 42 U.S.C. § 2000bb et. seq. Given the urgent nature of this matter,
Lind requests that this motion be given expedited consideration.
Procedural History
On November 2, 2012, appellants Annex Medical, Inc. and Stuart Lind,
along with plaintiff Tom Janas, filed a Verified Complaint, alleging the Mandate
violates RFRA, the First Amendment to the United States Constitution, and the
Administrative Procedures Act (hereafter “VC,” attached as Exhibit A). On
November 21, 2012, Lind moved for a preliminary injunction on his claim that the
Mandate violates RFRA (attached as Exhibit B). On January 8, 2013, this Court
denied Lind’s motion for a preliminary injunction (hereafter “the Order,” attached
as Exhibit C). On January 11, 2013, Lind filed a Notice of Appeal of the January
8th Order (attached as Exhibit I) and contemporaneously moved to enjoin the
Mandate pending appeal of the Order (Memorandum in Support attached as
Exhibit G), a request the district court denied on January 17, 2013 (attached as

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Exhibit D). Lind now asks this Court to enjoin the Mandate pending his appeal of
the Order.
Factual Background
I. Annex Medical and Stuart Lind
The facts of this case are not in dispute. Annex Medical, Inc. is a Minnesota-
based manufacturer of medical devices owned and operated by Stuart Lind. (VC ¶
35-36, 66, 69.) Lind is a devout Catholic who is steadfastly committed to following
the religious, ethical and moral teachings of the Catholic Church in his private life
as well as his operation of Annex Medical.1 (VC ¶¶ 45-46, 70.)
The Catholic Church teaches and Lind believes that contraception,
sterilization, abortion and use of abortifacient drugs are intrinsically evil and
immoral because they are capable of preventing and destroying a human life. (VC
¶ 49.) It is not just use of these things that is sinful, but also “cooperation” with
them, meaning that anyone who provides for or facilitates access to contraception
is also guilty of a sin. (VC ¶ 51; Declaration of Father John Echert (“Echert Decl.”)
¶ 5, attached as Exhibit E.) Lind therefore sincerely believes it is immoral and
sinful to intentionally participate in, pay for, facilitate access to, or otherwise
support contraception, sterilization, abortifacient drugs, and related education and
1 Lind has adopted mission statements that commit his companies to “conducting business in a way that is pleasing to God and is faithful to Biblical principles andvalues.” (VC ¶ 71.)

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counseling through their inclusion through his group health plan, as is required by
the Mandate. (VC ¶ 54-55; Echert Decl. ¶ 7.)
Lind also sincerely believes he has a duty to provide for the needs of his
employees. (VC ¶ 58; Echert Decl. ¶ 8 (“Catholic social teaching supports the
principle that workers have a right to a just wage and certain social benefits
intended to ensure the life and health of workers.”)) As part of his commitment to
fulfilling this moral and religious duty, Lind has provided a group health insurance
plan for his employees and their families. (VC ¶ 59.)
After hearing of the national controversy surrounding the Mandate, Lind
discovered that his current group health plan inadvertently provides coverage for
abortions, abortifacient drugs, sterilization and contraception. 2 (VC ¶¶ 82-84;
Declaration of Stuart Lind (“Lind Decl.”) ¶ 20, attached as Exhibit F.) Lind has
since taken numerous steps to exclude this coverage (VC ¶¶ 65, 85, 87-88);
however, because the Mandate requires all insurance issuers to include Mandate-
compliant coverage in all group health plans purchased after August 1, 2012, see
42 U.S.C. § 300gg-13; 77 Fed. Reg. at 8725-26, Lind is now stripped of any choice
to select a new group health plan that provides coverage in line with his Catholic
2 Annex Medical’s group plan is not currently subject to the Mandate because its plan year began prior to the Mandate’s August 1, 2012 effective date. See 77 Fed.Reg. 8725, 8726 (Feb. 15, 2012). Therefore, these drugs and services are being
provided at cost to the employee. Inevitably though, Annex Medical will berequired to provide them at no cost when its group plan becomes subject to theMandate on the date of its next schedule annual renewal or around July 1, 2013. Id .

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faith. Thus, Lind cannot provide a group health plan without violating his religious
beliefs. (VC ¶ 89.)
The option to discontinue health coverage without incurring monetary
penalties provides Lind no relief. As explained, Lind believes he has a moral and
religious duty to provide health care for Annex Medical’s employees and he does
so as an exercise of his religious beliefs. (VC ¶¶ 58-59, 91; Lind Decl. ¶ 10.) Yet
the Mandate has forced Lind to make a choice: comply with the Mandate or
discontinue his insurance. After several consultations with his pastor, Lind
determined he must discontinue Annex Medical’s group health plan to avoid
violating his conscience with respect to contraception and abortifacients. (VC ¶¶
91-93; Lind Decl. ¶¶ 31-32; Echert Decl. ¶ 4.) Absent immediate relief from this
Court, Annex Medical’s group health plan will terminate on January 31, 2013 and
Lind will be irreparably harmed.
II. The Mandate and Its Exemptions
The statutory and regulatory background of the Mandate is laid out in the
district court decision. (Ex. C at 94-95.) In short, the Mandate requires all non-
grandfathered, non-exempt, group health plans and insurance issuers offering
group health plans to provide coverage, at no cost, for women’s “preventive care
and screenings,” 42 U.S.C. § 300gg-13(a)(4), defined by the Health Resources and
Services Administration (“HRSA”) to include “[a]ll Food and Drug Administration

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approved contraceptive methods, sterilization procedures, and patient education
and counseling….” Health Resources and Services Administration, WOMEN’S
PREVENTIVE SERVICES: R EQUIRED HEALTH PLAN COVERAGE GUIDELINES, available
at http://www.hrsa.gov/womensguidelines/ (last visited Jan. 17, 2013).
Not all employers must comply with the Mandate. Group health plans in
existence on or before March 23, 2010 are considered “grandfathered,” and exempt
from the Mandate indefinitely if they comply with certain coverage requirements.3
Employers with fewer than fifty employees are exempted from the ACA’s
requirement to provide employee health insurance coverage, 26 U.S.C. §
4980H(a), and are therefore exempt from the Mandate. However, all employers
that offer a group health plan, such as Lind, must comply with the Mandate or face
substantial fines and penalties. See 26 U.S.C. § 4980D (imposing $100 per-day,
per-employee fine); 29 U.S.C. § 1132(a) (providing for civil enforcement actions
brought by the Department of Labor and insurance plan participants).
Appellees have also exempted certain non-profit employers they define as
“religious,” 45 C.F.R. § 147.130 (a)(iv)(A) and (B), and individuals of certain
religions who object to the acceptance of insurance benefits, 26 U.S.C. §§
3See 42 U.S.C. § 18011(a)(2); 45 C.F.R. § 147.140; 75 Fed. Reg. 34538, 34545
(June 17, 2010); see also HealthReform.gov, “Fact Sheet: Keeping the Health PlanYou Have: The Affordable Care Act and “Grandfathered” Health Plans,”http://www.healthreform.gov/newsroom/keeping_the_health_plan_you_have.html(last visited Jan. 17, 2013).

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5000A(d)(2)(a)(i); 1402(g)(1). Yet, despite his sincere religious objections, the
Mandate makes no exceptions for Lind and other religiously-motivated business
owners.
Argument
I. Injunction Pending Appeal Standard.
The injunction pending appeal standard is identical to the preliminary
injunction standard. Shrink Missouri Gov’t PAC v. Adams, 151 F.3d 763, 764 (8th
Cir. 1998). The “issuance of a preliminary injunction depends upon a ‘flexible’
consideration of (1) the threat of irreparable harm to the moving party; (2)
balancing this harm with any injury an injunction would inflict on other interested
parties; (3) the probability that the moving party would succeed on the merits; and
(4) the effect on the public interest.” Minnesota Citizens Concerned for Life, Inc. v.
Swanson, 692 F.3d 864, 870 (8th Cir. 2012) (“ MCCL”) (quoting Dataphase Sys.,
Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1991) (en banc)). “When a
Plaintiff has shown a likely violation of his or her First Amendment rights, the
other requirements for obtaining a preliminary injunction are generally deemed to
have been satisfied.” MCCL, 692 F.3d at 870 (internal citations and quotations
omitted). Lind satisfies all four of the injunctive relief factors.

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II. Lind is Substantially Likely to Succeed on the Merits of His RFRA
Claim.
A. The District Court Erred in Not Applying This Court’s
Preliminary Injunction Entered in O’Brien v. HHS.
On November 28, 2012, in substantially similar circumstances, a motions
panel of this Court enjoined the Mandate pending appeal on the grounds that the
appellants had satisfied the requirements for a preliminary injunction on their claim
that the Mandate violates RFRA. O’Brien v. HHS , 2012 U.S. App. LEXIS 26633
(8th Cir. Nov. 28, 2012) (order granting “APPELLANTS’ MOTION FOR A
PRELIMINARY INJUNCTION PENDING APPEAL” (App. Doc. 14)).
Nevertheless, the district court was “uncertain of how to interpret the Eighth
Circuit’s treatment of O’Brien.” (Ex. C at 95 n.8.) Because the “O’Brien panel did
not provide a rationale for its decision,” the district court found that it could not
“interpret the stay pending appeal as indicating a likelihood of success on the
merits.” ( Id . at 101-02.) Therefore, the district court independently analyzed Lind’s
claims, ultimately denying his request for injunctive relief based largely on the
reasoning of the lower court in O’Brien v. HHS , 2012 U.S. Dist. LEXIS 140097
(E.D. Mo. Sept. 28, 2012), appeal docketed , No. 12-3357 (8th Cir. Oct. 4, 2012).
The district court’s independent analysis was unnecessary and improper in
light of the Eighth Circuit’s injunction in O’Brien. There, the Eighth Circuit was
clear that it was granting the “Appellants’ motion,” which requested injunctive

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relief pending appeal on the grounds that appellants satisfied the preliminary
injunction factors on their RFRA claim. In fact, in appellees’ opposition to
appellants’ motion for a preliminary injunction pending appeal before the district
court (Doc. 45), counsel for appellees conceded that “the effect of the [O’Brien]
motions panel’s order was to enjoin application of the preventive services coverage
regulations to the plaintiffs in that case.” (Ex. H at 158.)
Despite this concession, the district court, in denying appellants’ motion for
injunction pending appeal, explained that “the one-sentence motions panel decision
can also be interpreted as staying the enforcement of the judgment of the district
court pending appeal.” (Ex. D at 111 n.1.) Therefore, the court maintained “that
O’Brien does not necessitate a finding that plaintiffs have established a likelihood
of success on the merits in the underlying action.” ( Id .)
However, the district court’s interpretation is inconsistent with the text of the
order, which clearly states that it is granting “Appellants’ motion,” which sought
preliminary injunction relief pending appeal. While the standards for an injunction
pending appeal are identical to the preliminary injunction standards, with the
former, “[t]he most important of the Dataphase factors is the appellants’ likelihood
of success on the merits.” Adams, 151 F.3d at 764. Had the Eighth Circuit panel
believed that the O’Brien appellants had failed to meet their burden for a
preliminary injunction, there would have been no basis to grant the appellants’

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motion. As Lind is similarly situated to the O’Brien appellants, the O’Brien panel’s
order means Lind too has satisfied the requirements for a preliminary injunction
pending appeal.4
B. The Mandate Imposes a Substantial Burden On Lind’s Religious
Exercise under RFRA.
The Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et.
seq., was enacted to “to restore the compelling interest test as set forth in Sherbert
v. Verner , 374 U.S. 398 (1963) and Wisconsin v. Yoder , 406 U.S. 205 (1972) and
to guarantee its application in all cases where free exercise of religion is
substantially burdened.” 42 U.S.C. § 2000bb-(b)(1). The federal government is
strictly prohibited from “substantially burden[ing] a person’s exercise of religion
even if the burden results from a rule of general applicability.” Id . § 2000bb-1(a).
RFRA recognizes only one exception, which “requires the Government to satisfy
the compelling interest test—‘to demonstrate that application of the burden to the
person—(1) is in furtherance of a compelling governmental interest; and (2) is the
least restrictive means of furthering that compelling governmental interest.’”
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424
(2006) (quoting 42 U.S.C § 2000bb-1(b)). The government may not use a
“categorical approach” to satisfy the compelling interest test; rather, RFRA
4 Even if not binding on the lower court, the O’Brien panel’s order severelyundermines the lower court’s reasoning in O’Brien, and the district court thus erredin relying on it to reject Lind’s RFRA claim.

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requires the government to satisfy the compelling interest test “through application
of the challenged law to … the particular claimant[5] whose sincere exercise of
religion is being substantially burdened.” O Centro, 546 U.S. at 430-31.
Supreme Court precedent demonstrates what constitutes a substantial burden
on religious exercise. In Sherbert , the appellant was denied unemployment benefits
due to her refusal to work on Saturday, the Sabbath Day of her faith. 374 U.S. at
399-401. The Court found this placed an impermissible burden on her free exercise
of religion because it “force[d] her to choose between following the precepts of her
religion and forfeiting benefits, on the one hand, and abandoning one of the
precepts of her religion in order to accept work, on the other hand.” Id . at 404.
5 While the district court declined to decide whether Annex Medical couldindependently exercise religion, (Order at 13 n.9), the district court did not
question Lind’s standing to challenge the Mandate under RFRA. Indeed, Lind’sclaims are proper on several grounds. Case law makes clear that the businessesindependently enjoy free-exercise rights. United States v. Lee, 455 U.S. 252 (1982)(adjudicating free-exercise claim of for-profit employer); Donovan v. Tony and Susan Alamo Foundation, 722 F.2d 397 (8th Cir. 1983), aff’d , 471 U.S. 290 (1985)(adjudicating free-exercise claim of non-profit corporation engaged in“commercial dealings”); McClure v. Sports and Health Club, Inc., 370 N.W.2d844, 850 (Minn. 1985) (sports and health club could assert free-exercise claims).
In addition, a for-profit corporation may assert free-exercise rights as a
“pass-through instrumentality” of its owners. Stormans, Inc. v. Selecky, 586 F.3d1109 (9th Cir. 2009) (adjudicating free-exercise claim of close-held, for-profit
pharmacy corporation); EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610 (9thCir. 1988) (for-profit corporation could assert free exercise rights of owners); seealso, e.g., Legatus v. Sebelius, 2012 U.S. Dist. LEXIS 156144, *11 (E.D. Mich.Oct. 31, 2012) (permitting for-profit corporation to challenge mandate as “pass-through instrumentality” of it owners).

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Even though the government did not “directly compel” the appellant to work on
Saturday in violation of her faith, the Court found the “pressure” on her to do so
was “unmistakable.” Id .
In Yoder , Amish parents whose religious beliefs required that they educate
their children at home after the eighth grade were fined at least five dollars each for
violating Wisconsin’s compulsory school-attendance law. 406 U.S. at 208. The
Court affirmed the lower court’s decision to strike the law, finding that it created a
“severe” and “inescapable” impact on the practice of the Amish religion because it
“affirmatively compels them, under threat of criminal sanction, to perform acts
undeniably at odds with fundamental tenets of their religious beliefs.” Id . at 218.
Also instructive is Thomas v. Review Bd. of Ind. Employment Sec. Div., 450
U.S. 707 (1981). There, a Jehovah’s Witness was denied unemployment benefits
because he quit his job that required him to produce armaments in violation of his
religious beliefs against working on the production of weapons. Id . at 710-11. The
Court reemphasized that even “indirect” compulsion to violate one’s beliefs
constitutes a substantial burden on free exercise of religion.
“Where the state conditions receipt of an important benefit upon
conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior andto violate his beliefs, a burden upon religion exists.”
Id . at 717-18.

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As in Yoder , the Mandate “affirmatively compels” Lind to “perform acts
undeniably at odds with fundamental tenets of [his] religious beliefs,” 450 U.S. at
218—he must include cost-free coverage for contraception, sterilization, and
abortifacient drugs in any group health plan he offers. This is more than a
substantial burden; it is essentially a requirement that he conduct business in a way
that violates his faith. See United States v. Ali, 682 F.3d 705, 709-10 (8th Cir.
2012) (substantial burden exists where regulation “meaningfully curtail[s] a
person’s ability to express adherence to his or her faith”). The consequences for
offering a non-compliant group health plan are substantial—(1) a $100 per day, per
employee, 26 U.S.C. § 4980D, dwarfing the five dollar fine the Yoder Court
viewed as creating a “severe” and “inescapable” impact on practice of the Amish
religion, Yoder , 406 U.S. at 218; and (2) civil enforcement actions brought by the
Department of Labor and insurance plan participants, 29 U.S.C. § 1132(a).
Lind’s “option” to terminate Annex Medical’s health care plan without
incurring monetary penalties does not eliminate the substantial burden on his
religious exercise for the consequences of doing so likewise put “substantial
pressure” on him to purchase insurance and provide contraception, sterilization and

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abortifacient drugs—in other words, to “modify his behavior and to violate his
beliefs. Thomas, 450 U.S. at 718.6
These burdens are far more substantial than those the Supreme Court has
previous struck. In Sherbert , the appellant’s religious observance of her Sabbath
rendered her merely ineligible for unemployment benefits, yet the Court found her
ineligibility placed “unmistakable” pressure on her to forego that observance. Id . at
404. See also Thomas, 450 U.S. at 717 (finding the “coercive impact” on free
exercise “indistinguishable from Sherbert ”).
Lind’s inadvertent inclusion of contraception and abortifacient drugs in
Annex Medical’s current group plan necessitates that he finds a group plan that
excludes this coverage right now. Yet the Mandate has made that impossible.
Appellees have stripped Lind of any choice to select a group plan that accords with
his beliefs because the Mandate requires all insurance issuers to include Mandate-
compliant coverage in all group health plans purchased after August 1, 2012. See
42 U.S.C. § 300gg-13; 77 Fed. Reg. at 8725-26.
The Mandate has thus forced Lind’s hand. He has concluded he must, absent
relief from this Court, terminate Annex Medical’s group health plan, and endure
6 The availability of “exit options” does not alter the “substantial burden” analysis.Of course, the Yoders could have moved their family out of Wisconsin and to astate where they would not have not faced penalties for removing their childrenfrom public schools. This “option” did not alter the Court’s opinion that the fivedollar fine created a “substantial burden” on the Yoder ’s free exercise of religion.

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the substantial burdens noted above, to avoid violating his sincerely-held belief
against cooperation with contraception, sterilization and abortifacient drugs.
Thus, as in Sherbert , the Mandate has put Lind to a choice. But unlike
Sherbert , Lind must choose between two exercises of religion—fulfill his
religiously-held duty to provide employee health care and violate his beliefs with
respect to contraception or abstain from cooperation with contraception and violate
his religiously-held duty to provide employee health care. Not only does this
choice force Lind to “modify his behavior and to violate his beliefs,” Thomas, 450
U.S. at 718, i.e., impose a substantial burden, it imposes an unconstitutional
condition on his free exercise rights. Simmons v. United States, 390 U.S. 377, 394
(1968) (finding it “intolerable that one constitutional right should have to be
surrendered in order to assert another”).
The district court did not question the sincerity of Lind’s beliefs, yet
concluded that the Mandate did not substantially burden Lind’s exercise of those
beliefs. The court erred in several respects. First, relying on O’Brien, the court
erroneously concluded that any burden created by the Mandate depends on
“someone else’s participation in an activity that is condemned by plaintiffs’
religion.” (Ex. C at 102-03.) As the Seventh Circuit recognized, “[t]he
religious-liberty violation at issue here inheres in the coerced coverage of
contraception, abortifacients, sterilization, and related services, not— or perhaps

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more precisely, not only —in the later purchase or use of contraception or related
services.” Korte, 2012 U.S. App. LEXIS 26734 at *10. Therefore, it is irrelevant to
the substantial burden analysis that Lind remains free to refrain from using
contraception himself or discourage his employees to do likewise. (Ex. C at 102.)
Of course, the Mandate does not force anyone to use contraception, but it clearly
forces Lind to directly subsidize it in violation if his religious beliefs.7
Second, in finding that the Mandate does not substantially burden Lind’s
exercise of religion, the court impermissibly rewrote Lind’s faith. “It is not within
the judicial function and judicial competence to inquire” whether an adherent is
correctly understanding his religious doctrine as “[c]ourts are not arbiters of
scriptural interpretation.” Thomas, 450 U.S. at 716. Accordingly, when a plaintiff
claims his religion is substantially burdened by a particular regulation, courts
simply accept that contention as true. See, e.g., Lee, 455 U.S. at 257 (“We
therefore accept appellee’s contention that both payment and receipt of social
security benefits is forbidden by the Amish faith.”); Hamilton v. Schriro, 74 F.3d
1545, 1552 (8th Cir. 1996) (“[W]e assume that the regulations and policies at issue
in the present case substantially burden Hamilton’s exercise of his religion.”). Had
7 Appellees acknowledge that the Mandate directly burdens religious exercise.Appellees have already exempted some “religious employers” who object tocovering contraception services, 45 C.F.R. § 147.130(a)(1)(iv)(A)-(B), and aredeveloping changes to the Mandate that would further “accommodat[e] non-exempt, non-profit religious organizations’ religious objections to coveringcontraception services.” 77 Fed. Reg. 16501, 16503 (March 21, 2012).

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the court accepted Lind’s interpretation of his own faith, as it must, it would have
found that the Mandate imposes a substantial burden on Lind’s religious exercise.
Lastly, whether the Mandate is characterized as “direct” or “indirect,” (Ex. C
at 98-99, 103), is irrelevant as to whether it imposes a substantial burden on Lind’s
religious exercise. The Supreme Court long ago rejected any distinction between
“direct” and “indirect” burdens. In Sherbert , there was no “direct” requirement to
work on the Sabbath, but a denial of unemployment benefits for not doing so was
deemed substantially burdensome and the equivalent of “a fine…for…Saturday
worship.” 374 U.S. at 404. In Thomas, no “direct” requirement to manufacture
armaments existed, but the plaintiff was denied unemployment benefits for
refusing such work. The “compulsion…[was] indirect [but] the infringement upon
free exercise [was] nonetheless substantial.” 450 U.S at 718. Where the “law
affirmatively compels” a violation of religious beliefs, as does the Mandate, the
Supreme Court has viewed even a five-dollar fine as creating a “severe” and
“inescapable” burden. Yoder , 406 U.S. at 208.
C. The Mandate Fails Strict Scrutiny.
Laws imposing substantial burdens must satisfy strict scrutiny.8 Appellees
must demonstrate that the Mandate “(1) is in furtherance of a compelling
8 Having found the Mandate not substantially burdensome, the district court did notsubject it to RFRA’s compelling interest test. (Ex. C at 105.)

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governmental interest; and (2) is the least restrictive means of furthering that
compelling governmental interest.” 42 U.S.C. 2000bb-1(b)(1)-(2).
Appellees proffered two compelling interest before the district court:
promoting the public health and equalizing women’s health care. Even assuming
the Mandate promotes these abstract interests, the Mandate must fail strict scrutiny.
Appellees’ interests cannot be considered “compelling” in light of the millions of
people appellees have voluntarily exempted from providing women’s preventive
care. By the appellees’ own calculation, approximately 191 million people belong
to health care plans that may be “grandfathered” under the ACA, and therefore
exempt from the Mandate. See Newland v. Sebelius, 2012 U.S. Dist. LEXIS
104835, *19 n.9 (D. Colo. July 27, 2012) (citing 75 Fed. Reg. at 34550). Appellees
have also exempted employers, such as Lind, with fewer than fifty employees, 26
U.S.C. § 4980H(a), and entities they define as “religious employers,” i.e. churches,
from compliance with the Mandate. 45 C.F.R. § 147.130(a)(iv)(A).
Under strict scrutiny, “a law cannot be regarded as protecting an interest of
the highest order when it leaves appreciable damage to that supposedly vital
interest unprohibited.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520, 547 (1993) (quotations and citations omitted). Appellees therefore
cannot assert an interest “of the highest order” in forcing Lind to comply with the
Mandate and violate his beliefs because appellees have allowed “appreciable

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damage” to the over 190 million individuals they have consciously exempted from
the Mandate. The Mandate must necessarily give way to Lind’s faith, as “[o]nly
those interests of the highest order and those not otherwise served can overbalance
legitimate claims to the free exercise of religion.” Yoder , 406 U.S. at 216.
Even assuming appellees’ interests are compelling, they have failed to show
that forcing Lind to violate his religious beliefs is the least restrictive means to
ensure that women have access to preventive care at no cost. Most notably,
appellees do not explain why the government cannot provide contraception and
abortifactients directly to the small number of employees whose employers
exclude this coverage for religious reasons. Yet “[i]f a less restrictive alternative
would serve the Government’s purpose, the legislature must use that alternative.”
United States v. Playboy Entm’t Group, 529 U.S. 803, 813 (2000). Appellees
currently subsidize free contraception through Title X funding and Medicaid.
There is no reason appellees cannot subsidize the same coverage for women
working for exempted employers.
D. The Remaining Preliminary Injunction Favors Favor Lind.
Absent relief from this Court, Lind will be forced to either comply with the
Mandate or terminate his group health plan. In either event, his exercise of religion
will be substantially burdened and he will be irreparably harmed. Lowry ex rel.
Crow v. Watson Chapel Sch. Dist., 540 F.3d 752, 762 (8th Cir. 2008) (“The loss of

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First Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.”) Relief is needed right now, as Lind’s group health
plan will terminate on January 31, 2013 in order to avoid violating his beliefs with
respect to contraception and abortifacients.
When First Amendment freedoms are infringed, the Eighth Circuit “view[s]
the balance clearly in favor of issuing the injunction” because irreparable harm
occurs otherwise. Iowa Right to Life Committee v. Williams, 187 F.3d 963, 970
(8th Cir. 1999). Appellees will face no harm from being prevented from enforcing
the Mandate against Annex Medical, a business appellees exempted from the
requirement to provide health insurance altogether. Lastly, because Lind has
demonstrated likely merits success, the public interest favors an injunction. Phelps-
Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008).
Conclusion
For the foregoing reasons, Annex Medical and Stuart Lind request this Court
to enter an injunction pending their appeal.

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Dated: January 18, 2013
s/Erick G. KaardalErick G. Kaardal (Minn. 229647)Mohrman & Kaardal, P.A.33 South Sixth Street, Suite 4100Minneapolis MN 55402Telephone: (612) 341-1074Facsimile: (612) 341-1076kaardal@mklaw.com
Lead Counsel for Plaintiffs
Kaylan L. Phillips (Ind. 30405-84)
Noel H. Johnson (Wisc. 1068004)*ActRight Legal Foundation209 West Main StreetPlainfield, Indiana 46168Telephone: (202) 683-9405Facsimile: (888) 815-5641kphillips@actright.comnjohnson@actright.comCounsel for Plaintiffs
*Admission application pending

Annex Medical v Sebelius - Emergency Motion for Preliminary Injunction

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