Conestoga Wood Specialties Corp. v. Sec'y U.S. Dep't of Health & Human Servs.

Justia.com Opinion Summary: Conestoga and individuals who own 100 percent of the voting shares of Conestoga and who practice the Mennonite religion, alleged that regulations promulgated by the Department of Health and Human Services, which require group health plans and health insurance issuers to provide coverage for contraceptives, violated the Religious Freedom Restoration Act, 42 U.S.C. 2000bb (RFRA) and the Free Exercise Clause of the First Amendment. The Mennonite Church teaches that taking of life, including anything that terminates a fertilized embryo, is intrinsic evil and a sin against God to which they are held accountable. Plaintiffs specifically object to two “morning after” drugs that must be provided under the mandate that may cause the demise of an already conceived, unattached embryo. The District Court denied a preliminary injunction. The Third Circuit affirmed, holding that a for-profit, secular corporation cannot to engage in religious exercise under the Free Exercise Clause and RFRA. Nor do the owners have viable claims; the law does not impose any requirements on them. Compliance and penalties are placed squarely on Conestoga.

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The court issued a Revised version of this opinion on August 5, 2014
PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 13-1144 _____________ CONESTOGA WOOD SPECIALTIES CORPORATION; NORMAN HAHN; NORMAN LEMAR HAHN; ANTHONY H. HAHN; ELIZABETH HAHN; KEVIN HAHN, Appellants v. SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; SECRETARY UNITED STATES DEPARTMENT OF LABOR; SECRETARY UNITED STATES DEPARTMENT OF THE TREASURY; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF THE TREASURY _______________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 5-12-cv-06744) District Judge: Honorable Mitchell S. Goldberg _______________ Argued May 30, 2013 BEFORE: JORDAN, VANASKIE and COWEN, Circuit Judges (Filed: July 26, 2013) Charles W. Proctor, III, Esq. (Argued) Law Offices of Proctor, Lindsay & Dixon 1204 Baltimore Pike, Suite 200 Chadds Ford, PA 19317 Randall L. Wenger, Esq. Independence Law Center 23 North Front Street Harrisburg, PA 17101 Counsel for Appellants Michelle Renee Bennett, Esq. United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W., Rm. 7130 Washington, DC 20530 Alisa B. Klein, Esq. (Argued) Mark B. Stern, Esq. United States Department of Justice Civil Division 950 Pennsylvania Avenue, N.W., Rm. 7531 Washington, DC 20530 2 Counsel for Appellees Angela C. Thompson, Esq. P.O. Box 163461 Sacramento, CA 95816 Counsel for United States Justice Foundation Amicus on Behalf of Appellants Ayesha N. Khan, Esq. Gregory M. Lipper, Esq. Americans United for the Separation of Church and State 1301 K Street, N.W. Suite 850, East Tower Washington, DC 20005 Counsel for Americans United for Separation of Church and State; Union for Reform Judaism; Central Conference of American Rabbis; Hindu American Foundation; Women of Reform Judaism Amici on Behalf of Appellees Travis S. Weber, Esq. Boyle Litigation 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Counsel for Democrats For Life of America; 3 Bart Stupak Amici on Behalf of Appellants Mailee R. Smith, Esq. Americans United for Life 655 Fifteenth Street, N.W. Suite 410 Washington, DC 20005 Counsel for Association of American Physicians and Surgeons; American Association of Pro Life Obstetricians and Gynecologists; Christian Medical Association; Catholic Medical Association; Physicians for Life; National Catholic Bioethics; National Association of Pro Life Nurses Amici on Behalf of Appellants Bruce H. Schneider, Esq. Stroock, Stroock & Lavan 180 Maiden Lane, 38th Floor New York, NY 10038 Counsel for American Society for Reproductive Medicine; Society for Adolescent Health and Medicine; American Medical Womenâs Association; National Association of Nurse Practitioners in Womenâs Health; Society of Family Planning; James 4 Trussell; Susan F. Wood; Don Downing; Kathleen Besinque; American Society for Emergency Contraception; Association of Reproductive Health Professionals; American College of Obstetricians and Gynecologists; Physicians for Reproductive Choice and Health Amici on Behalf of Appellees Lisa S. Blatt, Esq. Arnold & Porter 555 Twelfth Street, N.W. Washington, DC 20004 Counsel for Center for Reproductive Rights; American Public Health Association; Guttmacher Institute; National Family Planning and Reproductive Health Association; National Latina Institute for Reproductive Health; National Womens Health Network; Reproductive Health Technologies Project; R Alta Charo Amici on Behalf of Appellees Kimberlee W. Colby, Esq. Christian Legal Society Center for Law & Religious Freedom 8001 Braddock Road, Suite 302 Springfield, VA 22151 Counsel for Institutional Religious Freedom Alliance; C12 Group; Christian Legal Society; Ethics and Religious Liberty Commission of the Southern 5 Baptist Convention; Association of Christian Schools; Association for Gospel Rescue Missions; National Association of Evangelicals; Patrick Henry College; Prison Fellowship Ministries Amici on Behalf of Appellants Sarah Somers, Esq. National Health Law Program 101 East Weaver Street Carrboro, NC 27510 Counsel for Asian Pacific American Legal Center; Black Womenâs Health Imperative; Campaign to End Aids; Forward Together; Housing Works; Mexican American Legal Defense and Educational Fund; National Health Program; National Hispanic Medical Association; National Women and AIDS Collective; Sexuality Information & Education Council of the United States; IPAS; HIV Law Project Amici on Behalf of Appellants Brendan M. Walsh, Esq. Pashman Stein 21 Main Street Court Plaza South, Suite 100 Hackensack, NJ 07601 Counsel for Orrin G. Hatch; James M. Inhofe; Daniel R. Coats; Mitch McConnell; Rob Portman; Pat Roberts Amici on Behalf of Appellants 6 Deborah J. Dewart, Esq. 620 East Sabiston Drive Swansboro, NC 28584 Counsel for Liberty Life and Law Foundation Amicus on Behalf of Appellants Jason P. Gosselin, Esq. Richard M. Haggerty, Jr., Esq. Drinker, Biddle & Reath 18th and Cherry Streets One Logan Square, Suite 2000 Philadelphia, PA 19103 Counsel for New Jersey Family Policy Council Amicus on Behalf of Appellants Steven W. Fitschen, Esq. The National Legal Foundation 2224 Virginia Beach Blvd., Suite 204 Virginia Beach, VA 23454 Counsel for National Legal Foundation; Bradley P. Jacob; Texas Center for Defense of Life Amici on Behalf of Appellees Charles E. Davidow, Esq. Paul, Weiss, Rifkind, Wharton & Garrison 2001 K Street, N.W., Suite 600 Washington, DC 20006 7 Counsel for National Organization for Women Foundation; National Womenâs Law Center; Population Connection; Service Employees International Union; Ibis Reproductive Health; MergerWatch; Naral Pro Choice America; Planned Parenthood Association of the Mercer Area Inc.; Planned Parenthood of Central Pennsylvania; Planned Parenthood of Delaware Inc.; Planned Parenthood of Northeast Middle Pennsylvania and Bucks County; Planned Parenthood of Southeastern Pennsylvania; Planned Parenthood of Western Pennsylvania; Raising Womenâs Voices for the Health Care We Need; Womenâs Law Project; American Association University Women Amici on Behalf of Appellees Emily M. Bell, Esq. Clymer, Musser, Brown & Conrad 408 West Chestnut Street Lancaster, PA 17603 Counsel for Breast Cancer Prevention Institute Coalition on Abortion Breast Cancer; Polycarp Research Institute; Amici on Behalf of Appellants Daniel Mach, Esq. American Civil Liberties Union 915 15th Street, N.W., 6th Floor Washington, DC 20005 8 Counsel for American Civil Liberties Union; American Civil Liberties Union of Pennsylvania; Anti Defamation League; Catholics for a Free Choice; Hadassah; Womenâs Zionist Organization of America Inc. Interfaith Alliance Foundation; National Coalition of American Nuns; National Council of Women Inc. Religious Coalition for Reproductive Choice Religious Institute; Unitarian Universalist Association; Unitarian Universalist Womenâs Federation Amici on Behalf of Appellees Thomas W. Ude, Esq. Lambda Legal Defense & Education Fund, Inc. 120 Wall Street, 19th Floor New York, NY 10005 Counsel for Lambda Legal Defense & Education Fund Inc. Amicus on Behalf of Appellees ______________ OPINION _______________ COWEN, Circuit Judge. Appellants Conestoga Wood Specialties Corporation (âConestogaâ), Norman Hahn, Elizabeth Hahn, Norman Lemar Hahn, Anthony Hahn, and Kevin Hahn (collectively, âthe Hahnsâ) appeal from an order of the District Court 9 denying their motion for a preliminary injunction. In their Complaint, Appellants allege that regulations promulgated by the Department of Health and Human Services (âHHSâ), which require group health plans and health insurance issuers to provide coverage for contraceptives, violate the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb (âRFRAâ) and the Free Exercise Clause of the First Amendment of the United States Constitution. 1 The District Court denied a preliminary injunction, concluding that Appellants were unlikely to succeed on the merits of their claims. See Conestoga Wood Specialties Corp. v. Sebelius, No. 12-CV6744, 2013 WL 140110 (E.D. Pa. Jan. 11, 2013). Appellants then filed an expedited motion for a stay pending appeal with this Court, which was denied. See Conestoga Wood Specialties Corp. v. Secây of the United States Depât of Health & Human Servs., No. 13-1144, 2013 WL 1277419 (3d Cir. Feb. 8, 2013). Now, we consider the fully briefed appeal from the District Courtâs denial of a preliminary injunction. Before we can even reach the merits of the First Amendment and RFRA claims, we must consider a threshold issue: whether a for-profit, secular corporation is able to 1 The Complaint also alleges that the regulations violate the Establishment Clause, the Free Speech Clause, the Due Process Clause, and the Administrative Procedure Act. While the District Courtâs opinion addressed some of these additional claims, Appellants have limited their appeal to whether the regulations violate the RFRA and the Free Exercise Clause. 10 engage in religious exercise under the Free Exercise Clause of the First Amendment and the RFRA. As we conclude that forprofit, secular corporations cannot engage in religious exercise, we will affirm the order of the District Court. I. In 2010, Congress passed the Patient Protection and Affordable Care Act, Pub. L. No. 111-148 (March 23, 2010) (âACAâ). The ACA requires employers with fifty or more employees to provide their employees with a minimum level of health insurance. The ACA requires non-exempt group plans to provide coverage without cost-sharing for preventative care and screening for women in accordance with guidelines created by the Health Resources and Services Administration (âHRSAâ), a subagency of HHS. See 42 U.S.C. § 300gg-13(a)(4). The HRSA delegated the creation of guidelines on this issue to the Institute of Medicine (âIOMâ). The IOM recommended that the HRSA adopt guidelines that require non-exempt group plans to cover â[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.â 2 These recommended guidelines 2 See Womenâs Preventive Services: Required Health Plan Coverage Guidelines, available at www.hrsa.gov/womensguidelines (last visited July 25, 2013). 11 were approved by the HRSA. On February 15, 2012, HHS, the Department of the Treasury, and the Department of Labor published final rules memorializing the guidelines. See 77 Fed. Reg. 8725 (Feb. 15, 2012).3 Under the regulations, group health plans and health insurance issuers are required to provide coverage consistent with the HRSA guidelines in plan years beginning on or after August 1, 2012, unless the employer or the plan is exempt. 4 Appellants refer to this requirement as the âMandate,â and we use this term throughout this opinion. Employers who fail to comply with the Mandate face a penalty of $100 per day per offending employee. See 26 U.S.C. § 4980D. The Department of Labor and plan participants may also bring a suit against an employer that fails to comply with the Mandate. See 29 U.S.C. § 1132. II. 3 These regulations were updated on July 2, 2013. See 78 Fed. Reg. 39870 (July 2, 2013). The recent changes have no impact on this litigation. 4 The exemptions encompass âgrandfatheredâ plans, which are plans that were in existence on March 23, 2010, see 45 C.F.R. § 147.140 and âreligious employers,â see 45 C.F.R. § 147.130(a)(1)(iv)(B). Additionally, the ACA requirement to provide employer sponsored health insurance to employees is entirely inapplicable to employers that have fewer than 50 employees. See 26 U.S.C. § 4980H(a), (c)(2)(A). 12 The Hahns own 100 percent of the voting shares of Conestoga. Conestoga is a Pennsylvania for-profit corporation that manufactures wood cabinets and has 950 employees. The Hahns practice the Mennonite religion. According to their Amended Complaint, the Mennonite Church âteaches that taking of life which includes anything that terminates a fertilized embryo is intrinsic evil and a sin against God to which they are held accountable.â (Am. Compl. ¶ 30.) 5 Specifically, the Hahns object to two drugs that must be provided by group health plans under the Mandate that âmay cause the demise of an already conceived but not yet attached human embryo.â (Id. at ¶ 45.) These are âemergency contraceptionâ drugs such as Plan B (the âmorning after pillâ) and ella (the âweek after pillâ). The Amended Complaint alleges that it is immoral and sinful for Appellants to intentionally participate in, pay for, facilitate, or otherwise support these drugs. (Id. at ¶ 32.) Conestoga has been subject to the Mandate as of January 1, 2013, when its group health plan came up for renewal. As a panel of this Court previously 5 In addition, on October 31, 2012, Conestogaâs Board of Directors adopted âThe Hahn Family Statement on the Sanctity of Human Life,â which provides, amongst other things, that âThe Hahn Family believes that human life begins at conception (at the point where an egg and sperm unite) and that it is a sacred gift from God and only God has the right to terminate human life. Therefore, it is against our moral conviction to be involved in the termination of human life through abortion, suicide, euthanasia, murder, or any other acts that involve the taking of human life.â (Id. at ¶ 92.) 13 denied an injunction pending appeal, Conestoga is currently subject to the Mandate, and in fact, Appellantsâ counsel represented during oral argument that Conestoga is currently complying with the Mandate. III. We review a district courtâs denial of a preliminary injunction for abuse of discretion, but review the underlying factual findings for clear error and questions of law de novo. Am. Express Travel Related Servs. v. Sidamon-Eristoff, 669 F.3d 359, 366 (3d Cir. 2012). The District Court had jurisdiction over this case under 28 U.S.C. § 1331. This Court has appellate jurisdiction under 28 U.S.C. § 1292(a)(1). âA party seeking a preliminary injunction must show: (1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief.â Kos Pharms, Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004). A plaintiff seeking an injunction must meet all four criteria, as â[a] plaintiffâs failure to establish any element in its favor renders a preliminary injunction inappropriate.â NutraSweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir. 1999). This is the same standard applied in the District Court, and, on appeal, no party has questioned its 14 accuracy. 6 We will first consider whether Appellants are likely to succeed on the merits of their claim, beginning with the claims asserted by Conestoga, a for-profit, secular corporation. IV. A. First, we turn to Conestogaâs claims under the First Amendment. Under the First Amendment, âCongress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof.â The threshold question for this Court is whether Conestoga, a for-profit, secular corporation, can exercise religion. In essence, Appellants offer two theories under which we could conclude that Conestoga can exercise religion: (a) directly, under the Supreme Courtâs recent decision in Citizens United, and (b) indirectly, under the âpassed throughâ method that has been articulated by the Court of Appeals for the Ninth Circuit. We will discuss each theory in turn. 6 The dissent has undertaken a scholarly survey of the proper standard for obtaining a preliminary injunction throughout the country. However, Appellants never took an appeal of the preliminary injunction standard applied by the District Court. (See Appellantsâ Br. at 4-6 (statement of issues presented for review).) Moreover, the dissent acknowledges that it âmay be trueâ that the plaintiffâs failure to satisfy any element in its favor renders a preliminary injunction inappropriate. (Dissenting Op. at 9.) 15 In Citizens United, the Supreme Court held that âthe Government may not suppress political speech on the basis of the speakerâs corporate identity,â and it accordingly struck down statutory restrictions on corporate independent expenditure. Citizens United v. Fed. Election Commân, 558 U.S. 310, 365 (2010). Citizens United recognizes the application of the First Amendment to corporations generally without distinguishing between the Free Exercise Clause and the Free Speech Clause, both which are contained within the First Amendment. Accordingly, whether Citizens United is applicable to the Free Exercise Clause is a question of first impression. See Hobby Lobby Stores, Inc. v. Sebelius, 133 S. Ct. 641, 643 (2012) (Sotomayor, Circuit Justice) (âThis court has not previously addressed similar RFRA or free exercise claims brought by closely held for-profit corporations and their controlling shareholders . . . .â). While âa corporation is âan artificial being, invisible, intangible, and existing only in contemplation of law,â . . . a wide variety of constitutional rights may be asserted by corporations.â Consol. Edison Co. of N.Y., Inc. v. Pataki, 292 F.3d 338, 347 (2d Cir. 2002) (quoting Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat.) 518, 636 (1819) (Marshall, C.J.)) In analyzing whether constitutional guarantees apply to corporations, the Supreme Court has held that certain guarantees are held by corporations and that certain guarantees are âpurely personalâ because âthe âhistoric functionâ of the particular guarantee has been limited to the protection of individuals.â First Natâl Bank of Boston v. Bellotti, 435 U.S. 765, 778 n.14 (1978) (internal citation omitted). The Bellotti 16 Court observed: Corporate identity has been determinative in several decisions denying corporations certain constitutional rights, such as the privilege against compulsory self-incrimination, Wilson v. United States, 221 U.S. 361, 382â386, 31 S. Ct. 538, 545â546, 55 L. Ed. 771 (1911), or equality with individuals in the enjoyment of a right to privacy, California Bankers Assn. v. Shultz, 416 U.S. 21, 65â67, 94 S. Ct. 1494, 1519â1520, 39 L. Ed. 2d 812 (1974); United States v. Morton Salt Co., 338 U.S. 632, 651â 652, 70 S. Ct. 357, 368â369, 94 L. Ed. 401 (1950), but this is not because the States are free to define the rights of their creatures without constitutional limit. Otherwise, corporations could be denied the protection of all constitutional guarantees, including due process and the equal protection of the laws. Certain âpurely personalâ guarantees, such as the privilege against compulsory self-incrimination, are unavailable to corporations and other organizations because the âhistoric functionâ of the particular guarantee has been limited to the protection of individuals. United States v. White, 322 U.S. 694, 698â701, 64 S. Ct. 1248, 1251â1252, 88 L. Ed. 1542 (1944). Whether or not a particular guarantee is âpurely personalâ or is unavailable to corporations for some other reason depends on the nature, history, and 17 purpose of provision. the particular constitutional Id. Thus, we must consider whether the Free Exercise Clause has historically protected corporations, or whether the âguarantee is âpurely personalâ or is unavailable to corporationsâ based on the ânature, history, and purpose of [this] particular constitutional provision.â Id. In Citizens United, the Supreme Court pointed out that it has ârecognized that First Amendment protection extends to corporations.â Citizens United, 558 U.S. at 342. It then cited to more than twenty cases, from as early as the 1950âs, including landmark cases such as New York Times Co. v. Sullivan, 376 U.S. 254 (1964), in which the Court recognized that First Amendment free speech rights apply to corporations. See id. The Citizens United Court particularly relied on Bellotti, which struck down a state-law prohibition on corporate independent expenditures related to referenda issues. Bellotti held: We thus find no support in the First or Fourteenth Amendment, or in the decisions of this Court, for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation that cannot prove, to the satisfaction of a court, a material effect on its business or property. [That proposition] amounts to an impermissible legislative prohibition of speech based on the 18 identity of the interests that spokesmen may represent in public debate over controversial issues and a requirement that the speaker have a sufficiently great interest in the subject to justify communication. Bellotti, 435 U.S. at 784. Discussing Bellottiâs rationale, Citizens United stated that the case ârested on the principle that the Government lacks the power to ban corporations from speaking.â Citizens United, 558 U.S. at 347; see also Pac. Gas & Elec. Co. v. Pub. Utils. Commân of Cal., 475 U.S. 1, 8 (1986) (âThe identity of the speaker is not decisive in determining whether speech is protectedâ as â[c]orporations and other associations, like individuals, contribute to the âdiscussion, debate, and the dissemination of information and ideasâ that the First Amendment seeks to foster.â) (quoting Bellotti, 435 U.S. at 795). Citizens United is thus grounded in the notion that the Court has a long history of protecting corporationsâ rights to free speech. Citizens United overruled Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), a case in which the Court had âuph[eld] a direct restriction on the independent expenditure of funds for political speech for the first time in [this Courtâs] history.â Citizens United, 558 U.S. at 347 (quoting Austin, 494 U.S. at 695 (Kennedy, J., dissenting)). The Citizens United Court found that it was âconfronted with conflicting lines of precedent: a pre-Austin line that forbids restrictions on political speech based on the speakerâs corporate identify and a post-Austin line that permits them.â Id. at 348. Faced with this conflict, the Court decided that 19 Austin was wrongly decided, based on the otherwise consistent line of cases in which corporations were found to have free speech rights. We must consider the history of the Free Exercise Clause and determine whether there is a similar history of courts providing free exercise protection to corporations. We conclude that there is not. In fact, we are not aware of any case preceding the commencement of litigation about the Mandate, in which a for-profit, secular corporation was itself found to have free exercise rights. 7 Such a total absence of caselaw takes on even greater significance when compared to the extensive list of Supreme Court cases addressing the free speech rights of corporations. After all, as the Supreme Court observed in Schempp, the purpose of the Free Exercise Clause âis to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority.â Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 223 (1963) (emphasis added). And as the District Court aptly noted in its opinion, â[r]eligious belief takes shape within the minds and hearts of individuals, and its protection is one of the more uniquely âhumanâ rights provided 7 We acknowledge that the Court of Appeals for the Tenth Circuit, in an eight judge en banc panel, in six separate opinions, recently held that for-profit, secular corporations can assert RFRA and free exercise claims in some circumstances. See Hobby Lobby Stores, Inc. v. Sebelius, No. 12-6294, 2013 WL 3216103 (10th Cir. June 27, 2013). We respectfully disagree with that Courtâs analysis. 20 by the Constitution.â Conestoga, 2013 WL 140110, at *7. We do not see how a for-profit âartificial being, invisible, intangible, and existing only in contemplation of law,â Consol. Edison Co., 292 F.3d at 346 (quoting Dartmouth Coll., 17 U.S. at 636 (Marshall, C.J.)), that was created to make money could exercise such an inherently âhumanâ right. We are unable to determine that the ânature, history, and purposeâ of the Free Exercise Clause supports the conclusion that for-profit, secular corporations are protected under this particular constitutional provision. See Bellotti¸ 435 U.S. at 778 n.14. Even if we were to disregard the lack of historical recognition of the right, we simply cannot understand how a for-profit, secular corporationâapart from its ownersâcan exercise religion. As another court considering a challenge to the Mandate noted: General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors. Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1291 (W.D. Okla. 2012), revâd en banc, No. 12-6294, 2013 WL 3216103 (10th Cir. June 27, 2013); see also Hobby Lobby Stores, Inc., 2013 WL 3216103, at *51 (Briscoe, C.J., concurring in part and dissenting in part) (questioning âwhether a corporation can âbelieveâ at all, see Citizens 21 United, 130 S.Ct. at 972 (âIt might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.â) (Stevens, J., concurring in part and dissenting in part).â). In urging us to hold that for-profit, secular corporations can exercise religion, Appellants, as well as the dissent, cite to cases in which courts have ruled in favor of free exercise claims advanced by religious organizations. See, e.g., Gonzalez v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006); Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993). None of the cases relied on by the dissent involve secular, for-profit corporations. We will not draw the conclusion that, just because courts have recognized the free exercise rights of churches and other religious entities, it necessarily follows that for-profit, secular corporations can exercise religion. As the Supreme Court recently noted, âthe text of the First Amendment . . . gives special solicitude to the rights of religious organizations.â Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 706 (2012). That churchesâas means by which individuals practice religionâhave long enjoyed the protections of the Free Exercise Clause is not determinative of the question of whether for-profit, secular corporations should be granted these same protections. Appellants also argue that Citizens United is applicable to the Free Exercise Clause because âthe authors of the First Amendment only separated the Free Exercise Clause and the Free Speech Clause by a semi-colon, thus showing the continuation of intent between the two.â (Appellantsâ Br. at 22 34.) We are not persuaded that the use of a semi-colon means that each clause of the First Amendment must be interpreted jointly. In fact, historically, each clause has been interpreted separately. Accordingly, the courts have developed different tests in an effort to apply these clauses. For example, while the various clauses of the First Amendment have been incorporated and made applicable to the states by the Due Process Clause of the Fourteenth Amendment, the Supreme Court did so at different times. Incorporation of the clauses of the First Amendment began with Gitlow v. New York, 268 U.S. 652, 666 (1925), where the Court noted that âwe may and do assume that freedom of speech and of the pressâwhich are protected by the First Amendment from abridgment by Congressâare among the fundamental rights and âlibertiesâ protected by the due process clause of the Fourteenth Amendment from impairment by the States.â More than ten years later, in De Jonge v. Oregon, 299 U.S. 353 (1937), the Court incorporated the right of peaceable assembly. In doing so, the Court cited to Gitlow, and noted that â[t]he right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.â Id. at 364. The language is importantâeven though the Free Speech Clause and the Petition Clause appear next to one another in the First Amendment, the Court did not find that Gitlow had already decided that the Petition Clause was incorporated, but rather cited Gitlow as precedent to expand the incorporation doctrine to cover the Petition Clause. Several years later, in Cantwell v. Connecticut, 310 23 U.S. 296 (1940), the Supreme Court incorporated the Free Exercise Clause. The Cantwell Court did not cite to Gitlow as authority for incorporating the Free Exercise Clause; in other words, it did not automatically follow that the Free Exercise Clause was incorporated just because the Free Speech Clause was incorporated. Seven years after Cantwell, in Everson v. Board of Education, 330 U.S. 1 (1947), the Court incorporated the Establishment Clause. In Everson, the Court cited to Cantwell and noted that the Courtâs interpretation of the Free Exercise Clause should be applied to the Establishment Clause. Id. at 15. But notably, it took seven years for the Court to hold this; and following the same pattern, Cantwell did not automatically incorporate the Establishment Clause. Thus, it does not automatically follow that all clauses of the First Amendment must be interpreted identically. Second, Appellants argue that Conestoga can exercise religion under a âpassed throughâ theory, which was first developed by the Court of Appeals for the Ninth Circuit in EEOC v. Townley Engineering & Manufacturing Company, 859 F.2d 610 (9th Cir. 1988), and affirmed in Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009). In Townley and Stormans, the Ninth Circuit held that for-profit corporations can assert the free exercise claims of their owners. In Townley, the plaintiff was a closely-held manufacturing company whose owners made a âcovenant with God requir[ing] them to share the Gospel with all of their employees.â Townley, 859 F.2d at 620. Townley, the plaintiff corporation, sought an exemption, on free exercise grounds, from a provision of Title VII of the Civil Rights Act 24 that required it to accommodate employees asserting religious objections to attending the companyâs mandatory devotional services. Although the plaintiff urged the âcourt to hold that it is entitled to invoke the Free Exercise Clause on its own behalf,â the Ninth Circuit deemed it âunnecessary to address the abstract issue whether a for profit corporation has rights under the Free Exercise Clause independent of those of its shareholders and officers.â Id. at 619-20. Rather, the court concluded that, âTownley is merely the instrument through and by which Mr. and Mrs. Townley express their religious beliefs.â Id. at 619. As âTownley presents no rights of its own different from or greater than its ownersâ rights,â the Ninth Circuit held that âthe rights at issue are those of Jake and Helen Townley.â Id. at 620. The court then examined the rights at issue as those of the corporationâs owners, ultimately concluding that Title VIIâs requirement of religious accommodation did not violate the Townleysâ free exercise rights. Id. at 621. The Ninth Circuit subsequently applied Townleyâs reasoning in Stormans. There, a pharmacy brought a Free Exercise Clause challenge to a state regulation requiring it to dispense Plan B, an emergency contraceptive drug. Stormans, 586 F.3d at 1117. In analyzing whether the pharmacy had standing to assert the free exercise rights of its owners, the court emphasized that the pharmacy was a âfourth-generation, family-owned business whose shareholders and directors are made up entirely of members of the Stormans family.â Id. at 1120. As in Townley, it âdecline[d] to decide whether a for-profit corporation can assert its own rights under the Free Exercise Clause and 25 instead examine[d] the rights at issue as those of the corporate owners.â Id. at 1119. The court concluded that the pharmacy was âan extension of the beliefs of members of the Stormans family, and that the beliefs of the Stormans family are the beliefs ofâ the pharmacy. Id. at 1120. Because the pharmacy did ânot present any free exercise rights of its own different from or greater than its ownersâ rights,â the Ninth Circuit held, as it had in Townley, that the company had âstanding to assert the free exercise rights of its owners.â Id. Appellants argue that Conestoga is permitted to assert the free exercise claims of the Hahns, its owners, under the Townley/Stormans âpassed throughâ theory. After carefully considering the Ninth Circuitâs reasoning, we are not persuaded. We decline to adopt the Townley/Stormans theory, as we believe that it rests on erroneous assumptions regarding the very nature of the corporate form. In fact, the Ninth Circuit did not mention certain basic legal principles governing the status of a corporation and its relationship with the individuals who create and own the entity. It is a fundamental principle that âincorporationâs basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who createdâ the corporation. Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163 (2001). The âpassed throughâ doctrine fails to acknowledge that, by incorporating their business, the Hahns themselves created a distinct legal entity that has legally distinct rights and responsibilities from the Hahns, as the owners of the corporation. See Barium Steel Corp. v. Wiley, 108 A.2d 336, 341 (Pa. 1954) (âIt is well established [under Pennsylvania 26 law] that a corporation is a distinct and separate entity, irrespective of the persons who own all its stock.â). The corporate form offers several advantages ânot the least of which was limitation of liability,â but in return, the shareholder must give up some prerogatives, âincluding that of direct legal action to redress an injury to him as primary stockholder in the business.â Kush v. Am. States Ins. Co., 853 F.2d 1380, 1384 (7th Cir. 1988). Thus, under Pennsylvania lawâwhere Conestoga is incorporatedââ[e]ven when a corporation is owned by one person or family, the corporate form shields the individual members of the corporation from personal liability.â Kellytown Co. v. Williams, 426 A.2d 663, 668 (Pa. Super. Ct. 1981). Since Conestoga is distinct from the Hahns, the Mandate does not actually require the Hahns to do anything. All responsibility for complying with the Mandate falls on Conestoga. Conestoga âis a closely-held, family-owned firm, and [we] suspect there is a natural inclination for the owners of such companies to elide the distinction between themselves and the companies they own.â Grote v. Sebelius, 708 F.3d 850, 857 (7th Cir. 2013) (Rovner, J., dissenting). But, it is Conestoga that must provide the funds to comply with the Mandateânot the Hahns. We recognize that, as the sole shareholders of Conestoga, ultimately the corporationâs profits will flow to the Hahns. But, â[t]he owners of an LLC or corporation, even a closely-held one, have an obligation to respect the corporate form, on pain of losing the benefits of that form should they fail to do so.â Id. at 858 (Rovner, J., dissenting). âThe fact that one person owns all of the stock does not make him and the corporation one and the same 27 person, nor does he thereby become the owner of all the property of the corporation.â Wiley, 108 A.2d at 341. The Hahn family chose to incorporate and conduct business through Conestoga, thereby obtaining both the advantages and disadvantages of the corporate form. We simply cannot ignore the distinction between Conestoga and the Hahns. We holdâ contrary to Townley and Stormansâthat the free exercise claims of a companyâs owners cannot âpass throughâ to the corporation. B. Next, we consider Conestogaâs RFRA claim. Under the RFRA, â[g]overnment shall not substantially burden a personâs exercise of religion even if the burden results from a rule of general applicability [unless the burden] (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.â 42 U.S.C. §§ 2000bb-1(a)-(b). As with the inquiry under the Free Exercise Clause, our preliminary inquiry is whether a for-profit, secular corporation can assert a claim under the RFRA. Under the plain language of the statute, the RFRA only applies to a âpersonâs exercise of religion.â Id. at § 2000bb-1(a). Our conclusion that a for-profit, secular corporation cannot assert a claim under the Free Exercise Clause necessitates the conclusion that a for-profit, secular corporation cannot engage in the exercise of religion. Since Conestoga cannot exercise religion, it cannot assert a RFRA claim. We thus need not decide whether such a corporation is 28 a âpersonâ under the RFRA. V. Finally, we consider whether the Hahns, as the owners of Conestoga, have viable Free Exercise Clause and RFRA claims on their own. For the same reasons that we concluded that the Hahnsâ claims cannot âpass throughâ Conestoga, we hold that the Hahns do not have viable claims. The Mandate does not impose any requirements on the Hahns. Rather, compliance is placed squarely on Conestoga. If Conestoga fails to comply with the Mandate, the penaltiesâincluding fines, see 26 U.S.C. § 4980D, and civil enforcement, see 29 U.S.C. § 1132âwould be brought against Conestoga, not the Hahns. As the Hahns have decided to utilize the corporate form, they cannot âmove freely between corporate and individual status to gain the advantages and avoid the disadvantages of the respective forms.â Potthoff v. Morin, 245 F.3d 710, 717 (8th Cir. 2001) (quoting Kush, 853 F.2d at 1384). Thus, we conclude that the Hahns are not likely to succeed on their free exercise and RFRA claims. VI. As Appellants have failed to show that they are likely to succeed on the merits of their Free Exercise Clause and RFRA claims, we need not decide whether Appellants have shown that they will suffer irreparable harm, that granting preliminary relief will not result in even greater harm to the Government, and that the public interest favors the relief of a preliminary injunction. See NutraSweet Co., 176 F.3d at 153 (âA 29 plaintiffâs failure to establish any element in its favor renders a preliminary injunction inappropriate.â). Therefore, we will affirm the District Courtâs order denying Appellantsâ motion for a preliminary injunction. * * * We recognize the fundamental importance of the free exercise of religion. As Congress stated, in passing the RFRA and restoring the compelling interest test to laws that substantially burden religion, âthe framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution.â 42 U.S.C. § 2000bb(a). Thus, our decision here is in no way intended to marginalize the Hahnsâ commitment to the Mennonite faith. We accept that the Hahns sincerely believe that the termination of a fertilized embryo constitutes an âintrinsic evil and a sin against God to which they are held accountable,â (Compl. ¶ 30), and that it would be a sin to pay for or contribute to the use of contraceptives which may have such a result. We simply conclude that the law has long recognized the distinction between the owners of a corporation and the corporation itself. A holding to the contraryâthat a for-profit corporation can engage in religious exerciseâwould eviscerate the fundamental principle that a corporation is a legally distinct entity from its owners. 30 Conestoga Wood Specialties Corp., et al. v. U.S. Depât of Health & Human Servs., et al., (No. 13-1144) JORDAN, Circuit Judge, dissenting. Having previously dissented from the denial of a stay pending appeal in this case, I now have a second opportunity to consider the governmentâs violation of the religious freedoms of Conestoga Wood Specialties Corporation (âConestogaâ) and its owners, the Hahns, a family of devout Mennonite Christians who believe in the sanctity of human life. The Hahns do not want to be forced to pay for other people to obtain contraceptives and sterilization services, particularly the drugs known as âPlan Bâ (or the âmorning after pillâ) and âEllaâ (or the âweek after pillâ), which they view as chemical killers of actual lives in being. Sadly, the outcome for the Hahns and their business is the same this time as it was the last time they were before us. My colleagues, at the governmentâs urging, are willing to say that the Hahnsâ choice to operate their business as a corporation carries with it the consequence that their rights of conscience are forfeit. That deeply disappointing ruling rests on a cramped and confused understanding of the religious rights preserved by Congressional action and the Constitution. The government takes us down a rabbit hole where religious rights are determined by the tax code, with non-profit corporations able to express religious sentiments while for-profit corporations and their owners are told that business is business and faith is irrelevant. Meanwhile, up on the surface, where people try to live lives of integrity and purpose, that kind of division sounds as hollow as it truly is. I do not believe my colleagues or the District Court judge whose opinion we are reviewing are ill-motivated in the least, but the outcome of their shared reasoning is genuinely tragic, and one need not have looked past the first row of the gallery during the oral argument of this appeal, where the Hahns were seated and listening intently, to see the real human suffering occasioned by the governmentâs determination to either make the Hahns bury their religious scruples or watch while their business gets buried. So, as I did the last time this case was before us, I respectfully dissent. I. Background Five members of the Hahn family â Norman, Elizabeth, Norman Lemar, Anthony, and Kevin â own 100 percent of Conestoga, which Norman founded nearly fifty years ago and which, as noted by the Majority, is a Pennsylvania corporation that manufactures wood cabinets. (Maj. Op. at 12.) The Hahns are hands-on owners. They manage their business and try to turn a profit, with the help of Conestogaâs 950 full-time employees. It is undisputed that the Hahns are entirely committed to their faith, which influences all aspects of their lives. They feel bound, as the District Court observed, âto operate Conestoga in accordance with their religious beliefs and moral principles.â Conestoga Wood Specialties Corp. v. Sebelius, No. 12-6744, 2013 WL 140110, at *3 (E.D. Pa. Jan. ll, 2013). One manifestation of that commitment is the âStatement on the Sanctity of Human Lifeâ adopted by Conestogaâs Board of Directors on October 31, 2012, proclaiming that [t]he Hahn Family believes that human life begins at conception (at the point where an egg 2 and sperm unite) and that it is a sacred gift from God and only God has the right to terminate human life. Therefore it is against our moral conviction to be involved in the termination of human life through abortion, suicide, euthanasia, murder, or any other acts that involve the deliberate taking of human life. Id. at *18 n.5. Accordingly, the Hahns believe that facilitating the use of contraceptives, especially ones that destroy a fertilized ovum,1 is a violation of their core religious beliefs. (Am. 1 Their concern seems aimed particularly at contraceptives that work after conception (see Am. Compl. at 9 (noting concern over mandated âdrugs or devices that may cause the demise of an already conceived but not yet attached human embryo, such as âemergency contraceptionâ or âPlan Bâ drugs (the so called âmorning afterâ pill)â), and the concern apparently increases the further along in the development of the fertilized egg that the contraceptive action of a drug or device takes place (see id. at 10 (discussing objections to âa drug called âellaâ (the so called âweek afterâ pill), which studies show can function to kill embryos even after they have attached to the uterus, by a mechanism similar to the abortion drug RU-486â). Being forced to assist in the acquisition and use of abortifacients is obviously of great concern to them. (See Appellantsâ Opening Br. at 10-11 (â[T]he Hahns believe that it would be sinful and immoral for them to intentionally participate in, pay for, facilitate, or otherwise support any contraception with an abortifacient effect through health insurance coverage they offer at 3 Conestoga.â).) At oral argument, counsel for the government insisted that âabortifacientâ is a âtheological term,â and that, âfor federal law purposes, a device that prevents a fertilized egg from implanting in the uterus,â like Plan B and Ella, âis not an abortifacient.â (Oral Arg. at 37:13-37:45.) There was something telling in that lecture, and not what counsel intended. One might set aside the highly questionable assertion that âabortifacientâ is a âtheologicalâ and not a scientific medical term, which must come as a surprise to the editors of dictionaries that include entries like the following: âabortifacient [MED] Any agent that induces abortion.â McGraw-Hill Dictionary of Scientific and Technical Terms, 6th ed. (2003). And one could further ignore what appears to be an ongoing debate on whether drugs like Ella are technically abortifacients. (See Amicus Br. of Assân of Am. Physicians & Surgeons at 11 (arguing that âthe low pregnancy rate for women who take ella four or five days after intercourse suggests that the drug must have an âabortifacientâ qualityâ); D.J. Harrison & J.G. Mitroka, Defining Reality: The Potential Role of Pharmacists in Assessing the Impact of Progesterone Receptor Modulators and Misoprostol in Reproductive Health, 45 Annals Pharmacotherapy 115, 116 (Jan. 2011) (cited in Assân of Am. Physicians & Surgeons et al. Amicus Br. at 10 n.15) (concluding that, based on data, âit can be reasonably expected that the [FDA-approved] dose of ulipristal [Ella] will have an abortive effect on early pregnancy in humansâ).) Though the Hahnsâ objections to contraception may be more intense as a zygote matures and implants, the point of this case, after all, is not who among contending doctors and scientists may be correct about the abortion-inducing qualities 4 Compl. ¶ 30, 32.) Conestoga, at the Hahnsâ direction, had previously provided health insurance that omitted coverage for contraception. (Am. Compl. ¶ 3.) Then came the Patient of Ella or other drugs that the government wants to make the Hahns and their business buy for employees through forced insurance coverage. Whether a fertilized egg, being acted upon by a drug or device, is aborted after implantation or is never implanted at all is not pertinent to the Hahnsâ belief that a human life comes into being at conception and therefore the destruction of that entity is the taking of a human life. That belief is the point of this case, and the government is in no position to say anything meaningful about the Hahnsâ perspective on when life begins. But counselâs comment during argument does say something meaningful about the governmentâs desire to avoid anything that might smack of religion in this case involving questions of religious freedom. The government evidently would like to drain the debate of language that might indicate the depth of feeling the Hahns have about what they are being coerced to do. âKeep the conversation as dry and colorless as possible,â is the message. Donât let anything that sounds like âabortionâ come up, lest the weight of that word disturb a happily bland consideration of corporate veils and insurance contracts. Like it or not, however, big issues â life and death, personal conscience, religious devotion, the role of government, and liberty â are in play here, and the governmentâs effort to downplay the stakes is of no help. It does, however, highlight the continuing importance of the First Amendment, which âis an effort, not entirely forlorn, to interpose a bulwark between the prejudices of any official, legislator or judge and the stirrings of the spirit.â EEOC v. Townley Engâg & Mfg. Co., 859 F.2d 610, 624 (9th Cir. 1988) (Noonan, J., dissenting). 5 Protection and Affordable Care Act (the âACAâ) and related regulations, and the Hahnsâ previous decisions about employee benefits were no longer something the government would tolerate. Under rules effectively written by an entity called the âInstitute of Medicine,â2 corporations like Conestoga must purchase employee health insurance plans 2 To attribute the rules to government personnel is unduly generous. As the Majority obliquely observes (see Maj. Op. at 11), the rules in question here are not the product of any legislative debate, with elected representatives considering the political sensitivities and constitutional ramifications of telling devout Mennonites to fund the destruction of what they believe to be human lives. They are not even the result of work within an administrative agency of the United States. They are instead the result of the ACA assigning regulatory authority to a subunit of the Department of Health and Human Services (âHHSâ) known as the Health Resources and Services Administration, 42 U.S.C. § 300gg13(a)(4), which in turn turned the drafting over to the Institute of Medicine. (See Maj. Op. at 11.) What the Majority does not do is identify what the Institute of Medicine is. It is not an agency of the United States government, or of any other public entity. It is a private organization that, according to its website, âworks outside of government to provide unbiased and authoritative advice to decision makers and the public.â See About the IOM, http://www.iom.edu/About-IOM.aspx (last visited July 25, 2013). That self-serving declaration of its qualifications will not be of much comfort to those who wonder how a private organization, not answerable to the public, has ended up dictating regulations that the government insists overrides the Appellantsâ constitutional rights to religious liberty. 6 that include coverage for â[a]ll Food and Drug Administration [(âFDAâ)] approved contraceptive methods, sterilization procedures, and patient education and counselingâ â including so-called emergency contraceptives such as Plan B and Ella â âfor all women with reproductive capacity, as prescribed by a provider.â 77 Fed. Reg. 8725, 8725 (Feb. 15, 2012) (alterations in original) (internal quotation marks omitted). This is what has been dubbed the âcontraception mandateâ (the âMandateâ), and it brooks no exception for those, like the Appellants, who believe that supporting the use of certain contraceptives is morally reprehensible and contrary to Godâs word. 3 If the Hahns fail to have Conestoga submit to the offending regulations, the company will be subject to a âregulatory taxâ â a penalty or fine â that will amount to about $95,000 per day and will rapidly destroy the business and the 950 jobs that go with it. 4 3 There are plenty of other exceptions, however, as I will discuss later. See infra Part III.A.2.b.i. 4 According to 26 U.S.C. § 4980D(a), â[t]here is ⦠a tax on any failure of a group health plan to meet the requirements of chapter 100 (relating to group health plan requirements).â The $95,000 estimate of the penalty takes account only of Conestogaâs 950 employees. The actual penalty could amount to much more, given that the statute subjects noncompliant companies to a $100 per-day penalty for âany failureâ to provide the mandated coverage âwith respect to each individual to whom such failure relates.â Id. § 4980D(b)(1). Presumably, ââindividualâ means each individual insuredâ by the company, Hobby Lobby Stores, Inc. v. Sebelius, __ F.3d __, 2013 WL 3216103, at *5 (10th Cir. 2013) (en banc), including employeesâ family members. Regardless, dead is dead, and Conestoga would as surely die 7 (See Maj. Op. at 13 (noting that âConestoga is currently complying with the Mandateâ).) Conestoga and the Hahns now argue that the Mandate is forcing them, day by day, to either disobey their religious convictions or to incur ruinous fines. That Hobsonâs choice, they say, violates both the First Amendment and the Religious Freedom Restoration Act of 1993 (âRFRAâ), 42 U.S.C. § 2000bb-1. I agree. II. Standard of Review To qualify for preliminary injunctive relief, a litigant must demonstrate â(1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief.â Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004). âWe review the denial of a preliminary injunction for an abuse of discretion, an error of law, or a clear mistake in the consideration of proof,â and âany determination that is a prerequisite to the issuance of an injunction is reviewed according to the a rapid death under the weight of $95,000 per-day fines as it would under even higher fines. In the alternative, Conestoga presumably could drop employee health insurance altogether, and it would then face a reduced fine of $2,000 per full-time employee per year (totaling $1.9 million). See 26 U.S.C. § 4980H. Neither party has briefed that option, and it is unclear what additional consequences might follow from such action, including upward pressure on wages, etc. 8 standard applicable to that particular determination.â Id. (alterations and internal quotation marks omitted). We therefore âexercise plenary review over the district courtâs conclusions of law and its application of law to the facts ⦠.â Id. (internal quotation marks omitted). Highly relevant to this case, âa court of appeals must reverse if the district court has proceeded on the basis of an erroneous view of the applicable law.â Id. (internal quotation marks omitted). The Majority gives short shrift to the dispute over the standard of review that emerged during the earlier appeal in this case. My colleagues say simply that â[a] plaintiffâs failure to establish any element in its favor renders a preliminary injunction inappropriate.â (Maj. Op. at 14 (quoting NutraSweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir. 1999)) (alteration in original) (internal quotation marks omitted)). That may be true, but it fails to address the problem that arose from the District Courtâs erroneous application of a more rigid standard than our case law requires. In explaining away the numerous decisions around the country that have decided that the government should be preliminarily enjoined from enforcing the Mandate, the Court claimed that those other decisions were the result of âa less rigorous standardâ for the granting of preliminary injunctive relief than the standard in this Circuit. Conestoga Wood Specialties Corp., 2013 WL 140110, at *4. More specifically, the Court said that those decisions âapplied a âsliding scale approach,â whereby an unusually strong showing of one factor lessens a plaintiffâs burden in demonstrating a different factor.â 5 Id. It then contrasted that 5 See Korte v. Sebelius, No. 12-3841, 2012 WL 6757353, at *2 (7th Cir. Dec. 28, 2012) (noting that â[t]he 9 approach with what it characterized as this Courtâs approach, saying, âthe Third Circuit ⦠has no such âsliding scaleâ standard, and Plaintiffs must show that all four factors favor preliminary relief.â Id. The Majority hardly mentions the District Courtâs mistaken belief that our standard is more more the balance of harms tips in favor of an injunction, the lighter the burden on the party seeking the injunction to demonstrate that it will ultimately prevail,â and granting preliminary injunction pending appeal); Grote v. Sebelius, 708 F.3d 850, 853 n.2 (7th Cir. 2013) (adopting the reasoning of Korte and applying the same âsliding scaleâ standard); Monaghan v. Sebelius, __ F. Supp. 2d __, 2012 WL 6738476, at *3 (E.D. Mich. Dec. 30, 2012) (âCourts ... may grant a preliminary injunction even where the plaintiff fails to show a strong or substantial probability of success on the merits, but where he at least shows serious questions going to the merits and irreparable harm which decidedly outweighs any potential harm to the defendant if the injunction is issued.â); Am. Pulverizer Co. v. U.S. Depât of Health & Human Servs., No. 12-3459, 2012 WL 6951316, at *5 (W.D. Mo. Dec. 20, 2012) (applying a sliding scale standard and concluding that âthe balance of equities tip strongly in favor of injunctive relief in this case and that Plaintiffs have raised questions concerning their likelihood of success on the merits that are so serious and difficult as to call for more deliberate investigationâ); Tyndale House Publishers, Inc. v. Sebelius, 904 F. Supp. 2d 106, 113 (D.D.C. 2012) (applying a sliding scale standard by which, â[i]f the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factorâ (alteration in original) (internal quotation marks omitted)). 10 daunting than the standard employed by other courts, nor that the District Court failed to apply binding precedent in which we have adopted the functional equivalent of a sliding scale standard. It is true that we have not used the label âsliding scaleâ to describe our standard for preliminary injunctions, as numerous other circuit courts of appeals have.6 But we have 6 At least six circuits have explicitly adopted a âsliding scaleâ approach for evaluating a motion for a preliminary injunction. See McCormack v. Hiedeman, 694 F.3d 1004, 1016 n.7 (9th Cir. 2012) (â[T]he âsliding scaleâ approach to preliminary injunctions remains valid: A preliminary injunction is appropriate when a plaintiff demonstrates that serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiffâs favor.â (alteration and internal quotation marks omitted)); Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291-92 (D.C. Cir. 2009) (âThe four factors have typically been evaluated on a âsliding scale.â If the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor.â); Cavel Intâl, Inc. v. Madigan, 500 F.3d 544, 547 (7th Cir. 2007) (endorsing a ââsliding scaleâ approachâ pursuant to which âif the appeal has some though not necessarily great merit, then the showing of harm of ⦠[great] magnitude ⦠would justify the granting of an injunction pending appeal provided ⦠that the defendant would not suffer substantial harm from the granting of the injunctionâ); In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 526 (4th Cir. 2003) (âIn applying th[e] four-factor test, the irreparable harm to the plaintiff and the harm to the defendant are the two most important factors. 11 said that, âin a situation where factors of irreparable harm, interests of third parties and public considerations strongly favor the moving party, an injunction might be appropriate even though plaintiffs did not demonstrate as strong a likelihood of ultimate success as would generally be required.â Constructors Assân of W. Pa. v. Kreps, 573 F.2d 811, 815 (3d Cir. 1978). On another occasion, we observed that â[a]ll of [the four preliminary injunction] factors often are weighed together in the final decision and the strength of the plaintiffâs showing with respect to one may affect what will suffice with respect to