Briscoe v. Sebelius

927 F. Supp. 2d 1109, 2013 WL 755413, 2013 U.S. Dist. LEXIS 26911
CourtDistrict Court, D. Colorado
DecidedFebruary 27, 2013
DocketCivil Action No. 13-cv-00285-WYD-BNB
StatusPublished
Cited by16 cases

This text of 927 F. Supp. 2d 1109 (Briscoe v. Sebelius) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Briscoe v. Sebelius, 927 F. Supp. 2d 1109, 2013 WL 755413, 2013 U.S. Dist. LEXIS 26911 (D. Colo. 2013).

Opinion

ORDER

WILEY Y. DANIEL, Senior District Judge.

THIS MATTER is before the Court on plaintiffs’ Motion For Temporary Restraining Order [ECF No. 16], filed on February 19, 2013. The defendants (“the Government”) responded on February 21, 2013, and the plaintiffs filed a reply on February 22, 2013. On February 22, 2013, the American Civil Liberties Union and The American Civil Liberties Union Foundation of Colorado filed an amicus curiae brief [ECF No. 23] opposing the plaintiffs’ motion for a temporary restraining order. For the reasons discussed below, the motion is DENIED.

BACKGROUND

On February 19, 2013, plaintiffs, Stephen W. Briscoe, Continuum Health Partnerships, Inc., Continuum Health Management, LLC, and Mountain States Health Properties, LLC, filed a Motion for Temporary Restraining Order (“TRO”) [ECF No. 16], arguing that the Patient Protection and Affordable Health Care Act (“AHCA”), Pub.L. No. 111-148, 124 Stat. 119 (2010), violates their religious rights because it forces them to provide insurance plans providing free contraceptives, abortifaeients, and sterilization procedures to women. The plaintiffs allege that the AHCA violates: (1) the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb to bb-4; and, (2) the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment to the Constitution of the United States.

Based on the pleadings filed by the plaintiffs, Briscoe is an Evangelical Christian and owns Continuum Health Partnerships, Inc., Continuum Health Management, LLC, and Mountain States Health Properties, LLC. Briscoe’s secular, for-profit companies manage and operate senior care assisted living centers and skilled nursing facilities. Briscoe is the sole member and manager of Continuum Health Management, LLC and Mountain States Health Properties, LLC. Briscoe is also the lone shareholder of Continuum Health Partnerships, Inc.

Briscoe’s companies employ over 200 persons and they offer a self-insurance plan. In January 2013, Briscoe learned that the insurance provided no-cost preventative care for women, including contraceptives, abortifaeients, and sterilization procedures as required by the AHCA. Briscoe contacted his insurance provider and requested that any provision providing such coverage be omitted from his companies’ insurance plan. The insurance provider stated that the provisions must be included in the plan in order to comply with the AHCA.

Briscoe’s self-insurance plan becomes effective April 1, 2013. The plan must be disclosed to employees between February 26, 2013, and March 1, 2013. New plan inclusions must be agreed on by March 1, 2013, in order to be included in the plan year beginning April 1, 2013. Briscoe alleges that his religious beliefs prevent him from including in his companies’ insurance plan any provision providing coverage for contraceptives, abortifaeients, and sterilization procedures. Briscoe alleges that the AHCA’s mandate for the inclusion of such provisions and punitive penalties for not including them, violate his religious rights and his right to free speech. Bris[1113]*1113coe filed this motion to prevent the inclusion of such provisions in his insurance plan for the April 1, 2013, plan year.1

ANALYSIS

A. The Patient Protection and Affordable Health Care Act (“AHCA”), Pub. L. No. 111-148, 124 Stat. 119 (2010)

On March 23, 2010, President Barack Obama signed into law the AHCA. The AHCA contains numerous health care reforms. Among one of the reforms is a mandate that group health plans must provide no-cost coverage for preventative care and screening for women. Pursuant to 42 U.S.C. § 300gg-13(a)(4):

(a) In general. A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for—
‡ ‡ $ 3$ ‡ ‡
(4) with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.

While the AHCA mandates no-cost coverage for preventative care and screening for women, it does not define or establish what constitutes preventative care and screening for women. The AHCA delegated this responsibility to the Health Resources and Services Administration (“HRSA”). See 42 U.S.C. § 300gg-13(a)(4). On August 1, 2011, the HRSA adopted Required Health Plan Coverage Guidelines that established the scope of preventative care and screening for women. See HRSA, Women’s Preventative Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womens guidelines/ (last visited 2/27/13). Pursuant to the HRSA’s guidelines, preventative care and screening for women includes “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” Id. If a group insurance plan fails to provide such care for women, the insurer shall pay a penalty tax of $100 per day “for each day in the noncompliance period with respect to each individual to whom such failure relates.” 26 U.S.C. § 4980D(b)(l).

There are three exemptions from the mandate. First, the mandate does not apply to certain healthcare plans existing on March 23, 2010. See Interim Final Rules for Group Health Plans and Health Insurance Coverage Relating to Status as a Grandfathered Health Plan Under the Patient Protection and Affordable Care Act, 75 Fed.Reg. 34538, 34540 (June 17, 2010). Second, “religious employers” are exempted from the mandate.2 Third, [1114]*1114there is a “safe harbor” provision exempting non-profit organizations with religious objections to contraceptive coverage that do not qualify for the religious employer exemption. See Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed.Reg. 8725, 8726-27.

Briscoe’s companies do not qualify for any of the three exemptions. Thus, they are required by law to provide no-cost preventative care and screening for women as defined by the HRSA.

B. Legal Standard for Issuance of a Temporary Restraining Order

The requirements for issuing a TRO mirror the requirements for issuing a preliminary injunction. In order to obtain a temporary restraining order, a plaintiff must establish: (1) a substantial likelihood of success on the merits; (2) irreparable harm will ensue if the request for a TRO is denied; (3) the threatened injury outweighs the harm that the TRO may cause the defendant; and, (4) if issued, the TRO will not adversely affect the public interest. General Motors Corp. v. Urban Gorilla, LLC, 500 F.3d 1222, 1226 (10th Cir.2007).

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927 F. Supp. 2d 1109, 2013 WL 755413, 2013 U.S. Dist. LEXIS 26911, Counsel Stack Legal Research, https://law.counselstack.com/opinion/briscoe-v-sebelius-cod-2013.