Case 2:20-cv-00185-Z Document 1 Filed 08/01/20 Page 1 of 16 PageID 1
`
`U N I T E D S T A T E S D I S T R I C T C O U R T
`F O R T H E N O R T H E R N D I S T R I C T O F T E X A S
`A M A R I L L O D I V I S I O N
`
`
`
`
`Victor Leal; Patrick Von Dohlen; Kim
`Armstrong,
`
`
`
`
`
`
`
`
`
`
`Plaintiffs,
`
`v.
`
`Alex M. Azar II, in his official capacity
`as Secretary of Health and Human
`Services; Steven T. Mnuchin, in his
`official capacity as Secretary of the
`Treasury; Eugene Scalia, in his official
`capacity as Secretary of Labor;
`United States of America; Kent
`Sullivan, in his official capacity as Texas
`Commissioner of Insurance; Texas
`Department of Insurance,
`
`Defendants.
`
`Case No. 2:20-cv-00185
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`COMPLAINT
`The Affordable Care Act empowers the Health Resources and Services Admin-
`
`istration to unilaterally determine the “preventive care and screenings” for women
`
`that private health insurance must cover. See 42 U.S.C. § 300gg-13 (attached as Ex-
`
`hibit 1). In 2011, the Health Resources and Services Administration issued an edict
`
`that compels private insurance to cover all forms of FDA-approved contraceptive
`
`methods, including contraceptive methods that operate as abortifacients. This makes
`
`it impossible for individuals to purchase health insurance unless they agree to subsi-
`
`dize other people’s contraception, even though millions of Catholics throughout the
`
`United States regard the use of contraception — and actions that make one complicit
`
`in its distribution and use — as immoral and contrary to the teachings of their religious
`
`faith. It also prevents millions of Americans who do not want or need contraceptive
`
`complaint
`
`
`
`Page 1 of 16
`
`

`

`Case 2:20-cv-00185-Z Document 1 Filed 08/01/20 Page 2 of 16 PageID 2
`
`coverage from purchasing health insurance that excludes this unnecessary coverage,
`
`even though most individual consumers of health insurance have no need for contra-
`
`ception and would rather have less expensive insurance that excludes this unwanted
`
`“benefit.”
`
`The government of Texas is also forcing private health insurers to cover contra-
`
`ception even when their customers do not need it and do not want it. In 2001, Texas
`
`enacted a “contraceptive equity law,” which compels health benefit plans to cover
`
`prescription contraceptive drugs or devices regardless of whether their customers want
`
`this coverage, unless the insurer agrees to drop coverage of all prescription drugs or
`
`devices. See Tex. Ins. Code §§ 1369.104–.109 (attached as Exhibit 9). The Texas
`
`statute has a narrow religious exemption for health benefit plans that are “issued by
`
`an entity associated with a religious organization.” Tex. Ins. Code § 1369.108(a). But
`
`that exemption is no help to individual consumers of health insurance who want to
`
`obtain contraceptive-free health insurance in the marketplace but are unable to do so.
`
`Plaintiffs Victor Leal, Patrick Von Dohlen, and Kim Armstrong are suffering in-
`
`jury from the defendants’ enforcement of these contraceptive-coverage mandates, and
`
`they seek declaratory and injunctive relief against their continued enforcement.
`
`JURISDICTION AND VENUE
`1. The Court has subject-matter jurisdiction under 28 U.S.C. § 1331, 28 U.S.C.
`
`§ 1343, and 28 U.S.C. § 1369.
`2. The Court has subject-matter jurisdiction over the claims brought against
`
`Commissioner Sullivan and the Texas Department of Insurance because the Texas
`
`Religious Freedom Restoration Act waives the defendants’ sovereign immunity. See
`
`Tex. Civ. Prac. & Rem. Code § 110.008(a) (“Subject to Section 110.006, sovereign
`
`immunity to suit and from liability is waived and abolished to the extent of liability
`
`complaint
`
`
`
`Page 2 of 16
`
`

`

`Case 2:20-cv-00185-Z Document 1 Filed 08/01/20 Page 3 of 16 PageID 3
`
`created by Section 110.005, and a claimant may sue a government agency for damages
`
`allowed by that section.”).
`3. Section 110.008(b) of the Texas Civil Practice and Remedies Code provides
`
`that the Texas Religious Freedom Restoration Act “does not waive or abolish sover-
`
`eign immunity to suit and from liability under the Eleventh Amendment to the
`
`United States Constitution.” Tex. Civ. Prac. & Rem. Code § 110.008(b). The Elev-
`
`enth Amendment, however, does not shield a state from lawsuits brought by its own
`
`citizens, and each of the plaintiffs in this case is a citizen of Texas. See U.S. Const.
`
`amend. XI (“The Judicial power of the United States shall not be construed to extend
`
`to any suit in law or equity, commenced or prosecuted against one of the United
`
`States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”);
`
`Allen v. Cooper, 140 S. Ct. 994, 1000 (2020) (“[T]he Eleventh Amendment . . . ap-
`
`plies only if the plaintiff is not a citizen of the defendant State.”).
`4. The constitutional sovereign immunity established in Hans v. Louisiana, 134
`
`U.S. 1 (1890), which protects states from lawsuits brought by their own citizens, rests
`
`entirely on the original meaning of Article III, and not on the Eleventh Amendment.
`
`See id. at 12–17. Section 110.008(b) therefore cannot shield the State of Texas from
`
`lawsuits brought by its own citizens, and any sovereign immunity that the State enjoys
`
`by virtue of Article III and Hans has been unequivocally relinquished in section
`
`110.008(a). See Tex. Civ. Prac. & Rem. Code § 110.008(a) (“[S]overeign immunity
`
`to suit and from liability is waived and abolished to the extent of liability created by
`
`Section 110.005”).
`5. Venue is proper because a substantial part of the events giving rise to the
`
`claims occurred in this judicial district. See 28 U.S.C. § 1391(b)(2).
`
`PARTIES
`6. Plaintiff Victor Leal is a citizen of Texas who resides in Potter County.
`
`complaint
`
`
`
`Page 3 of 16
`
`

`

`Case 2:20-cv-00185-Z Document 1 Filed 08/01/20 Page 4 of 16 PageID 4
`
`7. Plaintiff Patrick Von Dohlen is a citizen of Texas who resides in Bexar
`
`County.
`8. Plaintiff Kim Armstrong is a citizen of Texas who resides in Hood County.
`9. Defendant Alex M. Azar II is the U.S. Secretary of Health and Human Ser-
`
`vices. He may be served at his office at 200 Independence Avenue SW, Washington,
`
`D.C. 20201. Secretary Azar is sued in his official capacity.
`10. Defendant Steven T. Mnuchin is the U.S. Secretary of the Treasury. He may
`
`be served at his office at 1500 Pennsylvania Avenue NW, Washington, D.C. 20220.
`
`Secretary Mnuchin is sued in his official capacity.
`11. Defendant Eugene Scalia is the U.S. Secretary of Labor. He may be served
`
`at his office at 200 Constitution Avenue NW, Washington, D.C. 20210. Secretary
`
`Scalia is sued in his official capacity.
`12. Defendant United States of America is the federal government of the United
`
`States of America.
`13. Defendant Kent Sullivan is the Texas Commissioner of Insurance. He may
`
`be served at his office at 333 Guadalupe, Austin, Texas 78701. Commissioner Sullivan
`
`is sued in his official capacity.
`14. The Texas Department of Insurance is an agency of the state of Texas. It
`
`may be served at its offices at 333 Guadalupe, Austin, Texas 78701.
`
`THE FEDERAL CONTRACEPTIVE MANDATE
`15. The Affordable Care Act requires group health plans and health-insurance
`
`issuers to cover “with respect to women, such additional preventive care and screen-
`
`ings . . . as provided for in comprehensive guidelines supported by the Health Re-
`
`sources and Services Administration for purposes of this paragraph.” These “preven-
`
`complaint
`
`
`
`Page 4 of 16
`
`

`

`Case 2:20-cv-00185-Z Document 1 Filed 08/01/20 Page 5 of 16 PageID 5
`
`tive care and screenings” for women must be provided without any cost-sharing re-
`
`quirements such as deductibles or co-pays. See 42 U.S.C. § 300gg-13(a)(4) (attached
`
`as Exhibit 1).
`16. On August 1, 2011 — more than one year after the Affordable Care Act was
`
`signed into law — the Health Resources and Services Administration issued guidelines
`requiring that all FDA-approved contraceptive methods be covered as “preventive
`
`care” under 42 U.S.C. § 300gg-13(a)(4). These HRSA guidelines of August 1, 2011,
`
`did not go through notice-and-comment rulemaking procedures.
`17. In response to the HRSA’s decree of August 1, 2011, the Secretary of
`
`Health and Human Services, the Secretary of the Treasury, and the Secretary of Labor
`
`issued notice-and-comments regulations to implement HRSA’s decision to require
`
`private insurers to cover contraception. These rules are known as the federal “Con-
`
`traceptive Mandate,” and they are codified at 45 C.F.R. § 147.130(a)(1)(iv), 29
`
`C.F.R. § 2590.715–2713(a)(1)(iv), and 26 C.F.R. § 54.9815–2713(a)(1)(iv) (at-
`
`tached as Exhibits 2–4).
`18. On May 4, 2017, President Trump issued an executive order instructing the
`
`Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and
`
`Human Services to amend the Contraceptive Mandate to address conscience-based
`
`objections. See Executive Order 13,798.
`19. In response to this order, the Department of the Treasury, the Department
`
`of Labor, and the Department of Health and Human Services issued a final rule on
`
`November 15, 2018, that exempts any non-profit or for-profit employer from the
`
`Contraceptive Mandate if it opposes the coverage of contraception for sincere reli-
`
`gious reasons. See Religious Exemptions and Accommodations for Coverage of Cer-
`
`tain Preventive Services Under the Affordable Care Act, 83 Fed. Reg. 57,536 (No-
`
`vember 15, 2018) (attached as Exhibit 5).
`
`complaint
`
`
`
`Page 5 of 16
`
`

`

`Case 2:20-cv-00185-Z Document 1 Filed 08/01/20 Page 6 of 16 PageID 6
`
`20. The final rule also sought to accommodate individuals who object to con-
`
`traceptive coverage in their health insurance for sincere religious reasons. See id. at
`
`57,590 (creating a new provision in 45 C.F.R. § 147.132(b)). Under the original
`
`Contraceptive Mandate, individual religious objectors were forced to choose between
`
`purchasing health insurance that covers contraception or forgoing health insurance
`
`entirely — unless they could obtain insurance through a grandfathered plan or a
`
`church employer that was exempt from Contraceptive Mandate. The final rule give
`
`individual religious objectors the option of purchasing health insurance that excludes
`
`contraception from any willing health insurance issuer.
`21. The final rule was scheduled to take effect on January 14, 2019. On January
`
`14, 2019, however, a federal district court in Pennsylvania issued a nationwide pre-
`
`liminary injunction against its enforcement. See Pennsylvania v. Trump, No. 2:17-cv-
`
`04540-WB (E.D. Pa.), ECF No. 135 (attached as Exhibit 6); id., ECF No. 136 (at-
`
`tached as Exhibit 7). The Third Circuit affirmed this nationwide preliminary injunc-
`
`tion on July 12, 2019. See Pennsylvania v. President of the United States, 940 F.3d 543
`
`(3d Cir. 2019). The Supreme Court granted certiorari and vacated the nationwide
`
`injunction in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, No.
`
`19-431 (July 8, 2020), but the litigation over the Trump Administration’s rule con-
`
`tinues, and the plaintiffs in Pennsylvania v. Trump have vowed to seek a new nation-
`
`wide injunction against the rule on remand.
`22. In response to the nationwide injunction issued in Pennsylvania v. Trump,
`
`a lawsuit was filed in the Northern District of Texas to enjoin federal officials from
`
`enforcing the Obama-era contraceptive mandate against the religious objectors pro-
`
`tected by the Trump Administration’s final rule of November 15, 2018. The district
`
`court held that the protections conferred in the Trump Administration’s final rule
`
`were compelled by the Religious Freedom Restoration Act, and permanently enjoined
`
`complaint
`
`
`
`Page 6 of 16
`
`

`

`Case 2:20-cv-00185-Z Document 1 Filed 08/01/20 Page 7 of 16 PageID 7
`
`federal officials from enforcing the Contraceptive Mandate against any religious ob-
`
`jector protected by the final rule. See DeOtte v. Azar, 393 F. Supp. 3d 490 (N.D. Tex.
`
`2019); see also Exhibit 8 (final judgment in DeOtte). As a result of DeOtte, the pro-
`
`tections conferred by the Trump Administration’s final rule are in full force and effect
`
`because they have been incorporated into the DeOtte injunction, even though the
`
`final rule itself remains subject to litigation.
`23. Despite the DeOtte injunction, few if any insurance companies are currently
`
`offering health insurance that excludes coverage for contraception because a policy of
`
`this sort can only be offered to religious objectors rather than to the public at large.
`
`In addition, the Texas Contraceptive Equity Law remains in effect, which prohibits
`
`health insurers in Texas from excluding contraceptive coverage unless they also ex-
`
`clude coverage for all prescription drugs. So no health insurer in Texas is even permit-
`
`ted to offer a policy that excludes contraceptive coverage unless it drops all coverage
`
`for prescription drugs, and even then a policy of that sort may only be sold to individ-
`
`uals who hold sincere religious objections to contraception.
`
`THE TEXAS CONTRACEPTIVE EQUITY LAW
`24. In 2001, Texas enacted a “contraceptive equity” law, which requires every
`
`health benefit plan that covers prescription drugs and devices to cover every “pre-
`
`scription contraceptive drug or device approved by the United States Food and Drug
`
`Administration.” Tex. Ins. Code § 1369.104(a) (attached as Exhibit 9).
`25. The Texas statute also forbids health benefit plans to impose cost-sharing
`
`provisions (such as co-payments or deductibles) for prescription contraceptive drugs
`
`or devices “unless the amount of the required cost-sharing is the same as or less than
`
`the amount of the required cost-sharing applicable to benefits for other prescription
`
`drugs or devices under the plan.” Tex. Ins. Code § 1369.105(a) (attached as Exhibit
`
`9).
`
`complaint
`
`
`
`Page 7 of 16
`
`

`

`Case 2:20-cv-00185-Z Document 1 Filed 08/01/20 Page 8 of 16 PageID 8
`
`26. These statutory requirements are also reflected in section 21.404(c) of Title
`
`28 of the Texas Administrative Code, which states: “No insurer may exclude from
`
`prescription drug benefits oral contraceptives when all other prescription drugs are
`
`covered.” See 28 Tex. Admin. Code § 21.404(c) (attached as Exhibit 10).
`27. The Texas contraceptive equity law does not require health benefit plans to
`
`cover “abortifacients” or any “drug or device that terminates a pregnancy.” Tex. Ins.
`
`Code § 1369.104(c) (attached as Exhibit 9).
`28. The Texas statute also provides a narrow religious exemption for any “health
`
`benefit plan that is issued by an entity associated with a religious organization.” Tex.
`
`Ins. Code § 1369.108(a) (attached as Exhibit 9).
`29. The religious exemption in section 1369.108(a) prevents religious issuers of
`
`health benefit plans from being compelled to underwrite contraceptive coverage. But
`
`that does nothing to protect individual consumers of health insurance, who are com-
`
`pelled to subsidize the use of contraception unless they forgo health insurance entirely
`
`or purchase a plan that excludes all coverage of prescription drugs.
`30. The website of the Texas Department of Insurance currently states that
`
`health-insurance plans are required by state law to cover “prescription contraceptive
`
`drugs and devices and related services” as “mandated benefits.” See Exhibit 11.
`
`ALLEGATIONS RELATED TO STANDING
`31. Plaintiffs Victor Leal and Patrick Von Dohlen are devout Roman Catholics
`
`who oppose all forms of birth control, and they want to purchase health insurance
`
`that excludes coverage of contraception to avoid subsidizing other people’s contra-
`
`ception and becoming complicit in its use.
`32. Plaintiff Kim Armstrong has no religious or moral objections to any of the
`
`FDA-approved contraceptive methods. Ms. Armstrong, however, does not need or
`
`want contraceptive coverage in her health insurance because she had a hysterectomy
`
`complaint
`
`
`
`Page 8 of 16
`
`

`

`Case 2:20-cv-00185-Z Document 1 Filed 08/01/20 Page 9 of 16 PageID 9
`
`at age 21 and is incapable of becoming pregnant. Ms. Armstong is also 50 years old,
`
`and would likely be past her childbearing years even apart from her hysterectomy.
`33. The federal defendants’ enforcement of the Contraceptive Mandate, along
`
`with the state defendants’ enforcement of Tex. Ins. Code §§ 1369.104–.109 and 28
`
`Tex. Admin. Code § 21.404(c), make it impossible for the plaintiffs to purchase
`
`health insurance that excludes this unwanted and unneeded coverage for contracep-
`
`tion, thereby inflicting injury in fact.
`34. The federal Contraceptive Mandate continues to inflict injury in fact on Mr.
`
`Leal, Mr. Von Dohlen, and other religious objectors who wish to purchase health
`
`insurance. Although the DeOtte injunction permits issuers of health insurance to issue
`
`group or individual health-insurance coverage that excludes contraception to religious
`
`objectors, few if any insurance companies are offering health insurance of this sort
`
`because only a small number of individuals hold sincere religious objections to all
`
`forms of contraception. And even if a health insurer were willing to create and offer a
`
`policy that excludes contraceptive coverage solely for religious objectors, the Contra-
`
`ceptive Mandate drastically restricts the available options on the market to consumers
`
`who hold religious objections to contraceptive coverage. The Mandate requires any
`
`policy that covers anyone who lacks a sincere religious objection to contraception to
`
`cover all forms of FDA-approved contraceptive methods, without any deductibles or
`
`co-pays. Without the federal Contraceptive Mandate, insurers will have the freedom
`
`to offer policies that exclude contraceptive coverage to the general public, just as they
`
`did before the Contraceptive Mandate, which will expand the health-insurance op-
`
`tions available to consumers who oppose contraceptive coverage for sincere religious
`
`reasons.
`35. The federal Contraceptive Mandate also inflicts injury in fact on non-reli-
`
`gious objectors such as Ms. Armstrong, who are forced to pay higher premiums for
`
`health insurance that covers contraceptive services that they do not want or need.
`
`complaint
`
`
`
`Page 9 of 16
`
`

`

`Case 2:20-cv-00185-Z Document 1 Filed 08/01/20 Page 10 of 16 PageID 10
`
`Millions of Americans have no need for contraceptive coverage in their health insur-
`
`ance for reasons that have nothing to do with religious or moral beliefs. This includes
`
`unmarried men, women who are past their childbearing years, women who have been
`
`sterilized, men who are married to women who are incapable of becoming pregnant,
`
`women who are celibate or practicing abstinence until marriage, and most members
`
`of the LGBTQ community. Yet none of these individuals have the option of acquiring
`
`less expensive health insurance that excludes contraceptive coverage, because they are
`
`unprotected by the DeOtte injunction and the Trump Administration’s rules that ex-
`
`empt religious and moral objectors from the Contraceptive Mandate.
`36. The state defendants’ enforcement of the Texas Contraceptive Equity law
`
`prohibits health insurers from excluding coverage of non-abortifacient contraception
`
`unless they also exclude coverage of all prescription drugs, which drastically limits the
`
`scope of acceptable health insurance that Mr. Leal and Mr. Von Dohlen can purchase
`
`consistent with their religious beliefs. It also prevents Ms. Armstrong from purchasing
`
`health insurance that excludes contraceptive coverage but includes coverage for pre-
`
`scription drugs, thereby inflicting injury in fact.
`37. The plaintiffs’ injuries are fairly traceable to the defendants’ enforcement of
`
`the federal Contraceptive Mandate and the Texas contraceptive equity law, and these
`
`injuries will be redressed by declaratory relief that pronounces these coverage man-
`
`dates unlawful.
`
`CLAIM NO. 1 — 42 U.S.C. § 300gg-13(a)(4) VIOLATES THE
`APPOINTMENTS CLAUSE
`38. 42 U.S.C. § 300gg-13(a)(4) requires private insurance to cover:
`
`with respect to women, such additional preventive care and screenings
`not described in paragraph (1) as provided for in comprehensive guide-
`lines supported by the Health Resources and Services Administration
`for purposes of this paragraph.
`
`complaint
`
`
`
`Page 10 of 16
`
`

`

`Case 2:20-cv-00185-Z Document 1 Filed 08/01/20 Page 11 of 16 PageID 11
`
`39. This statute violates Article II of the Constitution by conferring “significant
`
`authority pursuant to the laws of the United States” on individuals who have not been
`
`appointed in conformity with the Constitution’s Appointments Clause.
`40. The Appointments Clause of Article II provides:
`
`[The President] shall have Power, by and with the Advice and Consent
`of the Senate, to . . . appoint Ambassadors, other public Ministers and
`Consuls, Judges of the supreme Court, and all other Officers of the
`United States, whose Appointments are not herein otherwise provided
`for, and which shall be established by Law: but the Congress may by
`Law vest the Appointment of such inferior Officers, as they think
`proper, in the President alone, in the Courts of Law, or in the Heads
`of Departments.
`
`U.S. Const. art. II § 2.
`41. The members of the Health Resources and Services Administration are “of-
`
`ficers of the United States,” because they exercise “significant authority pursuant to
`
`the laws of the United States.” See Buckley v. Valeo, 424 U.S. 1, 126 (1976) (“[A]ny
`
`appointee exercising significant authority pursuant to the laws of the United States is
`
`an ‘Officer of the United States,’ and must, therefore, be appointed in the manner
`
`prescribed by s 2, cl. 2, of that Article.”); see also Jennifer L. Mascott, Who Are “Of-
`
`ficers of the United States”?, 70 Stan. L. Rev. 443 (2018). The power to unilaterally
`
`determine the “preventive care and screenings” that all health insurance must cover
`
`without cost-sharing qualifies as “significant authority pursuant to the laws of the
`
`United States.”
`42. Yet none of the members of the Health Resources and Services Administra-
`
`tion who determine these “guidelines” have been nominated by the President or con-
`
`firmed by the Senate, as required by the Appointments Clause. In addition, none of
`
`these individuals can reasonably be characterized as “inferior officers” when they have
`
`been given far-reaching powers to unilaterally decree the preventive care that health
`
`insurance must cover without any cost-sharing arrangements.
`
`complaint
`
`
`
`Page 11 of 16
`
`

`

`Case 2:20-cv-00185-Z Document 1 Filed 08/01/20 Page 12 of 16 PageID 12
`
`43. Even if the relevant members of the Health Resources and Services Admin-
`
`istration could somehow be considered “inferior officers” under Article II of the Con-
`
`stitution, the plaintiffs have not been able to locate any Act of Congress that “vests”
`
`their appointment in the President alone, in the Courts of Law, or in the Heads of
`
`Departments — which is needed to escape the constitutional default rule of presiden-
`
`tial nomination and Senate confirmation. 42 U.S.C. § 217a, for example, authorizes
`
`the Secretary of Health and Human Services to “appoint such advisory councils or
`
`committees . . . for such periods of time, as he deems desirable with such period com-
`
`mencing on a date specified by the Secretary for the purpose of advising him in connec-
`
`tion with any of his functions.” 42 U.S.C. § 217a (emphasis added). But this statute
`
`cannot be used to appoint the individuals who establish HRSA “guidelines” when 42
`
`U.S.C. § 300gg-13(4) gives binding force to those pronouncements. These officers
`
`are not “advising” the Secretary, and they are no longer being appointed “for the
`
`purpose of advising” him. Instead, they are deciding the preventive care that private
`
`insurance must cover.
`44. The Court should therefore declare that the federal Contraceptive Man-
`
`date — along with any and all preventive-care mandates based on a guideline issued
`
`by the Health Resources and Services Administration after March 23, 20101— is un-
`
`constitutional and unenforceable.
`
`CLAIM NO. 2 — 42 U.S.C. § 300gg-13(a)(4) VIOLATES THE
`NONDELEGATION DOCTRINE
`45. 42 U.S.C. § 300gg-13(a)(4) requires private insurance to cover:
`
`with respect to women, such additional preventive care and screenings
`not described in paragraph (1) as provided for in comprehensive guide-
`lines supported by the Health Resources and Services Administration
`for purposes of this paragraph.
`
`
`1. March 23, 2010, is the date on which the Affordable Care Act was signed into
`law.
`
`complaint
`
`
`
`Page 12 of 16
`
`

`

`Case 2:20-cv-00185-Z Document 1 Filed 08/01/20 Page 13 of 16 PageID 13
`
`46. To the extent that 42 U.S.C. § 300gg-13(a)(4) empowers future iterations
`
`of the Health Resources and Services Administration to unilaterally determine pre-
`
`ventive care that private insurance must cover, it unconstitutionally delegates legisla-
`
`tive power without providing an “intelligible principle” to guide the agency’s discre-
`
`tion.
`47. The court should therefore declare that 42 U.S.C. § 300gg-13(a)(4) vio-
`
`lates Article I by unconstitutionally delegating legislative power to the Health Re-
`
`sources and Services Administration. The court should further declare that the federal
`
`Contraceptive Mandate — and any other preventive-care mandate derived from an
`
`HRSA guideline that was issued after March 23, 2010 — is unconstitutional and un-
`
`enforceable.
`
`CLAIM NO. 3 — T H E F E D E R A L C O N T R A C E P T I V E
`M A N D A T E V I O L A T E S T H E F E D E R A L R E L I G I O U S
`F R E E D O M R E S T O R A T I O N A C T
`48. The federal Contraceptive Mandate violates the Religious Freedom Resto-
`
`ration Act by making it difficult or impossible for individuals and employers with re-
`
`ligious exemptions to purchase health insurance that excludes contraceptive coverage.
`
`This imposes a substantial burden on the exercise of religion.
`49. There is no compelling governmental interest in making contraceptive ser-
`
`vices available at zero marginal cost. And even if there were, there are ways to achieve
`
`this goal in a manner that is less restrictive of the plaintiffs’ religious freedom.
`50. The Court should therefore declare the federal Contraceptive Mandate un-
`
`lawful and contrary to the Religious Freedom Restoration Act.
`
`CLAIM NO. 4 — THE TEXAS CONTRACEPTIVE-EQUITY LAWS
`VIOLATE THE TEXAS RELIGIOUS FREEDOM RESTORATION
`ACT
` The Texas contraceptive-equality laws violate the Texas Religious Freedom
`
`51.
`
`Restoration Act by making it impossible for individuals and employers with religious
`
`complaint
`
`
`
`Page 13 of 16
`
`

`

`Case 2:20-cv-00185-Z Document 1 Filed 08/01/20 Page 14 of 16 PageID 14
`
`objections to purchase health insurance that excludes contraceptive coverage, unless
`
`they forgo all coverage of prescription drugs. This imposes a substantial burden on
`
`the exercise of religion. See Texas Civ. Prac. & Rem. Code § 110.003(a) (“[A] gov-
`
`ernment agency may not substantially burden a person’s free exercise of religion.”).
`52.
`
` There is no compelling governmental interest in forcing health-benefit
`
`plans to cover prescription contraceptive drugs or devices whenever they choose to
`
`cover other prescription drugs. And even if there were a compelling governmental
`
`interest at stake, there are other ways to achieve the relevant goal in a manner that is
`
`less restrictive of the plaintiffs’ religious freedom.
`53. Mr. Leal provided the required 60-day notice to the state defendants before
`
`filing suit under the Texas Religious Freedom Restoration Act. See Tex. Civ. Prac. &
`
`Rem. Code § 110.006(a); see also Exhibits 12–16.
`54. Mr. Von Dohlen has mailed the notice letter required by section 110.006(a)
`
`of the Texas Civil Practice and Remedies Code, but the 60-day clock has not yet run.
`
`So Mr. Von Dohlen is not asserting a claim against the state defendants at this time,
`
`but he will respectfully seek leave to add a Texas RFRA claim after the 60-day waiting
`
`period expires.
`55. Ms. Armstrong is not asserting a claim against the state defendants under
`
`Texas RFRA, because she has no religious or moral objections to contraceptive cov-
`
`erage.
`56. The Court should therefore declare that the state defendants’ enforcement
`
`of the Texas contraceptive-equity laws, including Tex. Ins. Code §§ 1369.104–.109
`
`and 28 Tex. Admin. Code § 21.404(c), substantially burdens the exercise of religion,
`
`in violation of the Texas Religious Freedom Restoration Act, and it should enjoin the
`
`state defendants from enforcing them.
`
`complaint
`
`
`
`Page 14 of 16
`
`

`

`Case 2:20-cv-00185-Z Document 1 Filed 08/01/20 Page 15 of 16 PageID 15
`
`57. The Court should also order the state defendants to ensure that religious
`
`objectors in Texas can obtain health insurance that excludes contraceptive coverage,
`
`and to use their regulatory authority to require insurers to offer such plans if needed.
`
`DEMAND FOR JUDGMENT
`58. The plaintiffs respectfully request that the court:
`a.
`
`
`
`
`
`b.
`
`c.
`
`d.
`
`e.
`
`
`f.
`
`declare that 42 U.S.C. § 300gg-13(a)(4) violates the Appointments
`Clause by empowering individuals who have not been appointed in
`conformity with the Appointments Clause to unilaterally determine the
`preventive care that health insurance must cover, and that the federal
`Contraceptive Mandate is therefore unconstitutional and unenforcea-
`ble;
`
`declare that 42 U.S.C. § 300gg-13(a)(4) violates Article I of the Con-
`stitution by delegating legislative power to the Health Resources and
`Services Administration without providing an “intelligible principle” to
`guide its discretion, and that the federal Contraceptive Mandate is
`therefore unconstitutional and unenforceable;
`
`declare that the federal Contraceptive Mandate violate the federal Reli-
`gious Freedom Restoration Act by restricting the amount of acceptable
`health-insurance plans available to those who object to contraception
`for sincere religious reasons;
`
`enjoin the federal defendants from enforcing the federal Contraceptive
`Mandate, along with any other agency rules or agency actions that at-
`tempt to implement any coverage mandate based on an HRSA guide-
`line that was issued after March 23, 2010;
`
`declare that the state defendants’ enforcement of the Texas contracep-
`tive-equity laws, including Tex. Ins. Code §§ 1369.104–.109 and 28
`Tex. Admin. Code § 21.404(c), substantially burdens the exercise of
`religion, in violation of the Texas Religious Freedom Restoration Act;
`
`enjoin Commissioner Sullivan and the Texas Department of Insurance
`from enforcing the Texas contraceptive-equity laws, including Tex. Ins.
`Code §§ 1369.104–.109 and 28 Tex. Admin. Code § 21.404(c), and
`order Commissioner Sullivan and the Texas Department of Insurance
`to ensure that religious objectors in Texas can obtain health insurance
`that excludes contraceptive coverage, and to use their regulatory au-
`thority to require insurers to offer such plans if needed;
`
`complaint
`
`
`
`Page 15 of 16
`
`

`

`Case 2:20-cv-00185-Z Document 1 Filed 08/01/20 Page 16 of 16 PageID 16
`
`
`
`
`
`
`
`g.
`
`award costs and attorneys’ fees under 42 U.S.C. § 1988 and section
`110.005(a)(4) of the Texas Civil Practice and Remedies Code;
`
`h.
`
`
`
`
`
`Marvin W. Jones
`Texas Bar No. 10929100
`Christopher L. Jensen
`Texas Bar No. 00796825
`Sprouse Shrader Smith PLLC
`701 S. Taylor, Suite 500
`Amarillo, Texas 79101
`(806) 468-3335 (phone)
`(806) 373-3454 (fax)
`marty.jones@sprouselaw.com
`chris.jensen@sprouselaw.com
`
`
`
`
`
`
`
`
`
`
`Dated: July 28, 2020
`
`award all other relief that the Court deems just, proper, or equitable.
`
`Respectfully submitted.
`
` /s/ Jonathan F. Mitchell
`Jonathan F. Mitchell
`Texas Bar No. 24075463
`Mitchell Law PLLC
`111 Congress Avenue, Suite 400
`Austin, Texas 78701
`
`-(512) 686
`3940 (phone)
`
`
`3941 (fax)
`
`-(512) 686
`jonathan@mitchell.law
`
`H. Dustin Fillmore III
`Texas Bar No. 06996010
`Charles W. Fillmore
`Texas Bar No. 00785861
`The Fillmore Law Firm, LLP
`1200 Summit Avenue, Suite 860
`Fort Worth, Texas 76102
`(817) 332-2351 (phone)
`(817) 870-1859 (fax)
`dusty@fillmorefirm.com
`chad@fillmorefirm.com
`
`Counsel for Plaintiffs
`
`complaint
`
`
`
`Page 16 of 16
`
`