Beruflich Dokumente
Kultur Dokumente
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TABLE OF CONTENTS
Page
INTRODUCTION ...................................................................................... 1
STATEMENT OF ISSUES........................................................................ 4
STANDARD OF REVIEW....................................................................... 19
ARGUMENT ........................................................................................... 21
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CONCLUSION ........................................................................................ 56
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ADDENDUM ........................................................................................... 61
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TABLE OF AUTHORITIES
Page(s)
Armstrong v. Sebelius,
No. 1:13-cv-00563 (D. Colo. Oct. 7, 2014) ............................... 13, 15, 42
Briscoe v. Sebelius,
No. 1:13-cv-00285 (D. Colo. Jan. 27, 2015)................................... 13, 14
California v. Azar,
911 F.3d 558 (9th Cir. Dec. 13, 2018) ..................................... 17, 20, 22
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Carroll v. Nakatani,
342 F.3d 934 (9th Cir. 2003) ............................................................... 19
Medford v. Sebelius,
No. 0:13-cv-01726 (D. Minn. Nov. 20, 2014)....................................... 13
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Elrod v. Burns,
427 U.S. 347 (1976) ....................................................................... 54, 55
Gilardi v. HHS,
No. 1:13-cv-00104 (D.D.C. Oct. 20, 2014) ........................................... 13
Hall v. Sebelius,
No. 0:13-cv-00295 (D. Minn. Nov. 26, 2014).................................. 13-14
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Hartenbower v. HHS,
No. 1:13-cv-02253 (N.D. Ill. Nov. 3, 2014) .......................................... 14
Holland v. HHS,
No. 2:13-cv-15487 (S.D. W. Va. May 29, 2015)................................... 14
Korte v. HHS,
No. 3:12-cv-1072 (S.D. Ill. Nov. 7, 2014) ............................................ 14
Larson v. Valente,
456 U.S. 228 (1982) ....................................................................... 41, 42
Lindsay v. HHS,
No. 1:13-cv-01210 (N.D. Ill. Dec. 3, 2014) .......................................... 14
Mazurek v. Armstrong,
520 U.S. 968 (1997) ............................................................................. 38
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Newland v. Sebelius,
No. 1:12-cv-01123 (D. Colo. Mar. 16, 2015) ........................................ 14
O’Brien v. HHS,
No. 4:12-cv-00476 (E.D. Mo. Nov. 12, 2014) ....................................... 14
Paulsen v. Daniels,
413 F.3d 999 (9th Cir. 2005) ......................................................... 49, 50
Pennsylvania v. Trump,
281 F. Supp. 3d 553 (E.D. Pa. 2017)................................................... 43
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Shiraef v. Azar,
No. 3:17-cv-00817 (N.D. Ind.) ............................................................. 17
Warsoldier v. Woodford,
418 F.3d 989 (9th Cir. 2005) ............................................................... 55
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Wieland v. HHS,
No. 4:13-cv-01577 (E.D. Mo. Jul 21, 2016) ......................................... 14
Williams v. Sebelius,
No. 1:13-cv-01699 (D.D.C. Nov. 5, 2014) ....................................... 14-15
Zorach v. Clauson,
343 U.S. 306 (1952) ............................................................................. 49
Zubik v. Burwell,
136 S. Ct. 1557 (2016) ................................................................. passim
Zubik v. Sebelius,
No. 2:13-cv-01459 (W.D. Pa. Dec. 20, 2013) ....................................... 15
Statutes
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Regulations
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Other Authorities
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INTRODUCTION
This case concerns the validity of the federal government’s latest effort
the federal government finally admitted that it did not need to hijack the
access.
How good are these alternatives? So good that to date none of the
Plaintiff States can identify even a single woman among over 120 million
at issue here. Nor can the eight states engaged as amici or in the parallel
litigation in Pennsylvania.
government did the only thing it could do: it stopped trying to force
although the federal government was free (and remains free) to simply
revoke the mandate entirely, it instead tailored its response to only the
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government also ensured that other programs providing free and low-cost
seeks coverage.
That should have been the end of the long and unseemly culture-war
employers. See 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011). And lest the
regulators had any doubt about their obligation to avoid such burdens,
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Despite all this, the district court issued an injunction that purports
were obeying both Congress (which enacted RFRA) and the courts
apply to it, but they were not given discretion about whether to obey
RFRA.
federal law. Worse still, the order re-imposes the prior version of the
make that regime invalid too. Rather than analyze the legality of the
regime it was imposing, however, the district court simply claimed that
the legality of that version of the mandate “is not before the Court.” ER
24.
But this Court cannot affirm an injunction that violates federal law,
or that would render invalid the very relief the States seek. Either way,
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the Little Sisters are entitled to protection, and the decisions below must
be reversed.
JURISDICTIONAL STATEMENT
States’ claim for relief does not present an Article III “case” or
“controversy.” See infra Part I. The district court entered its preliminary
injunction on January 13, 2019. ER 45. The Little Sisters appealed the
1292(a)(1).
STATEMENT OF ISSUES
Standing. Was the district court correct that the States have
on the merits of their claims that the Final Rule is contrary to law? ECF
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predated the interim final rule and final rule if that underlying mandate
Affordable Care Act (ACA), and the Religious Freedom Restoration Act?
the district court’s decision to enjoin the Final Rule? ECF No. 223 at 25;
ER 39-42.
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final rule on July 19, 2010, published by the departments of Health and
41,726, 41,728 (July 19, 2010) (First IFR). The First IFR stated that the
Medicine (IOM), 77 Fed. Reg. 8,725, 8,726 (Feb. 15, 2012), which
sterilization methods. 1
Following the comment period on the First IFR, and thirteen days
after IOM issued its recommendations, HHS promulgated its second IFR.
76 Fed. Reg. 46,621 (Aug. 3, 2011) (Second IFR). That same day, HRSA
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notice and comment. See id. at 46,623. Not all private employers are
Reg. 34,538, 34,542 (June 17, 2010); Kaiser Family Found., Employer
For non-exempt employers, the penalty for offering a plan that excludes
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employer with more than 50 employees fails to offer a plan at all, the
employer owes $2,000 per year for each of its full-time employees. 26
Reg. at 8,726. Many of the comments explained the need for a broader
on February 15, 2012, HHS adopted a final rule that “finaliz[ed], without
Rulemaking (ANPRM), 77 Fed. Reg. 16,501 (Mar. 21, 2012), and a Notice
which were later adopted in a final rule making further changes to the
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religious activities of any religious order,” from the mandate. 78 Fed. Reg.
administrator (TPA).
The system initiated by the first two IFRs did not address the concerns
emergency injunction from the Supreme Court that protected it from the
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a third IFR “in light of the Supreme Court’s interim order” in Wheaton,
again without notice and comment. 79 Fed. Reg. 51,092 (Aug. 27, 2014)
(Third IFR). This Third IFR amended the mandate to allow a religious
Third IFR received over 13,000 publicly posted comments. See EBSA,
Coverage of Certain Services Under the Affordable Care Act (Aug. 27,
2014), https://www.regulations.gov/document?D=EBSA-2014-0013-0002.
The Third IFR was ultimately finalized on July 14, 2015. 80 Fed. Reg.
41,318 (July 14, 2015). The Third IFR did not accommodate the religious
beliefs of the Little Sisters and other religious objectors, and the Supreme
Court revisited the issue in Zubik v. Burwell, 136 S. Ct. 1557 (2016)
(discussed below).
multiple such cases were consolidated at the Supreme Court. See Zubik,
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136 S. Ct. 1557 (consolidating cases from the Third, Fifth, Tenth, and
D.C. Circuits). 3 Once the cases reached the Supreme Court, the agencies
made new concessions that changed the facts and arguments they had
First, the government admitted for the first time that contraceptive
by the employer,” Br. for the Resp’ts at 38, Zubik, 136 S. Ct. 1557 (2016)
basis for lower courts’ prior holding that the mandate did not impose a
3The various cases challenging the mandate are collected at Becket, HHS
Mandate Information Central, https://www.becketlaw.org/research-
central/hhs-info-central/hhs-case-database/ (last accessed Feb. 25, 2019).
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because the provision of contraceptives was separate from their plans. Cf.
Tr. of Oral Arg. at 61, Zubik, 136 S. Ct. 1557 (2016) https://bit.ly/2VklhFx
defense).
Next, the agencies admitted to the Supreme Court that women who do
government program.” Br. for the Resp’ts at 65, Zubik, 136 S. Ct. 1557
Suppl. Br. for the Resp’ts at 14-15, Zubik, 136 S. Ct. 1557 (2016),
of Appeals of the Third, Fifth, Tenth, and D.C. Circuits, which had ruled
comply with the mandate and remanded the cases so that the parties
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mandate against all known religious objectors. Some of these were issued
prior to the rules at issue in this case. 4 Some, however, were issued after
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0:13-cv-00295 (D. Minn. Nov. 26, 2014), ECF No. 13; Injunction,
Hartenbower v. HHS, No. 1:13-cv-02253 (N.D. Ill. Nov. 3, 2014), ECF No.
34; Order, Hastings Chrysler Ctr., Inc. v. Sebelius, No. 0:14-cv-00265 (D.
Minn. Dec. 11, 2014), ECF No. 38; Order, Hobby Lobby Stores, Inc. v.
Sebelius, No. 5:12-cv-01000, 2014 WL 6603399 (W.D. Okla. Nov. 19,
2014) (ECF No. 98); Injunction, Holland v. HHS, No. 2:13-cv-15487 (S.D.
W. Va. May 29, 2015), ECF No. 52; Johnson Welded Products, Inc. v.
Sebelius, No. 1:13-cv-00609, 2014 WL 5395775, (D.D.C. Oct. 24, 2014)
(ECF No. 11); Order of Injunction, Korte v. HHS, No. 3:12-cv-1072 (S.D.
Ill. Nov. 7, 2014), ECF No. 89; Injunction, Lindsay v. HHS, No. 1:13-cv-
01210 (N.D. Ill. Dec. 3, 2014), ECF No. 50; Injunction, M&N Plastics, Inc.
v. Sebelius, No. 5:13-cv-14754 (E.D. Mich. Nov. 17, 2015), ECF No. 10;
Order, March for Life v. Azar, No. 1:14-cv-01149 (D.D.C. Aug. 31, 2015),
ECF No. 31; Injunction and Judgment, Mersino Dewatering Inc. v.
Sebelius, No. 2:13-cv-15079 (E.D. Mich. Feb. 27, 2015), ECF No. 9;
Injunction, Mersino Mgmt. Co. v. Sebelius, No. 2:13-cv-11296 (E.D. Mich.
Feb. 4, 2015), ECF No. 37; Order, Midwest Fastener Corp. v. Sebelius, No.
1:13-cv-01337 (D.D.C. Oct. 24, 2014), ECF No. 21; Stipulated Order, MK
Chambers Co. v. HHS, No. 2:13-cv-11379 (E.D. Mich. Nov. 21, 2014), ECF
No. 54; Permanent Injunction, Newland v. Sebelius, No. 1:12-cv-01123
(D. Colo. Mar. 16, 2015), ECF No. 70; Injunction, O’Brien v. HHS, No.
4:12-cv-00476 (E.D. Mo. Nov. 12, 2014), ECF No. 64; Order, Randy Reed
Auto., Inc. v. Sebelius, No. 5:13-cv-06117 (W.D. Mo. Nov. 12, 2014), ECF
No. 29; Injunction, Roman Catholic Archdiocese of N.Y. v. Sebelius, No.
1:12-cv-02542 (E.D.N.Y. Dec. 16, 2013), ECF No. 117; Order, Sioux Chief
MFG. Co. v. Sebelius, No. 4:13-cv-00036 (W.D. Mo. Nov. 12, 2014), ECF
No. 19; Injunction, SMA, LLC v. Sebelius, No. 0:13-cv-01375 (D. Minn.
Nov. 20, 2014), ECF No. 16; Order, Stewart v. Sebelius, No. 1:13-cv-01879
(D.D.C. Feb. 2, 2015), ECF No. 9; Order for Injunction, Stinson Electric,
Inc. v. Sebelius, No. 0:14-cv-00830 (D. Minn. Nov. 18, 2014), ECF No. 18;
Order, Tonn & Blank Constr. LLC v. Sebelius, No. 1:12-cv-00325 (N.D.
Ind. Nov. 6, 2014), ECF No. 56; Order, Tyndale House Publishers, Inc. v.
Sebelius, No. 1:12-cv-01635 (D.D.C. Jul. 15, 2015), ECF No. 53;
Injunction, Weingartz Supply Co. v. Sebelius, No. 2:12-cv-12061 (E.D.
Mich. Dec. 31, 2014), ECF No. 98; Order, Wieland v. HHS, No. 4:13-cv-
01577 (E.D. Mo. Jul 21, 2016), ECF No. 87; Order, Williams v. Sebelius,
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the district court enjoined the IFRs. 5 Indeed, several injunctions have
No. 1:13-cv-01699 (D.D.C. Nov. 5, 2014), ECF No. 11; Amended Order,
Willis & Willis PLC v. Sebelius, No. 1:13-cv-01124 (D.D.C. Oct. 31, 2014),
ECF No. 17; Order, Zubik v. Sebelius, No. 2:13-cv-01459 (W.D. Pa. Dec.
20, 2013), ECF No. 81.
5 See, e.g., Order, Ass’n of Christian Sch. v. Azar, No. 1:14-cv-02966 (D.
Colo. Dec. 10, 2018), ECF No. 49; Order, Ave Maria Sch. of Law v.
Sebelius, No. 2:13-cv-00795 (M.D. Fla. Jul. 11, 2018), ECF No. 68; Order,
Ave Maria Univ. v. Sebelius, No. 2:13-cv-00630 (M.D. Fla. Jul. 11, 2018),
ECF No. 72; Order, Catholic Benefits Ass’n LCA v. Hargan, No. 5:14-cv-
00240 (W.D. Okla. Mar. 7, 2018), ECF No. 184; Order, Colo. Christian
Univ. v. HHS, No. 1:13-cv-02105 (D. Colo. Jul. 11, 2018), ECF No. 84;
Order, Dordt Coll. v. Sebelius, No. 5:13-cv-04100 (N.D. Iowa June 12,
2018), ECF No. 85; Permanent Injunction, Geneva Coll. v. Sebelius, No.
2:12-cv-00207 (W.D. Pa. Jul. 5, 2018), ECF No. 153; Permanent
Injunction, Grace Sch. v. Sebelius, No. 3:12-cv-00459 (N.D. Ind. June 1,
2018), ECF No. 114; Order, Little Sisters of the Poor v. Hargan, No. 1:13-
cv-02611 (D. Colo. May 29, 2018), ECF No. 82; Permanent Injunction,
Reaching Souls Int’l Inc. v. Azar, No. 5:13-cv-01092 (W.D. Okla. Mar. 15,
2018), ECF No. 95; Permanent Injunction, Sharpe Holdings, Inc. v. HHS,
No. 2:12-cv-00092 (E.D. Mo. Mar. 28, 2018), ECF No. 161; Order, S.
Nazarene Univ. v. Hargan, No. 5:13-cv-01015 (W.D. Okla. May 15, 2018),
ECF No. 109; Permanent Injunction, Wheaton Coll. v. Azar, No. 1:13-cv-
08910 (N.D. Ill. Feb. 22, 2018), ECF No. 119.
6See, e.g., Reaching Souls Int’l, Inc. v. Azar, No. CIV-13-1092-D, 2018 WL
1352186, at *2 (W.D. Okla. Mar. 15, 2018); Order, Catholic Benefits Ass’n
LCA v. Hargan, No. 5:14-cv-00240-R (W.D. Okla. Mar. 7, 2018), ECF No.
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the federal defendants issued two interim final rules providing that the
objections. 82 Fed. Reg. 47,792 (Oct. 13, 2017) (Fourth IFR); 82 Fed. Reg.
47,838 (Oct. 13, 2017) (Fifth IFR). 7 The IFRs otherwise left the mandate
in place as to all employers previously covered. The IFRs also left in place
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Delaware, Maryland, New York, and Virginia, the district court entered
December 21, 2017 due to a lack of prior notice and comment. ECF No.
105. That injunction was appealed to this Court, which held that the
plaintiff States met the “relaxed” requirements for standing to bring the
procedural claim on appeal. California v. Azar, 911 F.3d 558, 571 (9th
Cir. Dec. 13, 2018). This Court also ruled in favor of the States on their
procedural claims, holding that the IFRs likely violated the notice and
comment provisions of the APA. Id. at 575-78. This court’s prior opinion
also held that a nationwide injunction was inappropriate and limited the
The agencies received comments on the IFRs and reviewed them over
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in a final rule that took effect on January 14, 2019. 83 Fed. Reg. 57,536
(Nov. 15, 2018) (Final Rule). Following the publication of the Final Rule,
including the State of Washington, which dropped its own lawsuit and
joined this one. The other states to join were Connecticut, the District of
provisions of the APA, and that the Final Rule is tainted by the lack of
comment on the IFRs. ECF No. 174. The States submitted no evidence of
any employer who will drop coverage as a result of the Final Rule and
Rule.
augmented group of states, the district court held again that the States
have Article III standing because they were able to show “a reasonably
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also held that the States are likely to succeed on their claim that the
Final Rule violates the APA because it is not in accordance with the law,
finding that the agencies did not have authority to exempt religious
authority to issue the religious employer exemption and not the religious
employer] exemption is not before this Court.” ER 24. Nor did the court
upon which the court expressly relied in its RFRA holding. ER 27-31.
Because of that “accommodation,” the court held that the Final Rule is
“sufficiently address the merits of” the claim that RFRA allows the
STANDARD OF REVIEW
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remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc.,
injunction, the Court reviews de novo “whether the trial court identified
the correct legal rule to apply to the relief requested.” Id. at 568. It then
inferences that may be drawn from the facts in the record.” Id. “[A]
reviewing court may set aside only agency actions that are ‘arbitrary,
law.” Earth Island Inst. v. Carlton, 626 F.3d 462, 468 (9th Cir. 2010). The
Court “may not substitute [its] judgment for that of the agency.” Id.
SUMMARY OF ARGUMENT
The States lack standing. Since this Court’s previous decision, the
States’ theory of standing has only become more conclusory. Despite the
addition of more plaintiff states, one abandoning its own lawsuit, there
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is still no evidence that the Final Rule will cost any woman contraceptive
Even assuming standing, the States are not likely to succeed on the
merits. The district court held that the agencies do not have the authority
regulations that violate RFRA and are themselves illegal under the
ARGUMENT
the States relied on this Court’s ruling that they are likely to suffer harm
thus fail to identify any employers who are not protected by current court
injunctions and who plan to change their behavior based on the Final
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abandoned its own separate case to litigate here—the States have still
failed to identify anyone who will actually be harmed by the Final Rules.
In its prior ruling, this Court held that the States need not “identify a
specific woman likely to lose coverage” in order to show that the rule
which will then result in economic harm to the states,” California, 911
F.3d 558 at 571. While the Little Sisters respectfully disagree with this
and the District of Columbia have joined this case, and the original states
have had additional time to shore up their claims. They have failed to do
so. If, after a full year and the addition of nine jurisdictions, the States
are still unable to identify a single employer who will drop coverage, or a
single woman who will turn to the states to fund her coverage, this proves
what the Little Sisters said all along: the States’ alleged injury is too
enjoining the Final Rule would also not redress the claimed harm.
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Religious objectors can bring their own RFRA lawsuits and obtain
existing classes that already have injunctions against the mandate. See
supra note 6. Or, since many religious employers have fewer than fifty
See ER 16-20.
Furthermore, before the Fourth IFR and the Final Rule were issued,
The district court held that the agencies exceeded their authority in
promulgating the Final Rule because the ACA authorized the agencies to
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original). The States likewise argued that the agencies do not have
mandate. ECF No. 174 at 11. But the States also request that the Court
replace the Final Rule with the mandate as it existed before the IFRs. Id.
at 25.
decide who must provide the coverage, then it surely has no authority to
For these reasons, the States lack standing, and the case should be
dismissed.
Beyond the problems with their theory of standing, the States have
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The district court enjoined the Final Rule as contrary to law, reasoning
that the agencies lacked authority to create the religious exemption from
the contraceptive mandate. But the ACA did not require any
contraceptive mandate in the first place, which makes the States’ anti-
U.S.C. § 1185d.10 Congress did not specify what “preventive care” means,
but instead delegated that task to HRSA. HRSA, in turn, had discretion
10Although it has not been raised in this case, the Little Sisters note that
one court has held that the individual mandate, as amended by the Tax
Cuts and Jobs Act of 2017, Pub. L. No. 115-97, 131 Stat. 2054 (2017), is
unconstitutional. See Texas v. United States, 340 F. Supp. 3d 579 (N.D.
Tex. 2018). Because the mandate is part of the “minimum essential
coverage” required to satisfy the insurance mandate, there is strong
reason to believe that the women’s preventive services provisions are not
severable from the individual mandate. See id. at 605-19 (striking the
remainder of the law as non-severable).
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The district court held that the statutory delegation of authority did
HRSA to simply create a list of covered items from which there could be
no deviation, it could have said so. It did just this for subsections (1) and
(2) of § 300gg-13:
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Garcia, 384 F.3d 769, 771 (9th Cir. 2004) (internal quotation marks and
citation omitted).
The district court stated that “[t]he Federal Defendants never appear
issuance of the IFRs (and the ensuing litigation . . . ).” ER 22. But HHS
has used its discretion to delimit the guidelines since the earliest
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provision of that service,” and has directed that if such information is not
women, HPV screenings are only covered for those age 30 and older, and
mammograms are only covered for those age 40 and older. HRSA,
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never been subject to formal rulemaking, HRSA could edit its website
tomorrow to eliminate some or all contraceptives from the list, and the
The States’ APA argument also proves too much. If, as the district
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employers from the mandate, then it has no choice but to impose the
The district court declined to reconcile its holding with the previous
exemption is not before the Court.” ER 24. It did suggest, though, that
Code.” Id. But that is a red herring. Nothing in the ACA incorporates the
mandate. Nor is there anything special about the Internal Revenue Code:
exemptions, any of which HHS could have selected to rely upon here, such
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The States offer no reason why the agencies would have authority to
reasoning, is unlawful.
31
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§ 706(2)(A).
Final Rule. That led the district court to reimpose a version of the
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The district court discounted RFRA, relying heavily on the fact that
declaring that RFRA did not apply to portions of the mandate.14 Thus,
Denver, N.A., 511 U.S. 164, 187 (1994) (citation omitted); see also United
States v. Meek, 366 F.3d 705, 720 (9th Cir. 2004) (“Sorting through the
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§ 2000cc-5. Religious exercise includes “‘not only belief and profession but
the performance of (or abstention from) physical acts’ that are ‘engaged
in for religious reasons.’” Hobby Lobby, 573 U.S. at 710 (quoting Emp’t
providing health insurance that complies with their religious beliefs. See
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burden in Hobby Lobby. 573 U.S. at 691 (“If these consequences do not
their religious objection, but also of the “name and type” of their plan,
along with contact information for the health insurance issuers, and
plan—that is, a plan where the financial risk of claims is not borne by an
TPA does not normally have, and that requires legal authority from the
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employer, such that the notification becomes “an instrument under which
the plan is operated.” 79 Fed. Reg. at 51,095. That is not simply “opting
F.3d 1122, 1149 (11th Cir. 2016), vacated by Eternal Word Television
Cir. May 31, 2016)). It is using legal authority to authorize and obligate
The district court also erred when it concluded that there can be no
(11th Cir. May 31, 2016)). Religious employers making use of the
See 78 Fed. Reg. at 39,876 (“plan participants and beneficiaries (and their
health care providers) do not have to have two separate health insurance
policies (that is, the group health insurance policy and the individual
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coverage provided by the TPA is, as a formal ERISA matter, part of the
same ‘plan’ as the coverage provided by the employer.” Br. for the Resp’ts
coverage must be “part of the same plan as the coverage provided by the
employer,” Br. for the Resp’ts at 38, Zubik, 136 S. Ct. 1557 (2016)
Tr. of Oral Arg. at 60-61, Zubik, 136 S. Ct. 1557 (2016) (Chief Justice
Verrilli: “I think it is one fair understanding of the case.”). Cf. Tr. of Oral
Arg. at 61, Zubik, 136 S. Ct. 1557 (2016) (Solicitor General Verrilli “would
82 Fed. Reg. at 47,806. The district court did not “believe[] it likely” that
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the government in Zubik.” ER 29. But since Zubik, federal courts have
objectors. See infra Part II.A.3.c. Each injunction required an Article III
judge to determine that the movant had made “a clear showing” that the
Part II.A.2, and also offer an accommodation that allows objectors to “opt
(and therefore unlawful in the district court’s view because the agencies
“opt out” but a separate obligation. The district court’s analysis relies on
neither the district court nor the States have offered an explanation as to
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how the agencies had authority to implement it under the ACA, but
§ 2000bb-1. Here, the government cannot carry that burden (and, to its
credit, has finally stopped trying). The mandate fails strict scrutiny for
15See Mark L. Rienzi, Fool Me Twice: Zubik v. Burwell and the Perils of
Judicial Faith in Government Claims, 2016 Cato Sup. Ct. Rev. 123 (2015-
2016) (detailing concessions leading to the Zubik remand).
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Additionally, the relief requested by the States would violate the First
16See 83 Fed. Reg. 25,502, 25,514 (June 1, 2018) (“[T]his proposed rule
would amend the definition of ‘low income family’ to include women who
are unable to obtain certain family planning services under their
employer-sponsored health insurance policies due to their employers’
religious beliefs or moral convictions.”) (draft final rule available at
https://www.hhs.gov/opa/sites/default/files/title-x-notice-of-final-
rule.pdf).
40
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That rule exempts religious orders which engage in what the government
order”). But it does not exempt religious orders that, because of their
which prohibit the government from making such “explicit and deliberate
456 U.S. 228, 246 n.23 (1982) (striking down laws that created
EEOC, 565 U.S. 171, 190 (2012). Doing so also requires illegal
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organizations).
• Wheaton Coll. v. Azar, No. 1:13-cv-8910 (N.D. Ill. Feb. 22, 2018),
ECF No. 119 at 3 (“enforcement of the contraceptive mandate
against Wheaton would violate Wheaton’s rights under” RFRA);
• Little Sisters of the Poor v. Azar, No. 1:13-cv-02611 (D. Colo. May
29, 2018), ECF No. 82 at 1-2 (“enforcement of the mandate
against Plaintiffs, either through the accommodation or other
regulatory means . . . violated and would violate the Religious
Freedom Restoration Act”);
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opinion in a related case which stated, post-Zubik, that the Third Circuit
n.13 (quoting Pennsylvania v. Trump, 281 F. Supp. 3d 553, 581 (E.D. Pa.
2017)). But Pennsylvania v. Trump relied on two cases that are vacated
or not binding here and, in any event, do not stand for the proposition the
The first case was a Third Circuit opinion that was vacated by the
Supreme Court in Zubik. See Geneva Coll. v. Sec’y Dep’t Health & Human
Servs., 778 F.3d 422, 439 (3d Cir. 2015), vacated Zubik v. Burwell, 136 S.
Ct. 1557 (2016). Not only was the appellate decision vacated, but the
grounds. Geneva Coll. v. Azar, No. 2:12-cv-00207 (W.D. Pa. July 5, 2018),
ECF No. 153. Said otherwise, even on remand the Western District of
Pennsylvania did not follow the Third Circuit’s vacated Geneva College
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benefits. See Real Alternatives, Inc. v. Sec’y Dep’t Health & Human
Servs., 867 F.3d 338 (3d Cir. 2017). That decision expressly distinguished
here. See id. at 355 (noting employee claim is “distinct from an employer’s
case changes the fact that every known religious objector is protected by
an injunction. And neither case changes the fact that, since the Zubik
comply with multiple injunctions and err on the side of not burdening
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RFRA, and they are duty-bound to obey it. Accordingly, the Office of
Legal Counsel has advised agencies that they can accommodate persons
and Delinquency Prevention Act, 31 Op. O.L.C. 162, 176-77 (2007); cf.
So too, here, the agencies were correct to the extent they erred on the
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accommodating religious exercise. Thus, the Final Rule is well within the
States have argued that the Final Rule violates the Establishment
Clause, ER 191-92 ¶¶248-54, and the district court has suggested that
the Establishment Clause is “one of the core disputes here,” ER 34. See
Administration, nor the lower federal courts, nor any Supreme Court
Justice took the view that granting relief to religious organizations would
violate the Establishment Clause. And with good reason: the Final Rule
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Even under the much-maligned Lemon test, the Supreme Court has
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purpose, which does not advance or endorse religion, and which avoids,
the basis of religion. 483 U.S. 327, 329 n.1 (1987). That exemption was
religion.” Id.
18The Lemon test is one of the most criticized tests in constitutional law.
See, e.g., Utah Highway Patrol Ass’n v. Am. Atheists, Inc., 565 U.S. 994
(2011) (Thomas, J., dissenting from denial of certiorari) (collecting
criticism by Chief Justice Roberts and Justices Kennedy, Alito, Thomas,
and Scalia); Green v. Haskell Cty. Bd. of Comm’rs, 574 F.3d 1235, 1245
(10th Cir. 2009) (Gorsuch, J., dissenting from denial of rehearing en banc)
(noting that Lemon “leave[s] the state of the law ‘in Establishment Clause
purgatory.’”) (citation omitted).
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federal courts have seen fit to lift for religious plaintiffs. Such religious
Clause, they “follow[] the best of our traditions.” Zorach v. Clauson, 343
In the district court, the States took the position that post-IFR notice
interim rule. ECF No. 174 at 15-16. The district court ignored this
argument. The only Ninth Circuit case the States cited to justify that
effect of invalidating the challenged interim rule simply meant that the
final rule “can only have prospective effect” and otherwise was “the
applicable rule.” 413 F.3d 999, 1008 (9th Cir. 2005). Critically, Paulsen
refused to invalidate both the interim rule and superseding final rule
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Georgetown Univ. Hosp. v. Bowen, 821 F.2d 750, 757 (D.C. Cir. 1987); see
also ER 12 (“The Court’s order reinstated the ‘state of affairs’ that existed
they existed following Zubik . . . .”). And, as explained above, that regime
mandate.
abuse of discretion. See Rappa v. New Castle Cty., 18 F.3d 1043, 1074 (3d
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district court’s broad ruling does not merely lay the groundwork for a
reasoning, the district court saws off the branch on which it sits.
Council, Inc., 555 U.S. 7, 22 (2008). Because the States cannot establish
any cognizable injury, see supra Part I, they necessarily cannot establish
an irreparable harm.
The States have not identified even one employer which will drop
contraceptive coverage due to the IFR, nor have they identified any
women who would fall into the exceedingly narrow category of women
sequences that would result from the Final Rule going into effect. ER 40-
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41. The court ignores the seven-year history of the mandate and its legal
battles. The slippery slope argument has been advanced against every
Most notably, the Supreme Court rejected this claim in Hobby Lobby.
573 U.S. at 733 (“Nor has HHS provided evidence that any significant
materialized.
blood transfusions turns up no such cases. A search for federal and state
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likewise turns up no such cases. A search for federal and state decisions
turns up no such cases. And finally, a search of federal and state decisions
cases. In fact, each search turns up two kinds of results: (1) cases which
It has been four years since Hobby Lobby, and the horribles have not
risking fines—due to the Final Rule? Indeed, the IFRs had already been
in effect for two months before the first preliminary injunction was
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granted, and yet the record is devoid of evidence of any employer, other
than those like the Little Sisters who had already challenged the
to the mandate.
Final Rule will impinge the religious freedom of religious objectors like
the Little Sisters. “The loss of First Amendment freedoms, for even
Elrod v. Burns, 427 U.S. 347, 373 (1976). A RFRA violation causes the
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rights. See Warsoldier v. Woodford, 418 F.3d 989, 1002 (9th Cir. 2005)
427 U.S. at 373). That is why so many courts enjoined the prior versions
demonstrated harm if the Final Rule goes into effect, shows that the
balance favors the Final Rule and religious objectors like the Little
Sisters. The arguments here are similar to those in Hobby Lobby, where
the Supreme Court found that it was actually the government’s position
Hobby Lobby, 573 U.S. at 733. Indeed, given the district court’s
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since the accommodation would defeat any RFRA claim. See ER 25-26
hands when it attempts to comply with civil rights laws and stop
but the burden is lifted from religious employers, and employees may
choose from a broad range of alternatives. This Court should reject the
CONCLUSION
vacated and the case remanded with instructions to dismiss. If the Court
reaches the merits, it should hold that the States have not met the
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Chase T. Harrington*
The Becket Fund for Religious Liberty
1200 New Hampshire Ave NW,
Ste. 700
Washington, D.C. 20036
(202) 995-0095
mrienzi@becketlaw.org
Attorneys for Intervenor-Defendant-
Appellant
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The Little Sisters are not aware of any related cases pending in this
Respectfully submitted,
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I certify that:
This brief complies with the length limits permitted by Ninth Circuit
Rule 32-1.
App. P. 32(f). The brief’s type size and type face comply with Fed. R. App.
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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk
of the Court for the United States Court of Appeals for the Ninth Circuit
I certify that all participants in the case are registered CM/ECF users
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ADDENDUM
(a) In general
(b) Exception
governmental interest.
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62