Case 7:16-cv-00108-O Document 1 Filed 08/23/16 Page 1 of 79 PageID 1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION

FRANCISCAN ALLIANCE, INC.; SPECIALTY PHYSICIANS OF ILLINOIS, LLC,; CHRISTIAN MEDICAL & DENTAL ASSOCIATIONS;

Civ. Action No. ___________ COMPLAINT

- and -

STATE OF TEXAS; STATE OF WISCONSIN; STATE OF NEBRASKA; COMMONWEALTH OF KENTUCKY, by and through Governor Matthew G. Bevin; and STATE OF KANSAS,

Plaintiffs,

v.

SYLVIA BURWELL, Secretary of the United States Department of Health and Human Services; and UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Defendants.

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INTRODUCTION AND NATURE OF THE ACTION This lawsuit challenges a new Regulation (“Regulation” or “Rule”) issued by the Department of Health and Human Services (“HHS”) that seeks to override the medical judgment of healthcare professionals across the country. On pain of significant financial liability, the Regulation forces doctors to perform controversial and sometimes harmful medical procedures ostensibly designed to permanently change an individual’s sex—including the sex of children. Under the new Regulation, a doctor must perform these procedures even when they are contrary to the doctor’s medical judgment and could result in significant, long-term medical harm. Thus, the Regulation represents a radical invasion of the federal bureaucracy into a doctor’s medical judgment. HHS attempts to impose these dramatic new requirements by redefining a single word used in the Affordable Care Act: “sex.” For decades, across multiple federal statutes, Congress has consistently used the term “sex” to refer to an individual’s status as male or female, as determined by a person’s biological sex at birth. But in the Regulation, HHS redefines “sex” to include “an individual’s internal sense of gender, which may be male, female, neither, or a combination of male and female, and which may be different from an individual’s sex assigned at birth.” 45 C.F.R. § 92.4. Thus, with a single stroke of the pen, HHS has created a massive new liability for thousands of healthcare professionals unless they cast aside their medical judgment and perform controversial and even harmful medical transition procedures. And HHS has done this despite the fact that Congress has repeatedly rejected similar
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attempts to redefine “sex” through legislation, and federal courts have repeatedly rejected attempts to accomplish the same goal through litigation.
The Regulation not only forces healthcare professionals to violate their medical judgment, it also forces them to violate their deeply held religious beliefs. Plaintiffs include the Christian Medical & Dental Associations, which include over 17,000 healthcare professionals, and Franciscan Alliance, a network of religious hospitals founded by the Sisters of St. Francis of Perpetual Adoration. These religious organizations are deeply committed to the dignity of every human person, and their doctors care for everyone with joy and compassion. They eagerly provide comprehensive care to society’s most vulnerable populations, but their religious beliefs will not allow them to perform medical transition procedures that can be deeply harmful to their patients. Tragically, the Regulation would force them to violate those religious beliefs and perform harmful medical transition procedures or else suffer massive financial liability.
The Regulation also undermines the longstanding sovereign power of the States to regulate healthcare, ensure appropriate standards of medical judgment, and protect its citizens’ constitutional and civil rights. Under this Rule, States are now required to force all healthcare professionals at state-run facilities to participate in medical transition procedures (including hormone therapy, plastic surgery, hysterectomies, and gender reassignment surgery), and to cover those procedures in the States’ health insurance plans, even if a doctor believes such procedures are harmful to the patient. The Rule exposes the States to litigation by its employees and
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patients, despite the fact that neither Congress nor the States expressed any intent to waive the States’ sovereign immunity in this area. And the Rule threatens to strip the States of billions of dollars in federal healthcare funding—over $42.4 billion a year for Texas alone—jeopardizing the availability of healthcare for the nation’s most vulnerable citizens.
Ultimately, this case boils down to a very simple question of statutory interpretation: Can HHS redefine the term “sex” to thwart decades of settled precedent and impose massive new obligations on healthcare professionals and sovereign States? The answer is “no,” and the new Regulation must be set aside as a violation of the Administrative Procedure Act and multiple other federal laws and constitutional provisions.
I. PARTIES 1. Texas has a significant role to play in regulating and protecting the integrity of the medical profession within its borders. Moreover, Texas zealously protects the physician-patient relationship through numerous laws and regulations ensure that physicians honor their duties to their patients and exercise appropriate medical judgment when treating patients under their care. Texas also employs thousands of healthcare employees through its constituent agencies. As an employer, generally, Texas provides health benefits to hundreds of thousands of its employees and their families through its constituent agencies. Moreover, Texas oversees and controls several agencies and healthcare facilities that receive federal funding subject to Title IX and the new Rule. Specifically, Texas operates healthcare facilities,
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programs, and schools of health education that receive federal funding administered by HHS. For example, North Texas State Hospital is a mental healthcare facility of the State of Texas and the largest state hospital in the Texas mental health system. It consists of two campuses in northern Texas. It provides psychiatric services for mentally ill persons and persons with mental illness and mental retardation throughout the North Texas area, as well as the entire State. The campus in Wichita Falls serves patients with mental illness and mental illness/mental retardation who have been screened and referred by their local mental health facility, and forensic psychiatric patients primarily referred for competency restoration. The Wichita Falls campus is also Medicare certified. The Vernon campus provides maximum security adult forensic psychiatric services to adults and secured forensic services to adolescents referred from throughout the State.
2. The Plaintiffs State of Wisconsin, State of Nebraska, and State of Kansas are all similarly situated to Texas in that they also have promulgated laws and standards demonstrating their sovereign interest in the practice of medicine within their borders. They are also subject to Title VII as the employers of thousands of healthcare employees through their constituent agencies, oversee and control several agencies and healthcare facilities that receive federal funding subject to Title IX and the new Rule, and/or operate healthcare facilities, programs, and schools of health education that receive federal funding administered by HHS.
3. Governor Matthew G. Bevin brings this suit on behalf of the Commonwealth of Kentucky pursuant to the Kentucky Constitution, which provides
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that the “supreme executive power” shall be vested in the Governor. KY. CONST. § 69. The Commonwealth of Kentucky is similarly situated to Texas and the other Plaintiff States in that it has promulgated laws and standards demonstrating its sovereign interest in the practice of medicine within their borders. It is also subject to Title VII as the employer of thousands of healthcare employees through its constituent agencies, oversees and controls several agencies and healthcare facilities that receive federal funding subject to Title IX and the new Rule, and/or operates healthcare facilities, programs, and schools of health education that receive federal funding administered by HHS.
4. Plaintiff the Christian Medical & Dental Society is an Illinois non-profit corporation doing business as the Christian Medical & Dental Associations. It has many members who will be subject to the Regulation because they receive federal funds, provide medical services that may be requested as part of a medical transition, and provide health coverage for employees.
5. The Franciscan Alliance (“Franciscan”) is a Roman Catholic nonprofit hospital system founded by a Roman Catholic order, the Sisters of St. Francis of Perpetual Adoration, and organized exclusively for charitable, religious, and scientific purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code. Franciscan is incorporated in Indiana, with its principal place of business in Mishawaka, Indiana.
6. The Sisters of St. Francis of Perpetual Adoration were themselves founded in 1863 by Mother Maria Theresia Bonzel in Olpe, Germany. Twelve years
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later, in 1875, Mother Theresia sent six Sisters to Lafayette, Indiana, to bring St. Francis of Assisi’s ministry of healthcare and education to the Midwest United States. The first hospital building served as both a convent and a hospital. Three weeks after their arrival, the Sisters admitted their first patient. They have continued their healthcare ministry ever since.
7. Franciscan is now one of the strongest health systems in the country. Franciscan provides approximately 900 million dollars in Medicare and Medicaid services annually to the poor, disabled, and elderly. Annually, it performs more than 4 million outpatient services and cares for more than 80,000 inpatients. Its major service locations have at least 2,900 beds and have a significant presence in their respective healthcare markets. Franciscan also receives annually approximately $300,000 in HHS grants.
8. Specialty Physicians of Illinois, LLC (“Specialty Physicians”) provide a myriad of physician specialist services in the South Suburban Chicago area. Specialty Physicians is a nonprofit Illinois limited liability company with its principal place of business in Chicago Heights, Illinois. Specialty Physicians is a member managed limited liability company, of which Franciscan is the sole member. Specialty Physicians is organized exclusively for charitable, religious, and scientific purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code. Specialty Physicians provides over $6 million dollars in Medicare and Medicaid services annually to the poor, disabled, and elderly. Annually, it performs approximately 90,000 outpatient services.
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9. Defendants are appointed officials of the United States government and United States governmental agencies responsible for the issuance and implementation of the challenged Regulation.
10. Defendant Sylvia Burwell is the Secretary of the United States Department of Health and Human Services. She is sued in her official capacity only.
11. Defendant the United States Department of Health and Human Services is the agency that promulgated and now enforces the challenged Regulation.
II. JURISDICTION AND VENUE 12. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1361. 13. Venue lies in this district pursuant to 28 U.S.C. § 1391.
III. FACTUAL BACKGROUND A. The Affordable Care Act and Related Federal Statutes. 14. In March 2010, Congress passed, and President Obama signed into law, the Patient Protection and Affordable Care Act, Pub. L. 111-148 (March 23, 2010), and the Health Care and Education Reconciliation Act, Pub. L. 111-152 (March 30, 2010), collectively known as the “Affordable Care Act” or “ACA.” 15. Section 1557 of the ACA states that no individual can be denied certain federally-funded health benefits because of the individual’s race, color, national origin, sex, age, or disability. 42 U.S.C.A. § 18116. Section 1557 does not add a new non-discrimination provision to the United States Code, but merely incorporates by reference pre-existing provisions under Title VI, Title IX, the Americans with Disabilities Act, and the Rehabilitation Act. Section 1557 does not independently
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define terms such as “sex.” Section 1557’s sole basis for prohibiting sex discrimination is based on its reference to Title IX, 20 U.S.C.A. § 1681 et seq.
16. Title IX does not apply to covered entities “controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization.” 20 U.S.C.A. § 1681.
17. Title IX also states that it cannot be “construed to require or prohibit any person, or public or private entity, to provide or pay for any benefit or service, including the use of facilities, related to an abortion.” 20 U.S.C.A. § 1688.
18. At the time that the ACA was enacted in 2010, no federal courts and no federal agencies had interpreted “sex” in Title IX to include gender identity.
19. At the time that the ACA was enacted, and to this day, Congress has repeatedly rejected attempts to expand the term “sex” in Title IX. Lawmakers have also rejected multiple attempts to amend the Civil Rights Act to add the new categories of “sexual orientation” and “gender identity.” The first such attempt was in 1974, and there have been dozens of such attempts since then. All have failed.
20. The ACA states that “nothing in this title (or any amendment made by this title), shall be construed to require a qualified health plan to provide [abortion coverage] as part of its essential health benefits for any plan year.” 42 U.S.C.A. § 18023.
21. Federally-funded programs may not require an “individual to perform or assist in the performance of any sterilization procedure or abortion if his performance or assistance in the performance of such procedure or abortion would be
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contrary to his religious beliefs or moral convictions.” 42 U.S.C. § 300a-7(b). Congress has also mandated that “[n]o individual shall be required to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services if his performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions.” 42 U.S.C. § 300a-7(d).
B. The Regulation. 22. On September 8, 2015, HHS proposed a new rule to “interpret” Section 1557 of the Affordable Care Act (ACA), to extend Title IX’s definition of “sex” to include “gender identity,” “sex stereotypes,” and “termination of pregnancy,” among other things. 45 C.F.R. § 92.4. 23. The Rule was published as final May 18, 2016, and it expanded the definition of “gender identity” even further from the proposed definition to mean an individual’s “internal sense of gender, which may be male, female, neither, or a combination of male and female.” Id. HHS stated in the Rule that “gender identity spectrum includes an array of possible gender identities beyond male and female,” and individuals with “non-binary gender identities are protected under the rule.” Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31375, 31392, 31384 (May 18, 2016). HHS cited as authority the “Dear Colleague” letter issued
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jointly by the Department of Education (DOE) and Department of Justice (DOJ) just five days earlier.1
24. The Rule also defines “sex” to include discrimination based upon “termination of pregnancy” in covered programs. HHS declined to add an explicit carve-out for abortion and abortion-related services parallel to the carve-out included in Title IX; it merely noted the existence of conscience protections in federal law and ACA limitations on requirement for abortion coverage. Id. at 31388.
25. This new Regulation applies to any entities or individuals that operate, offer, or contract for health programs and activities that receive any Federal financial assistance from HHS.2 In light of this sweeping application, HHS has estimated the Rule will “likely cover[] almost all licensed physicians because they accept Federal financial assistance,” including payments from Medicare and Medicaid.3 Other observers have estimated that the Rule will apply “to over 133,000 (virtually all) hospitals, nursing homes, home health agencies, and similar provider facilities, about 445,000 clinical laboratories, 1,200 community health centers, 171 health-related schools, state Medicaid and CHIP programs, state public health agencies, federally facilitated and state-based marketplaces, at least 180 health insurers that market
1 U.S. Dep’t of Justice & U.S. Dep’t of Educ., Dear Colleague Letter, May 13, 2016, http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ixtransgender.pdf.
2 45 C.F.R. § 92.4. 3 80 Fed. Reg. 54171, 54195 (proposed Sept. 8, 2015); 81 Fed. Reg. at 31445.
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policies through the FFM and state-based marketplaces, and up to 900,000 physicians.”4
26. The new Rule requires covered entities to provide health programs or activities in accordance with HHS’s expansive and unwarranted definition of “sex.” This includes a number of new requirements.
1. Healthcare professionals must perform or refer for medical transition procedures.
27. The Rule requires covered employers, and their healthcare providers and professionals, to perform (or refer for) medical transition procedures (such as hysterectomies, mastectomies, hormone treatments, plastic surgery, etc.), if a physician or healthcare provider offers analogous services in other contexts. For example, in the preamble, HHS stated, “A provider specializing in gynecological services that previously declined to provide a medically necessary hysterectomy for a transgender man would have to revise its policy to provide the procedure for transgender individuals in the same manner it provides the procedure for other individuals.”5 HHS explained that a hysterectomy in this medical transition context would be “medically necessary to treat gender dysphoria,”6 thereby declaring medical
4 Timothy Jost, Implementing Health Reform: HHS Proposes Rule Implementing Anti-Discrimination ACA Provisions (Contraceptive Coverage Litigation Update), Health Affairs Blog (Sept. 4, 2015), http://healthaffairs.org/blog/2015/09/04/ implementing-health-reform-hhs-proposes-rule-implementing-anti-discriminationaca-provisions/.
5 81 Fed. Reg. at 31455. 6 Id. at 31429.
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necessity, benefit, and prudence as a matter of federal law, and without regard to the opinions, judgment, and conscientious considerations of the many medical professionals that hold views to the contrary.
28. Despite the widespread, well-documented debate about the medical risks and ethics associated with various medical transition procedures, even within the transgender community itself, the new Rule attempts to preempt the serious medical and moral debate by concluding in the context of physicians offering “health services” that a “categorization of all transition-related treatment . . . as experimental, is outdated and not based on current standards of care.”7 The Regulation also improperly preempts the prerogative of the States not only to regulate the healing professions, but also to maintain standards of care that rely upon the medical judgment of health professionals as to what is in the best interests of their patients.
29. Furthermore, a number of commenters requested that HHS make clear that health services need only be covered if they are deemed to be “medically necessary” or “medically appropriate” in the professional opinion of those charged with the care of the patient at issue. But HHS refused to make this clarification, stating that some procedures “related to gender transition” may be required even if they were not “strictly identified as medically necessary or appropriate.”8 Thus, under the Regulation, if a doctor would perform a mastectomy as part of a medically-
7 Id. at 31435; see also id. at 31429. 8 Id.
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necessary treatment for breast cancer, it would be illegal for the same doctor to decline to perform a mastectomy for a medical transition, even if the doctor believed that removing healthy breast tissue was contrary to the patient’s medical interest.
30. Because Plaintiffs provide hysterectomies to patients diagnosed with uterine cancer, the Regulations would simultaneously force them to provide a hysterectomy (and remove an otherwise healthy uterus) for a medical transition, notwithstanding the serious potential harm to the patient. Elective hysterectomies increase a number of health risks for the patient. Moreover, such a procedure also renders an individual permanently sterile. Nevertheless, the Regulations would require Plaintiffs to perform that procedure even when they believed it was not in the best interests of the patient. Such a standard turns the venerable medical oath to “do no harm” on its head.
31. And while Plaintiffs such as Franciscan provide hormone treatments to patients for medical reasons, these health professionals have serious medical and religious concerns with offering hormone treatment for a medical transition.
2. Healthcare facilities and professionals must alter their speech and medical advice.
32. As discussed above, HHS has concluded, in the context of physicians offering “health services,” that a “categorization of all transition-related treatment . . . as experimental, is outdated and not based on current standards of care.”9 In so doing, HHS has seriously curbed a physician’s ability to offer a contrary view, even if
9 Id.
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such a view is based on the physician’s professional training and best medical judgment. This Regulation would thus force healthcare providers to alter speech and medical advice to comply with the Rule.
33. HHS stated that a covered entity’s “refusal to use a transgender individual’s preferred name and pronoun and insistence on using those corresponding to the individual’s sex assigned at birth constitutes illegal sex discrimination if such conduct is sufficiently serious to create a hostile environment.”10
3. Certain employers and insurance providers must offer employee benefits covering medical transition procedures.
34. The Regulation prohibits certain employers, health programs, or insurance plans from exercising judgment as to what they cover. HHS stated, “[A]n explicit, categorical (or automatic) exclusion or limitation of coverage for all health services related to gender transition is unlawful on its face.”11
35. For example, if a doctor concludes that a hysterectomy “is medically necessary to treat gender dysphoria,” the patient’s employer or insurance plan would be required to cover the procedure on the same basis that it would cover it for other conditions (like cancer).12 HHS also stated that the “range of transition-related services, which includes treatment for gender dysphoria, is not limited to surgical
10 Id. at 31406. 11 Id. at 31429. 12 Id.
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treatments and may include, but is not limited to, services such as hormone therapy and psychotherapy, which may occur over the lifetime of the individual.”13 As such, coverage is required under the new Rule notwithstanding the rights of employers that only offer employee health benefits consistent with the religious beliefs and values of their organization.
36. This conflict with religious or otherwise conscientious employers extends beyond treatment surrounding gender dysphoria, because some required procedures (such as elective hysterectomies) result in sterilization, and the new Rule also extends to “termination of pregnancy.” 45 C.F.R. § 92.4. Although HHS states that laws protecting religious objections to abortion (or “termination of pregnancy”) will apply, HHS recently approved California forcing all insurers to include abortion coverage, even for objecting religious institutions. And HHS could have included, but explicitly chose to exclude, a clear regulatory carve-out for services related to abortion that parallels the carve-out in Title IX.
37. This health benefit requirement of the new Rule applies to any of the following types of employers who receive HHS funding: 1) any entity principally involved in providing or administering health services (including hospitals, nursing homes, counseling centers, physicians’ offices, etc.), 2) any type of employer who receives HHS funding for the primary purpose of funding an “employee health benefit program,” or 3) any entity such as a university with a health training or research
13 Id. at 31435-36.
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program that receives Federal financial assistance—including student Pell grants— for that “health program or activity.”14
38. Thus, employers who have always offered employee health benefits that reflect their religious or conscientious beliefs, and excluded medical transition procedures from employee benefits, will now be considered discriminatory under the Regulation.
4. Sex-specific healthcare facilities or programs, including shower facilities or hospital wards, must be opened to individuals based on gender identity.
39. With regard to facilities, the new Rule states that even for sex-specific facilities such as “shower facilities” offered by healthcare providers, individuals may not be excluded “based on their gender identity.”15
40. When Title IX—the foundation for the new Rule—was enacted, Congress was significantly concerned about protecting and preserving the privacy rights of individuals in intimate areas. See 20 U.S.C. § 1686, 117 Cong. Rec. 30407 (1971), 117 Cong. Rec. 39260 (1971), 117 Cong. Rec. 39263 (1971), and 118 Cong. Rec. 5807 (1972). And the predecessor agency of HHS, the Department of Health, Education, and Welfare (HEW), promulgated regulations guaranteeing the privacy of individuals in intimate areas. See 34 C.F.R. § 106.32(b); 34 C.F.R. § 106.33 (“A recipient may provide separate toilet, locker room, and shower facilities on the basis
14 Id. at 31472, 45 C.F.R. § 92.208; see also 81 Fed. Reg. at 31437. 15 81 Fed. Reg. at 31409.
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of sex . . . .”). Yet, HHS wholly disregarded any “legal right to privacy” that could be violated “simply by permitting another person access to a sex-specific program or facility which corresponds to their gender identity.”16
41. With regard to other health programs, HHS stated that sex-specific health programs or activities are allowable only where the covered entity can demonstrate an exceedingly persuasive justification, i.e., that the sex-specific program is substantially related to the achievement of an important health-related or scientific objective. HHS stated that it “will expect a covered entity to supply objective evidence, and empirical data if available, to justify the need to restrict participation in the program to only one sex,” and in “no case will [HHS] accept a justification that relies on overly broad generalizations about the sexes.”17
5. Covered entities must provide assurances of compliance and post notices of compliance.
42. Through HHS-690 Form, which now references Section 1557, a covered entity seeking federal financial assistance must now certify, in relevant part, that “no person in the United States shall, on the ground of race, color, national origin, sex, age, or disability be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any health program or activity for which the Applicant receives Federal financial assistance from the Department.”18
16 Id. at 31389, 31409. 17 Id. at 31409. 18 HHS, Assurance of Compliance, https://www.hhs.gov/sites/default/files/hhs690.pdf.
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43. The Rule will require covered entities to post notices regarding compliance with the Rule in conspicuous locations by October 16, 2016 (90 days from the effective date). HHS provided a sample notice in Appendix A to the new Rule, which states in relevant part that the covered entity “does not exclude people or treat them differently because of race, color, national origin, age, disability, or sex.”19
6. Enforcement Mechanisms and Remedial Measures. 44. Covered entities are required to record and submit compliance reports to HHS’s Office of Civil Rights (“OCR”) upon request.20 45. Covered entities that are found to violate the Regulation may lose their federal funding, be barred from doing business with the government, or risk false claims liability.21 46. Covered entities are subject to enforcement proceedings by the Department of Justice.22 47. Covered entities are also subject to individual lawsuits from patients who believe the covered entity has violated the new Rule.23
19 Id. at 31472, 45 C.F.R. § 92, App. A, https://www.federalregister.gov/articles/ 2016/05/18/2016-11458/nondiscrimination-in-health-programs-and-activities#h-139.
20 81 Fed. Reg. at 31439, 31472, 45 C.F.R. § 92.301. 21 81 Fed. Reg. at 31472, 45 C.F.R. § 92.301 (“The enforcement mechanisms available for and provided under Title VI of the Civil Rights Act of 1964 . . . shall apply for purposes of Section 1557.”) 22 81 Fed. Reg. at 31440. 23 Id. at 31472, 45 C.F.R. § 92.301.
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7. No Religious Exemption. 48. Section 1557 does not independently prohibit discrimination on the basis of sex. Instead, Congress specifically invoked Title IX, 20 U.S.C.A. § 1681 et seq., which includes both a ban on sex discrimination and a generous carve-out for religious organizations. In this Regulation interpreting Section 1557, however, HHS has “interpreted” Congress’s reference to Title IX to include the ban, but not the religious exemption. 49. Although HHS was asked to include a religious exemption in the Regulation due to the obvious implications for religious healthcare providers, HHS declined to do so, stating instead that religious objectors could assert claims under existing statutory protections for religious freedom.24 HHS also failed to provide any mechanism by which a religious entity could determine if it was entitled to any existing religious protections under the law. C. The New Rule’s Impact on States. 50. The new Regulation runs headlong into established standards of medical care, usurps the States’ legitimate authority over its medical facilities, and makes it impossible for States to comply with conflicting federal law, among other harms.
1. Standard of Care. 51. “[T]he State has a significant role to play in regulating the medical profession, Gonzales v. Carhart, 550 U.S. 124, 157 (2007), as well as “an interest in
24 81 Fed. Reg. at 31376.
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protecting the integrity and ethics of the medical profession.” Washington v. Glucksberg, 521 U.S. 702, 731 (1997). This includes “maintaining high standards of professional conduct” in the practice of medicine. Barsky v. Bd. of Regents of Univ. of N. Y., 347 U.S. 442, 451 (1954).
52. For example, Texas zealously protects the physician-patient relationship. Numerous Texas laws and regulations ensure that physicians honor their duties to their patients. The statewide standard of medical practice rests on the principle that Texas doctors must exercise “independent medical judgment” when treating patients under their care. See, e.g., Murk v. Scheele, 120 S.W.3d 865, 867 (Tex. 2003) (per curiam).
53. Amid increasing consolidation in the healthcare industry caused by the ACA, the Texas Legislature redoubled its longstanding commitment to physicianpatient autonomy. See Garcia v. Tex. State Bd. of Med. Exam’rs, 384 F. Supp. 434, 439 (W.D. Tex. 1974) (upholding regulations designed to preserve the “vitally important doctor-patient relationship”). In 2011, the Legislature prohibited medical organizations from interfering with, controlling, or directing “a physician’s professional judgment,” Tex. Occ. Code § 162.0021, and it mandated that they permit physicians to exercise “independent medical judgment when providing care to patients,” Id. § 162.0022.
54. In furtherance of these objectives, Texas hospitals must appoint a chief medical officer to supervise “all matters relating to the practice of medicine.” Tex. Health & Safety Code § 311.083. The chief medical officer is responsible for adopting
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policies to ensure that physicians have the ability to exercise independent medical judgment. Id. This officer must report to the Texas Medical Board (“TMB”)—the executive agency responsible for regulating the practice of medicine in Texas—any action or event that constitutes a compromise of the independent medical judgment of a physician in caring for a patient. Id.
55. TMB has reaffirmed the standard of practice provided through its rulemaking authority. TMB regulations provide that doctors retain “independent medical judgment and discretion in providing and supervising care to patients,” and may not be disciplined for “reasonably advocating for patient care.” 22 Tex. Admin. Code § 177.5. In addition, they reserve important decisions concerning quality assurance, the medical necessity of treatment, credentialing and peer review to the physician-only boards that direct health organizations. Id. §§ 177.3, 177.5.
56. Every person should be treated with dignity and respect, especially when in need of medical attention. The standard of care established in Texas, and around the country, enables patients to obtain quality healthcare as determined by medical professionals, and not those outside the doctor-patient relationship. The Regulation, however, usurps this standard of care. It discards independent medical judgment and a physician’s duty to his or her patient’s permanent well-being and replaces them with rigid commands.
57. The Regulation will force physicians to subject their patients to procedures that permanently alter or remove well-functioning organs, even though the physicians’ independent medical judgment advises against such a course of
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action. And beyond compelling physicians to act against their medical judgment, the Regulation requires them to express opinions contrary to what they deem to be in the patient’s best interest or to avoid even describing medical transition procedures as risky or experimental. Yet, physicians are “under a duty to make reasonable disclosure of that diagnosis, and risk of the proposed treatment . . ., as would have been made by a reasonable medical practitioner under the circumstances.” Jacobs v. Theimer, 519 S.W.2d 846, 848 (Tex. 1975) (citing Wilson v. Scott, 412 S.W.2d 299 (Tex. 1967); W. M. Moldoff, Annotation, Malpractice: physician's duty to inform patient of nature and hazards of disease or treatment, 79 A.L.R.2d 1028 (1961)). Patients deserve better—and are treated more humanely—under State law.
2. Control over Facilities. 58. Every State provides healthcare services directly to citizens through various mechanisms of government. Texas, for example, provides health services directly to patients through the Health and Human Services Commission (“HHSC”). Tex. Gov’t Code § 531.0055; Tex. Health & Safety Code § 12.0115. HHSC superintends operations and resource allocation at many healthcare facilities, which are owned by Texas and receive federal funding administered by HHS, Tex. Gov’t Code §§ 531.008, 531.0055, including the North Texas State Hospital. 59. These covered entities, which exist across the country, will now be covered under the Regulation with respect to “all of the operations” of such entities. Thus, these entities will have to offer all manner of (and referrals for) medical transition procedures and treatments. As a result, Texas and other States will be
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forced to allocate personnel, resources, and facility spaces to offer and accommodate the myriad medical transition procedures now required to be performed under the new Rule. Healthcare facilities will also be required to open up sex-separated showers, locker rooms, or other facilities based on individual preference. This is true even in controlled medical locations where patient access to intimate facilities is often under the control of healthcare professionals that are supposed to act in the best interests of the patient. Thus, the requirements of the new Rule amount to a substantial interference in the control that Texas and other States legitimately exercise over their healthcare facilities.
3. Conflicting Federal Law. 60. Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employment discrimination based on religion. 42 U.S.C. § 2000e-2. To comply with Title VII, employers must reasonably accommodate an employee’s religious belief, observance, or practice unless such accommodation imposes an undue hardship on the employer’s business. Id. at § 2000e-1; EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2032 (2015) (providing that Title VII requires reasonable religious accommodations). 61. But the Regulation in many circumstances makes such accommodation illegal, placing employers between a legal Scylla and Charybdis. On the one hand, employers are required under Title VII to reasonably accommodate their employees’ religious and conscientious objections. On the other hand, the Regulation requires medical employers to provide (or refer for) medical transition procedures even when
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doing so would violate the religious or conscientious objections or concerns of its employees. HHS refused to affirm the principles of religious accommodation in its new Rule even when asked to do so. Thus, it forces employers, like Texas and the North Texas State Hospital, to choose between violating the Regulation or violating Title VII.
4. Additional Harms. 62. The Regulation is costly and burdensome on Texas and other States for a variety of additional reasons, to wit: 63. Texas and other States operate as employers that offer covered health benefits to hundreds of thousands of its employees and their families through its constituent agencies. The new Rule will require Texas and other States to provide insurance coverage for medical transition procedures. 64. The new Rule also purports to require Texas and other States to provide abortion coverage through its employee health benefits. HHS states that a State’s Medicaid program constitutes a covered “health program or activity” under the Rule. Thus, “the State will be governed by Section 1557 in the provision of employee health benefits for its Medicaid employees.” 81 Fed. Reg. at 31437. Texas and other States will also have to offer these types of employee benefits to employees at other statecontrolled healthcare entities. 65. The exclusions Texas and other States currently possess in their employee insurance policies related to pregnancy termination and medical transition
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procedures will now be illegal under the new Rule. As a result, Texas and other States will be required to change their insurance coverage.25
66. In order to receive federal healthcare funding, Texas and other States must submit assurances, notices of compliance, and other information, demonstrating that their health programs and activities satisfy the requirements imposed by the Regulation. 81 Fed. Reg. at 31392, 31442.
67. The costs of personnel training will be significant, even by HHS’s very modest estimates. HHS estimates that 7,637,306 state workers will need to receive training under the new Rule, and that the cost of this training in the first two years of implementation alone will be $17.8 million.
68. The penalties for noncompliance are so severe as to make the Regulation coercive. Texas, as an example, faces the loss of over $42.4 billion a year in healthcare funding to serve its most vulnerable citizens.26 For example, “the Medicaid program pays for more than half of all births in Texas, a cost that otherwise would be shouldered primarily at the local and provider level,” and “the Emergency Medicaid program pays for the emergency conditions of indigent noncitizens (undocumented
25 Texas and other States do not provide health coverage to their employees for the termination of a pregnancy, absent certain medically compelled circumstances. See, e.g., HealthSelect of Texas, Master Benefit Plan Document, at pp. 87–88 (effective Jan. 1, 2016), http://healthselectoftexas.welcometouhc.com/ assets/pdf/HS%20In-Area%201-2016%20MBPD%20Revised%20FINAL.pdf.
26 Tex. Health and Human Servs. Comm’n, Texas Medicaid and CHIP in Perspective 8-9 (10th ed. 2015), http://www.hhsc.state.tx.us/medicaid/about/PB/ PinkBook.pdf.
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immigrants and LPRs) who meet all Medicaid eligibility criteria other than citizenship.”27
69. Finally, the new Rule could subject Texas and other States to private lawsuits for damages and attorney’s fees, even though Texas and other States did not and could not have known or consented to this waiver of their sovereign immunity.
D. The effect on the Christian Medical & Dental Association. 70. Founded in 1931, and with a current membership of over 17,000, the Christian Medical & Dental Association (“CMDA”) provides a variety of programs and services supporting its mission to “change hearts in healthcare.” CMDA promotes positions and addresses policies on healthcare issues; serves others through overseas medical mission projects; coordinates a network of Christian healthcare professionals for fellowship and professional growth; sponsors student ministries in medical and dental schools; distributes educational resources; provides continuing education for doctors serving missions in developing countries; and conducts academic exchange programs overseas. Its members sign a statement of faith to join CMDA and allow CMDA to serve as a voice for membership values. 71. On the issue of sexual identity, CMDA’s National Convention recently adopted an Ethics Statement that was approved by its House of Delegates
27 Tex. Health and Human Servs. Comm’n & Tex. Dep’t of Ins., Impact on Texas If Medicaid Is Eliminated 20 (2009), http://www.hhsc.state.tx.us/hb497_122010.pdf.
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unanimously.28 In this Statement, CMDA “affirms the obligation of Christian healthcare professionals to care for patients struggling with gender identity with sensitivity and compassion.” The Statement also makes clear that “attempts to alter gender surgically or hormonally for psychological indications, however, are medically inappropriate,” and “CMDA opposes medical assistance with gender transition” for a number of medical, ethical, and religious reasons.
72. Regarding medical concerns, the Statement observes that “[h]ormones prescribed to a previously biologically healthy child for the purpose of blocking puberty inhibit normal growth and fertility. Continuation of cross-sex hormones, such as estrogen and testosterone, during adolescence is associated with increased health risks including, but not limited to, high blood pressure, blood clots, stroke, and some types of cancer.” In addition, “Although current medical evidence is incomplete and open to various interpretations, some studies suggest that surgical alteration of sex characteristics has uncertain and potentially harmful psychological effects and can mask or exacerbate deeper psychological problems.” Furthermore, “Many diseases affect men and women differently, according to biological sex phenotype. Transgender designations may conceal biological sex differences relevant to medical risk factors, recognition of which is important for effective healthcare and disease prevention.” Finally, “[w]hereas treatment of anatomically anomalous sexual phenotypes is
28 Christian Medical & Dental Associations, Transgender Identification Ethics Statement, https://cmda.org/resources/publication/transgender-identificationethics-statement (last visited Aug. 22, 2016).
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restorative, interventions to alter normal sexual anatomy to conform to transgender desires are disruptive to health.”
73. Regarding ethical concerns, the CMDA Ethics Statement observes that “CMDA is especially concerned about the increasing phenomenon of parents of children who question their gender intervening hormonally to inhibit normal adolescent development. Children lack the developmental cognitive capacity to assent or request such interventions, which have lifelong physical, psychological, and social consequences.” Thus, CMDA states that “prescribing hormonal treatments to children or adolescents to disrupt normal sexual development for the purpose of gender reassignment is ethically impermissible, whether requested by the child or the parent.” Id.
74. In its Ethics Statement, CMDA expresses concern “that efforts to compel healthcare professionals to affirm transgender ideology, provide medical legitimization for transgender psychology, or cooperate with requests for medical or surgical sex reassignment threaten professional integrity.” In addition, CMDA is concerned “that efforts to impose transgender ideology on all society by excluding, suppressing, marginalizing, intimidating, or portraying as hateful those individuals and organizations which, on scientific, moral, or religious grounds, reasonably disagree, are contrary to the freedoms of speech and religious liberty that lie at the very foundation of a just and democratic society.” Id.
75. As a result of medical, ethical, and religious concerns, “CMDA affirms that healthcare professionals should not be coerced or mandated to provide or refer
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for services that they believe to be morally wrong or harmful to patients.” CMDA also makes clear that “[t]o decline to provide a requested gender-altering treatment that is harmful or is not medically indicated does not constitute unjust discrimination against persons.” Id.
76. Many of CMDA’s members will be impacted by this Rule, both based on their ability to engage in speech advising patients of their medical judgment with regard to gender transition procedures, as well as to avoid being forced to offer services or facilities in furtherance of gender transitions.
77. CMDA has members who object to participation in medical transitions and who provide services such as hysterectomies, breast reconstruction, and hormone therapy for other medical reasons. Those members would be required to provide those services as part of a medical transition procedure under the Regulation.
78. CMDA has members who currently provide healthcare coverage for employees, coverage which excludes medical transition procedures. Those members will be impacted by the Regulation.
79. CMDA has members who have treated or currently treat transgender individuals, and who may be liable for failure to provide or refer for medical transition procedures.
E. The Effect on Franciscan Alliance. 80. Since its founding over 140 years ago, Franciscan Alliance has remained fully committed to continuing the ministry of Jesus Christ through healthcare. Each of Franciscan’s hospitals provides resources to accommodate the
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spiritual needs of employees, patients, and their families. For instance, St. Anthony’s hospital at Crown Point administers sacraments daily upon request, provides daily Mass, and maintains 24-hour access to the Corpus Christi Chapel to provide a sacred space for individuals of all faiths to pray and meditate. Franciscan’s hospital in Munster, Indiana, provides spiritual care staff to visit with all newly admitted patients, offers opportunities for prayer and spiritual support, and maintains a Franciscan priest on staff for Catholic patients and staff who wish to participate in Catholic Mass or receive the sacraments of Holy Communion, Reconciliation, or Anointing of the Sick.
81. Franciscan serves and respects individuals of all faith communities, seeking to ensure that patients and their families can access the resources of their own faith traditions to assist in the healing and recovery process, and to make critical decisions about matters such as end-of-life care and clinical ethics.
82. Franciscan’s infusion of faith into healthcare is not limited to spiritual support. All of Franciscan’s healthcare services, and all of Franciscan’s physicians and employees, follow the values of the Sisters of St. Francis.
83. These values include: • Respect for life: treating each person with respect, dignity, fairness, and compassion so that each person is consciously aware of being loved. • Fidelity to Franciscan’s mission: in the tradition of St. Francis of Assisi, bringing Christ’s ministry of healing care to each patient, coworker, and hospital visitor. • Compassionate concern: caring for the welfare of patients, especially the aged, the poor, and the disabled.
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• Christian stewardship: providing a just and fair allocation of human,
spiritual, physical, and financial resources in a manner that respects the individual, serves society’s needs, and follows the teaching of the Church. 84. In accordance with these values, all Franciscan facilities are operated in a manner that abides by The Ethical and Religious Directives for Catholic Healthcare Services, as promulgated by the United States Conference of Catholic Bishops and interpreted by the local Bishop. 85. Franciscan strives to provide top-quality care to its patients. Its facilities have earned designations as Centers of Excellence, Five-Star Awards, and top state and national rankings. In December of 2011, Franciscan was selected by the Center for Medicare & Medicaid Services (“CMS”) as one of thirty-two Pioneer Accountable Care Organizations (“ACOs”). ACOs are groups of doctors, hospitals, and other healthcare providers who work together voluntarily to give coordinated, high-quality care to their Medicare patients. The goal of the program is to ensure patients get timely, accurate care while preventing medical errors and unnecessary duplicative services. The 2014 Quality Performance Report by CMS showed Franciscan placing in the top 6 for quality scores among all Pioneer ACOs. 86. One of Franciscan’s specialties is in Women’s and Children’s healthcare, a specialty which Franciscan advances in part by its Spirit of Women program. The program provides innovative clinical care, education, and wellness services.
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87. Franciscan provides a wide variety of services specifically for women, such as obstetrics and gynecology services, hysterectomies, hormone treatments, and reconstructive surgery.
88. Franciscan is also affiliated with pediatric providers. 89. This new Rule will impact Franciscan by 1) requiring Franciscan to offer medical services that violate its best medical judgment and religious beliefs, and 2) requiring Franciscan to provide insurance coverage for services that violate its religious beliefs.
1. Compulsory Medical Services. 90. Franciscan provides all of its standard medical services to every individual who needs and qualifies for its care, including to individuals who identify as transgender. Thus, for instance, if a transgender individual required cardiac care, Franciscan would provide the same full spectrum of compassionate care for that individual as it provides for every other cardiac patient. And, just as it does for every other cardiac patient, Franciscan would appropriately tailor that care to the biologically sex-specific health needs of the patient. 91. But Franciscan holds religious beliefs that sexual identity is an objective fact rooted in nature as male or female persons. Like the Catholic Church it serves, Franciscan believes that a person’s sex is ascertained biologically, and not by one’s beliefs, desires, or feelings. Franciscan believes that part of the image of God is an organic part of every man and woman, and that women and men reflect
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God’s image in unique, and uniquely dignified, ways. Franciscan does not believe that government has either the power or the authority to redefine sex.
92. Further, in its professional medical judgment, Franciscan believes that optimal patient care—including in patient education, diagnosis, and treatment— requires taking account of the biological differences between men and women. For instance, optimal prevention of and treatment for heart disease in women requires monitoring for different warning signs, accounting for different risk factors, and providing different counseling than it would for men. Part of the success of Franciscan’s award-winning heart-health treatment program is driven by its recognition that women have unique biological composition and health needs that require different diagnosis and treatment than men.
93. In Franciscan’s best medical judgment, providing or assisting with gender transition services is not in keeping with the best interests of its patients. Franciscan does not offer the full continuum of care related to gender transition procedures, and thus would not be able to provide ideal care to patients seeking that care.
94. Providing such services would also substantially burden the religious exercise of Franciscan.
95. Accordingly, after careful review of this issue, Franciscan developed the following policy entitled the Sex Reassignment Interventions Policy: “Sexual reassignment interventions require a complex set of psychological, psychiatric and ancillary care services that are not available at Franciscan facilities. Therefore, it
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would be medically imprudent to perform or otherwise facilitate any clinical interventions addressing sexual re-assignment needs. To provide or otherwise facilitate these services would also violate our deeply held religious beliefs.”
96. Franciscan employs physicians who offer endocrinology hormone services, hysterectomies, mastectomies, and psychiatric support. The new Rule would force Franciscan to offer these services as part of a medical transition, which would violate both Franciscan’s best medical judgment and its religious beliefs.
97. Some of the procedures required under the Rule, including hysterectomies for gender transition, would result in the sterilization of the patient. Since Franciscan does not believe such a hysterectomy is medically necessary, being forced to provide such a sterilization procedure would violate Franciscan’s best medical judgment and religious beliefs.
98. The Rule also prohibits discrimination on the basis of “termination of pregnancy.” Franciscan performs surgical procedures for women who have miscarried a baby, such as dilation and curettage (D&C) procedures. However, Franciscan would be unwilling to offer the same service if the goal of the procedure was to terminate a pregnancy. The Rule forces Franciscan to provide abortionrelated procedures in violation of Franciscan’s best medical judgment and religious beliefs.
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2. Required Insurance Coverage. 99. Franciscan has over 17,000 employees, over 500 of which are physicians. Approximately 15,000 of these employees are eligible for health insurance benefits from Franciscan. 100. Franciscan has a health benefits plan that is administered by a third party administrator. 101. In accordance with Franciscan’s religious beliefs, Franciscan’s employee health benefit plan specifically excludes coverage for:
• any “[t]reatment, drugs, medicines, services, and supplies related to gender transition”;
• Sterilizations; • Abortions. 102. Franciscan sincerely believes that providing insurance coverage for gender transition, sterilization, and abortion would constitute impermissible material cooperation with evil. 103. Franciscan must now choose between (a) following its faith and its best medical judgment, or (b) following the Regulation. If it follows its faith and its medical judgment, Franciscan will be subject to lawsuits and penalties. Most significantly, Franciscan annually provides approximately 900 million dollars in Medicare and Medicaid services to the poor, disabled, and elderly, and it also receives approximately $300,000 in HHS grants. If Franciscan refuses to both deny its faith and lower its standard of care, it risks losing that funding and suffering a
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corresponding severe reduction in its capacity to carry out its religious mission to serve the poor, disabled, and elderly.
104. The Regulation also makes it more expensive for Franciscan to do business with its third party administrator. The Regulation subjects the third party administrator to potential liability for administering Franciscan’s religious health plan, and thus Franciscan will be forced to indemnify its third party administrator from this liability. This constitutes an additional substantial burden on its religious exercise.
F. The Effect on Specialty Physicians. 105. Specialty Physicians is a member managed limited liability company, of which Franciscan is the sole member. Specialty Physicians shares Franciscan’s religious beliefs. As such, all of Specialty Physicians’ facilities are operated in a manner that abides by The Ethical and Religious Directives for Catholic Health Care Services as promulgated by the United States Conference of Catholic Bishops and interpreted by the local Bishop and as modified from time to time. 106. Specialty Physicians has also approved the same Sex Reassignment Intervention Policy as Franciscan. 107. Specialty Physicians provides over $6 million in Medicare and Medicaid services annually to the poor, disabled, and elderly. Annually, it performs approximately 90,000 outpatient services. 108. Specialty Physicians offers many services, such as endocrinology services, which will result in Specialty Physicians being impacted by the Regulation
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in the same manner as Franciscan, in that it will be forced to offer medical services that violate its religious beliefs under the new Regulation.
109. Specialty Physicians has approximately 300 employees who are eligible for health insurance benefits. Of those employees, approximately 60 are physicians and 15 are advanced practice providers.
110. Specialty Physicians will likely have the same insurance plan as Franciscan as of January 1, 2017, with the same exclusions related to gender transition, abortion, and sterilization. Thus, Specialty Physicians will face the same penalties as Franciscan for exercising its religious beliefs regarding its insurance policy under the Regulation.
IV. CLAIMS A. Alleged by All Plaintiffs.
COUNT I Violation of the Administrative Procedure Act
Agency Action Not in Accordance with Law 111. The Plaintiffs incorporate by reference all preceding paragraphs. 112. Defendants are “agencies” under the APA, 5 U.S.C. § 551(1), and the new Regulation complained of herein is a “rule” under the APA, id. § 551(4), and constitutes “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” Id. § 704. 113. The APA prohibits agency actions that are “not in accordance with law.” 5 U.S.C. § 706(2)(A). Under the APA, courts “review questions of law freely and are under no obligation to defer to the agency’s legal conclusions. Inst. for Tech. Dev. v.
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Brown, 63 F.3d 445, 450 (5th Cir. 1995). In such a context, a court’s “review is effectively de novo.” Id.; see also Velasquez-Tabir v. I.N.S., 127 F.3d 456, 459 n.9 (5th Cir. 1997) (under the APA, “[r]eview of a question of law is de novo”); Meadows v. S.E.C., 119 F.3d 1219, 1224 (5th Cir. 1997) (noting that when reviewing agency action, “legal conclusions are for the courts to resolve” (internal quotation mark omitted)). The Regulation is not in accordance with law for a number of independent reasons.
114. HHS has explained that the Regulation will require physicians to perform medical transition procedures regardless of whether those procedures are “medically necessary” or even “medically appropriate.” It is not in accordance with law, within the meaning of 5 U.S.C. § 706(2)(A), for the federal government to require medical professionals to perform procedures that may not be necessary or appropriate, and may in fact be harmful to the patients. This violates constitutional and statutory rights of medical professionals, including substantive due process rights and freedom of speech protections, as well as the sovereign prerogatives of the States, which play a significant role in overseeing the promulgation and administration of appropriate standards of care within the healthcare community. Courts scrutinize particularly closely agency action that raises constitutional concerns.
115. The Regulation also states that a physician’s view of medical transition procedures as “experimental” is “outdated and not based on current standards of care.” 81 Fed. Reg. at 31435; see also id. at 31429. It is not in accordance with law,
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within the meaning of 5 U.S.C. § 706(2)(A), for the federal government to dictate appropriate medical views on the necessity and experimental nature of medical transition procedures, and to dictate what constitutes best standards of care in an area of science and medicine that is being hotly debated in the medical community. This violates constitutional and statutory rights of medical professionals, including substantive due process rights and freedom of speech protections.
116. The Regulation is not in accordance with Section 1557 of the Affordable Care Act (42 U.S.C. § 18116) or Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. Section 1557 does not, on its own terms, prohibit discrimination on the basis of “sex.” Instead, it prohibits discrimination “on the ground prohibited under . . . title IX of the Education Amendments of 1972.” 42 U.S.C. § 18116(a). Title IX, in turn, prohibits discrimination “on the basis of sex . . . except that . . . this section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization.” 20 U.S.C. § 1681(a), (a)(3).
117. Neither Section 1557 nor Title IX uses the term “sex” to include “gender identity.” Thus, HHS’s attempt to expand the definition is not in accordance with law within the meaning of 5 U.S.C. § 706(2)(A).
118. HHS’s failure to include in the Regulation a religious exemption that parallels the religious exemption in Title IX is also not in accordance with law within the meaning of 5 U.S.C. § 706(2)(A).
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119. HHS’s failure to include an exclusion for sterilization and sterilizationrelated services is not in accordance with law within the meaning of 5 U.S.C. § 706(2)(A) because it is inconsistent with the Church Amendments, 42 U.S.C. § 300a7(b), which protect the right of healthcare entities who receive federal funding to refuse to participate in or assist with sterilizations.
120. HHS’s failure to include an exclusion for abortion and abortion-related services is not in accordance with law within the meaning of 5 U.S.C. § 706(2)(A) because it is inconsistent with the plain language of Title IX, which prohibits requiring coverage, payment, or the use of facilities for abortion.
121. HHS’s failure to include an exclusion for abortion and abortion-related services is not in accordance with law within the meaning of 5 U.S.C. § 706(2)(A) because it is inconsistent with the Church Amendments, 42 U.S.C. §300a-7(b), which protect the right of healthcare entities who receive federal funding to refuse to participate in or assist with abortions.
122. HHS’s failure to include an exclusion for abortion and abortion-related services is not in accordance with law within the meaning of 5 U.S.C. § 706(2)(A) because it is inconsistent with Section 245 of the Public Health Service Act, 42 U.S.C. § 238(n), which prohibits the federal government and any state or local government receiving federal financial assistance from discriminating against any healthcare entity on the basis that the entity refuses to perform abortions, provide referrals for abortions, or to make arrangements for such abortions.
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123. HHS’s failure to include an exclusion for abortion and abortion-related services is not in accordance with law within the meaning of 5 U.S.C. § 706(2)(A) because it is inconsistent with the Weldon Amendment, which has been readopted or incorporated by reference in every HHS appropriations act since 2005,29 and provides that no funds may be made available under HHS appropriations act to a government entity that discriminates against an institution or individual physician or healthcare professional on the basis that the entity or individual “does not provide, pay for, provide coverage of, or refer for abortions.”
124. HHS’s failure to include an exclusion for abortion and abortion-related services is not in accordance with law within the meaning of 5 U.S.C. § 706(2)(A) because it is inconsistent with Section 1303(b)(4) of the ACA, 42 U.S.C. § 18023, which states that “[n]o qualified health plan offered through an Exchange may discriminate against any individual health care provider or health care facility because of its unwillingness to provide, pay for, provide coverage of, or refer for abortions.”
125. The Regulation is not in accordance with Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.). Title VII prohibits employers from discriminating against employees on the basis of religion. 42 U.S.C. § 2000e-2. This means that employers, including Plaintiffs, have a duty to reasonably accommodate their employees’ religious practices unless doing so would cause undue hardship to
29 See Consolidated Appropriations Act, 2016, H.R. 2029, 114th Cong. § 507(d) (2015).
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the employer. Plaintiffs employ individuals who have religious or conscientious objections to performing medical transition procedures. It should not be an undue hardship on Plaintiffs to accommodate these employees’ religious beliefs, but the new Regulation will in many cases make it illegal for Plaintiffs who receive HHS funds to accommodate their employees in accordance with Title VII. Thus, the Regulation is not in accordance with Title VII.
126. The Regulation states that a physician’s view of medical transition procedures as “experimental” is “outdated and not based on current standards of care.” 81 Fed. Reg. at 31435; see also id. at 31429. It is not in accordance with law within the meaning of 5 U.S.C. § 706(2)(A) for the federal government to dictate appropriate medical views on the necessity and experimental nature of medical transition procedures, and to dictate what constitutes best standards of care and what services physicians must offer in an area of science and medicine that is being hotly debated in the medical community. This violates constitutional and statutory rights of medical professionals, including a medical professional’s freedom of speech to offer candid professional advice about the experimental nature and dangerous health outcomes associated with medical transition procedures, and freedom not to be compelled to speak in favor of or make referrals for such procedures.
127. The Regulation also forces physicians to provide medical services related to gender transition. This is not in accordance with substantive due process rights protecting a medical professional’s right to not perform a procedure he or she believes to be experimental, ethically questionable, and potentially harmful.
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128. The Regulation is not in accordance with the First Amendment because the Regulation is overbroad and not narrowly tailored to a compelling governmental interest.
129. The Regulation is not in accordance with the First Amendment and Fifth Amendment because it is void for vagueness.
130. The Regulation is not in accordance with the First Amendment because it violates Plaintiffs’ rights not to be subjected to a system of unbridled discretion when engaging in speech or religious exercise.
131. The Regulation is not in accordance with the Tenth Amendment, which prohibits the federal government from co-opting a state’s control over budgetary processes and legislative agendas.
132. The Regulation is contrary to the First Amendment because it imposes an unconstitutional condition on Plaintiffs’ receipt of federal funding. See Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321, 2331, 186 L. Ed. 2d 398 (2013).
133. The Regulation is contrary to the First Amendment because violates Plaintiffs’ freedom of association protections.
134. The Regulation is contrary to law because it violates the Religious Freedom Restoration Act.
135. The Regulation is contrary to law because it violates the Free Exercise clause of the First Amendment.
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136. The Regulation is contrary to law because it violates the Fifth Amendment Due Process and Equal Protection clauses.
137. The Regulation is contrary to the protections of the Spending Clause. 138. The Regulation is an unlawful abrogation of sovereign immunity. 139. The Regulation is contrary to the protections of the Tenth Amendment. 140. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile. 141. Plaintiffs have no adequate remedy at law. 142. Absent injunctive and declaratory relief against the Regulation, the Plaintiffs have been and will continue to be harmed.
COUNT II Violation of the Administrative Procedure Act Agency Action In Excess of Statutory Authority and Limitations 143. The Plaintiffs incorporate by reference all preceding paragraphs. 144. Defendants are “agencies” under the APA, 5 U.S.C. § 551(1), and the new Regulation complained of herein is a “rule” under the APA, id. § 551(4), and constitutes “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” Id. § 704. 145. The APA prohibits agency actions that are “in excess of statutory jurisdiction, authority, or limitations.” 5 U.S.C. § 706(2)(C). The Regulation is in excess of statutory jurisdiction, authority, and limitations for a number of reasons. 146. For the reasons described above, there is no statutory authority or jurisdiction for HHS to require medical professionals and facilities to perform
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procedures (or refer for the same) that may not be necessary or appropriate, and may in fact be harmful to the patients.
147. For the reasons described above, there is no statutory authority or jurisdiction for HHS to dictate appropriate medical views on the necessity and experimental nature of medical transition procedures, or to dictate what constitutes best standards of care in an area of science and medicine that is being hotly debated in the medical community.
148. For the reasons described above, HHS’s decision to interpret Section 1557’s reference to “sex” discrimination to include “gender identity” is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C).
149. For the reasons described above, HHS’s failure to include a religious exemption in the Regulation that parallels the religious exemption in Title IX is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C).
150. For the reasons discussed above, HHS’s failure to include an exclusion for sterilization and sterilization-related services is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it is inconsistent with the Church Amendments, 42 U.S.C. § 300a-7(b).
151. For the reasons discussed above, HHS’s failure to include an exclusion for abortion and abortion-related services is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it is
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inconsistent with the plain language of Title IX, which prohibits requiring coverage, payment, or the use of facilities for abortion.
152. For the reasons discussed above, HHS’s failure to include an exclusion for abortion and abortion-related services is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it is inconsistent with the Church Amendments, 42 U.S.C. § 300a-7(b).
153. For the reasons discussed above, HHS’s failure to include an exclusion for abortion and abortion-related services is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it is inconsistent with Section 245 of the Public Health Service Act, 42 U.S.C. § 238(n),
154. For the reasons discussed above, HHS’s failure to include an exclusion for abortion and abortion-related services is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it is inconsistent with the Weldon Amendment, which has been readopted or incorporated by reference in every HHS appropriations act since 2005.30
155. For the reasons discussed above, HHS’s failure to include an exclusion for abortion and abortion-related services is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it is inconsistent with Section 1303(b)(4) of the ACA, 42 U.S.C. § 18023.
30 See Consolidated Appropriations Act, 2016, H.R. 2029, 114th Cong. § 507(d) (2015).
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156. For the reasons described above, HHS’s decision to require Plaintiffs to act in violation of Title VII by not accommodating their employees’ religious and conscientious objections to participating in (or referring for) medical transition treatment or procedures is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C).
157. For the reasons discussed above, the Regulation is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) as it violates Plaintiffs’ freedom of speech.
158. For the reasons discussed above, the Regulation is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) as it violates Plaintiffs’ substantive due process rights.
159. For the reasons discussed above, the Regulation is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) as it violates the First Amendment because it is overbroad and not narrowly tailored to a compelling governmental interest.
160. For the reasons discussed above, the Regulation is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) as it violates the First Amendment because it is overbroad and not narrowly tailored to a compelling governmental interest.
161. For the reasons discussed above, the Regulation is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it is void under the First and Fifth Amendment for vagueness.
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162. For the reasons discussed above, the Regulation is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it violates Plaintiffs’ rights not to be subjected to a system of unbridled discretion when engaging in speech or when engaging in religious exercise, as secured to them by the First Amendment of the United States Constitution.
163. For the reasons discussed above, the Regulation is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it co-opts states’ control over budgetary processes and legislative agendas contrary to the Tenth Amendment.
164. For the reasons discussed above, the Regulation is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it imposes an unconstitutional condition on Plaintiffs’ receipt of federal funding contrary to the First Amendment.
165. For the reasons discussed above, the Regulation is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it violates Plaintiffs’ First Amendment freedom of association.
166. For the reasons discussed above, the Regulation is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it violates the Religious Freedom Restoration Act.
167. For the reasons discussed above, the Regulation is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it violates the Free Exercise clause of the First Amendment.
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168. For the reasons discussed above, the Regulation is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it violates the Fifth Amendment Due Process and Equal Protection clauses.
169. For the reasons discussed above, the Regulation is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it is contrary to the protections of the Spending Clause.
170. For the reasons discussed above, the Regulation is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it is an unlawful abrogation of sovereign immunity.
171. For the reasons discussed above, the Regulation is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it is contrary to the protections of the Tenth Amendment.
172. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
173. Plaintiffs have no adequate remedy at law. 174. Absent injunctive and declaratory relief against the Regulation, the Plaintiffs have been and will continue to be harmed.
COUNT III Violation of the Administrative Procedure Act Agency Action that is Arbitrary, Capricious and an Abuse of Discretion 175. The Plaintiffs incorporate by reference all preceding paragraphs. 176. Defendants are “agencies” under the APA, 5 U.S.C. § 551(1), and the new Regulation complained of herein is a “rule” under the APA, id. § 551(4), and
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constitutes “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” Id. § 704.
177. The APA prohibits agency actions that are “arbitrary, capricious, [or] an abuse of discretion.” 5 U.S.C. § 706(2)(A). The Regulation is arbitrary and capricious agency action for a number of reasons.
178. HHS has explained that the Regulation will require physicians to perform medical transition procedures regardless of whether those procedures are “medically necessary” or even “medically appropriate.” It is arbitrary and capricious for the federal government to require medical professionals to perform (or refer for) procedures that the physician believes may not be necessary or appropriate, and that may even be harmful to the patient.
179. For the reasons discussed above, it is arbitrary and capricious for HHS to dictate appropriate medical views on the necessity and experimental nature of medical transition procedures, and to dictate what constitutes best standards of care.
180. For the reasons discussed above, HHS’s inclusion of “gender identity” in its interpretation of “sex” is an arbitrary and capricious interpretation of Section 1557 of the Affordable Care Act (42 U.S.C. § 18116) and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.
181. For the reasons discussed above, HHS’s failure to include a religious exemption in the Regulation that parallels the religious exemption in Title IX is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A).
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182. For the reasons discussed above, HHS’s failure to include an exclusion for sterilization and sterilization-related services is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because it is inconsistent with the Church Amendments, 42 U.S.C. § 300a-7(b).
183. For the reasons discussed above, HHS’s failure to include an exclusion for abortion and abortion-related services is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A).
184. For the reasons described above, HHS’s decision to require Plaintiffs to act in violation of Title VII by not accommodating their employees’ religious objections to participating in medical transition procedures is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A).
185. For the reasons discussed above, the Regulation is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) as it violates Plaintiffs’ freedom of speech.
186. For the reasons discussed above, the Regulation is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) as it violates Plaintiffs’ substantive due process rights.
187. For the reasons discussed above, the Regulation is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) as it violates the First Amendment because it is overbroad and not narrowly tailored to a compelling governmental interest.
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188. For the reasons discussed above, the Regulation is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because it is void under the First and Fifth Amendment for vagueness.
189. For the reasons discussed above, the Regulation is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because it violates Plaintiffs’ rights not to be subjected to a system of unbridled discretion when engaging in speech or when engaging in religious exercise, as secured to them by the First Amendment of the United States Constitution.
190. For the reasons discussed above, the Regulation is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because it co-opts States’ control over budgetary processes and legislative agendas contrary to the Tenth Amendment.
191. For the reasons discussed above, the Regulation is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because it imposes an unconstitutional condition on Plaintiffs’ receipt of federal funding contrary to the First Amendment.
192. The Regulation is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because it violates Plaintiffs’ First Amendment freedom of association.
193. For the reasons discussed above, the Regulation is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because it violates the Religious Freedom Restoration Act.
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194. For the reasons discussed above, the Regulation is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because it violates the Free Exercise Clause of the First Amendment.
195. For the reasons discussed above, the Regulation is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because it violates the Fifth Amendment Due Process and Equal Protection clauses.
196. For the reasons discussed above, the Regulation is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because it is contrary to the protections of the Spending Clause.
197. For the reasons discussed above, the Regulation is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because it is an unlawful abrogation of sovereign immunity.
198. For the reasons discussed above, the Regulation is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because it is contrary to the protections of the Tenth Amendment.
199. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
200. Plaintiffs have no adequate remedy at law. 201. Absent injunctive and declaratory relief against the Regulation, the Plaintiffs have been and will continue to be harmed.
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B. Alleged by CMDA, Franciscan, and Specialty Physicians only COUNT IV
Violation of the First Amendment of the United States Constitution Freedom of Speech
Compelled Speech and Compelled Silence 202. The Plaintiffs incorporate by reference all preceding paragraphs. 203. The Plaintiffs plan to continue using their best medical and ethical judgment in treating and advising patients. Performing (or referring for) medical transition procedures is contrary to their best medical and/or ethical judgment. 204. The Regulation states, in the context of physicians offering “health services” that a “categorization of all transition-related treatment . . . as experimental, is outdated and not based on current standards of care.” 81 Fed. Reg. at 31435; see also id. at 31429. 205. The Regulation would prohibit the Plaintiffs from expressing their professional opinions that medical transition procedures are not the best standard of care or are experimental. 206. Performing (or referring for) medical transition procedures is also contrary to the religious and conscientious beliefs of the Plaintiffs, and their beliefs prohibit them from conducting, participating in, or referring for such procedures. 207. The Regulation would compel the Plaintiffs to conduct, participate in, refer for, or otherwise facilitate medical transition procedures.
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208. The Regulation would prohibit the Plaintiffs from expressing their religious views that medical transition procedures are not the best standard of care or are experimental.
209. The Regulation would compel the Plaintiffs to speak in ways that they would not otherwise speak.
210. The Regulation thus violates the Plaintiffs right to be free from compelled speech as secured to them by the First Amendment of the United States Constitution.
211. The Regulation’s compelled speech requirement is not justified by a compelling governmental interest.
212. Even if HHS has a compelling government interest, the Regulation is not narrowly tailored to achieve that interest.
213. Absent injunctive and declaratory relief against the Regulation, the Plaintiffs have been and will continue to be harmed.
COUNT V Violation of the First Amendment of the United States Constitution
Freedom of Speech and Free Exercise Clause Viewpoint Discrimination
214. The Plaintiffs incorporate by reference all preceding paragraphs. 215. The Plaintiffs’ sincere religious and conscientious beliefs prohibit them from facilitating or participating in medical transition procedures. 216. The Plaintiffs’ medical judgment is that, in general, it is harmful to encourage a patient to undergo medical transition procedures.
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217. The Regulation states, in the context of physicians offering “health services” that a “categorization of all transition-related treatment, for example as experimental, is outdated and not based on current standards of care.” 81 Fed. Reg. at 31435; see also id. at 31429.
218. The Regulation would prohibit the Plaintiffs from expressing their religious or conscientious viewpoint that medical transition procedures are not the best standard of care.
219. The Regulation withholds funding based on an intent to restrict Plaintiffs’ speech.
220. The Regulation’s viewpoint discrimination is not justified by a compelling governmental interest.
221. Even if HHS has a compelling government interest, the Regulation is not narrowly tailored to achieve that interest.
222. Defendants’ actions thus violate the Plaintiffs rights as secured to them by the First Amendment of the United States Constitution.
223. Absent injunctive and declaratory relief against the Regulation, the Plaintiffs have been and will continue to be harmed.
COUNT VI Violation of the First and Fifth Amendments of the United States
Constitution Freedom of Speech and Due Process
Overbreadth 224. Plaintiffs incorporate by reference all preceding paragraphs. 225. The Regulation regulates protected speech.
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226. The Regulation states, in the context of physicians offering “health services” that a “categorization of all transition-related treatment . . . as experimental, is outdated and not based on current standards of care.” 81 Fed. Reg. at 31435; see also id. at 31429.
227. This exposes the Plaintiffs to penalties for expressing their medical and moral views of medical transition procedures. It also prohibits Plaintiffs from using their medical judgment to determine the appropriate standard of care for interactions with their patients.
228. Plaintiffs believe that the Regulation restricts their speech regarding the best standard of care for patients.
229. The Regulation states: “The determination of whether a certain practice is discriminatory typically requires a nuanced analysis that is fact-dependent.”
230. The Regulation chills the Plaintiffs’ speech. 231. The Regulation’s overbreadth is not justified by a compelling governmental interest. 232. Even if HHS has a compelling government interest, the Regulation is not narrowly tailored to achieve that interest. 233. Defendants have therefore violated the Plaintiffs’ rights secured to them by the Free Speech Clause of the First Amendment and the Due Process Clause of the Fifth Amendment by prohibiting speech that would otherwise be protected. 234. Absent injunctive and declaratory relief against the Regulation, the Plaintiffs have been and will continue to be harmed.
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COUNT VII Violation of the First and Fifth Amendments of the United States
Constitution Freedom of Speech and Due Process
Void for Vagueness 235. The Plaintiffs incorporate by reference all preceding paragraphs. 236. The Regulation requires that a covered entity apply “neutral, nondiscriminatory criteria that it uses for other conditions when the coverage determination is related to gender transition” and “decline[s] to limit application of the rule by specifying that coverage for the health services addressed in § 92.207(b)(3)–(5) must be provided only when the services are medically necessary or medically appropriate.” 81 Fed. Reg. at 31435. 237. Without allowing Plaintiffs to use their judgment about what is medically necessary or appropriate, the Regulation is ambiguous in the types of services Plaintiffs are required to provide and perform. 238. Requiring the Plaintiffs apply “neutral, nondiscriminatory criteria that it uses for other conditions” is a subjective standard without a limiting construction. Id. 239. The Regulation states, in the context of physicians offering “health services” that a “categorization of all transition-related treatment, for example as experimental, is outdated and not based on current standards of care.” Id.; see also id. at 31429.
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240. The Regulation does not provide a limiting construction for what the current standard of care is, nor does it provide guidance as to how physicians can rely on their best medical judgment when it conflicts with the Regulation.
241. The Regulation is not justified by a compelling governmental interest. 242. Even if HHS has a compelling government interest, the Regulation is not narrowly tailored to achieve that interest. 243. Because Plaintiffs are unable to determine what kind of procedures and services they will be required to provide and perform, Defendants have violated the Plaintiffs’ rights secured to them by the Free Speech Clause of the First Amendment and the Due Process Clause of the Fifth Amendment. 244. Absent injunctive and declaratory relief against the Regulation, the Plaintiffs have been and will continue to be harmed.
COUNT VIII Violation of the First Amendment of the United States Constitution
Free Exercise Clause and Freedom of Speech Unbridled Discretion
245. The Plaintiffs incorporate by reference all preceding paragraphs. 246. The Regulation “applies to every health program or activity, any part of which receives Federal financial assistance provided or made available by the Department; every health program or activity administered by the Department; and every health program or activity administered by a Title I entity.” 45 C.F.R. 92.2(a).
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247. The Regulation also states: “The determination of whether a certain practice is discriminatory typically requires a nuanced analysis that is factdependent.” 81 Fed. Reg. at 31377.
248. The Regulation also says: “Insofar as the application of any requirement under this part would violate applicable Federal statutory protections for religious freedom and conscience, such application shall not be required.” 45 C.F.R. 92.2(b)(2).
249. Because the Defendants have sole discretion over financial assistance provided or made available, and because Defendants have sole discretion over the application of the Regulation and any religious freedom protection that applies, the Regulation vests unbridled discretion over which organizations will have their First Amendment interests accommodated.
250. In Title IX of the Education Amendments of 1972, Congress precluded discrimination on the basis of “sex” in federally funded education programs, “except that . . . this section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization.” 20 U.S.C. § 1681(a)(3). Defendants have exercised unbridled discretion by declining to apply the clear religious freedom protections of Title IX.
251. In Title IX of the Education Amendments of 1972, Congress banned sex discrimination in federally funded education programs, except that it made clear that “Nothing in this chapter shall be construed to require or prohibit any person, or public or private entity, to provide or pay for any benefit or service, including the use of
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facilities, related to an abortion. Nothing in this section shall be construed to permit a penalty to be imposed on any person or individual because such person or individual is seeking or has received any benefit or service related to a legal abortion.” 20 U.S.C. § 1688. Defendants have exercised unbridled discretion by declining to apply the clear abortion protections of Title IX.
252. Defendants’ actions therefore violate the Plaintiffs’ rights not to be subjected to a system of unbridled discretion when engaging in speech or when engaging in religious exercise, as secured to them by the First Amendment of the United States Constitution.
253. Absent injunctive and declaratory relief against the Regulation, Plaintiffs have been and will continue to be harmed.
COUNT IX Violation of the First Amendment to the United States Constitution
Free Speech Clause Unconstitutional Conditions 254. The Plaintiffs incorporate by reference all preceding paragraphs. 255. The Regulation imposes an unconstitutional condition on Plaintiffs’ receipt of federal funding. See Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321, 2331 (2013). 256. The Regulation applies to any healthcare provider who accepts federal funding from any source for any program. 257. The Regulation requires the Plaintiffs to adopt policies regarding standards of care for patients that violate Plaintiffs’ religious and conscientious
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beliefs, as well as their medical judgment, and also interfere with the Plaintiffs’ practice of medicine.
258. Defendants’ actions therefore impose an unconstitutional condition on Plaintiffs’ receipt of federal funding and violate Plaintiffs’ rights as secured to them by the First and Fourteenth Amendments of the United States Constitution.
259. Absent injunctive and declaratory relief against the Regulation, Plaintiffs have been and will continue to be harmed.
COUNT X Violation of the First Amendment
Freedom of Speech Expressive Association 260. The Plaintiffs incorporate by reference all preceding paragraphs. 261. The Plaintiffs believe and teach that participating in actions, procedures, and services with the goal of transitioning from one sex to another violate their religious beliefs. 262. The Plaintiffs believe and teach that participating in actions, procedures, and services that result in elective sterilizations violate their religious beliefs. 263. The Plaintiffs believe and teach that participating in actions, procedures, and services related to abortion violate their religious beliefs. 264. The Transgender Mandate would compel the Plaintiffs to participate in procedures, services, and activities that contradict the Plaintiffs’ religious beliefs and message.
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265. The Transgender Mandate would compel the Plaintiffs to offer insurance coverage for procedures, services, and activities that violate Plaintiffs’ religious beliefs and message.
266. Defendants’ actions thus violate Plaintiffs’ rights of expressive association as secured to them by the First Amendment of the United States Constitution.
267. Absent injunctive and declaratory relief against the Transgender Mandate, the Plaintiffs have been and will continue to be harmed.
268. The Regulation exposes the Plaintiffs to civil suits that would hold them liable for practicing and expressing their sincerely held religious beliefs.
269. The Regulation furthers no compelling governmental interest. 270. The Regulation is not the least restrictive means of furthering Defendants’ stated interests.
COUNT XI Violation of the Religious Freedom Restoration Act
Compelled Medical Services 271. The Plaintiffs incorporate by reference all preceding paragraphs. 272. The Religious Plaintiffs’ sincerely held religious beliefs prohibit them from deliberately offering services and performing (or referring for) operations or other procedures required by the Regulation. The Plaintiffs’ compliance with these beliefs is a religious exercise.
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273. The Plaintiffs’ sincerely held religious beliefs prohibit them facilitating medical transition procedures. The Plaintiffs’ compliance with these beliefs is a religious exercise.
274. The Plaintiffs’ sincerely held religious beliefs prohibit them facilitating sterilization procedures. The Plaintiffs’ compliance with these beliefs is a religious exercise.
275. The Plaintiffs’ sincerely held religious beliefs prohibit them facilitating abortion-related services. The Plaintiffs’ compliance with these beliefs is a religious exercise.
276. The Regulation creates government-imposed coercive pressure on the Plaintiffs to change or violate their religious beliefs.
277. The Regulation chills the Plaintiffs’ religious exercise. 278. The Regulation exposes the Plaintiffs to the loss of substantial government funding as a result of their religious exercise. 279. The Regulation exposes the Plaintiffs to substantial penalties under the False Claims Act, 31 U.S.C. § 3729 et seq. 280. The Regulation exposes the Plaintiffs to criminal penalties under 18 U.S.C. § 1035. 281. The Regulation exposes the Plaintiffs to civil suits that would hold them liable for practicing their sincerely held religious beliefs. 282. The Regulation thus imposes a substantial burden on the Plaintiffs’ religious exercise.
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283. The Regulation furthers no compelling governmental interest. 284. The Regulation is not the least restrictive means of furthering Defendants’ stated interests. 285. The Regulation violates the Plaintiffs rights secured to them by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.
COUNT XII Violation of the Religious Freedom Restoration Act
Compelled Insurance Coverage 286. The Plaintiffs incorporate by reference all preceding paragraphs. 287. For the same reasons discussed above, Plaintiffs’ sincerely held religious beliefs prohibit them from deliberately offering health insurance that would cover gender transition procedures, sterilization procedures, or abortion-related procedures. 288. Plaintiffs specifically exclude coverage of any services related to gender transition procedures, sterilization procedures, or abortion-related procedures in their insurance plans. 289. The Plaintiffs’ compliance with these beliefs by maintaining these exclusions is a religious exercise. 290. Under the Regulation, insurance exclusions related to gender transition are facially invalid. 291. Under the Regulation, insurance exclusions related to sterilization are facially invalid.
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292. Under the Regulation, insurance exclusions related to abortion services are facially invalid.
293. The Regulation exposes the Plaintiffs to the loss of substantial government funding as a result of their religious exercise.
294. The Regulation also makes it much more expensive for Franciscan and Specialty Physicians to do business with a third party administrator for a health benefits plan. The Regulation subjects third party administrators to potential liability for administering religious health plans like Franciscan’s, and thus Franciscan and Specialty Physicians will be forced to indemnify any third party administrator from this liability. This constitutes an additional substantial burden on its religious exercise.
295. The Regulation exposes the Plaintiffs to substantial penalties under the False Claims Act, 31 U.S.C. § 3729 et seq.
296. The Regulation exposes the Plaintiffs to criminal penalties under 18 U.S.C. § 1035.
297. The Regulation exposes the Plaintiffs to civil suits that would hold them liable for practicing their sincerely held religious beliefs.
298. The Regulation thus imposes a substantial burden on the Plaintiffs’ religious exercise.
299. The Regulation furthers no compelling governmental interest. 300. The Regulation is not the least restrictive means of furthering Defendants’ stated interests.
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301. The Regulation violates the Plaintiffs rights secured to them by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.
COUNT XIII Violation of the First Amendment to the United States Constitution
Free Exercise Clause 302. The Plaintiffs incorporate by reference all preceding paragraphs. 303. Plaintiffs object to providing, facilitating, or otherwise participating in medical transition procedures. 304. The Regulation imposes substantial burdens on the Plaintiffs by forcing them to choose between federal funding and their livelihood as healthcare providers and their exercise of religion. 305. The Regulation seeks to suppress the religious practice of individuals and organizations such as the Plaintiffs, while allowing exemptions for similar conduct based on secular and non-religious reasons. Thus, the Regulation is neither neutral nor generally applicable. 306. The Regulation is not justified by a compelling governmental interest. 307. Even if HHS has a compelling government interest, the Regulation is not narrowly tailored to achieve that interest. 308. Defendants’ actions thus violate the Plaintiffs’ rights secured to them by the Free Exercise Clause of the First Amendment of the United States Constitution. 309. Absent injunctive and declaratory relief against the Regulation, Plaintiffs have been and will continue to be harmed.
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COUNT XIV Violation of the Fifth Amendment to the United States Constitution
Due Process Clause Substantive Due Process 310. Plaintiffs incorporate by reference all preceding paragraphs. 311. The United States has a deeply rooted tradition of honoring physicians’ rights to provide medical treatment in accordance with their moral and religious beliefs. 312. Plaintiffs possess a fundamental right of liberty of conscience. 313. Plaintiffs possess a fundamental right not to be coerced to provide medical procedures and services in violation of their conscience. 314. The Regulation coerces Plaintiffs to provide medical procedures and services in violation of their conscience. 315. Defendants’ conduct cannot be justified by a compelling governmental interest. 316. The Regulation is not justified by a compelling governmental interest. 317. Even if HHS has a compelling government interest, the Regulation is not narrowly tailored to achieve that interest. 318. Defendants’ actions therefore violate Plaintiffs’ rights to substantive due process. 319. Absent injunctive and declaratory relief against the Regulation, the Plaintiffs have been and will continue to be harmed.
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COUNT XV Violation of the Fifth Amendment to the United States Constitution
Due Process and Equal Protection 320. The Plaintiffs incorporate by reference all preceding paragraphs. 321. The Due Process Clause of the Fifth Amendment mandates the equal treatment of all religious faiths and institutions without discrimination or preference. 322. The Regulation discriminates on the basis of religious views or religious status by refusing to recognize religious exemptions that exist in the law. 323. The Regulation discriminates on the basis of religious views or religious status by refusing to recognize valid medical views of religious healthcare professionals on medical transition procedures. 324. The Defendants’ actions thus violate the Plaintiffs’ rights secured to them by the Fifth Amendment of the United States Constitution. 325. Absent injunctive and declaratory relief against the Regulation, the Plaintiffs have been and will continue to be harmed.
C. Alleged by Government Plaintiffs Only. COUNT XVI
Violation of Constitutional Standards of Clear Notice Under the Spending Clause
326. The Plaintiffs incorporate by reference all preceding paragraphs. 327. When Congress exercises its Spending Clause power against the States, the United States Supreme Court has held that principles of federalism require
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conditions on Congressional funds given to States must enable a state official to “clearly understand,” from the language of the law itself, what conditions the State is agreeing to when accepting the federal funds. Arlington Cent. Sch. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006). “The legitimacy of Congress’s exercise of the spending power ‘thus rests on whether the [entity] voluntarily and knowingly accepts the terms of the ‘contract.’’” NFIB v. Sebelius, 132 S. Ct. 2566, 2602 (2012) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981)). Defendants’ expost Regulation is not in accord with the understanding that existed when the States chose to begin accepting Medicare and Medicaid as payment for medical services provided. Bennett v. New Jersey, 470 U.S. 632, 638 (1985) (providing that a state’s obligation under cooperative federalism program ‘‘generally should be determined by reference to the law in effect when the grants were made’’).
328. The text employed by Congress does not support understanding the term “sex” in the manner put forth by Defendants. While Congress has expressed its intent to cover “gender identity,” as a protected class, in other pieces of legislation, see, e.g., 18 U.S.C. § 249(a)(2)(A); 42 U.S.C. § 13925(b)(13)(A), it has not done so regarding Title IX. In other legislation, Congress included “gender identity” along with “sex,” thus evidencing its intent for “sex” in Title IX to retain its original and only meaning—one’s immutable, biological sex as acknowledged at or before birth.
329. The Regulation was passed under the authority Congress delegated to HHS in Section 1557 of the Affordable Care Act. Section 1557 does not add a new non-discrimination provision to the federal code, but merely incorporates by reference
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pre-existing provisions under Title VI, Title IX, the Americans with Disabilities Act, and the Rehabilitation Act. Section 1557 does not independently define terms such as “sex.”
330. At the time that the ACA was passed in 2010, no federal courts or agencies had interpreted “sex” in Title IX to include gender identity.
331. Title IX also provides that “Nothing in this chapter shall be construed to require . . . any person, or public or private entity, to provide or pay for any benefit or service, including the use of facilities, related to an abortion.” 20 U.S.C.A. § 1688.
332. Thus, no State could fathom, much less “clearly understand,” that the ACA would impose on it the conditions created by HHS’s new Regulation—namely, a new “gender identity” requirement, as well as a provision to require coverage, funding, or facilities for abortion. Accordingly, the new Regulation violates the Spending Clause.
333. Moreover, Defendants are “agencies” under the APA, 5 U.S.C. § 551(1), and the new Regulation complained of herein is a “rule” under the APA, id. § 551(4), and constitutes “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” Id. § 704. The APA requires the Court to hold unlawful and set aside any agency action that is “contrary to constitutional right, power, privilege, or immunity” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” Id. § 706(2)(B)–(C). Thus, the Spending Clause violations articulated herein provide the Court with an additional basis to set aside the new Rule under the APA.
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COUNT XVII Unlawful Abrogation of Sovereign Immunity 334. Plaintiffs incorporate by reference all preceding paragraphs. 335. The federal government may not abrogate a state’s sovereign immunity unless it makes that intention to abrogate unmistakably clear in the language of the statute and acts pursuant to a valid exercise of its power under § 5 of the Fourteenth Amendment. See, e.g., Nevada Dep't of Human Res. v. Hibbs, 538 U.S. 721, 726, 728 n.2 (2003). 336. The abrogation referenced herein was not unmistakably clear in the language of the relevant statutes, and Defendants did not act pursuant to a valid exercise of federal power under § 5 of the Fourteenth Amendment. 337. In enacting Section 1557 of the ACA, Congress did not make findings regarding “gender identity,” but merely incorporated existing law under Title IX, which does not extend to “gender identity.” Congress has in fact declined to pass specific “gender identity” legislation on numerous occasions. 338. The Regulation abrogates the sovereign immunity of the States by subjecting them to lawsuits from their employees. It does so without clear authorization from Congress, and its expansion of the definition of “sex” to include “gender identity” is not supported by Congressional findings. 339. The Regulation abrogates the sovereign immunity of the States by subjecting them to lawsuits from non-employees, including spouses and dependents of its employees, students at health-related schools run by the States, and patients
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at state-run hospitals and medical facilities. It does so without clear authorization from Congress, and its expansion of the definition of “sex” to include “gender identity” is not supported by Congressional findings.
340. Moreover, Defendants are “agencies” under the APA, 5 U.S.C. § 551(1), and the new Regulation complained of herein is a “rule” under the APA, id. § 551(4), and constitutes “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” Id. § 704. The APA requires the Court to hold unlawful and set aside any agency action that is “contrary to constitutional right, power, privilege, or immunity” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” Id. § 706(2)(B)–(C). Thus, the improper abrogation of the States’ sovereign immunity articulated herein provides the Court with an additional basis to set aside the new Rule under the APA.
COUNT XVIII Violation of the Spending Clause The Regulation is Unlawful and Unconstitutionally Coercive 341. Plaintiffs incorporate by reference all preceding paragraphs. 342. The federal government cannot use its Spending Clause powers to coerce the States, even when proper notice procedures are followed. 343. The Supreme Court struck down a similar attempt under the ACA because “such conditions take the form of threats to terminate other significant independent grants,” and are therefore “properly viewed as a means of pressuring the States to accept policy changes.” NFIB, 132 S. Ct. at 2604.
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344. The Regulation threatens other independent grants, such as general Medicare and Medicaid funds, as well as other health-related grants.
345. By placing in jeopardy a substantial percentage of the State’s budget if it refuses to comply with the Regulation, Defendants have left the State no real choice but to acquiesce in such policy. See NFIB, 132 S. Ct. at 2605 (“The threatened loss of over 10 percent of a State’s overall budget, in contrast, is economic dragooning that leaves the States with no real option but to acquiesce. . . .”).
346. Such compulsion is excessive under the Spending Clause, even in the presence of clear notice. “Congress may use its spending power to create incentives for [entities] to act in accordance with federal policies. But when ‘pressure turns into compulsion,’ the legislation runs contrary to our system of federalism.” NFIB, 132 S. Ct. at 2602 (quoting Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937)) (internal citation omitted). “That is true whether Congress directly commands a State to regulate or indirectly coerces a State to adopt a federal regulatory system as its own.” Id.
347. The compulsion is also improper because the Regulation changes the conditions for the receipt of federal funds after the States had already accepted Congress’s original conditions. But “[t]he legitimacy of Congress’s exercise of the spending power ‘thus rests on whether the [entity] voluntarily and knowingly accepts the terms of the ‘contract.’’” NFIB, 132 S. Ct. at 2602 (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981)).
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348. Moreover, Defendants are “agencies” under the APA, 5 U.S.C. § 551(1), and the new Regulation complained of herein is a “rule” under the APA, id. § 551(4), and constitutes “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” Id. § 704. The APA requires the Court to hold unlawful and set aside any agency action that is “contrary to constitutional right, power, privilege, or immunity” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” Id. § 706(2)(B)–(C). Thus, the Spending Clause violations articulated herein provide the Court with an additional basis to set aside the new Rule under the APA.
COUNT XIX The Regulation Unlawfully Commandeers the States 349. Plaintiffs incorporate by reference all preceding paragraphs. 350. With the Regulation, Defendants have “commandeer[ed] a State’s legislative or administrative apparatus for federal purposes.” NFIB, 132 S. Ct. at 2602. 351. Such commandeering exceeds powers delegated to Congress under Article I and invades the powers reserved to the States in the Tenth Amendment.
COUNT XX Unconstitutional Exercise of Federal Power in Violation of the Tenth
Amendment 352. Plaintiffs incorporate by reference all preceding paragraphs. 353. State Plaintiffs cannot afford the exorbitant and unfunded costs of the Regulation, but has no choice other than to participate.
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354. By effectively co-opting the Plaintiffs’ control over their budgetary processes and legislative agendas through compelling them to assume costs they cannot afford, the new Rule invades their sovereign sphere.
355. The new Rule violates the Tenth Amendment of the Constitution of the United States, and runs afoul of the Constitution’s principle of federalism, by commandeering the State Plaintiffs and their employees as agents of the federal government’s regulatory scheme at the States’ own cost.
V. PRAYER FOR RELIEF Wherefore, Plaintiffs pray the Court:
a. Declare that the challenged Regulation is invalid under the Administrative Procedure Act;
b. Declare that the challenged Regulation is invalid under the Religious Freedom Restoration Act;
c. Declare that the challenged Regulation is invalid under the First Amendment to the United States Constitution;
d. Declare that the challenged Regulation is invalid under the Fifth Amendment of the United States Constitution;
e. Declare that the challenged Regulation is invalid under the Fourteenth Amendment of the United States Constitution;
f. Issue a permanent injunction enjoining Defendants from enforcing the challenged Regulations against Plaintiffs, those acting in concert with Plaintiffs, and all States;
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Case 7:16-cv-00108-O Document 1 Filed 08/23/16 Page 78 of 79 PageID 78 g. Award actual damages; h. Award nominal damages; i. Award Plaintiffs the costs of this action and reasonable attorney’s fees; and j. Award such other and further relief as it deems equitable and just. VI. JURY DEMAND
Plaintiffs hereby request a trial by jury on all issues so triable.
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Respectfully submitted this the 23rd day of August, 2016.

/s/ Luke W. Goodrich Luke W. Goodrich DC Bar No. 977736 (N.D. Tex. admission pending) The Becket Fund for Religious Liberty 1200 New Hampshire Ave. NW Suite 700 Washington, DC 20036 (202) 955-0095 (202) 955-0090 lgoodrich@becketfund.org
Counsel for Plaintiffs Christian Medical & Dental Associations, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC

KEN PAXTON Attorney General of Texas
JEFFREY C. MATEER First Assistant Attorney General
BRANTLEY STARR Deputy First Assistant Attorney General
PRERAK SHAH Senior Counsel to the Attorney General
ANDREW D. LEONIE Associate Deputy Attorney General for Special Litigation
AUSTIN R. NIMOCKS Associate Deputy Attorney General for Special Litigation

/s/ Austin R. Nimocks AUSTIN R. NIMOCKS Texas Bar No. 24002695 Austin.Nimocks@texasattorneygeneral.gov

MICHAEL C. TOTH Senior Counsel for Special Litigation

Special Litigation Division P.O. Box 12548, Mail Code 009 Austin, Texas 78711-2548 (512) 936-1414

ATTORNEYS FOR PLAINTIFFS STATE OF TEXAS; STATE OF WISCONSIN; STATE OF NEBRASKA; COMMONWEALTH OF KENTUCKY, by and through Governor Matthew G. Bevin; and STATE OF KANSAS

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Franciscan Alliance, Inc. et al v. Burwell et al, Docket No. 7:16-cv-00108 (N.D. Tex. Aug 23, 2016), Court Docket
General Information

Court
Federal Nature of Suit Docket Number

United States District Court for the Northern District of Texas; United States District Court for the Northern District of Texas Other Statutory Actions[890] 7:16-cv-00108

© 2017 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 80

 
 Case 7:16-cv-00108-O Document 21 Filed 10/17/16 Page 1 of 87 PageID 269

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION

FRANCISCAN ALLIANCE, INC.; SPECIALTY PHYSICIANS OF ILLINOIS, LLC,; CHRISTIAN MEDICAL & DENTAL ASSOCIATIONS;

Civ. Action No. 7:16-cv-00108-O FIRST AMENDED COMPLAINT

- and -

STATE OF TEXAS; STATE OF WISCONSIN; STATE OF NEBRASKA; COMMONWEALTH OF KENTUCKY, by and through Governor Matthew G. Bevin; STATE OF KANSAS; STATE OF LOUISIANA; STATE OF ARIZONA; and STATE OF MISSISSIPPI, by and through Governor Phil Bryant,

Plaintiffs,

v.

SYLVIA BURWELL, Secretary of the United States Department of Health and Human Services; and UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Defendants.

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INTRODUCTION AND NATURE OF THE ACTION This lawsuit challenges a new Regulation (“Regulation” or “Rule”) issued by the Department of Health and Human Services (“HHS”) that seeks to override the medical judgment of healthcare professionals across the country. On pain of significant financial liability, the Regulation forces doctors to perform controversial and sometimes harmful medical procedures ostensibly designed to permanently change an individual’s sex—including the sex of children. Under the new Regulation, a doctor must perform these procedures even when they are contrary to the doctor’s medical judgment and could result in significant, long-term medical harm. Thus, the Regulation represents a radical invasion of the federal bureaucracy into a doctor’s medical judgment. HHS attempts to impose these dramatic new requirements by redefining a single word used in the Affordable Care Act: “sex.” For decades, across multiple federal statutes, Congress has consistently used the term “sex” to refer to an individual’s status as male or female, as determined by a person’s biological sex at birth. But in the Regulation, HHS redefines “sex” to include “an individual’s internal sense of gender, which may be male, female, neither, or a combination of male and female, and which may be different from an individual’s sex assigned at birth.” 45 C.F.R. § 92.4. Thus, with a single stroke of the pen, HHS has created a massive new liability for thousands of healthcare professionals unless they cast aside their medical judgment and perform controversial and even harmful medical transition procedures. And HHS has done this despite the fact that Congress has repeatedly rejected similar
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attempts to redefine “sex” through legislation, and federal courts have repeatedly rejected attempts to accomplish the same goal through litigation.
The Regulation not only forces healthcare professionals to violate their medical judgment, it also forces them to violate their deeply held religious beliefs. Plaintiffs include the Christian Medical & Dental Associations, which includes almost 18,000 healthcare professionals, and Franciscan Alliance, a network of religious hospitals founded by the Sisters of St. Francis of Perpetual Adoration. These religious organizations are deeply committed to the dignity of every human person, and their doctors care for everyone with joy and compassion. They eagerly provide comprehensive care to society’s most vulnerable populations, but their religious beliefs will not allow them to perform medical transition procedures that can be deeply harmful to their patients. Tragically, the Regulation would force them to violate those religious beliefs and perform harmful medical transition procedures or else suffer massive financial liability.
The Regulation also undermines the longstanding sovereign power of the States to regulate healthcare, ensure appropriate standards of medical judgment, and protect its citizens’ constitutional and civil rights. Under this Rule, States are now required to force all healthcare professionals at state-run facilities to participate in medical transition procedures (including hormone therapy, plastic surgery, hysterectomies, and gender reassignment surgery), and to cover those procedures in the States’ health insurance plans, even if a doctor believes such procedures are harmful to the patient. The Rule exposes the States to litigation by its employees and
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patients, despite the fact that neither Congress nor the States expressed any intent to waive the States’ sovereign immunity in this area. And the Rule threatens to strip the States of billions of dollars in federal healthcare funding—over $42.4 billion a year for Texas alone—jeopardizing the availability of healthcare for the nation’s most vulnerable citizens.
Ultimately, this case boils down to a very simple question of statutory interpretation: May HHS redefine the term “sex” to thwart decades of settled precedent and impose massive new obligations on healthcare professionals and sovereign States? The answer is “no,” and the new Regulation must be set aside as a violation of the Administrative Procedure Act and multiple other federal laws and constitutional provisions.
I. PARTIES 1. Texas has a significant role to play in regulating and protecting the integrity of the medical profession within its borders. Moreover, Texas zealously protects the physician-patient relationship through numerous laws and regulations ensure that physicians honor their duties to their patients and exercise appropriate medical judgment when treating patients under their care. Texas also employs thousands of healthcare employees through its constituent agencies. As an employer, generally, Texas provides health benefits to hundreds of thousands of its employees and their families through its constituent agencies. Moreover, Texas oversees and controls several agencies and healthcare facilities that receive federal funding subject to Title IX and the new Rule. Specifically, Texas operates healthcare facilities,
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programs, and schools of health education that receive federal funding administered by HHS. For example, North Texas State Hospital is a mental healthcare facility of the State of Texas and the largest state hospital in the Texas mental health system. It consists of two campuses in northern Texas. It provides psychiatric services for mentally ill persons and persons with mental illness and mental retardation throughout the North Texas area, as well as the entire State. The campus in Wichita Falls serves patients with mental illness and mental illness/mental retardation who have been screened and referred by their local mental health facility, and forensic psychiatric patients primarily referred for competency restoration. The Wichita Falls campus is also Medicare certified. The Vernon campus provides maximum security adult forensic psychiatric services to adults and secured forensic services to adolescents referred from throughout the State.
2. The Plaintiffs State of Wisconsin, State of Nebraska, State of Kansas, State of Louisiana, and State of Arizona are all similarly situated to Texas in that they also have promulgated laws and standards demonstrating their sovereign interest in the practice of medicine within their borders. They are also subject to Title VII as the employers of thousands of healthcare employees through their constituent agencies, oversee and control several agencies and healthcare facilities that receive federal funding subject to Title IX and the new Rule, and/or operate healthcare facilities, programs, and schools of health education that receive federal funding administered by HHS.
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3. Governor Matthew G. Bevin brings this suit on behalf of the Commonwealth of Kentucky pursuant to the Kentucky Constitution, which provides that the “supreme executive power” shall be vested in the Governor. KY. CONST. § 69. The Commonwealth of Kentucky is similarly situated to Texas and the other Plaintiff States in that it has promulgated laws and standards demonstrating its sovereign interest in the practice of medicine within their borders. It is also subject to Title VII as the employer of thousands of healthcare employees through its constituent agencies, oversees and controls several agencies and healthcare facilities that receive federal funding subject to Title IX and the new Rule, and/or operates healthcare facilities, programs, and schools of health education that receive federal funding administered by HHS.
4. Governor Phil Bryant brings this suit on behalf of the State of Mississippi pursuant to MISS. CODE ANN. § 7-1-33. Mississippi is similarly situated to Texas and the Plaintiff States in that it has promulgated laws and standards demonstrating its sovereign interest in the practice of medicine within their borders. It is also subject to Title VII as the employer of thousands of healthcare employees through its constituent agencies, oversees and controls several agencies and healthcare facilities that receive federal funding subject to Title IX and the new Rule, and/or operates healthcare facilities, programs, and schools of health education that receive federal funding administered by HHS.
5. Plaintiff the Christian Medical & Dental Society is an Illinois non-profit corporation doing business as the Christian Medical & Dental Associations. It brings
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this action on behalf of itself and its members. It has many members who will be subject to the Regulation because they receive federal funds, provide medical services that may be requested as part of a medical transition, and provide health coverage for employees.
6. The Franciscan Alliance (“Franciscan”) is a Roman Catholic nonprofit hospital system founded by a Roman Catholic order, the Sisters of St. Francis of Perpetual Adoration, and organized exclusively for charitable, religious, and scientific purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code. Franciscan is incorporated in Indiana, with its principal place of business in Mishawaka, Indiana.
7. The Sisters of St. Francis of Perpetual Adoration were themselves founded in 1863 by Mother Maria Theresia Bonzel in Olpe, Germany. Twelve years later, in 1875, Mother Theresia sent six Sisters to Lafayette, Indiana, to bring St. Francis of Assisi’s ministry of healthcare and education to the Midwest United States. The first hospital building served as both a convent and a hospital. Three weeks after their arrival, the Sisters admitted their first patient. They have continued their healthcare ministry ever since.
8. Franciscan is now one of the strongest health systems in the country. Franciscan provides approximately 900 million dollars in Medicare and Medicaid services annually to the poor, disabled, and elderly. Annually, it performs more than 4 million outpatient services and cares for more than 80,000 inpatients. Its major service locations have at least 2,900 beds and have a significant presence in their
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respective healthcare markets. Franciscan also receives annually approximately $300,000 in HHS grants.
9. Specialty Physicians of Illinois, LLC (“Specialty Physicians”) provide a myriad of physician specialist services in the South Suburban Chicago area. Specialty Physicians is a nonprofit Illinois limited liability company with its principal place of business in Chicago Heights, Illinois. Specialty Physicians is a member managed limited liability company, of which Franciscan is the sole member. Specialty Physicians is organized exclusively for charitable, religious, and scientific purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code. Specialty Physicians provides over $6 million dollars in Medicare and Medicaid services annually to the poor, disabled, and elderly. Annually, it performs approximately 90,000 outpatient services.
10. Defendants are appointed officials of the United States government and United States governmental agencies responsible for the issuance and implementation of the challenged Regulation.
11. Defendant Sylvia Burwell is the Secretary of the United States Department of Health and Human Services. She is sued in her official capacity only.
12. Defendant the United States Department of Health and Human Services is the agency that promulgated and now enforces the challenged Regulation.
II. JURISDICTION AND VENUE 13. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1361.
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14. Venue lies in this district pursuant to 28 U.S.C. § 1391. III. FACTUAL BACKGROUND
A. The Affordable Care Act and Related Federal Statutes. 15. In March 2010, Congress passed, and President Obama signed into law, the Patient Protection and Affordable Care Act, Pub. L. 111-148 (March 23, 2010), and the Health Care and Education Reconciliation Act, Pub. L. 111-152 (March 30, 2010), collectively known as the “Affordable Care Act” or “ACA.” 16. Section 1557 of the ACA states that no individual can be denied certain federally-funded health benefits because of the individual’s race, color, national origin, sex, age, or disability. 42 U.S.C.A. § 18116. Section 1557 does not add a new non-discrimination provision to the United States Code, but merely incorporates by reference pre-existing provisions under Title VI, Title IX, the Americans with Disabilities Act, and the Rehabilitation Act. Section 1557 does not independently define terms such as “sex.” Section 1557’s sole basis for prohibiting sex discrimination is based on its reference to Title IX, 20 U.S.C.A. § 1681 et seq. 17. Title IX does not apply to covered entities “controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization.” 20 U.S.C.A. § 1681. 18. Title IX also states that it cannot be “construed to require or prohibit any person, or public or private entity, to provide or pay for any benefit or service, including the use of facilities, related to an abortion.” 20 U.S.C.A. § 1688. 19. At the time that the ACA was enacted in 2010, no federal courts and no federal agencies had interpreted “sex” in Title IX to include gender identity.
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20. At the time that the ACA was enacted, and to this day, Congress has repeatedly rejected attempts to expand the term “sex” in Title IX. Lawmakers have also rejected multiple attempts to amend the Civil Rights Act to add the new categories of “sexual orientation” and “gender identity.” The first such attempt was in 1974, and there have been dozens of such attempts since then. All have failed.
21. The ACA states that “nothing in this title (or any amendment made by this title), shall be construed to require a qualified health plan to provide [abortion coverage] as part of its essential health benefits for any plan year.” 42 U.S.C.A. § 18023.
22. Federally-funded programs may not require an “individual to perform or assist in the performance of any sterilization procedure or abortion if his performance or assistance in the performance of such procedure or abortion would be contrary to his religious beliefs or moral convictions.” 42 U.S.C. § 300a-7(b). Congress has also mandated that “[n]o individual shall be required to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services if his performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions.” 42 U.S.C. § 300a-7(d).
B. The Regulation. 23. On September 8, 2015, HHS proposed a new rule to “interpret” Section 1557 of the Affordable Care Act (ACA), to extend Title IX’s definition of “sex” to
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include “gender identity,” “sex stereotypes,” and “termination of pregnancy,” among other things. 45 C.F.R. § 92.4.
24. The Rule was published as final May 18, 2016, and it expanded the definition of “gender identity” even further from the proposed definition to mean an individual’s “internal sense of gender, which may be male, female, neither, or a combination of male and female.” Id. HHS stated in the Rule that “gender identity spectrum includes an array of possible gender identities beyond male and female,” and individuals with “non-binary gender identities are protected under the rule.” Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31375, 31392, 31384 (May 18, 2016). HHS cited as authority the “Dear Colleague” letter issued jointly by the Department of Education (DOE) and Department of Justice (DOJ) just five days earlier.1
25. The Rule also defines “sex” to include discrimination based upon “termination of pregnancy” in covered programs. HHS declined to add an explicit carve-out for abortion and abortion-related services parallel to the carve-out included in Title IX; it merely noted the existence of conscience protections in federal law and ACA limitations on requirement for abortion coverage. Id. at 31388.
26. This new Regulation applies to any entities or individuals that operate, offer, or contract for health programs and activities that receive any Federal financial
1 U.S. Dep’t of Justice & U.S. Dep’t of Educ., Dear Colleague Letter, May 13, 2016, http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ixtransgender.pdf.
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assistance from HHS.2 In light of this sweeping application, HHS has estimated the Rule will “likely cover[] almost all licensed physicians because they accept Federal financial assistance,” including payments from Medicare and Medicaid.3 Other observers have estimated that the Rule will apply “to over 133,000 (virtually all) hospitals, nursing homes, home health agencies, and similar provider facilities, about 445,000 clinical laboratories, 1,200 community health centers, 171 health-related schools, state Medicaid and CHIP programs, state public health agencies, federally facilitated and state-based marketplaces, at least 180 health insurers that market policies through the FFM and state-based marketplaces, and up to 900,000 physicians.”4
27. The new Rule requires covered entities to provide health programs or activities in accordance with HHS’s expansive and unwarranted definition of “sex.” This includes a number of new requirements.
1. Healthcare professionals must perform or refer for medical transition procedures.
28. The Rule requires covered employers, and their healthcare providers and professionals, to perform (or refer for) medical transition procedures (such as
2 45 C.F.R. § 92.4. 3 80 Fed. Reg. 54171, 54195 (proposed Sept. 8, 2015); 81 Fed. Reg. at 31445. 4 Timothy Jost, Implementing Health Reform: HHS Proposes Rule Implementing Anti-Discrimination ACA Provisions (Contraceptive Coverage Litigation Update), Health Affairs Blog (Sept. 4, 2015), http://healthaffairs.org/blog/2015/09/04/ implementing-health-reform-hhs-proposes-rule-implementing-anti-discriminationaca-provisions/.
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hysterectomies, mastectomies, hormone treatments, plastic surgery, etc.), if a physician or healthcare provider offers analogous services in other contexts. For example, in the preamble, HHS stated, “A provider specializing in gynecological services that previously declined to provide a medically necessary hysterectomy for a transgender man would have to revise its policy to provide the procedure for transgender individuals in the same manner it provides the procedure for other individuals.”5 HHS explained that a hysterectomy in this medical transition context would be “medically necessary to treat gender dysphoria,”6 thereby declaring medical necessity, benefit, and prudence as a matter of federal law, and without regard to the opinions, judgment, and conscientious considerations of the many medical professionals that hold views to the contrary.
29. There is widespread, well-documented debate about the medical risks and ethics associated with various medical transition procedures, even within the transgender community itself. In fact, HHS’s own medical experts recently wrote, “Based on a thorough review of the clinical evidence available at this time, there is not enough evidence to determine whether gender reassignment surgery improves health outcomes for Medicare beneficiaries with gender dysphoria.”7 The evidence showed that “[t]here were conflicting (inconsistent) study results—of the best
5 81 Fed. Reg. at 31455. 6 Id. at 31429. 7 Centers for Medicare & Medicaid Services, Proposed Decision Memo for Gender Dysphoria and Gender Reassignment Surgery (June 2, 2016).
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designed studies, some reported benefits while others reported harms.”8 Yet the new Rule attempts to preempt the serious medical and moral debate about gender transition procedures by concluding in the context of physicians offering “health services” that a “categorization of all transition-related treatment . . . as experimental, is outdated and not based on current standards of care.”9 The Regulation also improperly preempts the prerogative of the States not only to regulate the healing professions, but also to maintain standards of care that rely upon the medical judgment of health professionals as to what is in the best interests of their patients.
30. Furthermore, a number of commenters requested that HHS make clear that health services need only be covered if they are deemed to be “medically necessary” or “medically appropriate” in the professional opinion of those charged with the care of the patient at issue. But HHS refused to make this clarification, stating that some procedures “related to gender transition” may be required even if they were not “strictly identified as medically necessary or appropriate.”10 Thus, under the Regulation, if a doctor would perform a mastectomy as part of a medicallynecessary treatment for breast cancer, it would be illegal for the same doctor to decline to perform a mastectomy for a medical transition, even if the doctor believed that removing healthy breast tissue was contrary to the patient’s medical interest.
8 Id. (emphasis added). 9 81 Fed. Reg. at 31435; see also id. at 31429. 10 Id.
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31. Because Plaintiffs provide hysterectomies to patients diagnosed with uterine cancer, the Regulations would simultaneously force them to provide a hysterectomy (and remove an otherwise healthy uterus) for a medical transition, notwithstanding the serious potential harm to the patient. Elective hysterectomies increase a number of health risks for the patient. Moreover, such a procedure also renders an individual permanently sterile. Nevertheless, the Regulations would require Plaintiffs to perform that procedure even when they believed it was not in the best interests of the patient. Such a standard turns the venerable medical oath to “do no harm” on its head.
32. And while Plaintiffs such as Franciscan provide hormone treatments to patients for medical reasons, these health professionals have serious medical and religious concerns with offering hormone treatment for a medical transition.
2. Healthcare facilities and professionals must alter their speech and medical advice.
33. As discussed above, HHS has concluded, in the context of physicians offering “health services,” that a “categorization of all transition-related treatment . . . as experimental, is outdated and not based on current standards of care.”11 In so doing, HHS has seriously curbed a physician’s ability to offer a contrary view, even if such a view is based on the physician’s professional training and best medical judgment. This Regulation would thus force healthcare providers to alter speech and medical advice to comply with the Rule.
11 Id.
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34. Under the Rule, HHS would compel the speech of healthcare professionals in several ways. For example, the Rule mandates revisions to healthcare professionals’ written policies, requiring express affirmance that transition-related procedures will be provided,12 even if such revisions do not reflect the medical judgment, values, or beliefs of the individuals or organizations. Second, it requires physicians to use gender-transition affirming language in all situations regardless of circumstance, and provides as just one example the requirement that medical providers use “a transgender individual’s preferred name and pronoun.”13 HHS also relies upon a transgender medical guidance document stating that “Mental health professionals should not impose a binary view of gender.”14 Thus, to avoid facing liability for being discriminatory under the proposed rule, healthcare professionals are compelled to speak by revising their policy to endorse transitionrelated services, to express language that is affirming of gender transition, and to express and explore a view of gender that is not binary. Further, by treating as discriminatory a medical view of “transition-related treatment . . . as experimental,”15 HHS is coercing medical professionals like Plaintiffs to speak about these procedures the way the government wants them to, even though they disagree, and even though
12 Id. at 31455. 13 Id. at 31406. 14 Id. at 31435 n.263 (citing World Professional Association for Transgender Health (WPATH), Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People at 16 (7th ed. 2012)). 15 81 Fed. Reg. at 31435.
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they believe they are disserving their patients by concealing the information the government wants concealed.
3. Certain employers and insurance providers must offer employee benefits covering medical transition procedures.
35. The Regulation prohibits certain employers, health programs, or insurance plans from exercising judgment as to what they cover. HHS stated, “[A]n explicit, categorical (or automatic) exclusion or limitation of coverage for all health services related to gender transition is unlawful on its face.”16
36. For example, if a doctor concludes that a hysterectomy “is medically necessary to treat gender dysphoria,” the patient’s employer or insurance plan would be required to cover the procedure on the same basis that it would cover it for other conditions (like cancer).17 HHS also stated that the “range of transition-related services, which includes treatment for gender dysphoria, is not limited to surgical treatments and may include, but is not limited to, services such as hormone therapy and psychotherapy, which may occur over the lifetime of the individual.”18 As such, coverage is required under the new Rule notwithstanding the rights of employers that only offer employee health benefits consistent with the religious beliefs and values of their organization.
16 Id. at 31429. 17 Id. 18 Id. at 31435-36.
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37. This conflict with religious or otherwise conscientious employers extends beyond treatment surrounding gender dysphoria, because some required procedures (such as elective hysterectomies) result in sterilization, and the new Rule also extends to “termination of pregnancy.” 45 C.F.R. § 92.4. Although HHS states that laws protecting religious objections to abortion (or “termination of pregnancy”) will apply, HHS recently approved California forcing all insurers to include abortion coverage, even for objecting religious institutions. And HHS could have included, but explicitly chose to exclude, a clear regulatory carve-out for services related to abortion that parallels the carve-out in Title IX.
38. This health benefit requirement of the new Rule applies to any of the following types of employers who receive HHS funding: 1) any entity principally involved in providing or administering health services (including hospitals, nursing homes, counseling centers, physicians’ offices, etc.), 2) any type of employer who receives HHS funding for the primary purpose of funding an “employee health benefit program,” or 3) any entity such as a university with a health training or research program that receives Federal financial assistance—including student Pell grants— for that “health program or activity.”19
39. Thus, employers who have always offered employee health benefits that reflect their religious or conscientious beliefs, and excluded medical transition procedures from employee benefits, will now be considered discriminatory under the Regulation.
19 Id. at 31472, 45 C.F.R. § 92.208; see also 81 Fed. Reg. at 31437.
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4. Sex-specific healthcare facilities or programs, including shower facilities or hospital wards, must be opened to individuals based on gender identity.
40. With regard to facilities, the new Rule states that even for sex-specific facilities such as “shower facilities” offered by healthcare providers, individuals may not be excluded “based on their gender identity.”20
41. When Title IX—the foundation for the new Rule—was enacted, Congress was significantly concerned about protecting and preserving the privacy rights of individuals in intimate areas. See 20 U.S.C. § 1686, 117 Cong. Rec. 30407 (1971), 117 Cong. Rec. 39260 (1971), 117 Cong. Rec. 39263 (1971), and 118 Cong. Rec. 5807 (1972). And the predecessor agency of HHS, the Department of Health, Education, and Welfare (HEW), promulgated regulations guaranteeing the privacy of individuals in intimate areas. See 34 C.F.R. § 106.32(b); 34 C.F.R. § 106.33 (“A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex . . . .”). Yet, HHS wholly disregarded any “legal right to privacy” that could be violated “simply by permitting another person access to a sex-specific program or facility which corresponds to their gender identity.”21
42. With regard to other health programs, HHS stated that sex-specific health programs or activities are allowable only where the covered entity can demonstrate an exceedingly persuasive justification, i.e., that the sex-specific program is substantially related to the achievement of an important health-related
20 81 Fed. Reg. at 31409. 21 Id. at 31389, 31409.
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or scientific objective. HHS stated that it “will expect a covered entity to supply objective evidence, and empirical data if available, to justify the need to restrict participation in the program to only one sex,” and in “no case will [HHS] accept a justification that relies on overly broad generalizations about the sexes.”22
5. Covered entities must provide assurances of compliance and post notices of compliance.
43. Through HHS-690 Form, which now references Section 1557, a covered entity seeking federal financial assistance must now certify, in relevant part, that “no person in the United States shall, on the ground of race, color, national origin, sex, age, or disability be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any health program or activity for which the Applicant receives Federal financial assistance from the Department.”23
44. The Rule will require covered entities to post notices regarding compliance with the Rule in conspicuous locations by October 16, 2016 (90 days from the effective date). HHS provided a sample notice in Appendix A to the new Rule, which states in relevant part that the covered entity “does not exclude people or treat them differently because of race, color, national origin, age, disability, or sex.”24
22 Id. at 31409. 23 HHS, Assurance of Compliance, https://www.hhs.gov/sites/default/files/hhs690.pdf. 24 Id. at 31472, 45 C.F.R. § 92, App. A, https://www.federalregister.gov/articles/ 2016/05/18/2016-11458/nondiscrimination-in-health-programs-and-activities#h-139.
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6. Enforcement Mechanisms and Remedial Measures. 45. Covered entities are required to record and submit compliance reports to HHS’s Office of Civil Rights (“OCR”) upon request.25 46. Covered entities that are found to violate the Regulation may lose their federal funding, be barred from doing business with the government, or risk false claims liability.26 47. Covered entities are subject to enforcement proceedings by the Department of Justice.27 48. Covered entities are also subject to individual lawsuits from patients who believe the covered entity has violated the new Rule.28
7. No Religious Exemption. 49. Section 1557 does not independently prohibit discrimination on the basis of sex. Instead, Congress specifically invoked Title IX, 20 U.S.C.A. § 1681 et seq., which includes both a ban on sex discrimination and a generous carve-out for religious organizations. In this Regulation interpreting Section 1557, however, HHS
25 81 Fed. Reg. at 31439, 31472, 45 C.F.R. § 92.301. 26 81 Fed. Reg. at 31472, 45 C.F.R. § 92.301 (“The enforcement mechanisms available for and provided under Title VI of the Civil Rights Act of 1964 . . . shall apply for purposes of Section 1557.”) 27 81 Fed. Reg. at 31440. 28 Id. at 31472, 45 C.F.R. § 92.301.
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has “interpreted” Congress’s reference to Title IX to include the ban, but not the religious exemption.
50. Although HHS was asked to include a religious exemption in the Regulation due to the obvious implications for religious healthcare providers, HHS declined to do so, stating instead that religious objectors could assert claims under existing statutory protections for religious freedom.29 HHS also failed to provide any mechanism by which a religious entity could determine if it was entitled to any existing religious protections under the law. HHS’s refusal to protect the conscience rights (or even medical judgment) of physicians is striking when compared to federal policy in other areas. For example, a recent TRICARE guidance memo states in the context of medical gender dysphoria treatment, “In no circumstance will a provider be required to deliver care that he or she feels unprepared to provide either by lack of clinical skill or due to ethical, moral, or religious beliefs.”30
C. The New Rule’s Impact on States. 51. The new Regulation runs headlong into established standards of medical care, usurps the States’ legitimate authority over its medical facilities, and makes it impossible for States to comply with conflicting federal law, among other harms.
29 81 Fed. Reg. at 31376. 30 Memorandum from Karen S. Guice, Acting Assistant Sec’y of Defense to Assistant Sec’y of the Army, et al., Subject: Guidance for Treatment of Gender Dysphoria for Active and Reserve Component Service Members (July 29, 2016).
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1. Standard of Care. 52. “[T]he State has a significant role to play in regulating the medical profession, Gonzales v. Carhart, 550 U.S. 124, 157 (2007), as well as “an interest in protecting the integrity and ethics of the medical profession.” Washington v. Glucksberg, 521 U.S. 702, 731 (1997). This includes “maintaining high standards of professional conduct” in the practice of medicine. Barsky v. Bd. of Regents of Univ. of N. Y., 347 U.S. 442, 451 (1954). 53. For example, Texas zealously protects the physician-patient relationship. Numerous Texas laws and regulations ensure that physicians honor their duties to their patients. The statewide standard of medical practice rests on the principle that Texas doctors must exercise “independent medical judgment” when treating patients under their care. See, e.g., Murk v. Scheele, 120 S.W.3d 865, 867 (Tex. 2003) (per curiam). 54. Amid increasing consolidation in the healthcare industry caused by the ACA, the Texas Legislature redoubled its longstanding commitment to physicianpatient autonomy. See Garcia v. Tex. State Bd. of Med. Exam’rs, 384 F. Supp. 434, 439 (W.D. Tex. 1974) (upholding regulations designed to preserve the “vitally important doctor-patient relationship”). In 2011, the Legislature prohibited medical organizations from interfering with, controlling, or directing “a physician’s professional judgment,” Tex. Occ. Code § 162.0021, and it mandated that they permit physicians to exercise “independent medical judgment when providing care to patients,” Id. § 162.0022.
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55. In furtherance of these objectives, Texas hospitals must appoint a chief medical officer to supervise “all matters relating to the practice of medicine.” Tex. Health & Safety Code § 311.083. The chief medical officer is responsible for adopting policies to ensure that physicians have the ability to exercise independent medical judgment. Id. This officer must report to the Texas Medical Board (“TMB”)—the executive agency responsible for regulating the practice of medicine in Texas—any action or event that constitutes a compromise of the independent medical judgment of a physician in caring for a patient. Id.
56. TMB has reaffirmed the standard of practice provided through its rulemaking authority. TMB regulations provide that doctors retain “independent medical judgment and discretion in providing and supervising care to patients,” and may not be disciplined for “reasonably advocating for patient care.” 22 Tex. Admin. Code § 177.5. In addition, they reserve important decisions concerning quality assurance, the medical necessity of treatment, credentialing and peer review to the physician-only boards that direct health organizations. Id. §§ 177.3, 177.5.
57. Every person should be treated with dignity and respect, especially when in need of medical attention. The standard of care established in Texas, and around the country, enables patients to obtain quality healthcare as determined by medical professionals, and not those outside the doctor-patient relationship. The Regulation, however, usurps this standard of care. It discards independent medical judgment and a physician’s duty to his or her patient’s permanent well-being and replaces them with rigid commands.
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58. The Regulation will force physicians who accept Medicare and Medicaid payments and who operate, offer, or contract for health programs and activities that receive Federal financial assistance to subject their patients to procedures that permanently alter or remove well-functioning organs, even though the physicians’ independent medical judgment advises against such a course of action. And beyond compelling physicians to act against their medical judgment, the Regulation requires them to express opinions contrary to what they deem to be in the patient’s best interest or to avoid even describing medical transition procedures as risky or experimental. Yet, physicians are “under a duty to make reasonable disclosure of that diagnosis, and risk of the proposed treatment . . ., as would have been made by a reasonable medical practitioner under the circumstances.” Jacobs v. Theimer, 519 S.W.2d 846, 848 (Tex. 1975) (citing Wilson v. Scott, 412 S.W.2d 299 (Tex. 1967); W. M. Moldoff, Annotation, Malpractice: physician's duty to inform patient of nature and hazards of disease or treatment, 79 A.L.R.2d 1028 (1961)). Patients deserve better— and are treated more humanely—under State law.
2. Control over Facilities. 59. Every State provides healthcare services directly to citizens through various mechanisms of government. Texas, for example, provides health services directly to patients through the Health and Human Services Commission (“HHSC”). Tex. Gov’t Code § 531.0055; Tex. Health & Safety Code § 12.0115. HHSC superintends operations and resource allocation at many healthcare facilities, which
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are owned by Texas and receive federal funding administered by HHS, Tex. Gov’t Code §§ 531.008, 531.0055, including the North Texas State Hospital.
60. These covered entities, which exist across the country, will now be covered under the Regulation with respect to “all of the operations” of such entities. Thus, these entities will have to offer all manner of (and referrals for) medical transition procedures and treatments. As a result, Texas and other States will be forced to allocate personnel, resources, and facility spaces to offer and accommodate the myriad medical transition procedures now required to be performed under the new Rule. Healthcare facilities will also be required to open up sex-separated showers, locker rooms, or other facilities based on individual preference. This is true even in controlled medical locations where patient access to intimate facilities is often under the control of healthcare professionals that are supposed to act in the best interests of the patient. Thus, the requirements of the new Rule amount to a substantial interference in the control that Texas and other States legitimately exercise over their healthcare facilities.
3. Conflicting Federal Law. 61. Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employment discrimination based on religion. 42 U.S.C. § 2000e-2. To comply with Title VII, employers must reasonably accommodate an employee’s religious belief, observance, or practice unless such accommodation imposes an undue hardship on the employer’s business. Id. at § 2000e-1; EEOC v. Abercrombie & Fitch Stores, Inc.,
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135 S. Ct. 2028, 2032 (2015) (providing that Title VII requires reasonable religious accommodations).
62. But the Regulation in many circumstances makes such accommodation illegal, placing employers between a legal Scylla and Charybdis. On the one hand, employers are required under Title VII to reasonably accommodate their employees’ religious and conscientious objections. On the other hand, the Regulation requires medical employers to provide (or refer for) medical transition procedures even when doing so would violate the religious or conscientious objections or concerns of its employees. HHS refused to affirm the principles of religious accommodation in its new Rule even when asked to do so. Thus, it forces employers, like Texas and the North Texas State Hospital, to choose between violating the Regulation or violating Title VII.
4. Additional Harms. 63. The Regulation is costly and burdensome on Texas and other States for a variety of additional reasons, to wit: 64. Texas and other States operate as employers that offer covered health benefits to hundreds of thousands of its employees and their families through its constituent agencies. The new Rule will require Texas and other States to provide insurance coverage for medical transition procedures. 65. The new Rule also purports to require Texas and other States to provide abortion coverage through its employee health benefits. HHS states that a State’s Medicaid program constitutes a covered “health program or activity” under the Rule.
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Thus, “the State will be governed by Section 1557 in the provision of employee health benefits for its Medicaid employees.” 81 Fed. Reg. at 31437. Texas and other States will also have to offer these types of employee benefits to employees at other statecontrolled healthcare entities.
66. The exclusions Texas and other States currently possess in their employee insurance policies related to pregnancy termination and medical transition procedures will now be illegal under the new Rule. As a result, Texas and other States will be required to change their insurance coverage.31
67. In order to receive federal healthcare funding, Texas and other States must submit assurances, notices of compliance, and other information, demonstrating that their health programs and activities satisfy the requirements imposed by the Regulation. 81 Fed. Reg. at 31392, 31442.
68. The costs of personnel training will be significant, even by HHS’s very modest estimates. HHS estimates that 7,637,306 state workers will need to receive training under the new Rule, and that the cost of this training in the first two years of implementation alone will be $17.8 million.
69. The penalties for noncompliance are so severe as to make the Regulation coercive. Texas, as an example, faces the loss of over $42.4 billion a year in healthcare
31 Texas and other States do not provide health coverage to their employees for the termination of a pregnancy, absent certain medically compelled circumstances. See, e.g., HealthSelect of Texas, Master Benefit Plan Document, at pp. 87–88 (effective Jan. 1, 2016), http://healthselectoftexas.welcometouhc.com/ assets/pdf/HS%20In-Area%201-2016%20MBPD%20Revised%20FINAL.pdf.
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funding to serve its most vulnerable citizens.32 For example, “the Medicaid program pays for more than half of all births in Texas, a cost that otherwise would be shouldered primarily at the local and provider level,” and “the Emergency Medicaid program pays for the emergency conditions of indigent noncitizens (undocumented immigrants and LPRs) who meet all Medicaid eligibility criteria other than citizenship.”33
70. Finally, the new Rule could subject Texas and other States to private lawsuits for damages and attorney’s fees, even though Texas and other States did not and could not have known or consented to this waiver of their sovereign immunity.
D. The effect on the Christian Medical & Dental Association. 71. Founded in 1931, and with a current membership of almost 18,000, the Christian Medical & Dental Association (“CMDA”) provides a variety of programs and services supporting its mission to “change hearts in healthcare.” It furthers this mission by promoting positions and addressing policies on healthcare issues; serving others through overseas medical mission projects; coordinating a network of Christian healthcare professionals for fellowship and professional growth; sponsoring student ministries in medical and dental schools; distributing educational resources; providing continuing education for doctors serving missions in developing countries;
32 Tex. Health and Human Servs. Comm’n, Texas Medicaid and CHIP in Perspective 8-9 (10th ed. 2015), http://www.hhsc.state.tx.us/medicaid/about/PB/ PinkBook.pdf.
33 Tex. Health and Human Servs. Comm’n & Tex. Dep’t of Ins., Impact on Texas If Medicaid Is Eliminated 20 (2009), http://www.hhsc.state.tx.us/hb497_122010.pdf.
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and conducting academic exchange programs overseas. Its members sign a statement of faith to join CMDA and allow CMDA to serve as a voice for membership values. One of the major benefits of CMDA membership is its ethical guidance for health care professionals and its advocacy on behalf of its members’ religious beliefs and medical judgments.
72. One of CMDA’s key priorities is to act as a voice of its Members in the public square. In doing so, CMDA does for its members what they are sometimes unable to do alone, whether because of restrictions in healthcare practice or otherwise. CMDA is able to unite the voice of members on important issues.
73. On the issue of sexual identity, CMDA’s National Convention recently adopted an Ethics Statement that was approved by its House of Delegates unanimously.34 In this Statement, CMDA “affirms the obligation of Christian healthcare professionals to care for patients struggling with gender identity with sensitivity and compassion.” The Statement also makes clear that “attempts to alter gender surgically or hormonally for psychological indications, however, are medically inappropriate,” and “CMDA opposes medical assistance with gender transition” for a number of medical, ethical, and religious reasons.
74. Regarding medical concerns, the Statement observes that “[h]ormones prescribed to a previously biologically healthy child for the purpose of blocking puberty inhibit normal growth and fertility. Continuation of cross-sex hormones, such
34 Christian Medical & Dental Associations, Transgender Identification Ethics Statement, https://cmda.org/resources/publication/transgender-identificationethics-statement (last visited Aug. 22, 2016).
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as estrogen and testosterone, during adolescence is associated with increased health risks including, but not limited to, high blood pressure, blood clots, stroke, and some types of cancer.” In addition, “Although current medical evidence is incomplete and open to various interpretations, some studies suggest that surgical alteration of sex characteristics has uncertain and potentially harmful psychological effects and can mask or exacerbate deeper psychological problems.” Furthermore, “Many diseases affect men and women differently, according to biological sex phenotype. Transgender designations may conceal biological sex differences relevant to medical risk factors, recognition of which is important for effective healthcare and disease prevention.” Finally, “[w]hereas treatment of anatomically anomalous sexual phenotypes is restorative, interventions to alter normal sexual anatomy to conform to transgender desires are disruptive to health.”
75. Regarding ethical concerns, the CMDA Ethics Statement observes that “CMDA is especially concerned about the increasing phenomenon of parents of children who question their gender intervening hormonally to inhibit normal adolescent development. Children lack the developmental cognitive capacity to assent or request such interventions, which have lifelong physical, psychological, and social consequences.” Thus, CMDA states that “prescribing hormonal treatments to children or adolescents to disrupt normal sexual development for the purpose of gender reassignment is ethically impermissible, whether requested by the child or the parent.” Id.
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76. In its Ethics Statement, CMDA expresses concern “that efforts to compel healthcare professionals to affirm transgender ideology, provide medical legitimization for transgender psychology, or cooperate with requests for medical or surgical sex reassignment threaten professional integrity.” In addition, CMDA is concerned “that efforts to impose transgender ideology on all society by excluding, suppressing, marginalizing, intimidating, or portraying as hateful those individuals and organizations which, on scientific, moral, or religious grounds, reasonably disagree, are contrary to the freedoms of speech and religious liberty that lie at the very foundation of a just and democratic society.” Id.
77. As a result of medical, ethical, and religious concerns, “CMDA affirms that healthcare professionals should not be coerced or mandated to provide or refer for services that they believe to be morally wrong or harmful to patients.” CMDA also makes clear that “[t]o decline to provide a requested gender-altering treatment that is harmful or is not medically indicated does not constitute unjust discrimination against persons.” Id.
78. Many of CMDA’s members will be impacted by this Rule, both based on their ability to engage in speech advising patients of their medical judgment with regard to gender transition procedures, as well as to avoid being forced to offer services or facilities in furtherance of gender transitions.
79. CMDA has members who object to participation in medical transitions and who provide services such as hysterectomies, breast reconstruction, and hormone
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therapy for other medical reasons. Those members would be required to provide those services as part of a medical transition procedure under the Regulation.
80. CMDA has members who currently provide healthcare coverage for employees, coverage which excludes medical transition procedures. Those members will be impacted by the Regulation. CMDA also has an Ethics Statement on moral complicity, stating that just as its members “strive to never commit” certain conduct themselves, they also should not “participate in or encourage” such conduct with “others.” The document also states that moral complicity “may involve enabling or facilitating future immoral actions of patients or professionals.” Thus, CMDA members have religious objections to providing insurance coverage for objectionable services.
81. CMDA has members who have treated or currently treat transgender individuals, and who may be liable for failure to provide or refer for medical transition procedures. Their ability to discuss their medical opinions with their patients and offer medical advice freely has been chilled by this Regulation.
82. CMDA’s House of Delegates has also passed an Ethics Statement on abortion. That document states: “We oppose the practice of abortion and urge the active development and employment of alternatives.”
83. CMDA has members who object to participation in abortion, but who provide services such as a dilation and curettage in other circumstances, such as to prevent infection after a miscarriage. Those members might be required to assist with an abortion under the Regulation.
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84. CMDA has members who currently provide healthcare coverage for employees, coverage which excludes medical transition procedures. Those members will be impacted by the Regulation to the extent it requires them to provide insurance coverage for these procedures, or for abortion or sterilization.
E. The Effect on Franciscan Alliance. 85. Since its founding over 140 years ago, Franciscan Alliance has remained fully committed to continuing the ministry of Jesus Christ through healthcare. Each of Franciscan’s hospitals provides resources to accommodate the spiritual needs of employees, patients, and their families. For instance, St. Anthony’s hospital at Crown Point administers sacraments daily upon request, provides daily Mass, and maintains 24-hour access to the Corpus Christi Chapel to provide a sacred space for individuals of all faiths to pray and meditate. Franciscan’s hospital in Munster, Indiana, provides spiritual care staff to visit with all newly admitted patients, offers opportunities for prayer and spiritual support, and maintains a Franciscan priest on staff for Catholic patients and staff who wish to participate in Catholic Mass or receive the sacraments of Holy Communion, Reconciliation, or Anointing of the Sick. 86. Franciscan serves and respects individuals of all faith communities, seeking to ensure that patients and their families can access the resources of their own faith traditions to assist in the healing and recovery process, and to make critical decisions about matters such as end-of-life care and clinical ethics.
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87. Franciscan’s infusion of faith into healthcare is not limited to spiritual
support. All of Franciscan’s healthcare services, and all of Franciscan’s physicians
and employees, follow the values of the Sisters of St. Francis.
88. These values include: x Respect for life: treating each person with respect, dignity, fairness, and compassion so that each person is consciously aware of being loved. x Fidelity to Franciscan’s mission: in the tradition of St. Francis of Assisi, bringing Christ’s ministry of healing care to each patient, coworker, and hospital visitor. x Compassionate concern: caring for the welfare of patients, especially the aged, the poor, and the disabled.
x Christian stewardship: providing a just and fair allocation of human,
spiritual, physical, and financial resources in a manner that respects the individual, serves society’s needs, and follows the teaching of the Church. 89. In accordance with these values, all Franciscan facilities are operated
in a manner that abides by The Ethical and Religious Directives for Catholic
Healthcare Services, as promulgated by the United States Conference of Catholic
Bishops and interpreted by the local Bishop.
90. Franciscan strives to provide top-quality care to its patients. Its
facilities have earned designations as Centers of Excellence, Five-Star Awards, and
top state and national rankings. In December of 2011, Franciscan was selected by
the Center for Medicare & Medicaid Services (“CMS”) as one of thirty-two Pioneer
Accountable Care Organizations (“ACOs”). ACOs are groups of doctors, hospitals,
and other healthcare providers who work together voluntarily to give coordinated,
high-quality care to their Medicare patients. The goal of the program is to ensure
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patients get timely, accurate care while preventing medical errors and unnecessary duplicative services. The 2014 Quality Performance Report by CMS showed Franciscan placing in the top 6 for quality scores among all Pioneer ACOs.
91. One of Franciscan’s specialties is in Women’s and Children’s healthcare, a specialty which Franciscan advances in part by its Spirit of Women program. The program provides innovative clinical care, education, and wellness services.
92. Franciscan provides a wide variety of services specifically for women, such as obstetrics and gynecology services, hysterectomies, hormone treatments, and reconstructive surgery.
93. Franciscan is also affiliated with pediatric providers. 94. This new Rule will impact Franciscan by 1) requiring Franciscan to offer medical services that violate its best medical judgment and religious beliefs, and 2) requiring Franciscan to provide insurance coverage for services that violate its religious beliefs.
1. Compulsory Medical Services. 95. Franciscan provides all of its standard medical services to every individual who needs and qualifies for its care, including to individuals who identify as transgender. Thus, for instance, if a transgender individual required cardiac care, Franciscan would provide the same full spectrum of compassionate care for that individual as it provides for every other cardiac patient. And, just as it does for
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every other cardiac patient, Franciscan would appropriately tailor that care to the biologically sex-specific health needs of the patient.
96. But Franciscan holds religious beliefs that sexual identity is an objective fact rooted in nature as male or female persons. Like the Catholic Church it serves, Franciscan believes that a person’s sex is ascertained biologically, and not by one’s beliefs, desires, or feelings. Franciscan believes that part of the image of God is an organic part of every man and woman, and that women and men reflect God’s image in unique, and uniquely dignified, ways. Franciscan does not believe that government has either the power or the authority to redefine sex.
97. Further, in its professional medical judgment, Franciscan believes that optimal patient care—including in patient education, diagnosis, and treatment— requires taking account of the biological differences between men and women. For instance, optimal prevention of and treatment for heart disease in women requires monitoring for different warning signs, accounting for different risk factors, and providing different counseling than it would for men. Part of the success of Franciscan’s award-winning heart-health treatment program is driven by its recognition that women have unique biological composition and health needs that require different diagnosis and treatment than men.
98. In Franciscan’s best medical judgment, providing or assisting with gender transition services is not in keeping with the best interests of its patients. Franciscan does not offer the full continuum of care related to gender transition
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procedures, and thus would not be able to provide ideal care to patients seeking that care.
99. Providing such services would also substantially burden the religious exercise of Franciscan.
100. Accordingly, after careful review of this issue, Franciscan developed the following policy entitled the Sex Reassignment Interventions Policy: “Sexual reassignment interventions require a complex set of psychological, psychiatric and ancillary care services that are not available at Franciscan facilities. Therefore, it would be medically imprudent to perform or otherwise facilitate any clinical interventions addressing sexual re-assignment needs. To provide or otherwise facilitate these services would also violate our deeply held religious beliefs.”
101. Franciscan employs physicians who offer endocrinology hormone services, hysterectomies, mastectomies, and psychiatric support. The new Rule would force Franciscan to offer these services as part of a medical transition, which would violate both Franciscan’s best medical judgment and its religious beliefs.
102. Some of the procedures required under the Rule, including hysterectomies for gender transition, would result in the sterilization of the patient. Since Franciscan does not believe such a hysterectomy is medically necessary, being forced to provide such a sterilization procedure would violate Franciscan’s best medical judgment and religious beliefs.
103. The Rule also prohibits discrimination on the basis of “termination of pregnancy.” Franciscan performs surgical procedures for women who have
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miscarried a baby, such as dilation and curettage procedures. However, Franciscan would be unwilling to offer the same service if the goal of the procedure was to terminate a pregnancy. The Rule pressures Franciscan to provide abortion-related procedures in violation of Franciscan’s best medical judgment and religious beliefs.
2. Required Insurance Coverage. 104. Franciscan has over 17,000 employees, over 500 of which are physicians. Approximately 15,000 of these employees are eligible for health insurance benefits from Franciscan. 105. Franciscan has a health benefits plan that is administered by a third party administrator. 106. In accordance with Franciscan’s religious beliefs, Franciscan’s employee health benefit plan specifically excludes coverage for:
x any “[t]reatment, drugs, medicines, services, and supplies related to gender transition”;
x Sterilizations; x Abortions. 107. Franciscan sincerely believes that providing insurance coverage for gender transition, sterilization, and abortion would constitute impermissible material cooperation with evil. 108. Franciscan must now choose between (a) following its faith and its best medical judgment, or (b) following the Regulation. If it follows its faith and its medical judgment, Franciscan will be subject to lawsuits and penalties. Most significantly, Franciscan annually provides approximately 900 million dollars in
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Medicare and Medicaid services to the poor, disabled, and elderly, and it also receives approximately $300,000 in HHS grants. If Franciscan refuses to both deny its faith and lower its standard of care, it risks losing that funding and suffering a corresponding severe reduction in its capacity to carry out its religious mission to serve the poor, disabled, and elderly.
109. The Regulation also makes it more expensive for Franciscan to do business with its third party administrator. The Regulation subjects the third party administrator to potential liability for administering Franciscan’s religious health plan, and thus Franciscan will be forced to indemnify its third party administrator from this liability. This constitutes an additional substantial burden on its religious exercise.
F. The Effect on Specialty Physicians. 110. Specialty Physicians is a member managed limited liability company, of which Franciscan is the sole member. Specialty Physicians shares Franciscan’s religious beliefs. As such, all of Specialty Physicians’ facilities are operated in a manner that abides by The Ethical and Religious Directives for Catholic Health Care Services as promulgated by the United States Conference of Catholic Bishops and interpreted by the local Bishop and as modified from time to time. 111. Specialty Physicians has also approved the same Sex Reassignment Intervention Policy as Franciscan.
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112. Specialty Physicians provides over $6 million in Medicare and Medicaid services annually to the poor, disabled, and elderly. Annually, it performs approximately 90,000 outpatient services.
113. Specialty Physicians offers many services, such as endocrinology services, which will result in Specialty Physicians being impacted by the Regulation in the same manner as Franciscan, in that it will be forced to offer medical services that violate its religious beliefs under the new Regulation.
114. Specialty Physicians has approximately 300 employees who are eligible for health insurance benefits. Of those employees, approximately 60 are physicians and 15 are advanced practice providers.
115. Specialty Physicians offers the same type of insurance to its employees as Franciscan. Thus, Specialty Physicians will face the same penalties as Franciscan for exercising its religious beliefs regarding its insurance policy under the Regulation.
IV. CLAIMS A. Alleged by All Plaintiffs.
COUNT I Violation of the Administrative Procedure Act
Agency Action Not in Accordance with Law 116. The Plaintiffs incorporate by reference all preceding paragraphs. 117. Defendants are “agencies” under the APA, 5 U.S.C. § 551(1), and the new Regulation complained of herein is a “rule” under the APA, id. § 551(4), and
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constitutes “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” Id. § 704.
118. The APA prohibits agency actions that are “not in accordance with law.” 5 U.S.C. § 706(2)(A). Under the APA, courts “review questions of law freely and are under no obligation to defer to the agency’s legal conclusions. Inst. for Tech. Dev. v. Brown, 63 F.3d 445, 450 (5th Cir. 1995). In such a context, a court’s “review is effectively de novo.” Id.; see also Velasquez-Tabir v. I.N.S., 127 F.3d 456, 459 n.9 (5th Cir. 1997) (under the APA, “[r]eview of a question of law is de novo”); Meadows v. S.E.C., 119 F.3d 1219, 1224 (5th Cir. 1997) (noting that when reviewing agency action, “legal conclusions are for the courts to resolve” (internal quotation mark omitted)). The Regulation is not in accordance with law for a number of independent reasons.
119. HHS has explained that the Regulation will require physicians to perform medical transition procedures regardless of whether those procedures are “medically necessary” or even “medically appropriate.” It is not in accordance with law, within the meaning of 5 U.S.C. § 706(2)(A), for the federal government to require medical professionals to perform procedures that may not be necessary or appropriate, and may in fact be harmful to the patients. This violates constitutional and statutory rights of medical professionals, including substantive due process rights and freedom of speech protections, as well as the sovereign prerogatives of the States, which play a significant role in overseeing the promulgation and administration of appropriate standards of care within the healthcare community.
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Courts scrutinize particularly closely agency action that raises constitutional concerns.
120. The Regulation also states that a physician’s view of medical transition procedures as “experimental” is “outdated and not based on current standards of care.” 81 Fed. Reg. at 31435; see also id. at 31429. It is not in accordance with law, within the meaning of 5 U.S.C. § 706(2)(A), for the federal government to dictate appropriate medical views on the necessity and experimental nature of medical transition procedures, and to dictate what constitutes best standards of care in an area of science and medicine that is being hotly debated in the medical community. This violates constitutional and statutory rights of medical professionals, including substantive due process rights and freedom of speech protections.
121. The Regulation is not in accordance with Section 1557 of the Affordable Care Act (42 U.S.C. § 18116) or Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. Section 1557 does not, on its own terms, prohibit discrimination on the basis of “sex.” Instead, it prohibits discrimination “on the ground prohibited under . . . title IX of the Education Amendments of 1972.” 42 U.S.C. § 18116(a). Title IX, in turn, prohibits discrimination “on the basis of sex . . . except that . . . this section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization.” 20 U.S.C. § 1681(a), (a)(3).
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122. Neither Section 1557 nor Title IX uses the term “sex” to include “gender identity.” Thus, HHS’s attempt to expand the definition is not in accordance with law within the meaning of 5 U.S.C. § 706(2)(A).
123. HHS’s failure to include in the Regulation a religious exemption that parallels the religious exemption in Title IX is also not in accordance with law within the meaning of 5 U.S.C. § 706(2)(A).
124. HHS’s failure to include an exclusion for sterilization and sterilizationrelated services is not in accordance with law within the meaning of 5 U.S.C. § 706(2)(A) because it is inconsistent with the Church Amendments, 42 U.S.C. § 300a7(b), which protect the right of healthcare entities who receive federal funding to refuse to participate in or assist with sterilizations.
125. HHS’s failure to include an exclusion for abortion and abortion-related services is not in accordance with law within the meaning of 5 U.S.C. § 706(2)(A) because it is inconsistent with the plain language of Title IX, which prohibits requiring coverage, payment, or the use of facilities for abortion.
126. HHS’s failure to include an exclusion for abortion and abortion-related services is not in accordance with law within the meaning of 5 U.S.C. § 706(2)(A) because it is inconsistent with the Church Amendments, 42 U.S.C. §300a-7(b), which protect the right of healthcare entities who receive federal funding to refuse to participate in or assist with abortions.
127. HHS’s failure to include an exclusion for abortion and abortion-related services is not in accordance with law within the meaning of 5 U.S.C. § 706(2)(A)
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because it is inconsistent with Section 245 of the Public Health Service Act, 42 U.S.C. § 238(n), which prohibits the federal government and any state or local government receiving federal financial assistance from discriminating against any healthcare entity on the basis that the entity refuses to perform abortions, provide referrals for abortions, or to make arrangements for such abortions.
128. HHS’s failure to include an exclusion for abortion and abortion-related services is not in accordance with law within the meaning of 5 U.S.C. § 706(2)(A) because it is inconsistent with the Weldon Amendment, which has been readopted or incorporated by reference in every HHS appropriations act since 2005,35 and provides that no funds may be made available under HHS appropriations act to a government entity that discriminates against an institution or individual physician or healthcare professional on the basis that the entity or individual “does not provide, pay for, provide coverage of, or refer for abortions.”
129. HHS’s failure to include an exclusion for abortion and abortion-related services is not in accordance with law within the meaning of 5 U.S.C. § 706(2)(A) because it is inconsistent with Section 1303(b)(4) of the ACA, 42 U.S.C. § 18023, which states that “[n]o qualified health plan offered through an Exchange may discriminate against any individual health care provider or health care facility because of its unwillingness to provide, pay for, provide coverage of, or refer for abortions.”
35 See Consolidated Appropriations Act, 2016, H.R. 2029, 114th Cong. § 507(d) (2015).
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130. The Regulation is not in accordance with Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.). Title VII prohibits employers from discriminating against employees on the basis of religion. 42 U.S.C. § 2000e-2. This means that employers, including Plaintiffs, have a duty to reasonably accommodate their employees’ religious practices unless doing so would cause undue hardship to the employer. Plaintiffs employ individuals who have religious or conscientious objections to performing medical transition procedures. It should not be an undue hardship on Plaintiffs to accommodate these employees’ religious beliefs, but the new Regulation will in many cases make it illegal for Plaintiffs who receive HHS funds to accommodate their employees in accordance with Title VII. Thus, the Regulation is not in accordance with Title VII.
131. The Regulation states that a physician’s view of medical transition procedures as “experimental” is “outdated and not based on current standards of care.” 81 Fed. Reg. at 31435; see also id. at 31429. It is not in accordance with law within the meaning of 5 U.S.C. § 706(2)(A) for the federal government to dictate appropriate medical views on the necessity and experimental nature of medical transition procedures, and to dictate what constitutes best standards of care and what services physicians must offer in an area of science and medicine that is being hotly debated in the medical community. This violates constitutional and statutory rights of medical professionals, including a medical professional’s freedom of speech to offer candid professional advice about the experimental nature and dangerous
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health outcomes associated with medical transition procedures, and freedom not to be compelled to speak in favor of or make referrals for such procedures.
132. The Regulation also forces physicians to provide medical services related to gender transition. This is not in accordance with substantive due process rights protecting a medical professional’s right to not perform a procedure he or she believes to be experimental, ethically questionable, and potentially harmful.
133. The Regulation is not in accordance with the First Amendment because the Regulation is overbroad and not narrowly tailored to a compelling governmental interest.
134. The Regulation is not in accordance with the First Amendment and Fifth Amendment because it is void for vagueness.
135. The Regulation is not in accordance with the First Amendment because it violates Plaintiffs’ rights not to be subjected to a system of unbridled discretion when engaging in speech or religious exercise.
136. The Regulation is not in accordance with the Tenth Amendment, which prohibits the federal government from co-opting a state’s control over budgetary processes and legislative agendas.
137. The Regulation is contrary to the First Amendment because it imposes an unconstitutional condition on Plaintiffs’ receipt of federal funding. See Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321, 2331, 186 L. Ed. 2d 398 (2013).
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138. The Regulation is contrary to the First Amendment because violates Plaintiffs’ freedom of association protections.
139. The Regulation is contrary to law because it violates the Religious Freedom Restoration Act.
140. The Regulation is contrary to law because it violates the Free Exercise clause of the First Amendment.
141. The Regulation is contrary to law because it violates the Fifth Amendment Due Process and Equal Protection clauses.
142. The Regulation is contrary to the protections of the Spending Clause, as described in Counts XVI and XVIII below.
143. The Regulation is an unlawful abrogation of sovereign immunity under the Eleventh Amendment, as described in Count XVII below.
144. The Regulation is contrary to the protections of Article I and the Tenth Amendment, because it unconstitutionally commandeers power reserved to the States as described in Count XIX below.
145. The Regulation is contrary to the protections of the Tenth Amendment, because it is an unconstitutional exercise of federal power as described in Count XX below.
146. The Regulation violates the Constitution, and is thus not in accordance with law, for all the reasons articulated and hereby incorporated by reference in Counts XVI through XX.
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147. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
148. Plaintiffs have no adequate remedy at law. 149. Absent injunctive and declaratory relief against the Regulation, the Plaintiffs have been and will continue to be harmed.
COUNT II Violation of the Administrative Procedure Act Agency Action In Excess of Statutory Authority and Limitations 150. The Plaintiffs incorporate by reference all preceding paragraphs. 151. Defendants are “agencies” under the APA, 5 U.S.C. § 551(1), and the new Regulation complained of herein is a “rule” under the APA, id. § 551(4), and constitutes “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” Id. § 704. 152. The APA prohibits agency actions that are “in excess of statutory jurisdiction, authority, or limitations.” 5 U.S.C. § 706(2)(C). The Regulation is in excess of statutory jurisdiction, authority, and limitations for a number of reasons. 153. For the reasons described above, there is no statutory authority or jurisdiction for HHS to require medical professionals and facilities to perform procedures (or refer for the same) that may not be necessary or appropriate, and may in fact be harmful to the patients. 154. For the reasons described above, there is no statutory authority or jurisdiction for HHS to dictate appropriate medical views on the necessity and experimental nature of medical transition procedures, or to dictate what constitutes
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best standards of care in an area of science and medicine that is being hotly debated in the medical community.
155. For the reasons described above, HHS’s decision to interpret Section 1557’s reference to “sex” discrimination to include “gender identity” is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C).
156. For the reasons described above, HHS’s failure to include a religious exemption in the Regulation that parallels the religious exemption in Title IX is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C).
157. For the reasons discussed above, HHS’s failure to include an exclusion for sterilization and sterilization-related services is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it is inconsistent with the Church Amendments, 42 U.S.C. § 300a-7(b).
158. For the reasons discussed above, HHS’s failure to include an exclusion for abortion and abortion-related services is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it is inconsistent with the plain language of Title IX, which prohibits requiring coverage, payment, or the use of facilities for abortion.
159. For the reasons discussed above, HHS’s failure to include an exclusion for abortion and abortion-related services is in excess of statutory jurisdiction,
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authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it is inconsistent with the Church Amendments, 42 U.S.C. § 300a-7(b).
160. For the reasons discussed above, HHS’s failure to include an exclusion for abortion and abortion-related services is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it is inconsistent with Section 245 of the Public Health Service Act, 42 U.S.C. § 238(n).
161. For the reasons discussed above, HHS’s failure to include an exclusion for abortion and abortion-related services is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it is inconsistent with the Weldon Amendment, which has been readopted or incorporated by reference in every HHS appropriations act since 2005.36
162. For the reasons discussed above, HHS’s failure to include an exclusion for abortion and abortion-related services is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it is inconsistent with Section 1303(b)(4) of the ACA, 42 U.S.C. § 18023.
163. For the reasons described above, HHS’s decision to require Plaintiffs to act in violation of Title VII by not accommodating their employees’ religious and conscientious objections to participating in (or referring for) medical transition treatment or procedures is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C).
36 See Consolidated Appropriations Act, 2016, H.R. 2029, 114th Cong. § 507(d) (2015).
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164. For the reasons discussed above, the Regulation is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) as it violates Plaintiffs’ freedom of speech.
165. For the reasons discussed above, the Regulation is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) as it violates Plaintiffs’ substantive due process rights.
166. For the reasons discussed above, the Regulation is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) as it violates the First Amendment because it is overbroad and not narrowly tailored to a compelling governmental interest.
167. For the reasons discussed above, the Regulation is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) as it violates the First Amendment because it is overbroad and not narrowly tailored to a compelling governmental interest.
168. For the reasons discussed above, the Regulation is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it is void under the First and Fifth Amendment for vagueness.
169. For the reasons discussed above, the Regulation is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it violates Plaintiffs’ rights not to be subjected to a system of unbridled discretion when engaging in speech or when engaging in religious exercise, as secured to them by the First Amendment of the United States Constitution.
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170. For the reasons discussed above, and in Count XIX below, the Regulation is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it co-opts states’ control over budgetary processes and legislative agendas contrary to Article I and the Tenth Amendment.
171. For the reasons discussed above, the Regulation is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it imposes an unconstitutional condition on Plaintiffs’ receipt of federal funding contrary to the First Amendment.
172. For the reasons discussed above, the Regulation is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it violates Plaintiffs’ First Amendment freedom of association.
173. For the reasons discussed above, the Regulation is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it violates the Religious Freedom Restoration Act.
174. For the reasons discussed above, the Regulation is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it violates the Free Exercise clause of the First Amendment.
175. For the reasons discussed above, the Regulation is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it violates the Fifth Amendment Due Process and Equal Protection clauses.
176. For the reasons discussed above, and in Counts XVI and XVIII below, the Regulation is in excess of statutory jurisdiction, authority, and limitations within
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the meaning of 5 U.S.C. § 706(2)(C) because it is contrary to the protections of the Spending Clause.
177. For the reasons discussed above, and in Count XVII below, the Regulation is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it is an unlawful abrogation of sovereign immunity under the Eleventh Amendment.
178. For the reasons discussed above, and in Counts XIX and XX below, the Regulation is in excess of statutory jurisdiction, authority, and limitations within the meaning of 5 U.S.C. § 706(2)(C) because it is contrary to the authority outlined in Article I and the protections of the Tenth Amendment.
179. The Regulation is in excess of statutory jurisdiction, authority, and limitations with the meaning of 5 U.S.C. § 706(2)(C), because it violates the Constitution for all the reasons articulated and hereby incorporated by reference in Counts XVI through XX.
180. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
181. Plaintiffs have no adequate remedy at law. 182. Absent injunctive and declaratory relief against the Regulation, the Plaintiffs have been and will continue to be harmed.
COUNT III Violation of the Administrative Procedure Act Agency Action that is Arbitrary, Capricious and an Abuse of Discretion 183. The Plaintiffs incorporate by reference all preceding paragraphs.
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184. Defendants are “agencies” under the APA, 5 U.S.C. § 551(1), and the new Regulation complained of herein is a “rule” under the APA, id. § 551(4), and constitutes “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” Id. § 704.
185. The APA prohibits agency actions that are “arbitrary, capricious, [or] an abuse of discretion.” 5 U.S.C. § 706(2)(A). The Regulation is arbitrary and capricious agency action for a number of reasons.
186. HHS has explained that the Regulation will require physicians to perform medical transition procedures regardless of whether those procedures are “medically necessary” or even “medically appropriate.” It is arbitrary and capricious for the federal government to require medical professionals to perform (or refer for) procedures that the physician believes may not be necessary or appropriate, and that may even be harmful to the patient.
187. For the reasons discussed above, it is arbitrary and capricious for HHS to dictate appropriate medical views on the necessity and experimental nature of medical transition procedures, and to dictate what constitutes best standards of care.
188. For the reasons discussed above, HHS’s inclusion of “gender identity” in its interpretation of “sex” is an arbitrary and capricious interpretation of Section 1557 of the Affordable Care Act (42 U.S.C. § 18116) and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.
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189. For the reasons discussed above, HHS’s failure to include a religious exemption in the Regulation that parallels the religious exemption in Title IX is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A).
190. For the reasons discussed above, HHS’s failure to include an exclusion for sterilization and sterilization-related services is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because it is inconsistent with the Church Amendments, 42 U.S.C. § 300a-7(b).
191. For the reasons discussed above, HHS’s failure to include an exclusion for abortion and abortion-related services is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A).
192. For the reasons described above, HHS’s decision to require Plaintiffs to act in violation of Title VII by not accommodating their employees’ religious objections to participating in medical transition procedures is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A).
193. For the reasons discussed above, the Regulation is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) as it violates Plaintiffs’ freedom of speech.
194. For the reasons discussed above, the Regulation is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) as it violates Plaintiffs’ substantive due process rights.
195. For the reasons discussed above, the Regulation is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) as it violates the First
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Amendment because it is overbroad and not narrowly tailored to a compelling governmental interest.
196. For the reasons discussed above, the Regulation is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because it is void under the First and Fifth Amendment for vagueness.
197. For the reasons discussed above, the Regulation is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because it violates Plaintiffs’ rights not to be subjected to a system of unbridled discretion when engaging in speech or when engaging in religious exercise, as secured to them by the First Amendment of the United States Constitution.
198. For the reasons discussed above, and in Count XIX below, the Regulation is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because it co-opts States’ control over budgetary processes and legislative agendas contrary to Article I and the Tenth Amendment.
199. For the reasons discussed above, the Regulation is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because it imposes an unconstitutional condition on Plaintiffs’ receipt of federal funding contrary to the First Amendment.
200. The Regulation is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because it violates Plaintiffs’ First Amendment freedom of association.
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201. For the reasons discussed above, the Regulation is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because it violates the Religious Freedom Restoration Act.
202. For the reasons discussed above, the Regulation is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because it violates the Free Exercise Clause of the First Amendment.
203. For the reasons discussed above, the Regulation is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because it violates the Fifth Amendment Due Process and Equal Protection clauses.
204. For the reasons discussed above, and in Counts XVI and XVIII below, the Regulation is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because it is contrary to the protections of the Spending Clause.
205. For the reasons discussed above, and in Count XVII below, the Regulation is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because it is an unlawful abrogation of sovereign immunity under the Eleventh Amendment.
206. For the reasons discussed above, and in Counts XIX and XX below, the Regulation is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because it is contrary to the authority outlined in Article I and the protections of the Tenth Amendment.
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207. The Regulation is arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because it violates the Constitution for all the reasons articulated and hereby incorporated by reference in Counts XVI through XX.
208. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
209. Plaintiffs have no adequate remedy at law. 210. Absent injunctive and declaratory relief against the Regulation, the Plaintiffs have been and will continue to be harmed. B. Alleged by CMDA, on behalf of itself and its members, Franciscan, and Specialty Physicians only
COUNT IV Violation of the First Amendment of the United States Constitution
Freedom of Speech Compelled Speech and Compelled Silence 211. The Plaintiffs incorporate by reference all preceding paragraphs. 212. The Plaintiffs plan to continue using their best medical and ethical judgment in treating and advising patients. Performing (or referring for) medical transition procedures is contrary to their best medical and/or ethical judgment. 213. The Regulation states, in the context of physicians offering “health services” that a “categorization of all transition-related treatment . . . as experimental, is outdated and not based on current standards of care.” 81 Fed. Reg. at 31435; see also id. at 31429.
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214. The Regulation would prohibit the Plaintiffs from expressing their professional opinions that medical transition procedures are not the best standard of care or are experimental.
215. The regulation would also require Plaintiffs to amend their written policies to expressly endorse gender transition procedures, even if such revisions do not reflect the medical judgment, values, or beliefs of Plaintiffs. Id. at 31455. The regulation would also require Plaintiffs to use gender-transition affirming language in all situations, regardless of circumstance. Id. at 31406.
216. Performing (or referring for) medical transition procedures is also contrary to the religious and conscientious beliefs of the Plaintiffs, and their beliefs prohibit them from conducting, participating in, or referring for such procedures.
217. The Regulation would compel the Plaintiffs to conduct, participate in, refer for, or otherwise facilitate medical transition procedures.
218. The Regulation would prohibit the Plaintiffs from expressing their religious views that medical transition procedures are not the best standard of care or are experimental.
219. The Regulation would compel the Plaintiffs to speak in ways that they would not otherwise speak.
220. The Regulation thus violates the Plaintiffs right to be free from compelled speech as secured to them by the First Amendment of the United States Constitution.
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221. The Regulation’s compelled speech requirement is not justified by a compelling governmental interest.
222. Even if HHS has a compelling government interest, the Regulation is not narrowly tailored to achieve that interest.
223. Absent injunctive and declaratory relief against the Regulation, the Plaintiffs have been and will continue to be harmed.
COUNT V Violation of the First Amendment of the United States Constitution
Freedom of Speech and Free Exercise Clause Viewpoint Discrimination
224. The Plaintiffs incorporate by reference all preceding paragraphs. 225. The Plaintiffs’ sincere religious and conscientious beliefs prohibit them from facilitating or participating in medical transition procedures. 226. The Plaintiffs’ medical judgment is that, in general, it is harmful to encourage a patient to undergo medical transition procedures. 227. The Regulation states, in the context of physicians offering “health services” that a “categorization of all transition-related treatment, for example as experimental, is outdated and not based on current standards of care.” 81 Fed. Reg. at 31435; see also id. at 31429. 228. The Regulation would prohibit the Plaintiffs from expressing their religious or conscientious viewpoint that medical transition procedures are not the best standard of care.
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229. The Regulation withholds funding based on an intent to restrict Plaintiffs’ speech.
230. The Regulation’s viewpoint discrimination is not justified by a compelling governmental interest.
231. Even if HHS has a compelling government interest, the Regulation is not narrowly tailored to achieve that interest.
232. Defendants’ actions thus violate the Plaintiffs rights as secured to them by the First Amendment of the United States Constitution.
233. Absent injunctive and declaratory relief against the Regulation, the Plaintiffs have been and will continue to be harmed.
COUNT VI Violation of the First and Fifth Amendments of the United States
Constitution Freedom of Speech and Due Process
Overbreadth 234. Plaintiffs incorporate by reference all preceding paragraphs. 235. The Regulation regulates protected speech. 236. The Regulation states, in the context of physicians offering “health services” that a “categorization of all transition-related treatment . . . as experimental, is outdated and not based on current standards of care.” 81 Fed. Reg. at 31435; see also id. at 31429. 237. This exposes the Plaintiffs to penalties for expressing their medical and moral views of medical transition procedures. It also prohibits Plaintiffs from using
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their medical judgment to determine the appropriate standard of care for interactions with their patients.
238. Plaintiffs believe that the Regulation restricts their speech regarding the best standard of care for patients.
239. The Regulation states: “The determination of whether a certain practice is discriminatory typically requires a nuanced analysis that is fact-dependent.”
240. The Regulation chills the Plaintiffs’ speech. 241. The Regulation’s overbreadth is not justified by a compelling governmental interest. 242. Even if HHS has a compelling government interest, the Regulation is not narrowly tailored to achieve that interest. 243. Defendants have therefore violated the Plaintiffs’ rights secured to them by the Free Speech Clause of the First Amendment and the Due Process Clause of the Fifth Amendment by prohibiting speech that would otherwise be protected. 244. Absent injunctive and declaratory relief against the Regulation, the Plaintiffs have been and will continue to be harmed.
COUNT VII Violation of the First and Fifth Amendments of the United States
Constitution Freedom of Speech and Due Process
Void for Vagueness 245. The Plaintiffs incorporate by reference all preceding paragraphs. 246. The Regulation requires that a covered entity apply “neutral, nondiscriminatory criteria that it uses for other conditions when the coverage
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determination is related to gender transition” and “decline[s] to limit application of the rule by specifying that coverage for the health services addressed in § 92.207(b)(3)–(5) must be provided only when the services are medically necessary or medically appropriate.” 81 Fed. Reg. at 31435.
247. Without allowing Plaintiffs to use their judgment about what is medically necessary or appropriate, the Regulation is ambiguous in the types of services Plaintiffs are required to provide and perform.
248. Requiring the Plaintiffs apply “neutral, nondiscriminatory criteria that it uses for other conditions” is a subjective standard without a limiting construction. Id.
249. The Regulation states, in the context of physicians offering “health services” that a “categorization of all transition-related treatment, for example as experimental, is outdated and not based on current standards of care.” Id.; see also id. at 31429.
250. The Regulation does not provide a limiting construction for what the current standard of care is, nor does it provide guidance as to how physicians can rely on their best medical judgment when it conflicts with the Regulation.
251. The Regulation is not justified by a compelling governmental interest. 252. Even if HHS has a compelling government interest, the Regulation is not narrowly tailored to achieve that interest. 253. Because Plaintiffs are unable to determine what kind of procedures and services they will be required to provide and perform, Defendants have violated the
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Plaintiffs’ rights secured to them by the Free Speech Clause of the First Amendment and the Due Process Clause of the Fifth Amendment.
254. Absent injunctive and declaratory relief against the Regulation, the Plaintiffs have been and will continue to be harmed.
COUNT VIII Violation of the First Amendment of the United States Constitution
Free Exercise Clause and Freedom of Speech Unbridled Discretion
255. The Plaintiffs incorporate by reference all preceding paragraphs. 256. The Regulation “applies to every health program or activity, any part of which receives Federal financial assistance provided or made available by the Department; every health program or activity administered by the Department; and every health program or activity administered by a Title I entity.” 45 C.F.R. 92.2(a). 257. The Regulation also states: “The determination of whether a certain practice is discriminatory typically requires a nuanced analysis that is factdependent.” 81 Fed. Reg. at 31377. 258. The Regulation also says: “Insofar as the application of any requirement under this part would violate applicable Federal statutory protections for religious freedom and conscience, such application shall not be required.” 45 C.F.R. 92.2(b)(2). 259. Because the Defendants have sole discretion over financial assistance provided or made available, and because Defendants have sole discretion over the application of the Regulation and any religious freedom protection that applies, the
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Regulation vests unbridled discretion over which organizations will have their First Amendment interests accommodated.
260. In Title IX of the Education Amendments of 1972, Congress precluded discrimination on the basis of “sex” in federally funded education programs, “except that . . . this section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization.” 20 U.S.C. § 1681(a)(3). Defendants have exercised unbridled discretion by declining to apply the clear religious freedom protections of Title IX.
261. In Title IX of the Education Amendments of 1972, Congress banned sex discrimination in federally funded education programs, except that it made clear that “Nothing in this chapter shall be construed to require or prohibit any person, or public or private entity, to provide or pay for any benefit or service, including the use of facilities, related to an abortion. Nothing in this section shall be construed to permit a penalty to be imposed on any person or individual because such person or individual is seeking or has received any benefit or service related to a legal abortion.” 20 U.S.C. § 1688. Defendants have exercised unbridled discretion by declining to apply the clear abortion protections of Title IX.
262. Defendants’ actions therefore violate the Plaintiffs’ rights not to be subjected to a system of unbridled discretion when engaging in speech or when engaging in religious exercise, as secured to them by the First Amendment of the United States Constitution.
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263. Absent injunctive and declaratory relief against the Regulation, Plaintiffs have been and will continue to be harmed.
COUNT IX Violation of the First Amendment to the United States Constitution
Free Speech Clause Unconstitutional Conditions 264. The Plaintiffs incorporate by reference all preceding paragraphs. 265. The Regulation imposes an unconstitutional condition on Plaintiffs’ receipt of federal funding. See Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321, 2331 (2013). 266. The Regulation applies to any healthcare provider who accepts federal funding from any source for any program. 267. The Regulation requires the Plaintiffs to adopt policies regarding standards of care for patients that violate Plaintiffs’ religious and conscientious beliefs, as well as their medical judgment, and also interfere with the Plaintiffs’ practice of medicine. 268. Defendants’ actions therefore impose an unconstitutional condition on Plaintiffs’ receipt of federal funding and violate Plaintiffs’ rights as secured to them by the First and Fourteenth Amendments of the United States Constitution. 269. Absent injunctive and declaratory relief against the Regulation, Plaintiffs have been and will continue to be harmed.
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COUNT X Violation of the First Amendment
Freedom of Speech Expressive Association 270. The Plaintiffs incorporate by reference all preceding paragraphs. 271. The Plaintiffs believe and teach that participating in actions, procedures, and services with the goal of transitioning from one sex to another violate their religious beliefs. 272. The Plaintiffs believe and teach that participating in actions, procedures, and services that result in elective sterilizations violate their religious beliefs. 273. The Plaintiffs believe and teach that participating in actions, procedures, and services related to abortion violate their religious beliefs. 274. The Transgender Mandate would compel the Plaintiffs to participate in procedures, services, and activities that contradict the Plaintiffs’ religious beliefs and message. 275. The Transgender Mandate would compel the Plaintiffs to offer insurance coverage for procedures, services, and activities that violate Plaintiffs’ religious beliefs and message. 276. Defendants’ actions thus violate Plaintiffs’ rights of expressive association as secured to them by the First Amendment of the United States Constitution.
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277. Absent injunctive and declaratory relief against the Transgender Mandate, the Plaintiffs have been and will continue to be harmed.
278. The Regulation exposes the Plaintiffs to civil suits that would hold them liable for practicing and expressing their sincerely held religious beliefs.
279. The Regulation furthers no compelling governmental interest. 280. The Regulation is not the least restrictive means of furthering Defendants’ stated interests.
COUNT XI Violation of the Religious Freedom Restoration Act
Compelled Medical Services 281. The Plaintiffs incorporate by reference all preceding paragraphs. 282. The Religious Plaintiffs’ sincerely held religious beliefs prohibit them from deliberately offering services and performing (or referring for) operations or other procedures required by the Regulation. The Plaintiffs’ compliance with these beliefs is a religious exercise. 283. The Plaintiffs’ sincerely held religious beliefs prohibit them facilitating medical transition procedures. The Plaintiffs’ compliance with these beliefs is a religious exercise. 284. The Plaintiffs’ sincerely held religious beliefs prohibit them facilitating sterilization procedures. The Plaintiffs’ compliance with these beliefs is a religious exercise.
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285. The Plaintiffs’ sincerely held religious beliefs prohibit them facilitating abortion-related services. The Plaintiffs’ compliance with these beliefs is a religious exercise.
286. The Regulation creates government-imposed coercive pressure on the Plaintiffs to change or violate their religious beliefs.
287. The Regulation chills the Plaintiffs’ religious exercise. 288. The Regulation exposes the Plaintiffs to the loss of substantial government funding as a result of their religious exercise. 289. The Regulation exposes the Plaintiffs to substantial penalties under the False Claims Act, 31 U.S.C. § 3729 et seq. 290. The Regulation exposes the Plaintiffs to criminal penalties under 18 U.S.C. § 1035. 291. The Regulation exposes the Plaintiffs to civil suits that would hold them liable for practicing their sincerely held religious beliefs. 292. The Regulation thus imposes a substantial burden on the Plaintiffs’ religious exercise. 293. The Regulation furthers no compelling governmental interest. 294. The Regulation is not the least restrictive means of furthering Defendants’ stated interests. 295. The Regulation violates the Plaintiffs rights secured to them by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.
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COUNT XII Violation of the Religious Freedom Restoration Act
Compelled Insurance Coverage 296. The Plaintiffs incorporate by reference all preceding paragraphs. 297. For the same reasons discussed above, Plaintiffs’ sincerely held religious beliefs prohibit them from deliberately offering health insurance that would cover gender transition procedures, sterilization procedures, or abortion-related procedures. 298. Plaintiffs specifically exclude coverage of any services related to gender transition procedures, sterilization procedures, or abortion-related procedures in their insurance plans. 299. The Plaintiffs’ compliance with these beliefs by maintaining these exclusions is a religious exercise. 300. Under the Regulation, insurance exclusions related to gender transition are facially invalid. 301. Under the Regulation, insurance exclusions related to sterilization are facially invalid. 302. Under the Regulation, insurance exclusions related to abortion services are facially invalid. 303. The Regulation exposes the Plaintiffs to the loss of substantial government funding as a result of their religious exercise. 304. The Regulation also makes it much more expensive for Franciscan and Specialty Physicians to do business with a third party administrator for a health
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benefits plan. The Regulation subjects third party administrators to potential liability for administering religious health plans like Franciscan’s, and thus Franciscan and Specialty Physicians will be forced to indemnify any third party administrator from this liability. This constitutes an additional substantial burden on its religious exercise.
305. The Regulation exposes the Plaintiffs to substantial penalties under the False Claims Act, 31 U.S.C. § 3729 et seq.
306. The Regulation exposes the Plaintiffs to criminal penalties under 18 U.S.C. § 1035.
307. The Regulation exposes the Plaintiffs to civil suits that would hold them liable for practicing their sincerely held religious beliefs.
308. The Regulation thus imposes a substantial burden on the Plaintiffs’ religious exercise.
309. The Regulation furthers no compelling governmental interest. 310. The Regulation is not the least restrictive means of furthering Defendants’ stated interests. 311. The Regulation violates the Plaintiffs rights secured to them by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.
COUNT XIII Violation of the First Amendment to the United States Constitution
Free Exercise Clause 312. The Plaintiffs incorporate by reference all preceding paragraphs.
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313. Plaintiffs object to providing, facilitating, or otherwise participating in medical transition procedures.
314. The Regulation imposes substantial burdens on the Plaintiffs by forcing them to choose between federal funding and their livelihood as healthcare providers and their exercise of religion.
315. The Regulation seeks to suppress the religious practice of individuals and organizations such as the Plaintiffs, while allowing exemptions for similar conduct based on secular and non-religious reasons. Thus, the Regulation is neither neutral nor generally applicable.
316. The Regulation is not justified by a compelling governmental interest. 317. Even if HHS has a compelling government interest, the Regulation is not narrowly tailored to achieve that interest. 318. Defendants’ actions thus violate the Plaintiffs’ rights secured to them by the Free Exercise Clause of the First Amendment of the United States Constitution. 319. Absent injunctive and declaratory relief against the Regulation, Plaintiffs have been and will continue to be harmed.
COUNT XIV Violation of the Fifth Amendment to the United States Constitution
Due Process Clause Substantive Due Process 320. Plaintiffs incorporate by reference all preceding paragraphs.
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321. The United States has a deeply rooted tradition of honoring physicians’ rights to provide medical treatment in accordance with their moral and religious beliefs.
322. Plaintiffs possess a fundamental right of liberty of conscience. 323. Plaintiffs possess a fundamental right not to be coerced to provide medical procedures and services in violation of their conscience. 324. The Regulation coerces Plaintiffs to provide medical procedures and services in violation of their conscience. 325. Defendants’ conduct cannot be justified by a compelling governmental interest. 326. The Regulation is not justified by a compelling governmental interest. 327. Even if HHS has a compelling government interest, the Regulation is not narrowly tailored to achieve that interest. 328. Defendants’ actions therefore violate Plaintiffs’ rights to substantive due process. 329. Absent injunctive and declaratory relief against the Regulation, the Plaintiffs have been and will continue to be harmed.
COUNT XV Violation of the Fifth Amendment to the United States Constitution
Due Process and Equal Protection 330. The Plaintiffs incorporate by reference all preceding paragraphs. 331. The Due Process Clause of the Fifth Amendment mandates the equal treatment of all religious faiths and institutions without discrimination or preference.
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332. The Regulation discriminates on the basis of religious views or religious status by refusing to recognize religious exemptions that exist in the law.
333. The Regulation discriminates on the basis of religious views or religious status by refusing to recognize valid medical views of religious healthcare professionals on medical transition procedures.
334. The Defendants’ actions thus violate the Plaintiffs’ rights secured to them by the Fifth Amendment of the United States Constitution.
335. Absent injunctive and declaratory relief against the Regulation, the Plaintiffs have been and will continue to be harmed.
C. Alleged by All Plaintiffs. COUNT XVI
Violation of the Spending Clause of Article I of the United States Constitution
The Regulation Violates the Clear-Statement Doctrine 336. The Plaintiffs incorporate by reference all preceding paragraphs. 337. Article I, Section 8 of the United States Constitution, the Spending Clause, provides: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.” U.S. CONST. art. I, § 8, cl. 1. 338. When Congress exercises its Spending Clause power against the States, the United States Supreme Court has held that principles of federalism require conditions on Congressional funds given to States must enable a state official to
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“clearly understand,” from the language of the law itself, what conditions the State is agreeing to when accepting the federal funds. Arlington Cent. Sch. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006). “The legitimacy of Congress’s exercise of the spending power ‘thus rests on whether the [entity] voluntarily and knowingly accepts the terms of the ‘contract.’’” NFIB v. Sebelius, 132 S. Ct. 2566, 2602 (2012) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981)). Defendants’ expost Regulation is not in accord with the understanding that existed when the States chose to begin accepting Medicare and Medicaid as payment for medical services provided. Bennett v. New Jersey, 470 U.S. 632, 638 (1985) (providing that a state’s obligation under cooperative federalism program ‘‘generally should be determined by reference to the law in effect when the grants were made’’).
339. The text employed by Congress does not support understanding the term “sex” in the manner put forth by Defendants. While Congress has expressed its intent to cover “gender identity,” as a protected class, in other pieces of legislation, see, e.g., 18 U.S.C. § 249(a)(2)(A); 42 U.S.C. § 13925(b)(13)(A), it has not done so in Title IX. In other legislation, Congress included “gender identity” along with “sex,” thus evidencing its intent for “sex” in Title IX to retain its original and only meaning—one’s immutable, biological sex as acknowledged at or before birth.
340. The Regulation was passed under the authority Congress delegated to HHS in Section 1557 of the Affordable Care Act. Section 1557 does not add a new non-discrimination provision to the federal code, but merely incorporates by reference pre-existing provisions under Title VI, Title IX, the Americans with Disabilities Act,
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and the Rehabilitation Act. Section 1557 does not independently define terms such as “sex.”
341. At the time that the ACA was passed in 2010, no federal courts or agencies had interpreted “sex” in Title IX to include gender identity.
342. Title IX also provides that “Nothing in this chapter shall be construed to require . . . any person, or public or private entity, to provide or pay for any benefit or service, including the use of facilities, related to an abortion.” 20 U.S.C.A. § 1688.
343. Thus, no State could fathom, much less “clearly understand,” that the ACA would impose on it the conditions created by HHS’s new Regulation—namely, a new “gender identity” requirement, as well as a provision to require coverage, funding, or facilities for abortion. Accordingly, the new Regulation violates the Spending Clause.
344. Moreover, Defendants are “agencies” under the APA, 5 U.S.C. § 551(1), and the new Regulation complained of herein is a “rule” under the APA, id. § 551(4), and constitutes “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” Id. § 704. The APA requires the Court to hold unlawful and set aside any agency action that is “contrary to constitutional right, power, privilege, or immunity” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” Id. § 706(2)(B)–(C). Thus, the Spending Clause violations articulated herein provide the Court with an additional basis to set aside the new Rule under the APA.
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345. The Defendants’ actions thus violate the APA and the Spending Clause of the United States Constitution.
346. Absent injunctive and declaratory relief against the Regulation, the Plaintiffs have been and will continue to be harmed.
COUNT XVII Violation of the Eleventh Amendment Unlawful Abrogation of Sovereign Immunity 347. Plaintiffs incorporate by reference all preceding paragraphs. 348. The Eleventh Amendment to the United States Constitution provides that the “Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. CONST. amend. XI. 349. The doctrine of sovereign immunity contained in the Eleventh Amendment means that “an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” Edelman v. Jordan, 415 U.S. 651, 663 (1974). 350. The federal government may not abrogate a state’s sovereign immunity unless it makes that intention to abrogate unmistakably clear in the language of the statute and acts pursuant to a valid exercise of its power under § 5 of the Fourteenth Amendment. See, e.g., Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 726, 728 n.2 (2003).
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351. The abrogation referenced herein was not unmistakably clear in the language of the relevant statutes, and Defendants did not act pursuant to a valid exercise of federal power under § 5 of the Fourteenth Amendment.
352. In enacting Section 1557 of the ACA, Congress did not make findings regarding “gender identity,” but merely incorporated existing law under Title IX, which does not extend to “gender identity.” Congress has in fact declined to pass specific “gender identity” legislation on numerous occasions.
353. The Regulation abrogates the sovereign immunity of the States by subjecting them to lawsuits from their employees. It does so without clear authorization from Congress, and its expansion of the definition of “sex” to include “gender identity” is not supported by Congressional findings.
354. The Regulation abrogates the sovereign immunity of the States by subjecting them to lawsuits from non-employees, including spouses and dependents of its employees, students at health-related schools run by the States, and patients at state-run hospitals and medical facilities. It does so without clear authorization from Congress, and its expansion of the definition of “sex” to include “gender identity” is not supported by Congressional findings.
355. Moreover, Defendants are “agencies” under the APA, 5 U.S.C. § 551(1), and the new Regulation complained of herein is a “rule” under the APA, id. § 551(4), and constitutes “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” Id. § 704. The APA requires the Court to hold unlawful and set aside any agency action that is “contrary to
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constitutional right, power, privilege, or immunity” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” Id. § 706(2)(B)–(C). Thus, the improper abrogation of the States’ sovereign immunity articulated herein provides the Court with an additional basis to set aside the new Rule under the APA.
356. The Defendants’ actions thus violate the APA and the Eleventh Amendment to the United States Constitution.
357. Absent injunctive and declaratory relief against the Regulation, the Plaintiffs have been and will continue to be harmed.
COUNT XVIII Violation of the Spending Clause of Article I
of the United States Constitution The Regulation is Unlawful and Unconstitutionally Coercive 358. Plaintiffs incorporate by reference all preceding paragraphs. 359. The federal government cannot use its Spending Clause powers to coerce the States, even when proper notice procedures are followed. 360. The Supreme Court struck down a similar attempt under the ACA because “such conditions take the form of threats to terminate other significant independent grants,” and are therefore “properly viewed as a means of pressuring the States to accept policy changes.” NFIB, 132 S. Ct. at 2604. 361. The Regulation threatens other independent grants, such as general Medicare and Medicaid funds, as well as other health-related grants. 362. By placing in jeopardy a substantial percentage of the State’s budget if it refuses to comply with the Regulation, Defendants have left the State no real choice
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but to acquiesce in such policy. See NFIB, 132 S. Ct. at 2605 (“The threatened loss of over 10 percent of a State’s overall budget, in contrast, is economic dragooning that leaves the States with no real option but to acquiesce. . . .”).
363. Such compulsion is excessive under the Spending Clause, even in the presence of clear notice. “Congress may use its spending power to create incentives for [entities] to act in accordance with federal policies. But when ‘pressure turns into compulsion,’ the legislation runs contrary to our system of federalism.” NFIB, 132 S. Ct. at 2602 (quoting Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937)) (internal citation omitted). “That is true whether Congress directly commands a State to regulate or indirectly coerces a State to adopt a federal regulatory system as its own.” Id.
364. The compulsion is also improper because the Regulation changes the conditions for the receipt of federal funds after the States had already accepted Congress’s original conditions. But “[t]he legitimacy of Congress’s exercise of the spending power ‘thus rests on whether the [entity] voluntarily and knowingly accepts the terms of the ‘contract.’’” NFIB, 132 S. Ct. at 2602 (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981)).
365. Moreover, Defendants are “agencies” under the APA, 5 U.S.C. § 551(1), and the new Regulation complained of herein is a “rule” under the APA, id. § 551(4), and constitutes “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” Id. § 704. The APA requires the Court to hold unlawful and set aside any agency action that is “contrary to
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constitutional right, power, privilege, or immunity” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” Id. § 706(2)(B)–(C). Thus, the Spending Clause violations articulated herein provide the Court with an additional basis to set aside the new Rule under the APA.
366. The Defendants’ actions thus violate the APA and the Spending Clause of the United States Constitution.
367. Absent injunctive and declaratory relief against the Regulation, the Plaintiffs have been and will continue to be harmed.
COUNT XIX Violation of Article I and the Tenth Amendment
of the United States Constitution The Regulation Unlawfully Commandeers the States 368. Plaintiffs incorporate by reference all preceding paragraphs. 369. Congress exercises its conferred powers in Article I subject to the limitations contained in the Constitution. New York v. United States, 505 U.S. 144, 156 (1992). 370. The Tenth Amendment restrains the power of Congress by reserving powers for the states that are not delegated to Congress in Article I. 371. “It is an essential attribute of the States’ retained sovereignty that they remain independent and autonomous within their proper sphere of authority.” Printz v. United States, 521 U.S. 898, 928 (1997). 372. Defendants may not compel the State Plaintiffs to implement, by legislation or executive action, federal regulatory programs. Printz, 521 U.S. at 925.
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373. “Congress may not simply commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.” NFIB, 132 S. Ct. at 2660 (internal quotation marks and citation omitted).
374. With the Regulation, Defendants have “commandeer[ed] a State’s legislative or administrative apparatus for federal purposes.” NFIB, 132 S. Ct. at 2602.
375. Such commandeering exceeds powers delegated to Congress under Article I and invades the powers reserved to the States in the Tenth Amendment.
376. The Defendants’ actions thus violate Article I and the Tenth Amendment of the United States Constitution.
377. Absent injunctive and declaratory relief against the Regulation, the Plaintiffs have been and will continue to be harmed.
COUNT XX Violation of the Tenth Amendment to the United States Constitution
Unconstitutional Exercise of Federal Power 378. Plaintiffs incorporate by reference all preceding paragraphs. 379. State Plaintiffs cannot afford the exorbitant and unfunded costs of the Regulation, but have no choice other than to participate. 380. By effectively co-opting the Plaintiffs’ control over their budgetary processes and legislative agendas through compelling them to assume costs they cannot afford, the new Rule invades their sovereign sphere. 381. The new Rule violates the Tenth Amendment of the Constitution of the United States, and runs afoul of the Constitution’s principle of federalism, by
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commandeering the State Plaintiffs and their employees as agents of the federal government’s regulatory scheme at the States’ own cost.
382. The Defendants’ actions thus violate the Tenth Amendment to the United States Constitution.
383. Absent injunctive and declaratory relief against the Regulation, the Plaintiffs have been and will continue to be harmed.
V. PRAYER FOR RELIEF Wherefore, Plaintiffs pray the Court:
a. Declare that the challenged Regulation is invalid under the Administrative Procedure Act;
b. Declare that the challenged Regulation is invalid under the Religious Freedom Restoration Act;
c. Declare that the challenged Regulation is invalid under the First Amendment to the United States Constitution;
d. Declare that the challenged Regulation is invalid under the Fifth Amendment of the United States Constitution;
e. Declare that the challenged Regulation is invalid under the Fourteenth Amendment of the United States Constitution;
f. Declare that the challenged Regulation is invalid under the Spending Clause of Article I of the United States Constitution;
g. Declare that the challenged Regulation is invalid under the Tenth Amendment to the United States Constitution;
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Case 7:16-cv-00108-O Document 21 Filed 10/17/16 Page 85 of 87 PageID 353 h. Declare that the challenged Regulation is invalid under the Eleventh Amendment to the United States Constitution; i. Issue a permanent injunction enjoining Defendants from enforcing the challenged Regulations against Plaintiffs, their current and future members, those acting in concert with Plaintiffs, and all States; j. Award actual damages; k. Award nominal damages; l. Award Plaintiffs the costs of this action and reasonable attorney’s fees; and m. Award such other and further relief as it deems equitable and just. VI. JURY DEMAND
Plaintiffs hereby request a trial by jury on all issues so triable.
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Respectfully submitted this the 17th day of October, 2016.

/s/ Luke W. Goodrich Luke W. Goodrich DC Bar No. 977736 (N.D. Tex. admission pending) The Becket Fund for Religious Liberty 1200 New Hampshire Ave. NW Suite 700 Washington, DC 20036 (202) 955-0095 (202) 955-0090 lgoodrich@becketfund.org
Counsel for Plaintiffs Christian Medical & Dental Associations, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC

KEN PAXTON Attorney General of Texas
JEFFREY C. MATEER First Assistant Attorney General
BRANTLEY STARR Deputy First Assistant Attorney General
PRERAK SHAH Senior Counsel to the Attorney General
ANDREW D. LEONIE Associate Deputy Attorney General for Special Litigation
AUSTIN R. NIMOCKS Associate Deputy Attorney General for Special Litigation

/s/ Austin R. Nimocks AUSTIN R. NIMOCKS Texas Bar No. 24002695 Austin.Nimocks@texasattorneygeneral.gov

MICHAEL C. TOTH Senior Counsel for Special Litigation

Special Litigation Division P.O. Box 12548, Mail Code 009 Austin, Texas 78711-2548 (512) 936-1414

ATTORNEYS FOR PLAINTIFFS STATE OF TEXAS; STATE OF WISCONSIN; STATE OF NEBRASKA; COMMONWEALTH OF KENTUCKY, by and through Governor Matthew G. Bevin; STATE OF KANSAS; STATE OF LOUISIANA; STATE OF ARIZONA; and STATE OF MISSISSIPPI, by and through Governor Phil Bryant

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Case 7:16-cv-00108-O Document 21 Filed 10/17/16 Page 87 of 87 PageID 355 CERTIFICATE OF SERVICE
I hereby certify that on October 17, 2016, I electronically filed the foregoing document through the Court’s ECF system, which automatically serves notification of the filing on counsel for all parties. In addition, I will personally serve a copy of this document on the United States Attorney for the Northern District of Texas, and send a copy by certified U.S. Mail to the Attorney General of the United States and to the Honorable Sylvia Burwell, Secretary of the United States Department of Health and Human Services.
/s/ Austin R. Nimocks AUSTIN R. NIMOCKS
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 Case 7:16-cv-00108-O Document 62 Filed 12/31/16 Page 1 of 46 PageID 1715

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION

FRANCISCAN ALLIANCE, INC. et al.,
Plaintiffs,
v.
SYLVIA BURWELL, Secretary of the United States Department of Health and Human Services; and UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Defendants.

§ § § § § Civil Action No. 7:16-cv-00108-O § § § § § § § §

ORDER Before the Court are Plaintiffs’ Motions for Preliminary Injunction and Briefs and Appendix in Support (ECF Nos. 22–26), filed October 21, 2016; Defendants’ Response (ECF No. 53), filed November 23, 2016; and Plaintiffs’ Replies (ECF Nos. 56, 57), filed December 2, 2016. Additionally, the parties appeared at a hearing on the request for a preliminary injunction and presented oral arguments on December 20, 2016. ECF No. 61. The Plaintiffs challenge a regulation enacted pursuant to the Patient Protection and Affordable Care Act (“ACA”) that covers nearly every healthcare provider in the country and reaches into one of the most intimate relationships: that between a physician and her patient. The ACA forbids discriminating on the basis of sex. Pursuant to this statutory provision, Defendants enacted a regulation that forbids discriminating on the basis of “gender identity”1 and “termination of pregnancy.” 42 U.S.C. § 18116(a); 45 C.F.R. § 92.4. Plaintiffs argue the new regulation will

1 The challenged regulation defines “gender identity” as “an individual’s internal sense of gender, which may be male, female, neither, or a combination of male and female, and which may be different from an individual’s sex assigned at birth.” 45 C.F.R. § 92.4.
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require them to perform and provide insurance coverage for gender transitions and abortions, regardless of their contrary religious beliefs or medical judgment. See Am. Compl., ECF No. 21. While this lawsuit involves many issues of great importance—state sovereignty, expanded healthcare coverage, anti-discrimination protections, and medical judgment—ultimately, the question before the Court is whether Defendants exceeded their authority under the ACA in the challenged regulations’ interpretation of sex discrimination and whether the regulation violates the Religious Freedom Restoration Act as applied to Private Plaintiffs. Before reaching this question however, the Court is obligated to determine whether it has authority to hear the matter.
For the following reasons, the Court concludes that jurisdiction is proper, the regulation violates the Administrative Procedure Act (“APA”) by contradicting existing law and exceeding statutory authority, and the regulation likely violates the Religious Freedom Restoration Act (“RFRA”) as applied to Private Plaintiffs. Accordingly, Plaintiffs’ Motions for Preliminary Injunction should be and are hereby GRANTED. I. BACKGROUND
The following factual recitation is taken from Plaintiffs’ First Amended Complaint (ECF No. 21) unless stated otherwise.2 Plaintiffs are composed of eight states (collectively “State Plaintiffs”)3 and three private healthcare providers, Franciscan Alliance, Inc. (“Franciscan”), its wholly owned entity Specialty Physicians of Illinois, LLC (“Specialty Physicians”), and the Christian Medical & Dental Society (“CMDA”), doing business as the Christian Medical & Dental
2 Page numbers cited throughout the Court’s Order refer to the page numbers assigned by the Court’s electronic docket. 3 State Plaintiffs include: (1) the State of Texas; (2) the State of Wisconsin; (3) the State of Nebraska; (4) the State of Kansas; (5) the State of Louisiana; (6) the State of Arizona; (7) the Commonwealth of Kentucky, by and through Governor Matthew G. Bevin; and (8) the State of Mississippi, by and through Governor Phil Bryant. Am. Compl. 4–6, ECF No. 21.
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Associations (collectively “Private Plaintiffs”). Am. Compl. 4–8, ECF No. 21. They have sued the U.S. Department of Health and Human Services (“HHS”), and HHS Secretary Sylvia Burwell (“Burwell”) (collectively “Defendants”), challenging a new rule issued by HHS entitled Nondiscrimination in Health Programs & Activities (the “Rule”). 81 Fed. Reg. 31376–31473, (May 18, 2016) (codified at 45 C.F.R. § 92).
The Rule implements Section 1557 of the ACA (“Section 1557”), which prohibits discrimination by any health program or activity receiving federal financial assistance on the grounds prohibited under four federal nondiscrimination statutes incorporated by Section 1557. 45 C.F.R. § 92.1. The ground at issue in this case is Section 1557’s incorporation of the prohibited sex discrimination under Title IX of the Education Amendments of 1972 (“Title IX”). Plaintiffs challenge the Rule’s interpretation of discrimination “on the basis of sex” under Title IX as encompassing “gender identity” and “termination of pregnancy.” 45 C.F.R. § 92.4; State Pls.’ Br. 10, ECF No. 23. Plaintiffs argue that because Section 1557 incorporates the statutory prohibition of sex discrimination in Title IX, its scope should be limited by Title IX’s unambiguous definition of “sex” as the immutable, biological differences between males and females “as acknowledged at or before birth.” Id. at 13, 27. The Plaintiffs also assert that the Rule’s definition of sex does not apply to them because the text of Section 1557 incorporates the religious and abortion exemptions of Title IX, and the Rule’s failure to incorporate those exemptions renders it contrary to law. See Priv. Pls.’ Br. 31–34, ECF No. 25.
On October 21, 2016, Plaintiffs moved for partial summary judgment, or in the alternative, a preliminary injunction. ECF Nos. 22, 24. To resolve the matter before the Rule’s insurance provision goes into effect on January 1, 2017, at which time Plaintiffs would be forced to “make significant, expensive changes to their insurance plans,” the Court set an expedited briefing
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schedule and held a hearing on the preliminary injunction motions on December 20, 2016. Priv. Pls.’ Mot. 2, ECF No. 24; Nov. 1, 2016 Order 7, ECF No. 32; ECF No. 61. Plaintiffs’ motions for preliminary injunction are now ripe for review.
A. The Rule The challenged Rule was first proposed on September 8, 2015, pursuant to HHS’s authority to implement Section 1557 of the ACA. Am. Compl. 10–11, ECF No. 21. After notice and comment, the final Rule was published on May 18, 2016. Id. The Rule took partial effect on July 18, 2016, and the insurance provisions will be effective on January 1, 2017. 81 Fed. Reg. at 31376. The Rule purports to implement Section 1557 which provides: [A]n individual shall not, on the ground prohibited under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) [“Title VI”], title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.) [“Title IX”], the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.) [“ADA”], or section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) [“Section 504”], be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance . . . . 42 U.S.C. § 18116(a) (emphasis added). Section 1557 does not create new bases of prohibited discrimination, but rather incorporates the grounds of four longstanding federal nondiscrimination statutes: Title VI, Title IX, the ADA, and Section 504. 42 U.S.C. § 18116(a). The implementing Rule claims to merely “clarif[y] and codif[y] existing nondiscrimination requirements,” incorporated in Section 1557. 81 Fed. Reg. at 31376 (emphasis added). A substantial portion of the Rule deals with discrimination on the basis of disability, but Plaintiffs limit their challenge to the Rule’s definition of discrimination on the basis of sex. Priv. Pls.’ Br. 24, ECF No. 25. When implementing the Title IX portion of Section 1557, HHS defined discrimination “on the basis of sex” to include “termination of pregnancy” and “gender identity.” 45 C.F.R. § 92.4. The Rule does not define termination of pregnancy but defines gender identity as “an individual’s
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internal sense of gender, which may be male, female, neither, or a combination of male and female, and which may be different from an individual’s sex assigned at birth.” Id. The Rule explains that the “gender identity spectrum includes an array of possible gender identities beyond male and female.” 81 Fed. Reg. at 31392.
Plaintiffs claim the Rule’s interpretation of sex discrimination pressures doctors to deliver healthcare in a manner that violates their religious freedom and thwarts their independent medical judgment and will require burdensome changes to their health insurance plans on January 1, 2017. Priv. Pls.’ Mot. 1–2, ECF No. 24; State Pls.’ Br. 31–33, ECF No. 23. Plaintiffs argue that Defendants define prohibited sex discrimination to include: (1) refusing to provide abortion-related services and health insurance coverage of abortion-related services; and (2) refusing to provide transition-related services and health insurance coverage of transition-related services. See Am. Compl., ECF No. 21. Defendants claim the Rule does not mandate any particular procedure, rather it requires only that covered entities provide nondiscriminatory health services and health insurance in a nondiscriminatory manner. Defs.’ Resp. 35, ECF No. 50; Hr’g Tr. 49:25–50:3, Dec. 20, 2016.
1. Health Coverage One of the “discriminatory actions prohibited” under the Rule is “hav[ing] or implement[ing] a categorical [insurance] coverage exclusion or limitation for all health services related to gender transition.” 45 C.F.R. § 92.207(b). The Rule declares that categorizations of all transition-related treatment as cosmetic or experimental are now “outdated and not based on current standards of care.” 81 Fed. Reg. at 31429. The “range of transition-related services”
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contemplated by the Rule includes treatment for gender dysphoria4 and is “not limited to surgical treatments and may include, but is not limited to, services such as hormone therapy and psychotherapy, which may occur over the lifetime of the individual.” 81 Fed. Reg. at 31435–36.
Because the Rule contains no age limitation, Plaintiffs are concerned it may require health insurance coverage of transitions for children and they note that transition-related procedures are viewed by many in the medical community as harmful, including HHS’s own medical experts.5 Priv. Pls.’ Br. 40, ECF No. 25. They argue the Rule prohibits covered entities from categorically excluding transition-related procedures from insurance coverage plans even though TRICARE, the military’s insurance program, categorically excludes all coverage of surgical transition procedures and widespread debate about the medical risks and ethics associated with transition procedures continues within the medical community. Id. at 40–42.
2. Health Services Plaintiffs also allege the Rule requires doctors or healthcare providers to perform (or refer patients for) transition-related procedures if the entity provides an analogous service in a different context. Am. Compl. 12–13, ECF No. 21. For example, the Rule’s preamble explains that “[a] provider specializing in gynecological services that previously declined to provide a medically necessary hysterectomy [removal of the uterus] for a transgender man would have to revise its
4 Gender dysphoria is defined as “a distressed state arising from conflict between a person’s gender identity and the sex the person has or was identified as having at birth.” MERRIAM-WEBSTER MEDICAL DICTIONARY (2016) https://www.merriam-webster.com/medical/gender%20dysphoria. 5 See Priv. Pls.’ App. 648, ECF No. 26; Centers for Medicare & Medicaid Services, Proposed Decision Memo for Gender Dysphoria and Gender Reassignment Surgery (June 2, 2016) (“Based on a thorough review of the clinical evidence available at this time, there is not enough evidence to determine whether gender reassignment surgery improves health outcomes for Medicare beneficiaries with gender dysphoria. There were conflicting (inconsistent) study results—of the best designed studies, some reported benefits while others reported harms.”).
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policy to provide the procedure for transgender individuals in the same manner it provides the procedure for other individuals.” 81 Fed. Reg. at 31455.
HHS stressed that some procedures “related to gender transition” may be required even if not “strictly identified as medically necessary or appropriate.” Id. at 31435. Plaintiffs interpret this to mean that if a doctor performs mastectomies as part of a medically necessary treatment for breast cancer, he would be forced to perform the same procedure for a gender transition, even if the doctor believed removing healthy breast tissue was contrary to the patient’s medical interest. Am. Compl. 14, ECF No. 21. Private Plaintiffs also perform certain procedures for a miscarriage (such as dilation and curettage) and they fear the Rule will require them to perform those procedures for abortions to avoid discrimination on the basis of “termination of pregnancy.” Am. Compl. 33, 38–39, ECF No. 21.
Plaintiffs claim the Rule pressures covered entities to perform and provide insurance coverage for abortion- and transition-related procedures. Priv. Pls.’ Br. 18–19, ECF No. 25. But Defendants argue the Rule does not require the performance or insurance coverage of any procedure, but merely prohibits policies from “operating in a discriminatory manner, both in design and implementation.” Defs.’ Resp. 27, ECF No. 50. Defendants claim that “neutral nondiscriminatory application of evidence-based criteria” can be used to “make medical necessity or coverage determinations” and that “a legitimate nondiscriminatory reason” can justify a limitation of services. Defs.’ Resp. 55, 24–25, ECF No. 50. At the hearing on this matter however, Defendants’ Counsel argued it would be “very difficult to imag[in]e” any medical justification for a categorical exclusion of health services or coverage of all transition-related procedures. Hr’g Tr. 75:9–12.
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3. Enforcement Although Title IX provides the grounds of prohibited sex discrimination, covered entities who violate the Rule’s prohibition of sex discrimination are subject to the penalties associated with a violation of Title VI of the Civil Rights Act of 1964. 45 C.F.R. § 92.302(a). Those in violation of the Rule face the loss of federal funding, debarment from doing business with the government, and false claims liability.6 45 C.F.R. §§ 92.301, 92.302. Covered entities are required to record and submit compliance reports upon request to HHS’s Office of Civil Rights (“OCR”) and post public notices of compliance. 45 C.F.R. § 92.8; 81 Fed. Reg. at 31439. The Rule also provides for enforcement proceedings by the Department of Justice (“DOJ”) and private lawsuits for damages and attorney’s fees. 81 Fed. Reg. at 31440–41.
4. Plaintiffs Franciscan and CMDA’s members are covered entities under the Rule because they both receive federal financial assistance and provide employee health insurance.7 Franciscan is a Roman Catholic faith-based hospital system founded by a Roman Catholic order, the Sisters of St. Francis of Perpetual Adoration. Am. Compl. 7, ECF No. 21. Healthcare and religion have been inextricably intertwined in the delivery of their services since their first hospital building opened, serving as both a convent and a hospital. Id. Since opening their doors in 1875, they have been focused on serving the most vulnerable of society with the values of the Sisters of St. Francis,
6 Franciscan would risk losing $900 million in federal funds; Texas would risk losing more than $42.4 billion in federal funds; and CMDA members would risk losing a significant amount of federal funds. Am. Compl. 7–8, ECF No. 21; Am. Compl. 28–29, ECF No. 21; See Hr’g Tr. 89:10–20, Dec. 20, 2016. 7 The Rule applies to “every health program or activity, any part of which receives Federal financial assistance provided or made available by the Department; every health program or activity administered by the Department; and every health program or activity administered by a Title I entity.” 45 C.F.R. § 92.2(a). HHS estimated the Rule would “likely cover almost all licensed physicians because they accept Federal financial assistance . . . .” 81 Fed. Reg. at 31445.
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including: respect for life, fidelity to Franciscan’s mission, compassionate concern, and Christian stewardship. Id. at 7, 35. Franciscan’s hospitals provide many resources to accommodate the spiritual needs of their employees, patients, and their families—including daily Mass and 24-hour access to a chapel for individuals of all faith to pray and meditate. Id. at 34. Franciscan now provides $900 million in Medicare and Medicaid services annually to the poor, disabled, and elderly; and stands to lose that funding and significantly more if federal funding is withdrawn. Id. at 7–8.
Franciscan provides all of its standard medical services to every individual, including those who identify as transgender. Am. Compl. 36, ECF No. 21. But Franciscan’s religious beliefs do not allow them to perform or cover transition-related procedures. Id. at 3.
Franciscan holds religious beliefs that sexual identity is an objective fact rooted in nature as male or female persons. Like the Catholic Church it serves, Franciscan believes that a person’s sex is ascertained biologically, and not by one’s beliefs, desires, or feelings. Franciscan believes that part of the image of God is an organic part of every man and woman, and that women and men reflect God’s image in unique, and uniquely dignified, ways. Am. Compl. 37, ECF No. 21. Indeed, Franciscan tailors care according to the biological differences between men and women and credits this approach as part of the success behind its award-winning heart-health treatment program.8 Id. Franciscan does not believe transition-related procedures are ever in the best interests of its patients and providing or covering any transitionrelated service would violate their deeply held religious beliefs. Id. at 37–38. CMDA is the nation’s largest faith-based organization of doctors, including nearly 18,000 members who sign a statement of faith to join and rely on CMDA to advocate on behalf of their
8 Franciscan believes that “optimal patient care—including in patient education, diagnosis, and treatment— requires taking account of the biological differences between men and women” and that “optimal prevention of and treatment for heart disease in women requires monitoring for different warning signs, accounting for different risk factors, and providing different counseling than it would for men.” Am. Compl. 37, ECF No. 21.
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religious beliefs and medical judgments in the public square. Am. Compl. 29–30, ECF No. 21; App. 17, Dr. Stevens’ Decl., ECF No. 26. Accordingly, CMDA is bringing suit on behalf of its members. Am. Compl. 6–7, ECF No. 21.9 CMDA members hold values similar to Franciscan and CMDA’s approved Ethics Statement affirms the “obligation of Christian healthcare professionals to care for patients struggling with gender identity with sensitivity and compassion” but states clear opposition to medical assistance with gender transition and abortion. Id. at 30. CMDA members treat transgender individuals for health issues ranging from the common cold to cancer, and several members have already received requests for transition-related procedures that they cannot provide without violating their religious beliefs. App. 25, Dr. Stevens’ Decl., ECF No. 26. Like Franciscan, CMDA members tailor care according to biological sex phenotype and believe that “[t]ransgender designations may conceal biological sex differences relevant to medical risk factors, recognition of which is important for effective healthcare and disease prevention.” Am. Compl. 31, ECF No. 21. Private Plaintiffs provide a variety of services specifically and exclusively for women (e.g., obstetrics and gynecology; hysterectomies; hormone treatments; reconstructive surgery) that the Rule requires they “demonstrate an exceedingly persuasive justification” to maintain. Am. Compl. 36, ECF No. 21; 45 C.F.R. § 92.101(b)(3)(iv).10
Private Plaintiffs’ religious beliefs also prevent them from being able to participate in, refer for, or cover elective sterilizations or abortion-related procedures. Am. Compl. 33, 38–39, ECF No. 21. Because the Rule prohibits discrimination on the basis of “termination of pregnancy” and
9 Although the Amended Complaint stated CMDA was bringing suit on behalf of itself and its members, Private Plaintiffs indicated at the December 20, 2016 hearing that CMDA is not a covered entity and is bringing suit on behalf of its members only. Am. Compl. 6–7, ECF No. 21; Hr’g Tr. 89:10–20. 10 “A covered entity may operate a sex-specific health program or activity [] only if the covered entity can demonstrate an exceedingly persuasive justification, that is, that the sex-specific health program or activity is substantially related to the achievement of an important health-related or scientific objective.” 45 C.F.R. § 92.101(b)(3)(iv).
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fails to incorporate the blanket religious and abortion exemptions of Title IX, Private Plaintiffs are concerned that their blanket exclusion of abortion or elective sterilization services and coverage of such procedures puts them at risk of losing federal funding and facing civil liability. See Priv. Pls.’ Br. 31, ECF No. 25.11
Franciscan and CMDA’s members also provide health insurance coverage for their employees in accordance with their religious beliefs. See Am. Compl., ECF No. 21. For example, both groups exclude coverage for services related to gender transition, sterilizations, and abortions. Id. at 34, 39. Franciscan’s employee health benefit plan specifically excludes coverage for any “[t]reatment, drugs, medicines, services, and supplies related to gender transition; sterilizations; abortions.” Am. Compl. 39, ECF No. 21; Am. Compl. 34, ECF No. 21 (“CMDA has members who currently provide healthcare coverage for employees, coverage which excludes medical transition procedures.”). Private Plaintiffs sincerely believe that participating in, referring for, or providing insurance coverage of gender transitions, sterilizations, or abortions would constitute “impermissible material cooperation with evil.” Am. Compl. 39, 33, ECF No. 21.
The State Plaintiffs receive billions in federal financial assistance each year, and are subject to the Rule as providers of both health care and health insurance. See id. at 4–6. State Plaintiffs prohibit insurance coverage for abortions and gender transition procedures, but to comply with the Rule, State Plaintiffs must rescind these categorical exclusions. See State Pls.’ Reply 17, ECF No. 56. Texas, one of the named State Plaintiffs, is already being forced to comply with an investigation by HHS’s Office of Civil Rights and stands to lose more than $42.4 billion in federal healthcare funding—jeopardizing the availability of healthcare for the nation’s most vulnerable
11 The Rule cites to federal religious protections outside of Title IX and they are discussed at length below. 45 C.F.R. § 92.2(b)(2).
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citizens if it does not change its policies. State Pls.’ Reply 16–17, ECF No. 56; Am. Compl. 4, ECF No. 21. State Plaintiffs claim the Rule “undermines the longstanding sovereign power of the States to regulate healthcare, ensure appropriate standards of medical judgment, and protect its citizens’ constitutional and civil rights.” Am. Compl. 3, ECF No. 21. State Plaintiffs also argue the Rule forces them to incur significant costs to post required notices of compliance, train personnel, adjust insurance coverage, and increase service offerings to include transition-related procedures. Id. at 27–28. HHS estimates that states will need to contribute $17.8 million to train 7,637,306 state workers under the new Rule. 81 Fed. Reg. at 31465, 31449.
Together, Plaintiffs claim the Rule violates the Administrative Procedure Act (“APA”) because its definition of prohibited sex discrimination is contrary to law and arbitrary and capricious. See Am. Compl., ECF No. 21. Accordingly, the Court begins with the law governing APA claims and the relevant standards in considering a preliminary injunction. II. LEGAL STANDARDS
A. The Administrative Procedure Act “The APA authorizes suit by ‘[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.’” Norton v. S. Utah Wilderness All., 542 U.S. 55, 61 (2004) (quoting 5 U.S.C. § 702). “Where no other statute provides a private right of action, the ‘agency action’ complained of must be final agency action.” Id. at 61–62 (quoting 5 U.S.C. § 704). An administrative action is “final agency action” under the APA if: (1) the agency’s action is the “consummation of the agency’s decision making process”; and (2) “the action [is] one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’” Bennett v. Spear, 520 U.S. 154, 177– 78 (1997) (quoting Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113
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(1948); and Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)). “In evaluating whether a challenged agency action meets these two conditions, this court is guided by the Supreme Court’s interpretation of the APA’s finality requirement as ‘flexible’ and ‘pragmatic.’” Qureshi v. Holder, 663 F.3d 778, 781 (5th Cir. 2011) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149–50 (1967)). When final agency actions are presented for judicial review, the APA provides that reviewing courts should “hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with [the] law.” 5 U.S.C. § 702(2).
B. Preliminary Injunction The Fifth Circuit set out the requirements for a preliminary injunction in Canal Authority of State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974). To prevail on a preliminary injunction, the movant must show: (1) a substantial likelihood that the movant will ultimately prevail on the merits; (2) a substantial threat that the movant will suffer irreparable injury if the injunction is not granted; (3) that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) that granting the injunction is not adverse to the public interest. Id.; see also Nichols v. Alcatel USA, Inc., 532 F.3d 364, 372 (5th Cir. 2008). To qualify for a preliminary injunction, the movant must clearly carry the burden of persuasion with respect to all four requirements. Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 363 (5th Cir. 2003). If the movant fails to establish any one of the four prerequisites to injunctive relief, relief will not be granted. Women’s Med. Ctr. of Nw. Hous. v. Bell, 248 F.3d 411, 419 n.15 (5th Cir. 2001). A movant who obtains a preliminary
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injunction must post a bond to secure the non-movant against any wrongful damages it suffers as a result of the injunction. Fed. R. Civ. P. 65(c).
The decision to grant or deny preliminary injunctive relief is left to the sound discretion of the district court. Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985) (citing Canal, 489 F.2d at 572). A preliminary injunction “is an extraordinary and drastic remedy, not to be granted routinely, but only when the movant, by a clear showing, carries the burden of persuasion.” White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989) (quoting Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985)). Even when a movant satisfies each of the four Canal factors, the decision whether to grant or deny a preliminary injunction remains discretionary with the district court. Miss. Power & Light, 760 F.2d at 621. III. ANALYSIS
Plaintiffs argue the Rule should be enjoined because it violates: (1) the Administrative Procedure Act; (2) the Religious Freedom Restoration Act; (3) the First Amendment’s Free Speech Clause; and (4) the Spending Clause of Article I. See Priv. Pls.’ Mot., ECF No. 25.
Defendants contend that Plaintiffs are not entitled to a preliminary injunction because they are unlikely to succeed, arguing: (1) the Court lacks jurisdiction; (2) the Rule is entitled to Chevron deference; (3) the Rule does not compel or curtail speech; (4) Plaintiffs failed to assert a sufficient facial pre-enforcement vagueness challenge; and (5) Plaintiffs failed to assert a sufficient substantive due process claim. See Defs.’ Resp., ECF No. 50. Defendants also argue Plaintiffs are not entitled to a preliminary injunction because (1) Plaintiffs failed to establish irreparable injury and (2) the balance of equities and public interest favor denying injunctive relief. Id.
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A. Jurisdiction The Court must first assess jurisdiction, for “without proper jurisdiction, a court cannot proceed at all.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 84 (1998).12 Defendants argue the Court lacks jurisdiction because (1) Plaintiffs lack standing; (2) Plaintiffs’ claims are not ripe; and (3) Section 1557 requires Plaintiffs adhere to its specified mechanisms for administrative and judicial review. Defs.’ Resp. 36–37, ECF No. 50. The Court addresses each of these arguments in turn. Article III confines the federal judicial power to actual “cases” and “controversies.” U.S. CONST. art. III, § 2. The case-or-controversy requirement plays a critical role in ensuring the federal judiciary respects “the proper—and properly limited—role of the courts in a democratic society.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 335 (2006) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984)). Article III standing enforces the case-or-controversy requirement and must be established by the party invoking federal jurisdiction as to each claim asserted. DaimlerChrysler, 547 U.S. at 342 (citing Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 11 (2004)).
1. Standing To establish standing Plaintiffs must show: (1) an injury in fact; (2) fairly traceable to Defendants’ challenged conduct; and (3) likely to be redressed by a favorable judicial decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). A plaintiff must support each standing element “with the manner and degree of evidence required at the successive stages of the
12 It is undisputed that this case presents a federal question, giving the Court subject matter jurisdiction pursuant to 28 U.S.C. § 1331. It is also undisputed the Court has authority to review administrative actions pursuant to 5 U.S.C. § 702 of the APA and authority to grant injunctive relief pursuant to Federal Rule of Civil Procedure 65.
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litigation.” Lujan, 504 U.S. at 561. But it is not necessary for all Plaintiffs to demonstrate standing; rather, “one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement.” Texas v. United States, 809 F.3d 134, 151 (quoting Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006)).
To establish injury in fact, a plaintiff must show that he or she suffered “an invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Spokeo, Inc. v. Robbins, 136 S. Ct. 1540, 1548 (2016) (quoting Lujan, 504 U.S. at 560). For an injury to be particularized it must “affect the plaintiff in a personal and individual way.” Spokeo, 136 S. Ct. at 1548. In this case, the Rule will affect each of the Plaintiffs in different ways and varying degrees, but each will be required to make changes to their health insurance coverage (to rescind their current categorical exclusion of transitions) or risk the loss of federal funding and face potential civil liability.13
Defendants argue Plaintiffs failed to satisfy the first element of standing because their alleged injuries are conjectural and hypothetical. Defs.’ Resp. 39–40, ECF No. 50. Defendants also contend CMDA lacks associational standing to sue on behalf of its members because CMDA members would not have standing to sue in their own right and the claims asserted require their individual participation. Id. at 40–42.
Here, the injuries alleged by Plaintiffs are particularized because they distinctly affect each Plaintiff. For example, the Rule will affect how CMDA members communicate with patients, what insurance coverage they offer to their employees, and their hiring prospects because the Rule
13 While the Rule cites “[f]ederal statutory protections for religious freedom and conscience” potentially available to Plaintiffs, Defendants refused to agree the protections would apply to Private Plaintiffs or that Private Plaintiffs would be able to maintain their current categorical exclusions. 45 C.F.R. § 92.2(b)(2); see Hr’g Tr. 70:10–71:13. Accordingly, Private Plaintiffs must remove their categorical exclusion the Rule declares is “unlawful on its face” or roll the dice and risk the withdrawal of federal funding and civil liability. 81 Fed. Reg. at 31429.
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imposes potential liability on hospitals for a doctor’s discrimination. Priv. Pls.’ Br. 44–49, 19, ECF No. 25; 81 Fed. Reg. at 31384. The Rule will affect Franciscan’s ability to continue operations because with no assurance that they will be exempt from the Rule’s provisions that contradict their religious beliefs, Franciscan must either maintain their current insurance coverage plan that violates the Rule and risk debilitating consequences or violate their religious beliefs. See Priv. Pls.’ Br. 22–23, ECF No. 25. Because State Plaintiffs enforce categorical exclusions of transition-related procedures, and have no religious defense to assert, the Rule mandates revision of their policies and forces State Plaintiffs to conduct individualized inquiries into whether a particular transition procedure is medically necessary. See State Pls.’ Reply 17, ECF No. 56. The Rule also forces State Plaintiffs to cooperate with ongoing investigations, expend millions on training personnel under the Rule, and adjust physical facilities to accommodate what the Rule describes as “an array of possible gender identities.” 81 Fed. Reg. at 31392; see State Pls.’ Reply 20, ECF No. 56.
To satisfy the injury in fact requirement, the injury must also be concrete. Spokeo, 136 S. Ct. at 1548. The Supreme Court has emphasized that a concrete injury “must actually exist,” meaning it is “real” and “not abstract.” Id. When seeking a preliminary injunction, in addition to past injury, a plaintiff must show he or she faces “an imminent threat of future injury.” See Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 210–11 (1995). For example, in Los Angeles v. Lyons, the Supreme Court held the plaintiff lacked standing to seek an injunction against a police chokehold policy because he faced “no realistic threat” from the policy. 461 U.S. 95 (1983). The Supreme Court noted that “[t]he reasonableness of [plaintiff’s] fear is dependent upon the likelihood of a recurrence of the allegedly unlawful conduct.” Id. at 107 n.8.
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Here, Plaintiffs’ fear of being subjected to penalties under the challenged Rule is reasonable given they are all covered entities whose insurance plans include a categorical exclusion of transition-related procedures that is forbidden by the Rule.14 Further, the likelihood that Plaintiffs will suffer further harm from the Rule is strengthened by the current HHS investigation into some of the Plaintiffs’ potential noncompliance.15 State Pls.’ Reply 16–17, ECF No. 56. Accordingly, Plaintiffs have presented concrete evidence to support their fears that they will be subject to enforcement under the Rule.
The second and third elements of standing, causation and redressability, are easily established here because the Plaintiffs are themselves the subject of the challenged government action. Lujan, 504 U.S. at 561–62 (stating that when a plaintiff challenges the legality of government action or inaction, and is himself an object of the action at issue, “there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it”).
Because Plaintiffs bring claims under the APA, in addition to Article III standing requirements, “the interest [they] assert[] must be ‘arguably within the zone of interests to be protected or regulated by the statute’ that [they] say[] was violated.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012) (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970)). As covered entities required to make expensive changes to their insurance coverage plans, Plaintiffs’ asserted interests fall
14 45 C.F.R. § 92.207(b)(4). 15 HHS’s Office for Civil Rights (“OCR”) contacted Texas’s Health and Human Services Commission on September 29, 2016 to investigate a complaint concerning the Texas Medicaid Program and is currently investigating whether Texas covers “sex change therapy,” who determines the “medical necessity” for such therapy, and whether there is a different process for determining medical necessity criteria for hormonal fertility treatment and cosmetic surgery. State Pls.’ Reply 16, ECF No. 56 (quoting Decl. of Dana Williamson Ex. 1, Dec. 2, 2016).
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squarely within the zone of interests regulated by the Rule. Accordingly, Private Plaintiffs and State Plaintiffs have standing to pursue this lawsuit.
CMDA also asserts associational standing on behalf of its 18,000 members. Am. Compl. 6–7, 59, ECF No. 21. It is well established that an association is permitted to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977). An organization lacks standing if it fails to adequately allege that there is a threat of injury to any individual member of the association and thus fails to identify even one individual member with standing. Funeral Consumers Alliance, Inc. v. Serv. Corp. Intern., 695 F.3d 330, 344 (5th Cir. 2012) (citing Nat’l Treasury Emps. Union v. U.S. Dep’t of Treasury, 25 F.3d 237, 242 (5th Cir. 1994)). The Supreme Court has held that standing cannot be established by “accepting the organization’s self-description of the activities of its members” and determining that “there is a statistical probability that some of those members are threatened with concrete injury.” Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009). Plaintiff-organizations must make specific allegations establishing that at least one identified member has suffered or would suffer harm. Id. at 498.
As to the first prong, Defendants argue CMDA lacks associational standing because its members have not established their “religious or conscience-based objections to performing [transition or abortion] services.” Defs.’ Resp. 40, ECF No. 50. But a plaintiff-organization need only establish that one member would suffer harm under the Rule, and CMDA has satisfied that requirement by providing the declaration of Dr. Hoffman. Priv. Pls.’ App. 467–70, Hoffman Decl., ECF No. 26. Dr. Hoffman declared that “CMDA’s ethical statements are consistent with my own
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medical and religious beliefs.” App. 468, ECF No. 26. Dr. Hoffman currently provides standard medical services to transgender patients and performs a variety of procedures that could be used in connection with a gender transition but that, in light of his medical judgment and religious beliefs, he would not offer for that purpose. Id. at 468–69.
Defendants take no issue with the second prong, and the Court finds that the interests CMDA seeks to protect in this suit are germane to its purpose. Am. Compl. 29, ECF No. 21. As to the third prong, Defendants argue CMDA lacks associational standing as to the asserted RFRA claim because it would require the participation of individual members. Defs.’ Resp. 41, ECF No. 50. CMDA is not required to detail the specific religious views of each member however, and the record is sufficiently developed from Dr. Hoffman’s Declaration, CMDA’s Ethics Statement, and Private Plaintiffs’ briefing, to consider the RFRA claim at the preliminary injunction stage. Because CMDA alleges there is a real and immediate threat that one of its members will be injured by the Rule, it has established standing on behalf of its members.
2. Ripeness Defendants also argue this suit is not ripe because Plaintiffs’ injuries are speculative, Plaintiffs face no significant hardship in the absence of review, and the issues presented would be significantly aided by further factual development. Defs.’ Resp. 37–39, ECF No. 50. The Court looks primarily at two considerations in determining whether a case is ripe for judicial review: (1) fitness of the issues for judicial decision; and (2) hardship to the parties of withholding court consideration. Abbott Labs., 387 U.S. at 149. In the same vein, a challenge to administrative regulations is fit for review if (1) the questions presented are “purely legal one[s],” (2) the challenged regulations constitute “final agency action,” and (3) further factual development would not “significantly advance [the court’s] ability to deal with the legal issues presented.”
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Texas v. United States, 497 F.3d 491, 498–99 (5th Cir. 2007) (quoting Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 812 (2003)).
Because the present case involves primarily questions of law, the Court finds that it would not be significantly aided by further factual development. The parties do not dispute that Plaintiffs are covered entities under the Rule or that they currently exclude all insurance coverage of transition-related procedures. However, the parties disagree as to the Rule’s exact application and effect on Plaintiffs. Defendants refuse to indicate whether any of the religious defenses cited by the Rule would allow Private Plaintiffs to maintain their categorical exclusions, and insist more facts are needed to determine whether Private Plaintiffs’ insurance policies violate the Rule. Hr’g Tr. 51:20–24, 61:1–62:25. Absent an applicable religious defense, the Rule clearly forbids categorical exclusions of health insurance coverage for transition-related procedures. 45 C.F.R. § 92.207(b)(4); Defs.’ Resp. 26, ECF No. 50. As the Rule clearly prohibits categorical exclusions of transition coverage and Private Plaintiffs have articulated their religious beliefs forbidding coverage of transitions in any case, it is not clear what additional facts would aid resolution of the suit, and Defendants’ counsel struggled to articulate any at the hearing. 45 C.F.R. § 92.207(b)(4); see Hr’g Tr. 61:1–62:25, 93:14–95:16.
But even assuming that Private Plaintiffs would eventually find safe harbor under one of the federal religious protections cited by the Rule, Defendants do not dispute that Private Plaintiffs are covered by the Rule or that it directly affects their conduct. Therefore on January 1, 2017, Private Plaintiffs will be forced to either violate their religious beliefs or maintain their current policies which seem to be in direct conflict with the Rule and risk the severe consequences of enforcement.
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Further, even if Defendants eventually agree Private Plaintiffs are covered by one of the referenced religious protections, State Plaintiffs would have no such defense available. The Rule requires State Plaintiffs to rescind their categorical exclusions of transition procedures and evaluate requests for insurance coverage of transitions on a case-by-case basis. See 45 C.F.R. § 92.207(b)(4). The parties do not dispute that State Plaintiffs’ categorical exclusions of transitionrelated insurance coverage will be in violation of the Rule on January 1, 2017. See Hr’g Tr. 92:4– 8. Therefore, the Court finds no further factual development would aid resolution of the case and what little value a more developed factual record would provide is strongly outweighed by the significant hardship Plaintiffs face in the absence of immediate judicial review.
Substantial hardship is typically satisfied when a party is forced to choose between refraining from allegedly lawful activity or engaging in the allegedly lawful activity and risking significant sanctions. Abbott Labs., 387 U.S. at 136 (finding the suit ripe because denying review would force plaintiffs to undergo significant hardship in an effort to comply with the challenged FDA regulation or risk serious civil and criminal penalties); Steffel v. Thompson, 415 U.S. 452 (1974) (finding the suit ripe because denying review would force plaintiff to choose between forgoing possibly protected speech (distributing anti-Vietnam War literature) and risking criminal punishment). Plaintiffs should not be forced to choose between forgoing conduct they believe is protected or risking substantial sanctions and liability. Steffel, 415 U.S. at 462.
Courts have departed from this general principle—that this impossible choice imposes a substantial hardship worthy of pre-enforcement review—only when the alleged injury is hypothetical or speculative. See, e.g., Toilet Goods Ass’n v. Gardner, 387 U.S. 158 (1967); United Public Workers v. Mitchell, 330 U.S. 75 (1947); Renee v. Geary, 501 U.S. 312 (1991). In Toilet Goods, the choice faced by cosmetic manufacturers challenging an FDA regulation was complying
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and allowing FDA employees to inspect their facilities or refusing to comply and risking a reviewable suspension of certification services. Toilet Goods, 387 U.S. at 165. The Supreme Court concluded the case was not ripe for review because the challenged regulation did not immediately impact plaintiffs in “conducting their day-to-day affairs” and complying required “no advance action.” Id. at 164. The Court also declined to find ripeness because “no irremediabl[y] adverse consequences flow[ed] from requiring a later challenge.” Id. In this case however, the challenged Rule affects Plaintiffs’ day-to-day affairs—the provision of healthcare services for their patients and healthcare coverage for their employees. The Rule requires Plaintiffs to incur significant expense in complying with the Rule and assessing their potential noncompliance. Further, because Private Plaintiffs claim the Rule substantially burdens their exercise of religion in violation of RFRA, the Court finds that irremediable adverse consequences would result from a delay of review.
Claims are often ripe when denying review would place “the hapless plaintiff between the Scylla of intentionally flouting state law and the Charybdis of forgoing what he believes to be constitutionally protected activity in order to avoid becoming enmeshed in a criminal proceeding.” Steffel, 415 U.S. at 462. Plaintiffs in the present case face a similar impossible choice: between the Scylla of intentionally defying federal law and the Charybdis of forgoing specific conduct they believe is constitutionally protected to avoid serious financial and civil penalties. The Court finds the impossible choice faced by Plaintiffs constitutes substantial hardship and with the issues fit for review, the case is accordingly ripe.
Defendants also claim Plaintiffs’ alleged injuries are too speculative to warrant injunctive relief because the Rule incorporates “applicable Federal statutory protections for religious freedom
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and conscience.” Defs.’ Resp. 22–23, ECF No. 50.16 For example, RFRA forbids the government from “substantially burden[ing] a person’s exercise of religion” unless doing so “is the least restrictive means of furthering [a] compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). The Weldon Amendment forbids discriminating against “any institutional or individual health care entity . . . on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Pub. L. No. 114–113, Div. H, § 507(d), 129 Stat. 2242, 2649 (2015) (“Weldon Amendment”). The Coats Amendment forbids discriminating against an entity that refuses to undergo training in performance or referrals for abortions. 42 U.S.C. § 238n(a) (“Coats Amendment”). The Church Amendment forbids requiring any individual “to perform or assist in the performance of any part of a health service program . . . if his performance or assistance in the performance of such part of such program . . . would be contrary to his religious beliefs or moral convictions.” 42 U.S.C. § 300a-7(d) (“Church Amendment”).
The Court addresses Plaintiffs’ RFRA argument below, but the remaining federal protections are insufficient to assure Plaintiffs of either their compliance with the Rule or safety from enforcement proceedings. The Weldon and Coats Amendments deal exclusively with abortions and do not reach religious objections to providing or covering transition-related procedures. The Church Amendment is limited to specific federal funding streams, providing no assurance that the Rule’s enforcement mechanisms will not be employed to give “maximum effect to the provision[s] permitted by law.” 45 C.F.R. § 92.2(b)(c); see Hr’g Tr., 19:1–20.
16 The Rule provides that “applicable Federal statutory protections for religious freedom and conscience” are available, which Defendants identify as RFRA, the Weldon Amendment, the Coats Amendment, and the Church Amendment. Defs.’ Resp. 22–23, ECF No. 50 (quoting 45 C.F.R. § 92.2(b)(2)).
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3. Administrative Exhaustion Defendants also allege that Congress intended to forbid pre-enforcement review of the Rule, as evidenced by the statutory enforcement scheme enacted by Section 1557. Defs.’ Resp. 42–46, ECF No. 50. “The APA authorizes suit by ‘[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.’” Norton v. S. Utah Wilderness All., 542 U.S. 55, 61 (2004) (quoting 5 U.S.C. § 702). This right of judicial review extends to agency actions “except to the extent that—(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” Heckler v. Chaney, 470 U.S. 821, 828 (1985) (quoting 5 U.S.C. § 701(a)). The “strong presumption” favoring judicial review of administrative action “fails when a statute’s language or structure demonstrates that Congress wanted an agency to police its own conduct.” Mach Mining, LLC v. E.E.O.C., 135 S. Ct. 1645, 1651 (2015). Defendants bear a “heavy burden” to establish the Rule’s unreviewability, and “where substantial doubt about the congressional intent exists, the general presumption favoring judicial review of administrative action is controlling.” Texas v. United States, 809 F.3d 134, 164 (5th Cir. 2015) (quoting Block v. Cmty. Nutrition Inst., 467, U.S. 340, 351 (1984)). Defendants argue that Section 1557’s “comprehensive scheme of administrative and judicial review” indicates Congress intended to preclude initial judicial review. Defs.’ Resp. 44, ECF No. 50. Section 1557 incorporates Title VI’s enforcement mechanisms for allegations of sex discrimination under the Rule, so Title VI is the relevant statute to evaluate and determine if Congress intended to divest the Court of original federal question jurisdiction over Plaintiffs’ claims.17 Defendants are unable to offer any binding authority that Title VI’s enforcement
17 Plaintiffs discuss Title IX as the applicable enforcement statute. Priv. Pls.’ Reply 20, ECF No. 57. But the Rule provides: “The procedural provisions applicable to Title VI apply with respect to administrative
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mechanisms (incorporated by Section 1557) indicate Congress intended to forbid judicial review of agency actions under Section 1557.18 In fact, as Plaintiffs point out, several courts have held that Title VI does not always require exhaustion of administrative remedies before judicial review.19 Because Plaintiffs have presented ripe claims and Section 1557 contains no explicit or implicit bar to judicial review, the APA’s basic presumption of reviewability applies. The Supreme Court has held that when a legal issue is “fit for judicial resolution” and a regulation “requires an immediate and significant change in the plaintiffs’ conduct of their affairs with serious penalties attached to noncompliance, access to the courts under the Administrative Procedure Act and the Declaratory Judgment Act must be permitted, absent a statutory bar or some other unusual circumstance.” Abbott Labs., 387 U.S. at 153. “Judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.” Id. at 140. Absent an explicit or implicit statutory bar to judicial review, the APA’s presumption of reviewability applies to Plaintiffs’ ripe claims.
Further, while Section 1557 establishes a thorough enforcement process for the individuals it seeks to protect, it provides no similar avenue of relief for Plaintiffs’ current claims. Priv. Pls.’ Reply 12, ECF No. 57. Plaintiffs must either change course to bring their insurance and physician policies in accordance with the Rule, bearing compliance costs and violating their religious views
enforcement actions concerning discrimination on the basis of race, color, national origin, sex, and disability discrimination under Section 1557 or this part.” 45 C.F.R. § 92.302(a) (emphasis added). 18 Defendants rely on authority from the Fourth and Ninth Circuits (Taylor v. Cohen, 405 F.2d 277, 279 (4th Cir. 1968); Bakersfield City Sch. Dist. of Kern Cty. v. Boyer, 610 F.2d 621, 624 (9th Cir. 1979)) for the contention that Title VI’s comprehensive plan of enforcement divests district courts of jurisdiction over pre-enforcement challenges. Defs.’ Resp. 44–46, ECF No. 50. The remaining authorities cited by Defendants deal with statutory schemes outside of Title VI (such as Title VII and Title IX). Id. 19 See, e.g., Montgomery Improvement Ass’n, Inc. v. U.S. Dep’t of Hous. & Urban Dev., 645 F.2d 291, 297 (5th Cir. 1981) (“[W]e hold that plaintiffs have a private cause of action under . . . Title VI . . . .”); Freed v. Consol. Rail Corp., 201 F.3d 188, 191 (3d Cir. 2000) (“Title VI . . . does not require that plaintiffs exhaust the administrative process before bringing suit.”).
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and medical judgment; or roll the dice and risk the loss of federal funding or massive liability to private parties. The Court finds nothing in the Affordable Care Act—including Section 1557— precludes this action.
Because Plaintiffs have standing and allege ripe claims properly subject to judicial review, the Court next evaluates whether a preliminary injunction is appropriate.
B. Preliminary Injunction 1. Likelihood of Success on the Merits
The first consideration in determining whether to grant Plaintiffs’ motions for preliminary injunction is whether Plaintiffs have shown a likelihood of success on the merits for their claims. This requires Plaintiffs to present a prima facie case. Daniels Health Scis., LLC v. Vascular Health Scis., 710 F.3d 579, 582 (5th Cir. 2013) (citing Janvey v. Alguire, 647 F.3d 585, 595–96 (5th Cir. 2011)). A prima facie case does not mean Plaintiffs must prove they are entitled to summary judgment. Byrum v. Landreth, 566 F.3d 442, 446 (5th Cir. 2009). A party “is not required to prove his case in full at a preliminary injunction hearing.” Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981).
a. Administrative Procedure Act Plaintiffs claim the Rule violates the APA because it is contrary to law and exceeds statutory authority by (1) interpreting Title IX’s prohibition of sex discrimination to include gender identity; (2) failing to include the religious and abortion exemptions of Title IX; (3) contradicting the commands of Title VII; and (4) attempting to commandeer the states in violation of the Tenth Amendment. Priv. Pls.’ Br., ECF No. 25. In response, Defendants argue the Rule is lawful and
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argue the Rule’s interpretation of sex discrimination is entitled to Chevron deference.20 See Defs.’

Resp., ECF No. 50.

In evaluating agency action under the APA, courts must “hold unlawful and set aside”

agency actions that are “not in accordance with the law” or “in excess of statutory jurisdiction,

authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2). For “the authority of

administrative agencies is constrained by the language of the statute they administer.” Texas v.

United States, 497 F.3d 491, 500–01 (5th Cir. 2007) (citing Massachusetts v. EPA, 549 U.S. 497

(2007)). “No matter how it is framed, the question a court faces when confronted with an agency's

interpretation of a statute it administers is always, simply, whether the agency has stayed within

the bounds of its statutory authority.” City of Arlington, Tex. v. F.C.C., 133 S. Ct. 1863, 1868

(2013) (emphasis in original).

The Court begins analysis of Plaintiffs’ likelihood of success by considering Defendants’

first and primary defense: whether HHS’s interpretation of sex discrimination is entitled to

deference under Chevron.

i.

Chevron Deference

In reviewing an agency’s construction of a statute it administers, courts follow the familiar

two-step framework articulated in Chevron and ask first whether Congress has directly spoken to

the precise question at issue. Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,

842 (1984). If so, this is the end of the matter as the court and agency must give effect to

Congress’s unambiguously expressed intent. Food and Drug Admin. v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 121 (2000); City of Arlington, Tex. v. FCC, 133 S. Ct. 1863, 1874

20 Defendants also argue Plaintiffs are unlikely to succeed on their First or Fifth Amendment claims, but because the Court is working on an expedited briefing schedule it does not reach Plaintiffs’ constitutional arguments or Defendants’ constitutional defenses.
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(2013) (quoting Chevron, 467 U.S. at 842–43). If not, the court must defer to the agency’s construction of the statute so long as it is permissible. Brown & Williamson, 529 U.S. at 121.
Step one of Chevron analysis includes both whether the statute confers the agency jurisdiction over an issue, as well as challenges to an agency’s interpretation of a statute. Texas v. United States, 497 F.3d at 500–01.21 For Chevron deference to apply, an agency must have received congressional authority to determine the particular matter at issue in the particular manner adopted. City of Arlington, 133 S. Ct. at 1874 (citing United States v. Mead Corp., 533 U.S. 218 (2001)). When a statute is silent or ambiguous with respect to a specific issue, courts assume the implementing agency has been granted an implicit delegation from Congress to fill in the statutory gaps, and proceed to ask whether the agency’s construction is permissible. Brown & Williamson, 529 U.S. at 123 (citing Chevron, 467 U.S. at 844). “Ambiguity is a creature not of definitional possibilities but of statutory context.” Brown v. Gardner, 513 U.S. 115, 118 (1994). When considering whether a statute is ambiguous under Chevron, a court must: (1) begin with the statute’s language; (2) give undefined words their ordinary, contemporary, common meaning; (3) read the statute’s words in proper context and consider them based on the statute as a whole; and (4) consider a statute’s terms in light of the statute’s purposes. Contender Farms, L.L.P. v. U.S. Dep’t. of Agric., 779 F.3d 258, 269 (5th Cir. 2015).
Courts use traditional means of statutory interpretation to determine if a statute is ambiguous: the text, its history, and its purpose. Calix v. Lynch, 784 F.3d 1000, 1005 (5th Cir. 2015) (quoting Bellum v. PCE Constructors, Inc., 407 F.3d 734, 739 (5th Cir. 2005)). When the words are unambiguous, the “judicial inquiry is complete.” Desert Palace, Inc. v. Costa, 539 U.S.
21 State Plaintiffs refer to the agency’s purported jurisdiction over the issue as “Chevron Step Zero” but the Court evaluates both agency jurisdiction and challenges to the agency’s interpretation in Chevron step one. State Pls.’ Reply 8, ECF No. 56.
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90, 98 (2003) (quoting Rubin v. United States, 449 U.S. 424, 430 (1981)). Legislation is ambiguous if it is susceptible to more than one accepted meaning. Calix, 784 F.3d at 1005. But multiple accepted meanings do not exist merely because a statute’s “authors did not have the forethought expressly to contradict any creative contortion that may later be constructed to expand or prune its scope.” Id. (citing Moore v. Hannon Food Servs., Inc., 317 F.3d 489, 497 (5th Cir. 2003)).
Because the authority to issue the Rule was given in Section 1557 of the ACA, the Court begins with the language of Section 1557.22 Section 1557 clearly incorporates Title IX’s prohibition of sex discrimination.23 Therefore, with no ambiguity in the statute as to what is prohibited sex discrimination, the Court next analyzes the incorporated text to determine whether HHS’s interpretation of the incorporated statute was in line with the text of Title IX. 42 U.S.C. § 18116 (a), (c). Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .” 20 U.S.C. § 1681(a) (emphasis added).
Plaintiffs assert that the plain language of Title IX (incorporated by Section 1557) is clear and unambiguously prohibits biological sex discrimination. State Pls.’ Br. 10, ECF No. 23. They argue Congress spoke directly to the contested issue—the meaning and scope of prohibited sex discrimination—and urge the Court to decide this issue at the first step of the Chevron analysis. State Pls.’ Reply 12–14, ECF No. 56. Defendants assert that Section 1557’s definition of sex
22 “The [HHS] Secretary may promulgate regulations to implement this section.” 42 U.S.C. § 18116(c). 23 “[A]n individual shall not, on the ground prohibited under . . . [T]itle IX of the Education Amendments of 1972 . . . be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance . . . .” 42 U.S.C. § 18116(a).
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discrimination is ambiguous because it fails to explicitly address transgender individuals and the Rule simply fills the statutory gap, implementing Section 1557. Hr’g Tr. 56:5–10.
The precise question at issue in this case is: What constitutes Title IX sex discrimination? The text of Section 1557 is neither silent nor ambiguous as to its interpretation of sex discrimination. Section 1557 clearly adopted Title IX’s existing legal structure for prohibited sex discrimination. 42 U.S.C. § 18116(a). For the reasons set out more fully below, this Court has previously concluded: the meaning of sex in Title IX unambiguously refers to “the biological and anatomical differences between male and female students as determined at their birth.” Texas v. United States, No. 7:16-cv-00054, 2016 WL 4426495, at *14 (N.D. Tex. Aug. 21, 2016); see Johnston v. Univ. of Pittsburgh of Com. Sys. of Higher Educ., 97 F. Supp. 3d 657, 674 (W.D. Pa. 2015), appeal dismissed (Mar. 30, 2016) (“Title IX does not prohibit discrimination on the basis of transgender itself because transgender is not a protected characteristic under the statute.”); see infra III.B.1.a.ii. In promulgating the Rule, HHS revised the core of Title IX sex discrimination under the guise of simply incorporating it.
In addition to the statutory text, the Supreme Court has emphasized a common-sense approach when determining whether Congress was likely to delegate a “policy decision of such economic and political magnitude to an administrative agency.” Brown & Williamson, 529 U.S. at 133. The challenged Rule undoubtedly implicates significant policy questions—namely, the scope and meaning of sex discrimination prohibited by Title IX and incorporated by Section 1557. If Congress wished to assign that decision to HHS, it surely would have done so expressly. King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (citing Util. Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2444 (2014)).
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The Court does not discount Defendants’ stated goal, question the seriousness of the

problem the Rule seeks to address, or weigh into the merits of the issue. But no matter how

“important, conspicuous, and controversial the issue . . . an administrative agency’s power to

regulate in the public interest must always be grounded in a valid grant of authority from

Congress.” Brown & Williamson, 529 U.S. at 161. Because Congress clearly addressed the

question at issue by incorporating Title IX’s existing legal structure, and HHS had no authority to

interpret such a significant policy decision—the scope of sex discrimination under Title IX—

Chevron deference does not apply and the Court need not reach step two of the analysis. See

Brown & Williamson, 529 U.S. at 160, 121.

ii.

Title IX Sex Discrimination

Because HHS is not entitled to Chevron deference, the Court now considers whether

Plaintiffs have demonstrated a likelihood of success on their claim that the Rule violates the APA.

Plaintiffs claim the Rule is contrary to law under the APA because its definition of prohibited sex

discrimination conflicts with that incorporated by Section 1557. Priv. Pls.’ Br., ECF No. 25.

Congress’s intent in enacting Section 1557 is clear because the statute explicitly incorporates Title

IX’s prohibition of sex discrimination. See 42 U.S.C. § 18116(a). It is also clear from Title IX’s

text, structure, and purpose that Congress intended to prohibit sex discrimination on the basis of

the biological differences between males and females. See 20 U.S.C. § 1681.

The text of Title IX indicates Congress’s binary definition of “sex.” See 20 U.S.C. § 1681

(referring to “students of one sex,” “both sexes,” “students of the other sex”). When interpreting

a statute, courts look to its ordinary meaning at the time it was enacted. See, e.g., Carcieri v.

Salazar, 555 U.S. 379, 388 (2009) (“We begin with the ordinary meaning of the word ‘now,’ as

understood when the [statute] was enacted.”); MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512

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U.S. 218, 228 (1994) (finding the relevant time for determining a statutory term’s meaning is when the statute became law); Baker Botts L.L.P. v. ASARCO L.L.C., 135 S. Ct. 2158, 2165 n.2 (2015) (interpreting “services” at the time the word was first used in the statute). When Title IX was enacted in 1972, the term “sex” was commonly understood to refer to the biological differences between males and females.24 Even the early users of the term “gender identity” recognized the distinction between “sex” and “gender identity.”25 If Congress had intended to enact a new, different, or expansive definition of prohibited sex discrimination in Section 1557, it knew how to do so and would not have chosen to explicitly incorporate its meaning from Title IX. The structure of 20 U.S.C. § 1681 et seq. (Title IX) supports this conclusion. For example, in § 1686 Congress authorized covered institutions to provide different arrangements for each of the sexes. 20 U.S.C. § 1686. These authorized distinctions based on sex can only reasonably be interpreted to be necessary for the protection of personal privacy, and confirm Congress’s biological view of the term “sex.” See G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 723, 734 (4th Cir. 2016), recalling mandate & issuing stay, 136 S. Ct. 2442 (2016). Accordingly, the text, structure, and purpose reveal that the definition of sex in Title IX’s prohibition of sex discrimination
24 See, e.g., AMERICAN HERITAGE DICTIONARY 1187 (1976) (“The property or quality by which organisms are classified according to their reproductive functions.”); WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2081 (1971) (“The sum of the morphological, physiological, and behavioral peculiarities of living beings that subserves biparental reproduction with its concomitant genetic segregation and recombination which underlie most evolutionary change . . .”); 9 OXFORD ENGLISH DICTIONARY 578 (1961) (“The sum of those differences in the structure and function of the reproductive organs on the ground of which beings are distinguished as male and female, and of the other physiological differences consequent on these.”). 25 See, e.g., Robert Stroller (UCLA psychoanalyst who coined the term “gender identity”) believed “sex was biological but gender was social” David Haig, The Inexorable Rise of Gender and the Decline of Sex: Social Change in Academic Titles, 1945–2001, ARCHIVES OF SEXUAL BEHAVIOR 93 (Apr. 2004); Virginia Prince (Transgender activist who coined the term “transgender”) stated that “I, at least, know the difference between sex and gender” Virginia Prince, Change of Sex or Gender, 10 TRANSVESTIA 53, 60 (1969).
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unambiguously prevented discrimination on the basis of the biological differences between males and females.
But even if, as Defendants argue, the definition of sex discrimination was determined in 2010 when the ACA incorporated Title IX’s prohibition of sex discrimination, the Court is not persuaded it was passed with the Rule’s expansive scope in mind because: (1) Congress knew how but did not use language indicating as much, and (2) in 2010 no federal court or agency had interpreted Title IX sex discrimination to include gender identity.26 That Congress did not understand “sex” to include “gender identity” when it passed the ACA is evidenced by the employment of the phrase “gender identity” by the same Congress to include protections against crimes motivated by gender identity. See 18 U.S.C. § 249(a)(2)(A) (hate crimes legislation passed by Congress in 2010 protecting “gender identity” and “sexual orientation”);27 see also Brown & Williamson, 529 U.S. at 143 (subsequent analogous statutes more specifically addressing a topic in an earlier statute shape the focus of the earlier statute’s meaning). In addition, the 2013 amendments to the Violence Against Women Act, legislation designed to protect women, added protections for “gender identity” and simultaneously reinforced the longstanding, binary definition of “sex” by employing both terms as separate and distinct bases of discrimination prohibited by the statute. See 42 U.S.C. § 13925(b)(13)(A) (specifically addressing both sex and gender identity,
26 Defendants argued at the hearing that Section 1557’s definition of prohibited sex discrimination determined in 2010 when the ACA was passed. Hr’g Tr. 79:4–7. But even if the definition of sex discrimination was determined in 2010, promulgation of the proposed Rule five years later included a new and expanded definition, as evidenced by commentators’ depictions of the Rule as “groundbreaking.” Lena H. Sun & Lenny Bernstein, U.S. Moves to Protect Women, Transgender People in Health Care, Washington Post, Sept. 3, 2015 (The new Rule “for the first time includes bans on gender identity discrimination as a form of sexual discrimination, language that advocacy groups have pushed for and immediately hailed as groundbreaking.”). 27 The 2010 legislation defines “gender identity” as “actual or perceived gender-related characteristics.” 18 U.S.C. § 249(c)(4).
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declaring: “No person . . . shall, on the basis of . . . race, color, religion, national origin, sex, gender

identity. . . be subjected to discrimination . . . .”). These subsequent enactments confirm that Title

IX and Congress’s incorporation of it in the ACA unambiguously adopted the binary definition of

sex. See Brown & Williamson, 529 U.S. at 143.

Finally, the government’s usage of the term sex in the years since Title IX’s enactment

bolsters the conclusion that its common meaning in 1972 and 2010 referred to the binary,

biological differences between males and females. Prior to the passage of the ACA in 2010 and

for more than forty years after the passage of Title IX in 1972, no federal court or agency had

concluded sex should be defined to include gender identity.28 Accordingly, HHS’s expanded

definition of sex discrimination exceeds the grounds incorporated by Section 1557.

iii.

Title IX Unincorporated Religious Exemptions

Plaintiffs also claim the Rule’s failure to incorporate Title IX’s religious exemptions

renders the Rule arbitrary, capricious, and contrary to law under the APA. Priv. Pls.’ Br. 31, 33,

ECF No. 25. Title IX does not apply to covered entities controlled by a religious organization if

its application would be inconsistent with the religious tenets of such organization. 20 U.S.C.

§ 1681(a)(3) (the “religious exemption”). Title IX also states that it cannot be “construed to require

or prohibit any person, or public or private entity, to provide or pay for any benefit or service,

28 Defendants’ briefing and the Rule’s preamble relied on Price Waterhouse to show that “sex” discrimination encompasses “gender identity.” See 81 Fed. Reg. at 31387–90; Defs.’ Resp. 16, 49, ECF No. 50; Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (holding that Title VII’s prohibition of sex discrimination included discrimination based on stereotypical notions of appropriate behavior, appearance, or mannerisms for males and females). But Price Waterhouse dealt with the definition of “sex” in the Title VII context, not the incorporated statute at issue here: Title IX. Price Waterhouse was decided in 1989, twenty years before the ACA was enacted. If Congress intended to prohibit the newly-expanded version of sex discrimination that Defendants claim includes “gender identity” it could have incorporated Title VII’s prohibition of sex discrimination instead of Title IX. But even in Price Waterhouse, the Supreme Court seems to acknowledge the binary nature of sex and focuses mainly on sex stereotypes. 490 U.S. at 251 (“[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes”).
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including the use of facilities, related to an abortion.” 20 U.S.C. § 1688 (the “abortion exemption”). The Rule did not incorporate Title IX’s religious or abortion exemption even though it incorporated the exemptions of the other three federal nondiscrimination statutes.29
Defendants argue the Title IX religious and abortion exemptions were not incorporated because Section 1557 was doing a “new work,” i.e., applying the education statute to the healthcare context, and the other three incorporated statutes had already been applied to the healthcare context. Hr’g Tr. 84:18–21. Defendants argue not incorporating the Title IX exemptions is of no moment because the other religious and abortion exemptions cited by the Rule are available. Defs.’ Resp. 56–57, ECF No. 50.
As outlined above, the Court declines to give HHS Chevron deference, and when determining whether the failure to incorporate the exemptions is contrary to law, the Court must examine the text of Section 1557. This examination requires the Court to again apply well settled rules of construction which include giving the statutory text its plain and ordinary meaning, construing the statute as a whole, and giving effect to every word of the statute. Taniguchi v. Kan Pac. Saipan, Ltd., 132 S. Ct. 1997, 2002 (2012); United Savings Ass’n of Texas v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371 (1988); Corley v. United States, 556 U.S. 303, 314 (2009). The canon disfavoring surplusage is “one of the most basic interpretive canons.” Corley, 556 U.S. at 314. In construing a statute, courts are obligated to give effect to all its provisions “so that no part will be inoperative or superfluous, void or insignificant.” Id. at 315 (quoting Hibbs v. Winn, 542 U.S. 88, 101 (2004)).
29 “The exceptions applicable to Title VI apply to discrimination on the basis of race, color, or national origin under this part. The exceptions applicable to Section 504 apply to discrimination on the basis of disability under this part. The exceptions applicable to the Age Act apply to discrimination on the basis of age under this part.” 45 C.F.R. § 92.101(c).
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The text of Section 1557 prohibits discrimination “on the ground prohibited under . . . [T]itle IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.) . . . .” 42 U.S.C. § 18116(a). Congress specifically included in the text of Section 1557 “20 U.S.C. 1681 et seq.” That Congress included the signal “et seq.,” which means “and the following,” after the citation to Title IX can only mean Congress intended to incorporate the entire statutory structure, including the abortion and religious exemptions.30 Title IX prohibits discrimination on the basis of sex, but exempts from this prohibition entities controlled by a religious organization when the proscription would be inconsistent with its religious tenets. 20 U.S.C. § 1681(a)(3). Title IX also categorically exempts any application that would require a covered entity to provide abortion or abortion-related services. 20 U.S.C. § 1688. Therefore, a religious organization refusing to act inconsistent with its religious tenets on the basis of sex does not discriminate on the ground prohibited by Title IX.31 Failure to incorporate Title IX’s religious and abortion exemptions nullifies Congress’s specific direction to prohibit only the ground proscribed by Title IX. That is not permitted. Corley, 556 U.S. at 314. By not including these exemptions, HHS expanded the “ground prohibited under” Title IX that Section 1557 explicitly incorporated. See id. The Rule’s failure to include Title IX’s religious exemptions renders the Rule contrary to law.
Defendants’ argument that Section 1557 was “new work” does not save this failure. Hr’g Tr. 56:11–57:18. Congress dictated that an entity would be liable under Section 1557 on the ground prohibited by Title IX. 42 U.S.C. § 18116(a). A religious organization that meets the specification of § 1681(a)(3) or any entity seeking the protection of § 1688 would not be liable for discriminating on the basis of sex under Title IX. HHS could not add additional prohibitions
30 BLACK’S LAW DICTIONARY (10th ed. 2014). 31 The same reasoning also exempts any covered entity from having to provide abortion or abortion-related services.
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simply because it was engaged in “new work.” Further, HHS knew how to adapt Title IX from the education realm to the healthcare context because it provides that when cross-referencing the provisions of Title IX’s use of “student,” the term “individual” should be used in the healthcare context. See 45 C.F.R. 92.101(b)(3)(i). Accordingly, the Court finds the Rule’s conflict with its incorporated statute—Title IX—renders it contrary to law under the APA.32
b. Religious Freedom Restoration Act The Court next evaluates in the alternative whether Plaintiffs have established a substantial likelihood of success on their RFRA claim. Private Plaintiffs allege the Rule violates RFRA because it substantially burdens their exercise of religion. Priv. Pls.’ Br. 23–32, ECF No. 25. Defendants did not address Plaintiffs’ RFRA claim in their briefing but asserted at the hearing that more factual development was necessary to evaluate the claim. Hr’g Tr. 61:1–62:25. The Court addressed the argument that more facts are needed above and finds the record is sufficiently developed to consider Private Plaintiffs’ RFRA claim. See supra, III.A.2. RFRA provides that the “[g]overnment may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person . . . is the least restrictive means of furthering [a] compelling government interest.” 42 U.S.C. § 2000bb-1(b). RFRA was passed by a broad coalition of legislators in direct response to a Supreme Court decision that Congress viewed as curbing longstanding constitutional protections for religious liberty and was enacted to work a “substantive change in constitutional protections.” Tennessee v. Lane, 541 U.S. 509, 520 (2004) (quoting City of Boerne v. Flores, 521 U.S. 507, 532 (1997)); see also Douglas Laycock & Oliver S. Thomas, Interpreting the Religious Freedom Restoration Act, 73 Tex. L.
32 Both parties agree that if the Court resolves the APA or RFRA claim, there is no need to reach the remaining constitutional issues. Hr’g Tr. 57:22–25, 30:1–3.
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Rev. 209, 210, 244 (1994). Courts evaluating a claim under RFRA must first determine if the challenged rule imposes a “substantial burden” on plaintiffs’ religious exercise and if so, then whether the rule satisfies strict scrutiny.
As to the first prong, the Court must (a) identify a sincere religious exercise, and (b) determine whether the government has placed substantial pressure on Plaintiffs to abstain from that religious exercise. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2760 (2014). Defendants do not question or contest the sincerity of Private Plaintiffs’ religious beliefs or exercise, and the Court is careful not to weigh or evaluate the relevant doctrines of faith.33 As discussed above, the Court finds that Private Plaintiffs’ refusal to perform, refer for, or cover transitions or abortions is a sincere religious exercise. Private Plaintiffs have demonstrated they sincerely believe such procedures would harm their patients and force their employees to “engage in material cooperation with evil.” Priv. Pls.’ Br. 24, ECF No. 25. The Supreme Court has explained that the exercise of religion includes “business practices that are compelled or limited by the tenets of a religious doctrine.” Hobby Lobby, 134 S. Ct. at 2770.
In regards to whether the Rule places substantial pressure on Plaintiffs to abstain from religious exercise, the Court finds—and the parties agree—that the Rule’s prohibition of categorical exclusions of transitions and abortions forces Plaintiffs to make an individualized assessment of every request for performance of such procedures or coverage of the same. The Rule therefore places substantial pressure on Plaintiffs to perform and cover transition and abortion procedures. The Rule’s prohibition of categorical exclusions also forces Plaintiffs to provide the
33 See Hernandez v. Comm’r, 490 U.S. 680, 699 (1989) (“It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.”); see also Stephanie N. Phillips, A Text-Based Interpretation of Title VII’s Religious Employer Exemption, TEXAS REVIEW OF LAW & POLITICS (2016) (stressing the importance that courts avoid unconstitutional entanglement with religion when asked to weigh different doctrines of faith).
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federal government a nondiscriminatory and “exceedingly persuasive justification” for their refusal to perform or cover such procedures. 45 C.F.R. § 92.101. Private Plaintiffs’ long-held view that such procedures are immoral and inappropriate in every circumstance is now at odds with the Rule’s interpretation of sex discrimination because it requires them to remove the categorical exclusion of transitions and abortions (a condition they assert is a reflection of their religious beliefs and an exercise of their religion) and conduct an individualized assessment of every request for those procedures. “A law that ‘operates so as to make the practice of . . . religious beliefs more expensive’ in the context of business activities imposes a burden on the exercise of religion.” Hobby Lobby, 134 S. Ct. at 2770 (quoting Braunfeld v. Brown, 366 U.S. 599, 605 (1961)). Accordingly, the Rule imposes a substantial burden on Private Plaintiffs’ religious exercise.
As to the second prong, the government bears the burden to show the Rule satisfies strict scrutiny—i.e., “demonstrate[] that the application of the burden to the person represents the least restrictive means of advancing a compelling interest.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 423 (2006). The Fifth Circuit has held that to satisfy strict scrutiny under RFRA, the government “must show by specific evidence that [Private Plaintiffs’] religious practices jeopardize its stated interests.” Merced v. Kasson, 577 F.3d 578, 592 (5th Cir. 2009). Defendants do not provide a compelling interest in their briefing and Private Plaintiffs dispute that one exists. Priv. Pls.’ Br. 38–42, ECF No. 25. Although the preamble to the Rule claims broadly that the government has “a compelling interest in ensuring that individuals have nondiscriminatory access to health care and health coverage,” Defendants have failed to brief the basis of its compelling interest, leaving the Court unable to determine whether Private Plaintiffs’ religious practices jeopardize its purpose. See 81 Fed. Reg. at 31380. A compelling interest is one
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the government would be willing to pursue itself. Yet, the government’s own health insurance programs, Medicare and Medicaid, do not mandate coverage for transition surgeries; the military’s health insurance program, TRICARE, specifically excludes coverage for transition surgeries; and the government’s own medical experts reported “conflicting” study results of transition procedures—“some reported benefits while others reported harms.” Centers for Medicare & Medicaid Services, Proposed Decision Memo for Gender Dysphoria and Gender Reassignment Surgery (June 2, 2016); see Pls.’ App. 648, ECF No. 26; see Hobby Lobby, 134 S. Ct. at 2780 (significant carve outs and exceptions may indicate the government lacks a compelling interest). Therefore, it appears the government has failed to adequately carry its burden and show the Rule advances a compelling interest.34
Nevertheless, the Court assumes the Rule pursues a compelling interest, because even if it does, the government has failed to prove the Rule employs the least restrictive means. The leastrestrictive-means standard requires the government to “sho[w] that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting part[y].” Hobby Lobby, 134 S. Ct. at 2780. If the government wishes to expand access to transition and abortion procedures, “[t]he most straightforward way of doing this would be for the government to assume the cost of providing the [procedures] at issue to any [individuals] who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.” Id. The government could also assist transgender individuals in finding and paying for transition procedures available from the growing number of healthcare providers who offer and
34 While Putative Intervenors proposed several compelling interests in their briefing (including “eradicating all forms of invidious discrimination,” “making sure that federal funds are not used to subsidize discrimination,” “making sure people are able to access healthcare coverage and services on a nondiscriminatory basis,” and “safeguarding the public health”) it is the government’s view that controls. Hobby Lobby, 134 S. Ct. at 2776; Putative Intervenors’ Resp. 42, ECF No. 53.
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specialize in those services. The government has failed to demonstrate how exempting Private Plaintiffs pursuant to their religious beliefs would frustrate the goal of ensuring “nondiscriminatory access to health care and health coverage,” and the government has numerous less restrictive means available to provide access and coverage for transition and abortion procedures. See 81 Fed. Reg. at 31380. Accordingly, Private Plaintiffs have demonstrated a substantial likelihood of success on their claim that the challenged Rule violates RFRA.
2. Threat of Irreparable Harm Next, Plaintiffs must demonstrate they are “likely to suffer irreparable harm in the absence of preliminary relief.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). “[H]arm is irreparable where there is no adequate remedy at law, such as monetary damages.” Janvey v. Alguire, 647 F.3d at 600 (5th Cir. 2009). An injunction is appropriate only if the anticipated injury is imminent and not speculative. Winter, 555 U.S. at 22. Defendants argue Plaintiffs’ asserted injuries are speculative because Plaintiffs misunderstand the scope and effect of the Rule and its incorporated religious protections. See Defs.’ Resp. 33–36, ECF No. 50. The State Plaintiffs claim they are currently suffering injury under the ongoing HHS investigation into their insurance plans and all Plaintiffs will suffer irreparable harm on January 1, 2017, when they are forced to alter their insurance coverage plans. State Pls.’ Reply 16–17, ECF No. 56. Plaintiffs also point out several entities with similar insurance policies that have already been sued under the Rule since it was issued on May 18, 2016.35 State Plaintiffs allege the Rule is in direct conflict with state law that mandates a
35 Priv. Pls.’ Br. 37, ECF No. 25 (citing Compl., Prescott v. Rady Children’s Hosp. – San Diego, No. 162408 (S.D. Cal. Sept. 26, 2016); Compl., Dovel v. Pub. Library of Cincinnati and Hamilton Cty., No. 16955 (S.D. Ohio Sept. 26, 2016); Compl., Robinson v. Dignity Health, No. 16-3035 (N.D. Cal. June 6, 2016)).
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physician’s independent medical judgment be given paramount consideration when providing treatment because the Rule makes a physician’s independent medical judgment one of many factors in evaluating compliance. State Pls.’ Reply 18–19, ECF No. 56. See TEX. OCC. CODE §§ 162.0021–0022 (mandating deference to the “independent medical judgment” of physicians).
A state suffers irreparable harm anytime it is prevented from enforcing a statute enacted by representatives of its people. Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott, 734 F.3d 406, 419 (5th Cir. 2013) (“When a statute is enjoined, the State necessarily suffers the irreparable harm of denying the public interest in the enforcement of its laws.”); Maryland v. King, 133 S. Ct. 1, 3 (2012) (citing New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (“[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.”)).
Because the Rule is in conflict with state law, one of the State Plaintiffs is already undergoing investigation by the HHS’s OCR, and entities similarly situated to Private Plaintiffs have already been sued under the Rule since it took partial effect on May 18, 2016, the Court finds Plaintiffs have demonstrated that they face a substantial threat of irreparable harm in the absence of an injunction.
3. Balance of Hardships and Public Interest The Court next considers whether the threatened injury to Plaintiffs outweighs any damage the proposed injunction may cause Defendants and its impact on the public interest.36 The threatened injury to Plaintiffs outweighs any potential harm to Defendants. Without an injunction,
36 The Court considers the balance of hardships and public interest factors together as they overlap considerably. Texas v. United States, 809 F.3d 134, 187 (5th Cir. 2015), aff’d, 136 S. Ct. 2271 (2016).
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Plaintiffs will be threatened with substantial harm, including the risk of federal funding withdrawal and civil liability.
On the other hand, HHS will suffer no harm from delaying implementation of the challenged portion of the Rule. The agency’s six-year delay in issuing the Rule strengthens the Court’s conclusion that the delay imposed by the injunction would work no significant harm on Defendants. The injunction would merely maintain the status quo—allowing HHS to prohibit sex discrimination in healthcare services as defined by Title IX and incorporated by Section 1557. If the Rule is invalid, it will be set aside in its entirety and the public interest will be served by the injunction. But even if the Rule is valid, the injunction will merely delay its implementation, pending final review on the merits.
Defendants allege that Plaintiffs delay in seeking relief should weigh in favor of denying the injunction. Defs.’ Resp. 64, ECF No. 50. But the Court finds that filing suit one month after the first parts of the Rule became effective constitutes prompt action, notwithstanding the inadvertent mistake that led to a delay in serving the U.S. Attorney for the Northern District of Texas. See Defs.’ Resp. 64, ECF No. 50. Further, Defendants’ six-year delay in promulgating the Rule since the ACA’s enactment demonstrates that Defendants and the public interest would suffer no irreparable injury in the face of an injunction to maintain the status quo.
For the foregoing reasons, the Court finds that Plaintiffs have satisfied all prerequisites for a preliminary injunction.
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C. Scope of Injunction Finally, the Court must determine the scope of the injunction. Plaintiffs seek a nationwide injunction as to the challenged portions of the Rule—prohibiting discrimination on the basis of “gender identity” and “termination of pregnancy.” Priv. Pls.’ Reply 24–25, ECF No. 57. Defendants argue the injunction should be limited to Plaintiffs. Defs.’ Resp. 49–50, ECF No. 50. “[D]istrict courts enjoy broad discretion in awarding injunctive relief.” Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1408 (D.C. Cir. 1998). “[T]he Constitution vests the District Court with ‘the judicial power of the United States.’ That power is not limited to the district wherein the court sits but extends across the country. It is not beyond the power of a court, in appropriate circumstances, to issue a nationwide injunction.” Texas v. United States, 809 F.3d 134, 188 (5th Cir. 2015) (quoting U.S. CONST. art. III, §1). “[T]he scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). A nationwide injunction is appropriate when a party brings a facial challenge to agency action under the APA. See, e.g., Nat’l Mining, 145 F.3d at 1407–08 (invalidating an agency rule and affirming the nationwide injunction); Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989) (“When a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated— not that their application to the individual petitioners is proscribed.”). CMDA’s membership extends across the country and the Rule applies broadly to “almost all licensed physicians.”37 81 Fed. Reg. at 31445. Accordingly, the Rule’s harm is felt by healthcare providers and states across the country, including all of CMDA’s members, and the Court finds a nationwide injunction appropriate. Because the Rule includes a severability
37 CMDA has members “in all [the] states.” Hr’g Tr. 93:5. 45

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provision, none of the unchallenged provisions are enjoined. 45 C.F.R. § 92.2(c). Only the Rule’s command this Court finds is contrary to law and exceeds statutory authority—the prohibition of discrimination on the basis of “gender identity” and “termination of pregnancy”—is hereby enjoined.
D. Bond Rule 65(c) provides that “[t]he court may issue a preliminary injunction . . . only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any part found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). The amount of security required “is a matter for the discretion of the trial court,” and the Fifth Circuit has held district courts have discretion to “require no security at all.” Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996) (citing Corrigan Dispatch Company v. Casa Guzman, 569 F.2d 300, 303 (5th Cir. 1978)). The Court finds no evidence that Defendants will suffer any financial loss requiring Plaintiffs to post security. Accordingly, the Court grants Plaintiffs’ request to waive the bond requirement. State Pls.’ Mot. 3, ECF No. 22; Priv. Pls.’ Mot. 2, ECF No. 24. IV. CONCLUSION For the foregoing reasons, the Court finds that Plaintiffs’ motions for preliminary injunction (ECF Nos. 22, 24) should be and are hereby GRANTED. See Fed. R. Civ. P. 65. Defendants are hereby ENJOINED from enforcing the Rule’s prohibition against discrimination on the basis of gender identity or termination of pregnancy. SO ORDERED on this 31st day of December, 2016.
46

 
 Case 7:16-cv-00108-O Document 69 Filed 01/24/17 Page 1 of 12 PageID 1796

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION

FRANCISCAN ALLIANCE, INC. et al.,
Plaintiffs,
v.
SYLVIA BURWELL, Secretary of the United States Department of Health and Human Services; and UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Defendants.

§ § § § § Civil Action No. 7:16-cv-00108-O § § § § § § § §

ORDER Before the Court is Defendants’ Motion for Extension of Time to Answer or Otherwise Respond to the Complaint (ECF No. 66), filed January 17, 2017; and Putative Intervenors’ Motion for Ruling on Intervention and Stay of Preliminary Injunction Pending Appeal (ECF No. 63), filed January 9, 2017. Defendants request an extension of their deadline to file an answer to Plaintiffs’ operative complaint from January 25, 2017 to March 1, 2017 in order to coincide with Defendants’ deadline to notice any appeal of the Court’s Order granting Plaintiffs’ motions for preliminary injunction. Defs.’ Mot. 1, ECF No. 66. For the following reasons, Defendants’ Motion for Extension of Time is GRANTED. Putative Intervenors’ Motion for Ruling on Intervention is GRANTED in part; and Putative Intervenors’ Motion to Stay the Court’s Preliminary Injunction is DENIED. I. BACKGROUND Plaintiffs brought the above-styled action against Defendants on August 23, 2016, challenging the legality of 45 C.F.R. § 92 (the “Rule”). See generally Compl., ECF No. 1. The

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American Civil Liberties Union of Texas and River City Gender Alliance (collectively, “Putative Intervenors”) filed a motion to intervene on September 16, 2016. Put. Int. Mot. Intervene, ECF No. 7. According to the Court’s schedule, Plaintiffs’ response to the motion to intervene is due 14 days after Defendants file their responsive pleading to Plaintiffs’ complaint, which is due on January 25, 2017.1 Oct. 7, 2016 Order 3, ECF No. 20. On October 21, 2016, Plaintiffs filed motions for preliminary injunction, requesting a decision before the Rule’s challenged insurance provisions went into effect on January 1, 2017. See Pls.’ Mots., ECF Nos. 22, 24. In order to give the preliminary injunction motions expedited consideration, the Court issued a briefing schedule and reserved consideration of the motion to intervene until after Defendants file their answer.2 The Court allowed Putative Intervenors to participate in all proceedings as amici curiae, and considered their filings in its order granting Plaintiffs’ motions for preliminary injunction. Nov. 1, 2016 Order 6, ECF No. 32; Dec. 31, 2016 Order (“Inj. Order”) 41 n.34, ECF No. 62.
The Court granted Plaintiffs’ motions for preliminary injunction on December 31, 2016, enjoining the portion of the definition of sex discrimination the Court found was contrary to law and exceeded statutory authority. Inj. Order 46, ECF No. 62. Putative Intervenors now seek a ruling on their motion to intervene and a stay of the Court’s preliminary injunction. Put. Int. Mot. 1, ECF No. 63. Defendants request an extension of their time to respond to Plaintiffs’ operative
1 On November 15, 2016, the Court granted Defendants’ consent motion for extension of time to respond to complaint (ECF No. 39), making “Defendants’ answer to Plaintiffs’ operative complaint [] due 25 days after the Court issues its ruling on Plaintiffs’ preliminary injunction motions.” Nov. 15, 2016 Order 1, ECF No. 40. Because the Court issued its ruling on Plaintiffs’ preliminary injunction motions on December 31, 2016, Defendants’ answer to Plaintiffs’ operative complaint is presently due on January 25, 2017. Inj. Order, ECF No. 62. 2 “[C]onsidering the motion to intervene after Defendants file their answer will ‘provide the Court with enough information to determine whether the Putative Intervenors have met their burden to show that their interests are inadequately represented.’” Nov. 1, 2016 Order 6, ECF No. 32 (quoting Oct. 7, 2016 Order, ECF No. 20).
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complaint, until March 1, 2017, in order to coincide with their deadline to notice any appeal of the Court’s preliminary injunction. Defs.’ Mot. 1, ECF No. 66. II. LEGAL STANDARDS
A. Intervention as of Right Rule 24 of the Federal Rules of Civil Procedure governs intervention. Rule 24(a) provides that “[o]n timely motion, the court must permit anyone to intervene who . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.” Fed. R. Civ. P. 24(a). Accordingly, to intervene of right under Rule 24(a)(2), the Fifth Circuit requires that: (1) the application for intervention must be timely; (2) the applicant must have an interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest; and (4) the applicant’s interest must be inadequately represented by the existing parties to the suit. Haspel & Davis Milling & Planting Co. Ltd. v. Bd. of Levee Comm’rs of the Orleans Levee Dist. & State of La., 493 F.3d 570, 578 (5th Cir. 2007); see also Taylor Commc’ns Grp., Inc. v. Sw. Bell Tel. Co., 172 F.3d 385, 387 (5th Cir. 1999). “Failure to satisfy any one requirement precludes intervention of right.” Haspel & Davis, 493 F.3d at 578; see also Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994). B. Permissive Intervention Rule 24(b)(1)(B) provides that “[o]n timely motion, the court may permit anyone to intervene who . . . has a claim or defense that shares with the main action a common question of law or fact.” Accordingly, permissive intervention under Rule 24(b) “is wholly discretionary with the [district] court . . . even though there is a common question of law or fact, or the requirements
3

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of Rule 24(b) are otherwise satisfied.” Kneeland v. Nat’l Collegiate Athletic Ass’n, 806 F.2d 1285, 1289 (5th Cir. 1987). Intervention is appropriate when: “(1) timely application is made by the intervenor, (2) the intervenor’s claim or defense and the main action have a question of law or fact in common, and (3) intervention will not unduly delay or prejudice the adjudication of the rights of the original parties.” Frazier v. Wireline Solutions, LLC, No. C-10-3, 2010 WL 2352058, at *4 (S.D. Tex. June 10, 2010).
Whether a motion to intervene is timely depends on four factors: (1) the length of time the applicants knew or should have known of their interest in the case; (2) prejudice to existing parties caused by the applicants’ delay; (3) prejudice to the applicants if their motion is denied; and (4) any unusual circumstances. United States v. Covington Cty. Sch. Dist., 499 F.3d 464, 465–66 (5th Cir. 2007) (citing Stallworth v. Monsanto Co., 558 F.2d 257, 264–66 (5th Cir. 1977)) (affirming finding that motion to intervene fifteen weeks after consent decree was untimely and prejudicial, especially since intervenor should have known of its interest in case for months); accord Effjohn Intern. Cruise Holdings, Inc. v. A&L Sales, Inc., 346 F.3d 552, 560–61 (5th Cir. 2003).
C. Stay of Proceedings “The district court has a general discretionary power to stay proceedings before it in the control of its docket and in the interests of justice.” McKnight v. Blanchard, 667 F.2d 477, 479 (5th Cir. 1982) (citing Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). The power to stay proceedings is “incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis, 299 U.S. at 254. District courts are to “weigh competing interests and maintain an even balance” in deciding whether to issue a stay. Id. “[T]he moving party bears a heavy burden to
4

Case 7:16-cv-00108-O Document 69 Filed 01/24/17 Page 5 of 12 PageID 1800
show why a stay should be granted.” Coastal (Bermuda) Ltd. v. E.W. Saybolt & Co., 761 F.2d 198, 203 n.6 (5th Cir. 1985). III. ANALYSIS
A. Motion to Intervene On September 16, 2016, Putative Intervenors moved to intervene in the present action as defendants of right under Federal Rule of Civil Procedure 24(a) or, in the alternative, permissively under Rule 24(b)(1)(B), and now seek a ruling on their request to intervene. Put. Int. Mot. Intervene 1, ECF No. 7; Put. Int. Mot. 1, ECF No. 63. Defendants oppose intervention as of right and take no position on permissive intervention. Defs.’ Resp. 1, ECF No. 19. Plaintiffs argue any ruling on the motion to intervene before Defendants have answered Plaintiffs’ complaint would be premature.3 Pls.’ Resp. 1, ECF No. 67.
1. Intervention as of Right To intervene as of right, Putative Intervenors must show: (1) their intervention application is timely; (2) they have an interest relating to the property that is the subject of the action; (3) they are situated so that disposition may, as a practical matter, impair or impede their ability to protect that interest; and (4) their interest is inadequately represented by the existing parties. Haspel & Davis, 493 F.3d at 578. “Failure to satisfy any one requirement precludes intervention of right.” Id. at 578. The Court finds that the intervention application was timely, as it was filed just 24 days after Plaintiffs filed their original Complaint and before any major events in the litigation. See Put. Int. Mot. Intervene, ECF No. 7; Haspel & Davis, 493 F.3d at 578. The Court further finds that Putative Intervenors have a legally protectable interest in the proceedings and that disposition
3 Plaintiffs’ response to the motion to intervene is not due until 14 days after Defendants file their answer to the operative complaint. Oct. 7, 2016 Order 3, ECF No. 20.
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of this action will impair their ability to protect members’ interests if not allowed to intervene, as several of their members wish to avail themselves of rights provided under the Rule. Put. Int. Mot. Intervene 2–4, ECF No. 7.
Thus, the key factor in adjudicating the motion to intervene is the final prong of intervention as of right: whether the existing parties adequately represent Putative Intervenors’ interests. Brumfield v. Dodd, 749 F.3d 339, 345 (5th Cir. 2014); Order 3, ECF No. 20. Putative Intervenors present three arguments in support of their claim that Defendants will not adequately represent their interests. Put. Int. Mot. 2–3, ECF No. 63. First, Putative Intervenors point out Defendants have not provided assurances that they will appeal or seek a stay of the Court’s preliminary injunction. Put. Int. Mot. 2, ECF No. 63. Defendants have stated only that decisions as to whether, and to what extent, they appeal “will be made by the Solicitor General.” Defs.’ Resp. 1, ECF No. 65. Putative Intervenors also claim Defendants will not adequately represent their interests because they raised defenses as amici that Defendants did not present to the Court. Put. Int. Mot. 2–3, ECF No. 63. Finally, Putative Intervenors argue that the change of authority in the executive branch demonstrates that Defendants will not adequately represent their interests because President Trump has “promised to repeal the Affordable Care Act and to ‘[p]rotect individual conscience in healthcare.’” Put. Int. Mot. 3, ECF No. 63 (quoting Kimberly Leonard, Donald Trump Provides Details of Health Care Policies, U.S. News & World Report (Nov. 11, 2016)).
“An intervention applicant satisfies the final prong by showing that his interest ‘may be’ inadequately represented.” Aransas Project v. Shaw, 404 Fed. App’x 937, 940 (5th Cir. 2010) (quoting Sierra Club, 18 F.3d at 1207). But when an intervention applicant shares “the same ultimate objective as a party to the suit, the existing party is presumed to adequately represent the
6

Case 7:16-cv-00108-O Document 69 Filed 01/24/17 Page 7 of 12 PageID 1802
party seeking to intervene unless that party demonstrates adversity of interest, collusion, or nonfeasance.” Id. at 940 (quoting Haspel & Davis, 493 F.3d at 578–79).
Here, Putative Intervenors share the same ultimate objective as Defendants—namely, a finding that the Rule is lawful. Defendants have demonstrated no adversity of interest, collusion, or nonfeasance, and the Court finds Putative Intervenors’ remaining arguments unpersuasive. First, Defendants need not give assurances they will seek a stay or appeal the preliminary injunction in order to adequately represent Putative Intervenors’ interests. Up to this point, Defendants have taken no action out of step with their original position that remains in line with Putative Intervenors’ objective: an order that the Rule is lawful. Secondly, contrary to Putative Intervenors’ assertion, the Court considered all defenses raised by Putative Intervenors in their filings as amici curiae. Inj. Order 41 n.34, ECF No. 62. Finally, from the Court’s perspective, an administrative change in the executive branch does not indicate a shift in position with respect to a particular case. Putative Intervenors’ reference to an outline of health care proposals from the incoming administration that promised to “[p]rotect individual conscience in healthcare” is wholly insufficient to demonstrate a change in position by Defendants.4 The Court makes no speculation as to future policy positions of any administration based on media reports. As of this Order, Defendants have taken no action inconsistent with Putative Intervenors’ objective to demonstrate the Rule’s legality.
Because it is not yet clear whether Defendants will adequately represent Putative Intervenors’ interests, Putative Intervenors may not presently intervene as of right for “failure to satisfy any one requirement precludes intervention of right.” Haspel & Davis, 493 F.3d at 578.
4 Put. Int. Mot. 3, ECF No. 63 (quoting Kimberly Leonard, Donald Trump Provides Details of Health Care Policies, U.S. News & World Report (Nov. 11, 2016)).
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Case 7:16-cv-00108-O Document 69 Filed 01/24/17 Page 8 of 12 PageID 1803
2. Permissive Intervention Putative Intervenors also seek permissive intervention under Rule 24(b)(1). Put. Int. Mot. Intervene 6, ECF No. 7. While Putative Intervenors’ application is timely and presents common questions of law or fact, the final prong of permissive intervention—whether intervention will unduly delay or prejudice the adjudication of the rights of the original parties—cannot be fully evaluated until Plaintiffs respond to the motion to intervene. Unlike intervention as of right, evaluating Putative Intervenors’ request for permissive intervention does not center on whether their interests are adequately represented by the existing parties, and therefore can be resolved before Defendants file their answer to Plaintiffs’ operative complaint. While Defendants have noted they “take no position on permissive intervention under Rule 24(b),” they have not addressed whether granting Putative Intervenors’ request for permissive intervention would cause them any potential prejudice or delay. Defs.’ Resp. Mot. Intervene 1, ECF No. 19. Accordingly, Plaintiffs and Defendants are hereby ORDERED to file a pleading responsive to Putative Intervenors’ request for permissive intervention on or before February 8, 2017. Putative Intervenors may file a reply on or before February 15, 2017. The Court defers any ruling on Putative Intervenors’ request for permissive intervention until the parties have fully briefed the issue. B. Motion for Stay of Preliminary Injunction In addition to a ruling on their motion to intervene, Putative Intervenors seek a stay of the Court’s preliminary injunction order. Put. Int. Mot. 3, ECF No. 63. A party seeking stay of an injunction bears the burden of demonstrating: (1) likelihood of success on the merits; (2) likelihood the applicant will be irreparably injured absent a stay; (3) that issuance of a stay will not substantially injure the other parties; and (4) that the stay is in the public interest. See Texas v.
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United States, 787 F.3d 733, 746–47 (5th Cir. 2015) (quoting Nken v. Holder, 556 U.S. 418, 426 (2009)). The first two factors “are the most critical.” Nken, 556 U.S. at 434.
“A stay is not a matter of right, even if irreparable injury might otherwise result,” and the propriety of issuing a stay depends on the circumstances of the particular case. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 410 (5th Cir. 2013) (quoting Nken, 556 U.S. at 427). The decision to grant or deny a stay is committed to the trial court’s sound discretion. Nken, 556 U.S. at 433.
In their attempt to demonstrate irreparable injury and a likelihood of success on the merits, Putative Intervenors misstate the scope and application of the Court’s preliminary injunction order. The Court’s Order did not purport to alter any statutory protections for women or transgender individuals outside of the challenged portion of the Rule. The Order did not enjoin the entirety of sex discrimination prohibited by the Rule, but enjoined only the portion of the Rule that defined prohibited sex discrimination in a way that exceeded Defendants’ authority under the incorporated statute: Title IX.5 The Court’s Order does not permit a healthcare provider to refuse routine healthcare to a women because she previously had an abortion. Indeed, as Putative Intervenors point out, “th[o]se sorts of practices are plainly sex discriminatory.” Put. Int. Mot. 6, ECF No. 63 (emphasis added). Discrimination on the basis of sex is still clearly prohibited and unaffected by the Court’s Order, which enjoined only the new and unauthorized portion of the Rule, which defined prohibited sex discrimination to include: “gender identity” and “termination of pregnancy.” Inj. Order 46, ECF No. 62.
5 “Only the Rule’s command this Court finds is contrary to law and exceeds statutory authority—the prohibition of discrimination on the basis of ‘gender identity’ and ‘termination of pregnancy’—is hereby enjoined.” Inj. Order 46, ECF No. 62.
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Further, the Court’s Order did not purport to alter any statutory duties outside the
challenged portion of the Rule at issue that may compel a governmental agency to investigate or
prosecute instances of harassment or discrimination. The Court’s Order was limited to the Rule’s
new provision defining sex discrimination as including gender identity and termination of
pregnancy, which had never been articulated or applied in the healthcare context, and were found
contrary to law. Inj. Order 36, 46, ECF No. 62. All discriminatory defenses and non-
discriminatory obligations that protected patients and bound healthcare providers on July 17, 2016 remain in full effect and are unencumbered by the Court’s preliminary injunction order.6
Putative Intervenors are unable to cite any binding authority that Title IX sex
discrimination is no different than Title VII sex discrimination or any case mandating Title IX be invariably interpreted in accordance with Title VII.7 While Title VII’s interpretation of sex
discrimination may conform to Putative Intervenors’ view of the term, it does not change the
Court’s previous analysis of Title IX and the plain meaning of sex discrimination as incorporated
6 The Rule was promulgated as final on May 18, 2016, and became effective on July 18, 2016, except for the rule provisions affecting health insurance or group health benefit design, which were set to become effective on January 1, 2017. 45 C.F.R. § 92.1. Discriminatory defenses and non-discriminatory obligations enacted outside the challenged Rule are also unaffected by the Court’s preliminary injunction. 7 Putative Intervenors cite Franklin v. Gwinnett Cty. Pub. Sch. for the assertion that “the Supreme Court has consistently held that the definition of ‘sex’ under Title IX is the same as the definition of ‘sex’ under Title VII.” Put. Int. Mot. 4, ECF No. 63 (citing 503 U.S. 60, 75 (1992)). Gwinnett mentions Title VII in two footnotes, but declines to reach “whether Title VII analysis should apply to an action under Titles VI or IX.” 503 U.S. at 65 nn.4–5. Gwinnett focuses primarily on the remedies available under Title IX and the portion cited by Putative Intervenors makes no mention of Title VII. See 503 U.S. 60. While Gwinnett noted the “analysis of Title IX and Title VI . . . has developed along similar lines.” 503 U.S. at 64. Gwinnett does not discuss any similarities between Title IX and Title VII, much less assert they share the same definition of “sex.” Although Gwinnett does not address the meaning of Title IX sex discrimination, the Supreme Court may soon resolve the issue in its resolution of G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd. 822 F.3d 709, 723, 734 (4th Cir. 2016), recalling mandate & issuing stay, 136 S. Ct. 2442 (2016), cert. granted, 2016 WL 4565643 (U.S. Oct. 28, 2016) (No. 16-273).
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by Section 1557—the statute passed by Congress, authorizing HHS to promulgate the Rule. Inj. Order 31, ECF No. 62.
The final two factors, whether a stay would substantially injure the other parties or advance the public interest, were analyzed at length in the Court’s Order. Inj. Order 42–44, ECF No. 62. The Court remains convinced that the public interest weighs in favor of an injunction and Plaintiffs would suffer irreparable injury in the absence of an injunction. See Inj. Order 42–44, ECF No. 62; see also Nken, 556 U.S. at 434 (holding the first two factors in considering a stay—applicant’s likelihood of success on the merits and threat of irreparable injury—are “the most critical”).
Further, Putative Intervenors failed to present concrete evidence of irreparable injury, claiming broadly that “many women and transgender individuals continue to experience discrimination in the health care context, which can lead to denials of adequate health care and increases in existing health disparities in underserved communities.” Such an assertion, with no further demonstration of the immediacy of the harm, does not establish irreparable injury in favor of a stay. See Nken, 556 U.S. at 418, 434 (holding the mere “possibility of irreparable injury” fails to demonstrate irreparable injury). The Court also finds Defendants’ six-year delay in promulgating the Rule since the Affordable Care Act’s enactment demonstrates the public interest would suffer no irreparable injury in the absence of a stay, allowing the injunction to maintain the status quo pending resolution on the merits.8 See Inj. Order 44, ECF No. 62.
8 Putative Intervenors consider the time since the Rule’s enactment as the status quo that should be protected. Put. Int. Mot. 7, ECF No. 63. But the Court is not persuaded that any change in the law between July 18, 2016 and December 31, 2016, while this litigation proceeded, was sufficient to override the status quo that prevailed for six years between the Affordable Care Act’s enactment and the Rule’s publication.
11

Case 7:16-cv-00108-O Document 69 Filed 01/24/17 Page 12 of 12 PageID 1807 C. Motion for Extension of Time to File Answer Also before the Court is Defendants’ motion for extension of time to answer or otherwise
respond to Plaintiffs’ operative complaint. Defs.’ Mot. 1, ECF No. 66. Defendants request the Court extend their current deadline to file an answer, from January 25, 2017 to March 1, 2017, in order to coincide with their deadline to notice an appeal of the Court’s preliminary injunction order. Id. Defendants claim, and the Court agrees, that such an extension would “make the most efficient use of the parties’ and the Court’s resources.” Id. Therefore, Defendants are hereby permitted an extension of their deadline to answer or otherwise respond to Plaintiffs’ operative complaint until March 1, 2017. IV. CONCLUSION
The Court finds that Defendants’ Motion for Extension of Time (ECF No. 66) should be and is hereby GRANTED. Accordingly, Defendants’ answer to Plaintiffs’ operative complaint shall be due on or before March 1, 2017. Putative Intervenors’ Motion for Ruling on Intervention (ECF No. 63) is GRANTED in part; and Putative Intervenors’ Motion to Stay the Court’s Preliminary Injunction (ECF No. 63) is DENIED.
SO ORDERED on this 24th day of January, 2017.
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 Case 7:16-cv-00108-O Document 126 Filed 12/17/18 Page 1 of 2 PageID 2946

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION

FRANCISCAN ALLIANCE, INC. et al., §

§

Plaintiffs,

§

§

v.

§ Civil Action No. 7:16-cv-00108-O

§

ALEX M. AZAR II, Secretary of the

§

United States Department of Health and §

Human Services; and UNITED STATES §

DEPARTMENT OF HEALTH AND

§

HUMAN SERVICES,

§

§

Defendants.

§

ORDER

Before the Court is the Parties’ Joint Motion to Lift Stay, Vacate Status Conference, and

Set Briefing Schedule (ECF No. 125), filed December 17, 2018. Having considered the motion,

the Court finds that it should be and is hereby GRANTED. It is therefore ORDERED that the

stay of this case is lifted. It is further ORDERED that the Court’s December 13, 2018 Order—

setting a status conference in this matter—is VACATED.

It is further ORDERED that the parties and proposed intervenors shall adhere to the agreed

briefing schedule adopted below:

Filing

Deadline

Plaintiffs’ motion for summary judgment

February 4, 2019

Proposed Intervenors’ renewed motion to intervene

February 4, 2019

Plaintiffs’ and Defendants’ responses to the renewed motion to intervene February 25, 2019

Proposed Intervenors’ reply in support of the renewed motion to March 11, 2019 intervene

Case 7:16-cv-00108-O Document 126 Filed 12/17/18 Page 2 of 2 PageID 2947

Defendants’ and Proposed Intervenors’ cross-motions for summary judgment and opposition to Plaintiffs’ motion for summary judgment
Plaintiffs’ opposition to Defendants’ and Proposed Intervenors’ crossmotions for summary judgment and reply in support of Plaintiffs’ motion for summary judgment
Defendants’ and Proposed Intervenors’ reply in support of their crossmotions for summary judgment

April 5, 2019 May 3, 2019 May 24, 2019

SO ORDERED on this 17th day of December, 2018.
_____________________________________ Reed O’Connor UNITED STATES DISTRICT JUDGE

 
 Case 7:16-cv-00108-O Document 105 Filed 07/10/17 Page 1 of 10 PageID 2866

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION

FRANCISCAN ALLIANCE, INC. et al., §

§

Plaintiffs,

§

§

v.

§ Civil Action No. 7:16-cv-00108-O

§

THOMAS E. PRICE, Secretary of the

§

United States Department of Health and §

Human Services; and UNITED STATES §

DEPARTMENT OF HEALTH AND

§

HUMAN SERVICES,

§

§

Defendants.

§

ORDER Before the Court are Defendants’ Motion for Voluntary Remand and Stay (ECF No. 92), filed May 2, 2017; Plaintiffs’ Response (ECF No. 94), filed May 4, 2017; and Defendants’ Reply (ECF No. 95), filed May 18, 2017.1 For the following reasons, Defendants’ Motion for Voluntary Remand and Stay (ECF No. 92) is GRANTED in part. I. BACKGROUND Plaintiffs brought suit on August 23, 2016, challenging two provisions of a final rule issued by the Department of Health and Human Services (“HHS”) to implement Section 1557 of the Affordable Care Act.2 Am. Compl. 10–11, ECF No. 21; see Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31376 (May 18, 2016) (codified at 45 C.F.R. § 92.4) (the

1 Also pending before the Court are Putative Intervenors’ Motion to Intervene (ECF No. 7), filed September 16, 2016; Plaintiffs’ Motion for Summary Judgment (ECF No. 82), filed March 14, 2017; Putative Intervenors’ Motion to Stay Pending Appeal (ECF No. 85), filed March 27, 2017; and Defendants’ Motion for Extension of Time (ECF No. 93), filed May 2, 2017. 2 The Court’s December 31, 2016 Order granting Plaintiffs’ motions for preliminary injunction recounts the factual background of this case in detail. See Dec. 31, 2016 Order (“Inj. Order”) 1–3, ECF No. 62.
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“Rule”). Specifically, Plaintiffs argue the Rule’s interpretation of prohibited sex discrimination as encompassing “gender identity” and “termination of pregnancy” violates the Administrative Procedure Act (“APA”) and the Religious Freedom Restoration Act (“RFRA”).3 Am. Compl. 41– 54, 69–72, ECF No. 21. On December 31, 2016, the Court granted Plaintiffs’ motions for a preliminary injunction, finding they were likely to succeed on their APA and RFRA claims and enjoining enforcement of the Rule’s expanded definition of sex discrimination. See Inj. Order 28– 35, ECF No. 62 (finding that the Rule’s expanded definition of sex discrimination as encompassing “gender identity” and “termination of pregnancy” likely exceeded HHS’s statutory authority); see also Inj. Order 35–42, ECF No. 62 (finding the Rule was likely contrary to law because it failed to incorporate the religious and abortion exemptions in Title IX and likely violated RFRA as applied to Private Plaintiffs).
The American Civil Liberties Union of Texas and River City Gender Alliance (collectively, “Putative Intervenors”) filed a motion to intervene as of right, seeking in the alternative a grant of permissive intervention, on September 16, 2016. Mot. Intervene, ECF No. 7. In order to give Plaintiffs’ preliminary injunction motions expedited consideration before the Rule took full effect, the Court issued a briefing schedule and reserved consideration of the motion to intervene until after Defendants filed an answer to Plaintiffs’ complaint, which has yet to be filed.4 See ECF Nos. 40, 69, 79, 93 (granting Defendants’ consent motion to extend the answer deadline to 25 days after resolution of the motions for preliminary injunction—January 25, 2017, then to March 1,
3 Plaintiffs voluntarily dismissed without prejudice Counts III–X and XIII–XX of their First Amended Complaint on March 14, 2017. See Pls.’ Vol. Dismissal, ECF No. 81. 4 “[C]onsidering the motion to intervene after Defendants file their answer will ‘provide the Court with enough information to determine whether the Putative Intervenors have met their burden to show that their interests are inadequately represented.’” Nov. 1, 2016 Order 6, ECF No. 32 (quoting Oct. 7, 2016 Order, ECF No. 20).
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2017, to coincide with Defendants’ deadline to notice any appeal, and finally to May 2, 2017, to provide the incoming administration time to assess their position, on which day Defendants filed the present motion for remand and requested another extension of the answer deadline). The Court has allowed Putative Intervenors to participate in all proceedings as amici curiae and considered their filings in its December 31, 2016 Order granting Plaintiffs’ motions for preliminary injunction. Nov. 1, 2016 Order 6, ECF No. 32; Inj. Order 41 n.34, ECF No. 62.
On January 24, 2017, the Court denied Putative Intervenors’ request for a stay of the preliminary injunction and issued a partial ruling on their motion to intervene.5 Jan. 24, 2017 Order 7–8, ECF No. 69. The Court (1) denied intervention as of right, finding their interests were presumed to be adequately represented by Defendants because they shared the same ultimate objective and failed to rebut that presumption by demonstrating “adversity of interest, collusion, or nonfeasance”; and (2) deferred a ruling on permissive intervention until the existing parties filed briefs addressing whether intervention would “delay or prejudice the adjudication of the[ir] rights.”6 Id. Plaintiffs are opposed to intervention and Defendants are opposed to intervention as
5 In considering the motion to intervene as of right, the Court noted that “Putative Intervenors have a legally protectable interest in the proceedings” as the intended beneficiaries of the Rule. Jan. 24, 2017 Order 5, ECF No. 69. Plaintiffs have asked the Court to retract that finding because Putative Intervenors failed to demonstrate a “concrete, personalized, and legally protectable” interest sufficient to confer standing under Article III. See Pls.’ Resp. 5, ECF No. 74; see also Hr’g Tr. (citing Town of Chester v. Laroe Estates, 137 S. Ct. 1645 (2017), which Putative Intervenors claim is inapplicable because they are seeking to intervene as a defendant in the present case). In reply, Putative Intervenors argued that their appeal deprived the Court of jurisdiction to reconsider its conclusion that they had a “legally protectable interest.” Put. Int. Reply 2 n.1, ECF No. 76. As requested, the Court will allow the parties an opportunity to brief the issue as necessary when the stay is lifted. Id. 6 The Parties’ official responses to the motion to intervene are due 14 days after Defendants file their responsive pleading to Plaintiffs’ complaint, which was due May 2, 2017, on which day Defendants filed a motion for extension that is currently pending before the Court. Oct. 7, 2016 Order 3, ECF No. 20; Feb. 27, 2017 Order 1, ECF No. 79; Defs.’ Mot. 1, ECF No. 93.
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of right but take no position on permissive intervention.7 See Defs.’ Br., ECF No. 73; Pls.’ Br.,
ECF No. 74.
Since the Court entered its preliminary injunction on December 31, 2016, Putative
Intervenors appealed the denial of their motion to intervene as of right, Plaintiffs filed a motion
for summary judgment, Putative Intervenors requested a stay of the case pending appeal, and
7 Before the requested briefing on permissive intervention was filed, Putative Intervenors appealed the Court’s January 24, 2017 Order denying intervention as of right. See Notice of Interlocutory Appeal, ECF No. 72. Putative Intervenors have maintained that their February 2, 2017 appeal deprived this Court of jurisdiction over their request to intervene as of right and argued at the June 26, 2017 hearing that ruling on their motion for permissive intervention before the Fifth Circuit decided if they had jurisdiction to consider the issue would improperly interfere with the Fifth Circuit’s jurisdiction. See Hr’g Tr.; Put. Int. Reply 2 n.1, ECF No. 75 (noting “[b]ecause Proposed Intervenors appealed the Court’s denial of intervention as of right, however, the Court no longer has jurisdiction to amend its Order in this request). On appeal, Plaintiffs argued Putative Intervenors’ request was premature and the Fifth Circuit lacked jurisdiction because Putative Intervenors were not parties to the underlying suit and had not received a complete ruling on their motion to intervene. See Hr’g Tr. In order to respond to the Fifth Circuit’s letter requesting the Court’s estimated timeframe for ruling on the motion to intervene, the Court set a hearing for June 26, 2017. But on June 30, 2017, before this Order issued, the United States Court of Appeals for the Fifth Circuit dismissed Putative Intervenors’ appeal for lack of jurisdiction. See ECF Nos. 100, 101, 104.
The Court has worked to ensure Putative Intervenors were fully heard at every stage without compromising the Court’s ability to deliver a prompt ruling on the request for expedited injunctive relief. Any delay in ruling on the motion to intervene was caused, first, by the Court’s need to provide expedited review of Plaintiffs’ motions for preliminary injunction before the challenged Rule took full effect on December 31, 2016, and second, by awaiting the Fifth Circuit’s decision on its jurisdiction over the partial denial of the motion to intervene. See Oct. 7, 2016 Order 1, ECF No. 20 (making the parties’ responses to the motion to intervene due 14 days after Defendants respond to Plaintiffs’ complaint, stating their official position in the case). Within days of the Court’s preliminary injunction, the Court issued a partial ruling on the motion to intervene—denying intervention as of right and deferring a ruling on permissive intervention, requesting expedited briefing on the issue. Jan. 24, 2017 Order 7–8, ECF No. 69. Before the Court received the requested briefing, Putative Intervenors appealed the Court’s partial ruling on February 2, 2017, claiming the Fifth Circuit had jurisdiction over the denial of their motion to intervene as of right, even though a ruling on their alternative form of relief—permissive intervention—had been deferred and was not yet fully briefed. See Notice of Interlocutory Appeal, ECF No. 72.
Putative Intervenors filed a single motion to intervene seeking intervention as of right, or alternatively, permissive intervention. Mot. Intervene 1, ECF No. 7. Because from February 2, 2017 to June 30, 2017, the Putative Intervenors were appealing the partial denial of their motion to intervene, the Court awaited a ruling from the Fifth Circuit on the issue instead of ruling on a motion the Fifth Circuit was actively considering. In that time, consideration of the merits of this case has largely been at a standstill and Putative Intervenors have not been unduly prejudiced from the delay that resulted from their appeal. See Put. Int. Mot. Stay, ECF No. 85. Defendants have yet to respond to Plaintiffs’ complaint and this Court has not considered any briefing on the merits. As emphasized below, Putative Intervenors will receive a final ruling on their motion to intervene before the Court considers Plaintiffs’ motion for summary judgment.
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Defendants moved the Court to remand or stay the case pending reconsideration of the Rule. See Notice of Interlocutory Appeal, ECF No. 72; Pls.’ Mot. Summ. J., ECF No. 82; Put. Int. Mot. Stay, ECF No. 85; Defs.’ Mot., ECF No. 92. Defendants request a remand to HHS and stay of all proceedings in order to conserve party resources and allow HHS “an opportunity to reevaluate the regulation and address the issues raised in this litigation through proper rulemaking proceedings.” Defs.’ Mot. 1–2, ECF No. 92. Plaintiffs urge the Court to deny the motion and issue a ruling on their motion for summary judgment, or alternatively, retain jurisdiction during the remand and require periodic status reports. Pls.’ Resp., ECF No. 94. The Court held a hearing on June 26, 2017, and heard from the Plaintiffs, Defendants, and Putative Intervenors on all pending motions. See Min. Entry, ECF No. 103.
For the following reasons, the Court GRANTS in part Defendants’ Motion for Voluntary Remand and Stay (ECF No. 92), declining to remand but staying the case until further Order of the Court. II. LEGAL STANDARD
When a plaintiff files a complaint challenging agency action, a federal court has the discretion to grant the agency’s motion for a voluntary remand of the matter in order to permit the agency to reconsider its decision, even before any judicial consideration of the merits. See Code v. McHugh, No. 15-cv-31, 2015 WL 6154381, at *3 (D.D.C. Oct. 19, 2015). The decision whether to grant an agency’s request to remand is left to the discretion of the court. Carpenters Indus. Council v. Salazar, 734 F. Supp. 2d 126, 132 (D.D.C. 2010). Courts often prefer to “allow agencies to cure their own mistakes rather than wasting the courts’ and the parties’ resources.” See Ethyl Corp. v. Browner, 989 F.2d 522, 524 n.3 (D.C. Cir. 1993).
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A court may grant an agency’s request to remand when “(i) new evidence becomes available after an agency’s original decision was rendered, or (ii) where intervening events outside the agency’s control may affect the validity of an agency’s actions.” Carpenters Indus. Council, 734 F. Supp. 2d at 132 (quoting SKF USA Inc. v. United States, 254 F.3d 1022, 1028 (Fed. Cir. 2001)). But even in the absence of new evidence or intervening events, courts retain discretion to remand an agency decision, provided the agency has raised substantial and legitimate concerns in support of remand. See SKF, 254 F.3d at 1029; Carpenters Indus. Council, 734 F. Supp. 2d at 132. In exercising discretion, courts should consider whether the opposing party will be unduly prejudiced. FBME Bank Ltd. v. Lew, 142 F. Supp. 3d 70, 73 (D.D.C. 2015) (citing Am. Forest Res. Council v. Ashe, 946 F. Supp. 2d 1, 47 (D.D.C. 2013)).
An agency need not confess error to obtain a voluntary remand but should at least “profess [its] intention to reconsider, re-review, or modify the original agency decision that is the subject of the legal challenge.” Limnia, Inc. v. U.S. Dep’t of Energy, 857 F.3d 379, 387 (D.C. Cir. 2017). The Fifth Circuit has held that an “agency may not reconsider its own decision if to do so would be arbitrary, capricious, or an abuse of discretion.” Macktal v. Chao, 286 F.3d 822, 826 (5th Cir. 2002). And courts have recognized that requests for remand should be made “within a reasonable time after the first decision.” See id.; see also Citizens Against Pellissippi Parkway Extension, Inc. v. Mineta, 375 F.3d 412, 416 (6th Cir. 2004) (quoting Belville Mining Co. v. United States, 999 F.2d 989, 997 (6th Cir. 1993)). III. ANALYSIS
Defendants request a voluntary remand to reconsider the Rule challenged by Plaintiffs and partially enjoined by the Court. Defs.’ Mot. 1, ECF No. 92. Defendants have not confessed error, identified new evidence, or cited any intervening events to support their remand request. But
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Defendants have identified “substantial and legitimate concerns” in support of a remand and stay— namely, that the Court and the parties could waste limited resources litigating issues that may be mooted by HHS’s impending review of the Rule. Id. Defendants argue that a remand and stay is warranted because (1) it would allow HHS to reconsider the Rule; (2) it would preserve Court and party resources; and (3) Plaintiffs would suffer no undue prejudice because the preliminary injunction would remain in effect. Defs.’ Mot. 4–5, ECF No. 92.
Plaintiffs argue a stay or remand is unnecessary for HHS to reconsider the Rule and that the Court should deny the request because Defendants have confessed no error and made no commitment to revise the Rule or even initiate rulemaking proceedings. Pls.’ Resp. 2–3, ECF No. 94. While HHS could revise or revoke the Rule without a remand or stay, courts ordinarily allow the rulemaking agency an opportunity to reconsider a rule when it cites serious and legitimate concerns, even in the absence of confessed error and before consideration of the merits.8 Ethyl Corp., 989 F.2d at 524 n.3; Code, 2015 WL 6154381, at *3.
Second, Plaintiffs argue that HHS’s request is untimely because it was made four months after the Court’s preliminary injunction. Pls.’ Resp. 3–4, ECF No. 94. But, as Defendants pointed out at the hearing, it is not unusual for the initiation of rulemaking proceedings to take many months. Hr’g Tr. Further, courts have found time periods in excess of three years to be reasonable, and considering the change in administration that occurred shortly after the Court’s preliminary
8 Plaintiffs did not cite, and the Court was unable to find, any case requiring that the agency requesting remand make a formal commitment to initiate rulemaking proceedings or make any revision. As Defendants pointed out at the hearing, committing to revision before the notice-and-comment period would frustrate the very purpose of receiving notice and comment. Hr’g Tr. While the agency need not make any concrete commitment to initiate rulemaking proceedings, it should at least profess an intention to reconsider the challenged rule. Limnia, 857 F.3d at 387. Here, Defendants have expressed their intention to reconsider the Rule. Defs.’ Mot. 1, ECF No. 92. But the Court recognizes Plaintiffs’ concern that Defendants have made no concrete commitment to initiate rulemaking proceedings. Pls.’ Resp. 3, ECF No. 94. Therefore, to encourage timely review of the Rule, the Court will continue to exercise jurisdiction over the case, requiring periodic status reports on the rulemaking proceedings.
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injunction, the Court finds Defendants’ request to be timely. See Frito-Lay, Inc. v. U.S. Dep’t. of Labor, 20 F. Supp. 3d 548, 555–56 (N.D. Tex. 2014) (Horan, Mag. J.) (finding “there is no hard and fast rule regarding what constitutes ‘reasonable time’ with respect to voluntary remand” and citing cases that upheld two and four years) (citing Crager v. United States, 25 Cl. Ct. 400, 403– 04, 411 (1992); Elkem Metals Co. v. United States, 193 F. Supp. 2d 1314, 1322–23 (Ct. Int’l Trade 2002)).
Plaintiffs also argue that, even if the preliminary injunction were to remain in effect during the remand or stay, they would face undue prejudice because the Fifth Circuit may allow Putative Intervenors to intervene and grant a stay of the Court’s injunction or private parties may initiate new suits against them. Pls.’ Resp. 4, ECF No. 94; Hr’g Tr. But the Fifth Circuit has dismissed Putative Intervenors’ appeal for lack of jurisdiction, so that concern is now moot, and the potential prejudice from additional lawsuits is too remote to constitute undue prejudice that would lead the Court to consider the merits of Plaintiffs’ claims before allowing HHS time to reconsider the Rule. Finally, Plaintiffs argue that a final ruling on the merits and vacatur of the Rule would provide HHS much-needed guidance in their reconsideration. Pls.’ Resp. 2, ECF No. 94. But the Court finds that its preliminary injunction motion provides sufficient guidance for HHS’s review of the Rule.
Plaintiffs cite efficiency as another reason to deny the motion to stay and rule on their motion for summary judgment. See Pls.’ Resp. 2, ECF No. 94 (arguing that proceeding to final judgment before remanding the case would reduce the likelihood that the parties would end up in court again). The Court agrees that judicial efficiency is a primary consideration but finds that resuming consideration of the merits after HHS completes its review of the Rule would be more efficient than proceeding directly to the merits. Because HHS’s reconsideration of the Rule may
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moot some or all of Plaintiffs’ claims presented in their motion for summary judgment, proceeding to the merits before reconsideration is complete may waste limited judicial and party resources.9 Therefore, staying the case until HHS completes its review of the Rule makes efficient use of both the Court’s and the parties’ resources.
In light of Defendants’ “desire to reassess the reasonableness, necessity, and efficacy of the two aspects of the [Rule] that are challenged in this case,” the Court finds that staying the case and resuming consideration of all pending motions when HHS completes reconsideration of the Rule will promote judicial efficiency and impose no undue prejudice on Plaintiffs. In distinguishing the requested remand from a stay, Defendants stated only that a stay could cause the “threat of ongoing litigation” to “distract” the agency from its rulemaking proceedings. Hr’g Tr. Because HHS’s authority to reconsider the Rule is unaffected by whether the Court grants a remand or stay, and Defendants have consented to the Court’s continued jurisdiction and ongoing preliminary injunction, the Court declines to fully remand the case but imposes a stay of all proceedings. Defendants made no argument that a stay would diminish their authority to reconsider the Rule and the Court perceives no compelling reason to remand instead of stay the case.10 Accordingly, Defendants’ Motion for Voluntary Remand and Stay (ECF No. 92) is GRANTED in part.
9 Putative Intervenors did not file an official response to Defendants’ motion to remand and stay, but asked the Court at the hearing to fully resolve their pending motion to intervene before granting a stay or remand. Hr’g Tr. Because a potential revision of the Rule could moot or change the Court’s intervention analysis, the Court finds that considering the intervention motion before allowing HHS an opportunity to review the Rule would not serve the efficiency considerations cited by Putative Intervenors in their own motion for a stay of the case. Put. Int. Mot. Stay 3, ECF No. 85. The Court will rule on the motion for permissive intervention, as necessary, after the stay is lifted and before consideration of Plaintiffs’ motion for summary judgment. 10 With a stay of all proceedings in the case until HHS completes review of the Rule, there should be no “distraction” sufficient to detract from the agency’s ability to conduct rulemaking proceedings in a timely fashion.
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Case 7:16-cv-00108-O Document 105 Filed 07/10/17 Page 10 of 10 PageID 2875 IV. CONCLUSION
For the foregoing reasons, the Court finds that Defendants’ Motion for Voluntary Remand and Stay (ECF No. 92) should be and is hereby GRANTED in part. Accordingly, the case is hereby STAYED until further order of the Court and all pending motions are held in abeyance.
Defendants are hereby ORDERED to file a status report on or before August 4, 2017, identifying any rulemaking proceedings initiated with respect to the challenged Rule. The Court expressly RETAINS jurisdiction over Plaintiffs’ asserted claims and will maintain a supervisory role until the stay is lifted by requiring periodic status reports from the existing parties. Further, the Court CLARIFIES that the December 31, 2016 Preliminary Injunction Order (ECF No. 62) is unaffected by this Order and remains in full force and effect throughout the duration of the stay until further order of the Court.
SO ORDERED on this 10th day of July, 2017.
_____________________________________ Reed O’Connor UNITED STATES DISTRICT JUDGE
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 Case 7:16-cv-00108-O Document 175 Filed 10/15/19 Page 1 of 25 PageID 4735

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION

FRANCISCAN ALLIANCE, INC., et al., §

§

Plaintiffs,

§

§

v.

§ Civil Action No. 7:16-cv-00108-O

§

ALEX M. AZAR II, Secretary of the

§

United States Department of Health and §

Human Services; and UNITED STATES §

DEPARTMENT OF HEALTH AND

§

HUMAN SERVICES,

§

§

Defendants.

§

MEMORANDUM OPINION AND ORDER

Before the Court are Putative Intervenors American Civil Liberties Union of Texas’s and

River City Gender Alliance’s (collectively, “Putative Intervenors”) Renewed Motion to Intervene,

Brief in Support, and Appendix in Support (ECF Nos. 129–31), filed February 1, 2019; Plaintiffs’

Response (ECF No. 140), filed February 25, 2019; Defendants’ Response (ECF No. 141), filed

February 25, 2019; and Putative Intervenors’ Reply (ECF No. 144), filed March 11, 2019. Also

before the Court are Plaintiff States’ Renewed Motion for Summary Judgment, Brief in Support,

and Appendix in Support (ECF Nos. 132–34), filed February 4, 2019; Private Plaintiffs’ Renewed

Motion for Partial Summary Judgment, Brief in Support, and Appendix in Support (ECF Nos.

135–37), filed February 4, 2019; Defendants’ Response (ECF No. 154), filed April 5, 2019;

Putative Intervenors’ Response (ECF No. 155), filed April 5, 2019; Plaintiff States’ Reply (ECF

No. 157), filed May 3, 2019; and Private Plaintiffs’ Reply (ECF No. 158), filed May 3, 2019.

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I. BACKGROUND In its December 31, 2016 Order granting Plaintiffs’ motions for a preliminary injunction
and applying the injunction throughout the country, the Court set forth the extensive statutory, regulatory, and procedural background to this case. See Order 1–12, ECF No. 62. Since that time, there have been several important procedural developments. On January 24, 2017, the Court deferred ruling on Putative Intervenors’ original motion to intervene because it was not yet clear whether Defendants would adequately represent Putative Intervenors’ interest. Order 7, ECF No. 69. On March 15, 2017, Plaintiffs filed a motion for summary judgment. Pls.’ Mot. Summ. J., ECF No. 82. On March 27, 2017, Putative Intervenors filed a motion to stay proceedings pending appeal of the Court’s denial of their motion to intervene. Putative Intervenors’ Mot. Stay, ECF No. 85. On May 2, 2017, Defendants filed a motion to remand and stay litigation pending the United States Department of Health and Human Services’ (“HHS”) reconsideration of the regulation at issue, entitled Nondiscrimination in Health Programs & Activities (“the Rule”), 81 Fed. Reg. 31376 (May 18, 2016), codified at 45 C.F.R. § 92. Defs.’ Mot. Remand & Stay, ECF No. 92. On June 30, 2017, the Fifth Circuit declined to rule on Putative Intervenors’ motion to intervene as of right because this Court had not yet ruled on the motion for permissive intervention. Fifth Circuit’s J., ECF No. 104. On July 10, 2017, after a hearing, the Court stayed the case in order to allow HHS to review the Rule. Order, ECF No. 105. The Court deferred ruling on Putative Intervenors’ pending motion to intervene based on Defendants’ contention that a change to the Rule could moot the case and on Putative Intervenors’ own concerns cited in their motion to stay. Id. On December 17, 2018, Plaintiffs and Defendants filed a joint motion to lift the stay and set a briefing schedule.1
1 On April 5, 2019, Defendants changed their position and asked the Court to postpone ruling on the motions to intervene and for summary judgment. See Defs.’ Resp. 1–2, ECF No. 154. Defendants requested more time to complete the ongoing efforts to amend the Rule. Id. Defendants asked that, alternatively, any relief would be limited to redressing the injuries of the named Plaintiffs. Id.
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Joint Mot. Lift Stay, ECF No. 125. The Court granted the parties’ requests, lifting the stay and setting a briefing schedule for Putative Intervenors’ renewed motion to intervene, as well as the parties’ renewed motions for summary judgment. Order, ECF No. 126. Those motions are now fully briefed and ripe for ruling. The Court granted HHS two years to complete its review and amend the Rule at issue. Despite HHS’s better efforts, the rule remains on the books. 45 C.F.R. § 92 (2016). Accordingly, the Court finds that principles of equity and judicial economy favor ruling on the pending motions, allowing the other parties in this case to conclude two years of litigation on these issues. II. LEGAL STANDARD
Federal Rule of Civil Procedure 24(a) permits a party to seek intervention as of right, while Rule 24(b) allows a party to seek permissive intervention. FED. R. CIV. P. 24. “Although the movant bears the burden of establishing its right to intervene, Rule 24 is to be liberally construed.” Wal-Mart Stores, Inc. v. Tex. Alcoholic Beverage Comm’n, 834 F.3d 562, 565 (5th Cir. 2016) (citation omitted). “Federal courts should allow intervention when no one would be hurt and the greater justice could be attained.” Id. (quoting Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994)) (internal quotation marks omitted).
A. Intervention as of Right Rule 24(a)(2) of the Federal Rules of Civil Procedure provides that:
[o]n timely motion, the court must permit anyone to intervene who . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest. A proposed intervenor is entitled to intervene if all the following elements are satisfied: (1) the application for intervention must be timely; (2) the applicant must have an interest relating to the property or transaction which is the subject of the action;
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(3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest; and (4) the applicant's interest must be inadequately represented by the existing parties to the suit. Texas v. United States, 805 F.3d 653, 657 (5th Cir. 2015) (quoting New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co. (NOPSI), 732 F.2d 452, 463 (5th Cir. 1984) (en banc)). “Failure to satisfy one requirement precludes intervention of right.” Haspel & Davis Milling & Planting Co. Ltd. v. Bd. of Levee Comm’rs of the Orleans Levee Dist., 493 F.3d 570, 578 (5th Cir. 2007); see also Espy, 18 F.3d at 1205. B. Permissive Intervention Federal Rule of Civil Procedure 24(b)(1) provides that “[o]n timely motion, the court may permit anyone to intervene who: (A) is given a conditional right to intervene by a federal statute; or (B) has a claim or defense that shares with the main action a common question of law or fact.” FED. R. CIV. P. 24(b)(1). “In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” FED. R. CIV. P. 24(b)(3). Permissive intervention under Rule 24(b) “is wholly discretionary with the [district] court . . . even though there is a common question of law or fact, or the requirements of Rule 24(b) are otherwise satisfied.” Kneeland v. Nat’l Collegiate Athletic Ass’n, 806 F.2d 1285, 1289 (5th Cir. 1987). Intervention is appropriate when: “(1) timely application is made by the intervenor, (2) the intervenor’s claim or defense and the main action have a question of law or fact in common, and (3) intervention will not unduly delay or prejudice the adjudication of the rights of the original parties.” Frazier v. Wireline Sols., LLC, No. C-10-3, 2010 WL 2352058, at *4 (S.D. Tex. June 10, 2010) (citation omitted); In re Enron Corp. Sec., Derivative & “ERISA” Litig., 229 F.R.D. 126, 131 (S.D. Tex. 2005).
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C. Summary Judgment Summary judgment is proper when the pleadings and evidence show “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). “[T]he substantive law will identify which facts are material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The movant makes a showing that there is no genuine issue of material fact by informing the court of the basis of its motion and by identifying the portions of the record that reveal there are no genuine material-fact issues. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When reviewing the evidence on a motion for summary judgment, the court must resolve all reasonable doubts and inferences in the light most favorable to the non-movant. See Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir. 1988). The court cannot make a credibility determination in light of conflicting evidence or competing inferences. Anderson, 477 U.S. at 255. And if there appears to be some support for the disputed allegations, such that “reasonable minds could differ as to the import of the evidence,” the court must deny the motion for summary judgment. Id. at 250. D. Vacatur When reviewing an agency action, “the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” 5 U.S.C. § 706. Further, the court “shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be—arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. at § 706(2)(A). Because Congress “provided vacatur as a standard remedy for APA violations,” courts typically “invalidate—without
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qualification—unlawful administrative rules as a matter of course, leaving their predecessors in place until the agencies can take further action.” Pennsylvania v. President United States, 930 F.3d 543, 575 (3d Cir. 2019). III. ANALYSIS
A. Intervention In its Order staying proceedings and remanding to HHS for reconsideration of the Rule, the Court stated that it would “rule on the motion for permissive intervention, as necessary, after the stay is lifted and before consideration of Plaintiffs’ motion for summary judgment.” Order 9 n.9, ECF No. 105. The Court also stated that, upon lifting the stay, it would “allow the parties an opportunity to brief the issue” of whether the Court correctly found that “Putative Intervenors have a legally protectable interest in the proceedings as the intended beneficiaries of the Rule.” Id. at 3 n.5 (internal citation omitted). Furthermore, Defendants recently declined to defend the Rule, which forces the Court to also reconsider the forth prong of intervention as of right: whether Putative Intervenors’ interest is inadequately represented by the existing parties. See Defs.’ Resp. 1–2, ECF No. 154. Accordingly, the Court now considers whether Putative Intervenors may intervene under Rule 24(a) or (b).
1. Intervention as of Right Unlike in their original motion to intervene, Putative Intervenors no longer ask to intervene permissively. Compare Putative Intervenors’ Br. Supp. Mot. Int. 23–24, ECF No. 8, with Putative Intervenors’ Br. Supp. Mot. Int. 7–11, ECF No. 130. Instead, they ask the Court to “reconsider its earlier denial of intervention as of right and grant [Putative] Intervenors’ renewed request to intervene in light of the government’s subsequent actions.” Putative Intervenors’ Br. Supp. Mot. Int. 8, ECF No. 130. Thus, the Court first addresses whether Putative Intervenors are entitled to
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intervene as of right under Rule 24(a). FED. R. CIV. P. 24. To intervene as of right, Putative Intervenors must show: (1) their intervention application is timely; (2) they have an interest relating to the property or transaction that is the subject of the action; (3) they are situated so that disposition may, as a practical matter, impair or impede their ability to protect that interest; and (4) their interest is inadequately represented by the existing parties. Haspel & Davis, 493 F.3d at 578. “Failure to satisfy any one requirement precludes intervention of right.” Id. The Court finds that Putative Intervenors now satisfy each of the four prongs and are entitled to intervene.
a. Inadequate Representation The Court previously denied Putative Intervenors’ request based on the fourth prong. See Order 7, ECF No. 69. Though the Court found that (1) the intervention application was timely, (2) Putative Intervenors had a legally protectable interest in the proceedings, and (3) the disposition of this action would impair their ability to protect members’ interests if not allowed to intervene, there was no indication that Defendants would (4) inadequately represent Putative Intervenors’ interest. Id. at 5–7. Indeed, the Court noted that “Putative Intervenors share[d] the same ultimate objective as Defendants—namely, a finding that the Rule is lawful.” Id. at 7. Defendants had “demonstrated no adversity of interest, collusion, or nonfeasance.” Id. And “[u]p to th[at] point, Defendants ha[d] taken no action out of step with their original position . . . that the Rule is lawful.” Id. Thus, the Court denied the motion, stating, “Putative Intervenors may not presently intervene as of right.” Id. Two years later, Defendants have taken actions out of step with their original position, demonstrating they will not adequately represent Putative Intervenors’ interests. Defendants now “agree with Plaintiffs and the Court that the Rule’s prohibitions on discrimination on the basis of gender identity and termination of pregnancy conflict with Section 1557 and thus are substantively
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unlawful under the APA.” Defs.’ Resp. 1, ECF No. 154. In fact, Defendants argue that Plaintiffs “are entitled to summary judgment on their APA claim,” but urge the Court not to resolve any other claim. Id. And importantly, Defendants “do not oppose the [Putative] Intervenors’ renewed Motion to Intervene.” Defs.’ Resp. 1, ECF No. 141. Under the reasoning of the Court’s January 24, 2017 Order, Defendants’ actions now clearly allow Putative Intervenors to satisfy the forth prong and presumably entitle Putative Intervenors to intervene as of right.
b. Legally Protectable Interest Inadequate representation aside, Plaintiffs still contend that Putative Intervenors are not entitled to intervene as of right. Specifically, Plaintiffs argue that Putative Intervenors do not have the “legally protectable interest” needed to satisfy the second and third prongs. Pls.’ Resp. 5, ECF No. 140.2 What the Court stated in its January 2017 order, it now reiterates in response: “Putative Intervenors have a legally protectable interest in the proceedings and . . . disposition in this action will impair their ability to protect members’ interests if not allowed to intervene, as several of their members wish to avail themselves of rights provided under the Rule.” Order 5–6, ECF No. 69. Plaintiffs provide two reasons why the Court should reconsider this conclusion. First, they claim that the evidence included in Putative Intervenors’ motion to intervene “lacks a proper evidentiary foundation, is speculative, and is based on inadmissible hearsay.” Pls.’ Resp. 6, ECF No. 140. Second, Plaintiffs argue that “even if the Court considers the evidence, it shows that intervenors lack a legally protectable interest in the legality and constitutionality of the Rule and are attempting to assert the rights of others.” Id. Rather than asserting a “direct, substantial, legally protectable interest,” id. at 5 (quoting Edwards v. City of Houston, 78 F.3d 983, 1004 (5th Cir.
2 Plaintiffs concede that Putative Intervenors’ motion was timely. Pls.’ Br. Opp’n Mot. Int. 5, ECF No. 140 (“While their motion was timely, Order 3, ECF No. 20, they lack a legally protectable interest that may be impaired by an adverse ruling, and it remains unclear whether their interests are inadequately represented by the federal defendants.”).
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1996)), Plaintiffs allege that Putative Intervenors “assert only ‘ideological, economic, or precedential’ interests that are insufficient for intervention.” Id. at 9 (quoting Texas, 805 F.3d at 657–58). The Court addresses each contention in turn.
First, the facts asserted in Putative Intervenors’ declarations are admissible at the intervention stage. As Putative Intervenors correctly note, “the Federal Rules of Evidence do not apply to motions to intervene.” Putative Intervenors’ Reply 1, ECF No. 144. Rather, motions to intervene are judged under the liberal pleading standard, and all “allegations are accepted as true.” Mendenhall v. M/V Toyota Maru No. 11, 551 F.2d 55, 56 n.2 (5th Cir. 1977); see also 7C Charles Alan Wright, et al., Federal Practice & Procedure § 1914 (3d ed. 2007) (“The general rules on testing a pleading are applicable here. The pleading is construed liberally in favor of the pleaderintervenor and the court will accept as true the well-pleaded allegations in the pleading.”). Though the case itself has progressed well beyond the pleading stage, Putative Intervenors have been stuck in a three-year limbo—participating in real time as amici, but all the while awaiting resolution of their motions to intervene. Accordingly, the Court must analytically return to the pleading stage, considering the facts alleged in Putative Intervenors’ renewed motion to intervene as if they were included in the original parties’ pleadings.
Putative Intervenors’ motion to intervene includes declarations from leaders of each organization. See App. Supp. Putative Intervenors’ Mot. Int., ECF No. 131. The deputy director of the ACLU of Texas claims to have members seeking transition surgeries and abortions, and she refers to one unnamed member seeking each procedure. Id. at 2. Likewise, the president of the River City Gender Alliance claims to have members also seeking transition services, and she too refers to one unnamed individual. Id. at 5. Because these statements come from leadership rather than the organizations’ allegedly harmed members, Plaintiffs assert that the statements are
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inadmissible hearsay. Pls.’ Resp. 6, ECF No. 140. But at the pleading stage, this is not true. See 7C Charles Alan Wright, et al., Federal Practice & Procedure § 1914 (3d ed. 2007). The Court finds that Putative Intervenors’ declarations plead sufficient facts to establish that “the disposition of the action ‘may’ impair or impede their ability to protect their interests,” to the extent necessary at the motion-to-intervene stage. Brumfield v. Dodd, 749 F.3d 339, 344 (5th Cir. 2014).
When taking these declarations as true, the Court finds that Putative Intervenors’ have shown a “direct, substantial, legally protectable interest” in the outcome of the case, as they have alleged specific harm to particular members. Edwards, 78 F.3d at 1004. Plaintiffs argue that this cannot be true because “[t]he Rule does not regulate the conduct of the ACLU of Texas or the River City Gender Alliance.” Pls.’ Resp. 8, ECF No. 140. Plaintiffs point the Court to NOPSI, 732 F.2d 452, and Northland Family Planning Clinic, Inc. v. Cox, 487 F.3d 323 (6th Cir. 2007), both of which the Court finds distinguishable.
In NOPSI, the Fifth Circuit held that “an economic interest alone is insufficient, as a legally protectable interest is required for intervention under Rule 24(a)(2).” 732 F.2d at 466. Here, Putative Intervenors do not allege an economic interest at all, much less a solely economic interest. Rather, they claim to have an interest “as the intended beneficiary of a government regulatory system.” Putative Intervenors’ Br. Supp. Mot. Int. 10, ECF No. 130 (quoting Wal-Mart Stores, 834 F.3d at 569). They assert that, if HHS is prevented from enforcing the Rule, Putative Intervenors’ members will be denied access to healthcare. Id. at 5.
Factually, Northland Family Planning Clinic is more similar. There, STOPP, a publicinterest group “created and continu[ing] to exist only for the purposes of advocating the passage and continued viability” of Michigan’s Legal Birth Definition Act, sought to intervene to defend the Act. Northland Family Planning Clinic, 487 F.3d at 344. The Sixth Circuit upheld the district
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court’s denial of intervention because “the organization had ‘only an ideological interest in the litigation, and the lawsuit d[id] not involve the regulation of [the organization’s] conduct in any respect.’” Texas, 805 F.3d at 658 (quoting Northland Family Planning Clinic, 487 F.3d at 343). Appearing on behalf of their organizational entities, Putative Intervenors would also have only an ideological interest. But unlike STOPP, they “do not seek to intervene in their capacity as advocacy groups.” Putative Intervenors’ Br. Supp. Mot. Int. 11, ECF No. 130 (internal citation omitted). Instead, “they seek to intervene based on their associational standing to assert the ‘concrete, particularized, and legally protectable’ interests of their individual members.” Id. (citing Texas, 805 F.3d at 657–58). Since the Court must take the facts alleged in Putative Intervenors’ declarations as true, it finds that Putative Intervenors have pleaded sufficient facts to demonstrate a “legally protectable interest” such that they are entitled to intervene as of right.
However, this is not to say that Putative Intervenors have pleaded sufficient facts to prove standing to assert claims on behalf of their members. Indeed, should Putative Intervenors seek to appeal, they will need to show more than just a sufficiently pleaded legally protectable interest in the case; they will need to prove they have Article III standing. See Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1951 (2019) (“As the Court has repeatedly recognized, to appeal a decision that the primary party does not challenge, an intervenor must independently demonstrate standing.”); Diamond v. Charles, 476 U.S. 54, 68 (1986) (“Diamond’s status as an intervenor below, whether permissive or as of right, does not confer standing sufficient to keep the case alive in the absence of the State on this appeal.”). Putative Intervenors already claim to satisfy this requirement under the theory of associational standing. Putative Intervenors’ Br. Supp. Mot. Int. 14, ECF No. 130. In order to demonstrate associational standing, Putative Intervenors must prove three elements: “(1) the association[s’] members would independently meet the Article III standing
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requirements; (2) the interests the association[s] seek[] to protect are germane to the purpose of
the organization[s]; and (3) neither the claim asserted nor the relief requested requires participation
of individual members.” Ctr. for Biological Diversity v. U.S. Envtl. Prot. Agency, 937 F.3d 533,
536 (5th Cir. 2019) (internal citation omitted). But because they do not “seek relief” at this stage
of the litigation, the Court need not address whether they have associational standing.3
3 Following the Supreme Court’s opinion in Town of Chester v. Laroe County Estates, Inc., 137 S. Ct. 1645 (2017), the Court noted in its July 10, 2017 Order that, once the stay was lifted, it would consider Town of Chester’s application to this case. See Order 3 n.5, ECF No. 105. On August 7, 2019, Court ordered briefing, and on September 16, 2019, it held a hearing. Order, ECF No. 164; Order, ECF No. 168. Specifically, the Court asked the parties to address whether Putative Intervenors, as defendant-intervenors, were “pursu[ing]” or “seeking relief” such that they must demonstrate standing. Order 2, ECF No. 164; Hr’g Tr. The Court now concludes that Putative Intervenors do not seek relief and need not demonstrate standing at this stage of the litigation.
In Town of Chester, the Supreme Court stated, “[f]or all relief sought, there must be a litigant with standing, whether that litigant joins the lawsuit as a plaintiff, a coplaintiff, or an intervenor of right.” 137 S. Ct. at 1651. Addressing the plaintiff-intervenor’s claim that it was entitled to intervene irrespective of its standing, the Supreme Court held that “an intervenor of right must have Article III standing in order to pursue relief that is different from that which is sought by a party with standing.” Id. Though the Supreme Court purported to resolve a circuit split involving both intervenor-plaintiffs, see, e.g., City of Chicago v. Fed. Emergency Mgmt. Agency, 660 F.3d 980 (7th Cir. 2011), and intervenor-defendants, see, e.g., King v. Governor of the State of New Jersey, 767 F.3d 216 (3d Cir. 2014), it appears that the holding applies only to intervenor-plaintiffs. See Town of Chester, 137 S. Ct. at 1650 (“[a]cknowledging a division among the Courts of Appeals on whether an intervenor of right must meet the requirements of Article III”). In DeOtte v. Azar, the Court concluded the opposite: that any intervenor, regardless of the side it intends to join, must establish standing if no existing party seeks the same relief. See No. 4:18-cv-00825-O, 2019 WL 3796432, at *2 (N.D. Tex. July 29, 2019) (denying the State of Nevada’s motion to intervene as of right after finding that it did not have standing). After further briefing and oral arguments in this case—neither of which occurred in DeOtte—the Court has determined that defendant-intervenors need not establish standing because they generally do not “pursue relief” within the meaning of Town of Chester. 137 S. Ct. at 1651. However, this Court agrees with the parties and with other courts that have found that the opinion applies in both the intervention-as-of-right and permissive-intervention contexts. See Pls.’ Suppl. Br. Resp. Ct.’s Order 2, ECF No. 165; Defs.’ Resp. Order Ct. 1, ECF No. 166; Putative Intervenors’ Suppl. Br. Supp. Mot. Int. 1, ECF No. 167; United States v. Bayer Cropscience LP, No. 15-13331, 2018 WL 3553413 (S.D. W. Va. July 24, 2018); Seneca Res. Corp. v. Highland Twp., No. 16-289, 2017 WL 4171703 (W.D. Pa. Sept. 20, 2017); but see Vazzo v. City of Tampa, No. 17-2896, 2018 WL 1629216 (M.D. Fla. Mar. 15, 2018).
For three reasons, this Court now concludes that Putative Intervenors, as defendant-intervenors, do not “seek relief” and therefore do not need to demonstrate standing in this case. First, the term “relief” is linked to affirmative claims, not defenses. Black’s Law Dictionary defines relief as “redress or benefit . . . that a party asks of the court” and synonymizes it to a “remedy.” Relief, BLACK’S LAW DICTIONARY 606 (3d Pocket ed. 1996). One type of relief is “affirmative relief,” which is defined as “the relief sought by a defendant by raising a counterclaim or cross-claim that could have been maintained independently of the plaintiff’s action.” Id. Here, Plaintiffs ask the Court to issue declaratory judgments that declare the Rule
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Putative Intervenors have shown that (1) their intervention application is timely; (2) they
have an interest relating to the property or transaction that is the subject of the action; (3) they are
situated so that disposition may, as a practical matter, impair or impede their ability to protect that
interest; and (4) their interest is inadequately represented by the existing parties. Haspel & Davis,
493 F.3d at 578. Accordingly, the Court GRANTS their motion to intervene as of right.
invalid and to permanently enjoin Defendants from enforcing the Rule. State Pls.’ Mot. Summ. J. 2, ECF No. 132; Private Pls.’ Mot. Partial Summ. J. 2, ECF No. 135. This is a form of redress or remedy. Putative Intervenors, on the other hand, do not ask the Court to do anything; they do not raise a counterclaim, crossclaim, or any other claim for relief. Rather, they state that their “objective [is] defending the lawfulness of the regulation.” Putative Intervenors’ Br. Supp. Mot. Int. 1–2, ECF No. 130. The Federal Rules of Civil Procedure’s differentiation between “claim[s] for relief” and “defenses” further enforces this distinction. FED. R. CIV. P. 8. In this case, all claims for relief have been pleaded by Plaintiffs, leaving Defendants— or, instead, Putative Intervenors—to defend the Rule against those claims.
Second, plaintiffs, not defendants, generally must demonstrate standing. “The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.” Town of Chester, 137 S. Ct. at 1650 (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013)). Accordingly, plaintiffs must “alleg[e] such a personal stake in the outcome of the controversy as to . . . justify [the] exercise of the court’s remedial powers on [their] behalf.” Id. (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976)); see also Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (“The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these elements.”). Town of Chester does not seem to depart from this longstanding principle. See 137 S. Ct. at 1651 (“At least one plaintiff must have standing to seek each form of relief requested in the complaint.”).
Finally, Town of Chester can be read in conjunction with Fifth Circuit precedent. “[F]or a Supreme Court decision to change our Circuit’s law, it ‘must be more than merely illuminating with respect to the case before [the court]’ and must ‘unequivocally’ overrule prior precedent.” Tech. Automation Servs. Corp. v. Liberty Surplus Ins. Corp., 673 F.3d 399, 405 (5th Cir. 2012) (citing Martin v. Medtronic, Inc., 254 F.3d 573, 577 (5th Cir. 2001)). Here, the Supreme Court opinion does not seem to “explicitly or implicitly overrul[e]” the Fifth Circuit’s seminal case. United States v. Short, 181 F.3d 620, 624 (5th Cir. 1999). In Ruiz v. Estelle, the Fifth Circuit joined the pre-Town of Chester circuit split by concluding the intervenors need not establish standing. Ruiz v. Estelle, 161 F.3d 814 (5th Cir. 1998). Undoubtedly, Town of Chester abrogated Ruiz in part, insofar as it clarified that plaintiff-intervenors must establish standing in order to intervene as of right when seeking different relief than the existing parties. See Town of Chester, 137 S. Ct at 1651. But the opinion keeps intact the Fifth Circuit’s pronouncement that “Article III does not require intervenors to independently possess standing where the intervention is into a subsisting and continuing Article III case or controversy and the ultimate relief sought by the intervenors is also being sought by at least one subsisting party with standing to do so.” Ruiz, 161 F.3d at 380 (emphasis added). Accordingly, if Putative Intervenors sought relief that was not being sought by another party with standing, they would be required to demonstrate their own standing. But because Plaintiffs retain standing to bring their claims for injunctive relief, there is still a “subsisting and continuing Article III case or controversy.” Id. Putative Intervenors may join in defense. And as long as they do not also intend to add an affirmative claim for relief during the district court proceedings, Putative Intervenors need not establish standing to intervene.
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2. Permissive Intervention Even if Putative Intervenors could not establish that they are entitled to intervene as of right, the Court would allow them to intervene permissively under Rule 24(b). FED. R. CIV. P. 24(b). “[T]he court may permit anyone to intervene who: (A) is given a conditional right to intervene by a federal statute; or (B) has a claim or defense that shares with the main action a common question of law or fact.” FED. R. CIV. P. 24(b)(1). This decision is “wholly discretionary with the court,” Kneeland, 806 F.2d at 1289, but “the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” FED. R. CIV. P. 24(b)(3). Here, Putative Intervenors have a “defense that shares with the main action a common question of law or fact.” FED. R. CIV. P. 24(b)(1). Indeed, Putative Intervenors’ defense is directly related to the underlying controversy, especially at the current summary-judgment stage, where Putative Intervenors respond directly to Plaintiffs’ arguments. See generally Putative Intervenors’ Br. Opp’n Mots. Summ. J., ECF No. 155. Further, as discussed above, Putative Intervenors’ interest is no longer “adequately represented by other parties.” NOPSI, 732 F.2d at 472. And now that Defendants do not defend the Rule, Putative Intervenors’ arguments will “significantly contribute” to the development of the issues. Id. Moreover, the parties agree to Putative Intervenors’ permissive intervention. Defendants “do not oppose [Putative] Intervenors’ renewed Motion to Intervene.” Defs.’ Resp. 1, ECF No. 141. And though Plaintiffs do not “conced[e] their satisfaction of the requirements for permissive intervention,” they are “willing . . . to consent to permissive intervention provided that the Court prevents [P]utative [I]ntervenors from conducting discovery, moving to stay the litigation or the preliminary injunction, and disrupting the dispositive motion schedule.” Pls.’ Resp. 1, 5, ECF No.
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140. Essentially, no party objects to Putative Intervenors’ involvement; Plaintiffs just ask that the intervention not bring the case back to square one. This request aligns with Rule 24’s guidelines. When determining whether to permit a prospective party to intervene, the Court is required to “consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” FED. R. CIV. P. 24(b)(3). If it determines that intervention would cause such undue delay or prejudice, “a federal district court is able to impose almost any condition, including the limitation of discovery.” Columbus-Am. Discovery Grp. v. Atl. Mut. Ins. Co., 974 F.2d 450, 469 (4th Cir. 1992); see also Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 378 (1987) (“refus[ing] to find that the grant of permissive intervention, even though subject to conditions, should be treated as a complete denial of the right to participate” when the intervenor could still raise its claims on post-judgment appeal). But importantly, a court may also place reasonable conditions on intervenors as of right. See Beauregard v. Sword Servs., LLC, 107 F.3d 351, 352– 53 (5th Cir. 1997).
3. Limitations on Intervention Though the Court finds that Putative Intervenors are entitled to intervene as of right, it finds that reasonable limitations are necessary to avoid a further delay in litigation. See id. (“[I]t is now a firmly established principle that reasonable conditions may be imposed even upon one who intervenes as of right.”); FED. R. CIV. P. 24(a) advisory committee’s note to 1966 amendment (“An intervention of right under the amended rule may be subject to appropriate conditions or restrictions responsive among other things to the requirements of efficient conduct of the proceedings.”). Here, Plaintiffs and Putative Intervenors agree that the issues in this case are primarily legal. See Pls.’ Resp. 12, ECF No. 140; Putative Intervenors’ Br. Supp. Mot. Int. 3, ECF No. 130. Accordingly, there is no need for factual discovery. Furthermore, because Putative
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Intervenors have been allowed to participate in nearly every stage of the litigation, including in the current summary-judgment stage, there is no need for further briefing. See, e.g., Putative Intervenors’ Answer, ECF No. 10; Putative Intervenors’ Mot. Stay, ECF No. 27; Putative Intervenors’ Mot. Expedited Recons., ECF No. 38; Putative Intervenors’ Br. Opp’n Mots. Summ. J, ECF No. 53; Putative Intervenors’ Mot. Ruling Int. & Stay, ECF No. 63; Notice of Appeal, ECF No. 72; Putative Intervenors’ Mot. Stay, ECF No. 85; Putative Intervenors’ Resp. Pls.’ Mot. Status Conference, ECF No. 122; Putative Intervenors’ Mot. Int., ECF No. 129; Putative Intervenors’ Opp’n Mots. Summ. J., ECF No. 155; Putative Intervenors’ Suppl. Br. Supp. Mot. Int., ECF No. 167. As a result, the Court is ready to rule on Plaintiffs’ motions for summary judgment.
B. Summary Judgment Plaintiffs ask the Court to vacate the Rule and convert its previously entered preliminary injunction to a permanent injunction. State Pls.’ Br. Supp. Mot. Summ. J. 37, ECF No. 133; Private Pls.’ Br. Supp. Mot. Summ. J. 50, ECF No. 136. Given how little the parties’ legal claims have changed, the Court is inclined to do so. But Plaintiffs must show they are entitled to judgment as a matter of law, and the Court must assess whether Putative Intervenors’ arguments compel reconsideration of its original analysis and determine the appropriate remedy for this stage of the litigation.
1. Merits Individual Plaintiffs argue they are entitled to judgment as a matter of law on their (1) APA claim; (2) RFRA claim; and (3) Free Exercise claim. See Private Pls.’ Br. Supp. Mot. Summ. J., ECF No. 136. State Plaintiffs argue they are entitled to judgment as a matter of law on their APA claim or, alternatively, their stand-alone constitutional claims. See State Pls.’ Br. Supp. Mot. Summ. J., ECF No. 133. Defendants concede these points but ask the Court to go no further than
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ruling on Plaintiffs’ APA claim.4 See Defs.’ Resp., ECF No. 154. Putative Intervenors—now
defending the Rule as parties to the case—argue that Plaintiffs have not proved an injury in fact
and therefore cannot succeed on their claims.5 Putative Intervenors’ Br. Opp’n Mots. Summ. J. 1–
3, ECF No. 155.
When the Court granted the preliminary injunction, it found that Plaintiffs (1) proved that
the Rule violates the APA and (2) demonstrated that the Rule likely violates RFRA. Order 2, ECF
No. 62. The Court finds no reason to depart from its analysis on the APA claim. See id. at 27–38
(holding that the Rule is “contrary to law” under the APA due to its conflict with Title IX, its
incorporated statute). But because it previously only concluded that Private Plaintiffs’
demonstrated a “substantial likelihood of success on their [RFRA] claims,” the Court must now
address whether Plaintiffs have proved that the Rule, as applied to them, also violates RFRA.6 Id.
at 42.
4 No matter Defendants’ position, whether Plaintiffs are entitled to the judgment they seek is a decision that rests with the Court. “A motion for summary judgment cannot be granted simply because there is no opposition,” but “a court may grant an unopposed summary judgment motion if the undisputed facts show that the movant is entitled to judgment as a matter of law.” Day v. Wells Fargo Bank Nat. Ass’n, 768 F.3d 435, 435 (5th Cir. 2014) (unpublished) (quoting Hibernia Nat. Bank v. Administracion Cent. S.A., 776 F.2d 1277, 1279 (5th Cir. 1985)).
5 Putative Intervenors’ arguments defending the Rule and opposing Plaintiffs’ request for a permanent injunction are largely consistent with arguments Defendants originally raised when defending the rule and opposing the request for preliminary injunction. Compare Defs.’ Response, ECF No. 50, with Putative Intervenors’ Opp’n Mots. Summ. J., ECF No. 155. The Court has already addressed most of these arguments. See Order, ECF No. 62. To the extent that the Court has not addressed Putative Intervenors’ arguments, the issues are not pertinent to the Court’s conclusion. See, e.g., Putative Intervenors’ Opp’n Mots. Summ. J. 27–32, 35–37, ECF No. 155 (arguing that the Rule does not violate state sovereignty or the Free Exercise Clause).
6 Putative Intervenors assert that the Court must review the administrative record to adjudicate Plaintiffs’ claims. Putative Intervenors’ Opp’n Mots. Summ. J. 4, 33–34, ECF No. 155. The Court disagrees. The Court need not consider the record on the APA claim because it requires a purely legal statutoryinterpretation analysis. As State Plaintiffs correctly note, “[s]ex discrimination in section 1557 either includes gender identity and termination of pregnancy as a matter of law, or it does not.” State Pls.’ Reply 8, ECF No. 157. Further, the Court need not consider the record on the RFRA claim because the APA’s “record rule does not apply to RFRA claims.” N. Arapaho Tribe v. Ashe, 925 F. Supp. 2d 1206, 1211 (D. Wyo. 2012); see also O Centro Espirita Beneficiente Uniao do Vegetal v. Duke, 286 F. Supp. 3d 1239,
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Congress—noting that “the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution” and that “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise,” 42 U.S.C. § 2000bb(a)(1), (2)—enacted RFRA “to provide a claim or defense to persons whose religious exercise is substantially burdened by government.” 42 U.S.C. § 2000bb(b)(2). RFRA reinstated “the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972),” which Congress deemed “a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” 42 U.S.C. § 2000bb(a)(5), (b)(1). When applying RFRA’s test to a federal agency rule, a court must first determine whether the rule “imposes a substantial burden on the exercise of religion.” Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 726 (2014). If so, the court applies the two-prong compelling interest test. It asks whether the government “has shown that the [rule] both ‘(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.’” Id. (quoting 42 U.S.C. § 2000bb–1(b)). “RFRA thus applies strict scrutiny to government regulations that substantially burden a person’s religious exercise.” Tagore v. United States, 735 F.3d 324, 330 (5th Cir. 2013). Importantly, “a ‘categorical approach’” to RFRA’s strict-scrutiny analysis “is insufficient.” Id. at 331 (citing Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418, 430–37 (2006)). Instead, the government must analyze RFRA claims on a case-by-case basis and must “explain how applying the statutory burden ‘to the person’ whose sincere exercise of religion is
1260–62 (D.N.M. 2017) (distinguishing APA claims and RFRA claims, and concluding that “the APA’s procedural requirements, including the record rule, do not apply” to RFRA claims); S. Fork Band Council of W. Shoshone of Nev. v. U.S. Dep’t of Interior, No. 3:08-cv-616-LRH-RAM, 2009 WL 73257, at *1–3 (D. Nev. Jan. 7, 2009) (concluding that “limiting [the court’s] review of the RFRA claim to the administrative record [wa]s inappropriate”).
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being seriously impaired furthers the compelling governmental interest.” Tagore, 735 F.3d at 330– 31 (citing Gonzales, 546 U.S. at 430–31).
In its December 31, 2016 Order, the Court concluded that “the Rule imposes a substantial burden on Private Plaintiffs’ religious exercise.” Order 40, ECF No. 62. After explaining that “the Court is careful not to weigh or evaluate the relevant doctrines of faith,” the Court concluded that “Private Plaintiffs’ refusal to perform, refer for, or cover transitions or abortions is a sincere religious exercise.” Id. at 39. Because the Rule “[1] places substantial pressure on Plaintiffs to perform and cover transition and abortion procedures . . . [2] forces Plaintiffs to provide the federal government a nondiscriminatory and ‘exceedingly persuasive justification’ for their refusal to perform or cover such procedures [and] . . . [3] requires them to remove the categorical exclusion of transitions and abortions,” the Rule substantially burdens Private Plaintiffs’ religious exercise by making the practice of religion more expensive in the business context. Id. at 39–40 (citing Hobby Lobby, 573 U.S. at 710).
Accordingly, the Court applied strict scrutiny based on Defendants’ briefing. Id. at 40–42. First, the Court noted that “Defendants d[id] not provide a compelling interest in their briefing and Private Plaintiffs dispute[d] that one exists.” Id. at 40; see also id. at 38 (“Defendants did not address Plaintiffs’ RFRA claim in their briefing but asserted at the hearing that more factual development was necessary to evaluate the claim.”). Nevertheless, the Court stated that, even if Defendants had a compelling interest, they “failed to prove the Rule employs the least restrictive means.” Id. at 41. The Court provided examples of other less restrictive means the government could use to ensure access to transition procedures and abortions, including assisting individuals seeking such procedures by finding healthcare providers who offer those services and then
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assuming the cost. Id. at 41–42. Accordingly, the Court determined that Private Plaintiffs successfully demonstrated a substantial likelihood of success on their RFRA claim. Id.
Once again, Defendants have failed to address Private Plaintiffs’ RFRA claim. See generally Defs.’ Resp., ECF No. 154. However, Putative Intervenors urge the Court to find for Defendants a compelling interest in the preamble to the Rule, which states, “the government has a compelling interest in ensuring that individuals have nondiscriminatory access to health care and health coverage.” Putative Intervenors’ Resp. 33, ECF No. 155 (citing 81 Fed. Reg. at 31380). Putative Intervenors also reject Private Plaintiffs’ and the Court’s previously stated alternative means to achieve this interest. Id. at 34 n.7. However, RFRA’s text and this Court’s binding precedent make clear that Putative Intervenors cannot carry Defendants’ burden; the “[g]overnment may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person” satisfies strict scrutiny. 42 U.S.C. § 2000bb–1(b) (emphasis added); see also Hobby Lobby, 573 U.S. at 721 (refusing to consider RFRA arguments raised by parties other than the government).
Regardless, the Court considered and rejected these arguments in its December 31, 2016 Order. See Order 40–41, ECF No. 62. And the Court’s analysis—like Private Plaintiffs’ claims and Defendants’ lack of response—has not changed. Though the preamble’s broadly stated purpose, implemented through universal application of the Rule, could arguably satisfy a categorical application of strict scrutiny, it cannot satisfy RFRA’s “more focused” inquiry. Gonzales, 546 U.S. at 430. Defendants, the only parties fit to carry the government’s burden, have twice failed to demonstrate that applying the Rule to Private Plaintiffs, “the particular claimant[s] whose sincere exercise of religion is being substantially burdened,” would achieve a compelling governmental interest through the least restrictive means. Id. at 430–31. Indeed, though the Rule
20

Case 7:16-cv-00108-O Document 175 Filed 10/15/19 Page 21 of 25 PageID 4755
states that any “explicit, categorical (or automatic) exclusion or limitation of coverage” for these procedures is “unlawful on its face,” 81 Fed. Reg. at 31429, Defendants have asserted no “harm [in] granting specific exemptions” to Private Plaintiffs. Hobby Lobby, 573 U.S. at 726–27 (emphasis added). Accordingly, the Court holds that the Rule, which expressly prohibits religious exemptions, substantially burdens Private Plaintiffs’ religious exercise in violation of RFRA.
Settling this dispute requires resolving questions of law. Plaintiffs have already presented their legal arguments to the Court and, notably, explained why they were entitled to not only a preliminary injunction but also judgment as a matter of law. See Private Pls.’ Reply, ECF No. 158. Now, they support those arguments with more evidence. See App. Supp. State Pls.’ Mot. Summ. J., ECF No. 134; App. Supp. Private Pls.’ Mot. Summ. J., ECF No. 137. Defendants do not object to the relevant facts, arguments, or evidence. See Defs.’ Response, ECF No. 154. And though Putative Intervenors’ do object, their arguments are largely duplicative of those the Court has already addressed. Compare Order, ECF No. 62, with Putative Intervenors’ Opp’n Mots. Summ. J., ECF No. 155. Accordingly, the Court finds that Plaintiffs’ motions for partial summary judgment should be and are hereby GRANTED in part.
2. Relief Plaintiffs request two forms of relief: (1) vacatur of the Rule and (2) a permanent injunction enjoining Defendants from applying the Rule nationwide. See State Pls.’ Br. Supp. Mot. Summ. J. 37, ECF No. 133; Private Pls.’ Br. Supp. Mot. Summ. J. 50, ECF No. 136. Though the Court maintains that Plaintiffs were entitled to the preliminary injunction granted in its December 31, 2016 Order, it now concludes that the proper remedy at this stage is vacatur of the Rule, not a permanent injunction.
21

Case 7:16-cv-00108-O Document 175 Filed 10/15/19 Page 22 of 25 PageID 4756
Under Section 706 of the APA, 5 U.S.C. § 706, when a reviewing court finds that an agency rule violates the APA, it “‘shall’—not may—‘hold unlawful and set aside’ [the] agency action.” Sw. Elec. Power Co. v. EPA, 920 F.3d 999, 1022 (5th Cir. 2019) (citing Checkosky v. SEC, 23 F.3d 452, 491 (D.C. Cir. 1994)) [hereinafter Southwestern]. When a court “hold[s] unlawful and set[s] aside” agency rules that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), “the ordinary result is that the rules are vacated— not that their application to the individual petitioners is proscribed.” Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (citation omitted). The Fifth Circuit has applied Section 706 and accordingly vacated agency rules both in whole and in part. For example, where “the comprehensive regulatory package [wa]s plainly not amenable to severance,” the Fifth Circuit concluded that a Department of Labor rule’s “overreaching definition” and “conflict[] with the plain text” of ERISA—among other flaws—required vacatur of the rule “in toto.” Chamber of Commerce v. U.S. Dep’t of Labor, 885 F.3d 360, 379, 388 (5th Cir. 2018). In contrast, the Fifth Circuit vacated and remanded only severable portions of an Environmental Protection Agency rule enacted through arbitrary and capricious rulemaking. Southwestern, 920 F.3d at 1022.7 Section 706 is not limited to appellate courts; district courts have a duty to vacate unlawful agency actions as well. See Nio v. United States, 385 F. Supp. 3d 44, 68–69 (D.D.C. 2019) (vacating arbitrary and capricious Department of Defense requirements rather than issuing
7 “‘[T]he agency action . . . found to be in excess of statutory authority,’ 5 U.S.C. § 706(2)(C), can encompass only ‘a part of an agency rule.’ And courts may ‘set aside’ only the part of a rule found to be invalid—for that is the only ‘agency action’ that exceeds statutory authority. It would, therefore, exceed the statutory scope of review for a court to set aside an entire rule where only a part is invalid, and where the remaining portion may sensibly be given independent life.” Catholic Soc. Serv. v. Shalala, 12 F.3d 1123, 1128 (D.C. Cir. 1994). As the Court noted in its December 31, 2016 Order, “the Rule includes a severability provision,” which allowed the Court to enjoin only the challenged provisions. Order 45–46, ECF No. 62 (citing 45 C.F.R. § 92.2(c)). Now, the Court VACATES only the portions of the Rule that are unlawful under the APA and RFRA.
22

Case 7:16-cv-00108-O Document 175 Filed 10/15/19 Page 23 of 25 PageID 4757
a permanent injunction, and stating that “[g]enerally, when a court finds that a challenged action is arbitrary and capricious, the remedy is vacatur”); Am. Stewards of Liberty v. Dep’t of Interior, 370 F. Supp. 3d 711, 728 (W.D. Tex. 2019) (vacating a Department of the Interior conclusion that did not follow Congress’s set standard, and noting that “courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decisionmaking” (quoting Judulang v. Holder, 565 U.S. 42, 53 (2011)); AquAlliance v. U.S. Bureau of Reclamation, 312 F. Supp. 3d 878, 880 (E.D. Cal. 2018) (vacating an agency report that violated the National Environmental Policy Act, and stating that vacatur is the “presumptive remedy” for unlawful agency action).
Since the Court concludes that “the Rule’s conflict with its incorporated statute—Title IX—renders it contrary to law under the APA,” the appropriate remedy is vacatur. Order 38, ECF No. 62. Accordingly, the Court VACATES and REMANDS the unlawful portions of the Rule for Defendants’ further consideration in light of this opinion and the Court’s December 31, 2016 Order.
Finally, though “[i]t is not beyond the power of a court, in appropriate circumstances, to issue a nationwide injunction,” these circumstances do not justify such a remedy. Texas, 809 F.3d at 188. Rather, vacatur redresses both the APA violation and the RFRA violation. The Third Circuit discussed the distinctions between nationwide injunctions and vacatur in Pennsylvania v. President United States, 930 F.3d 543. There, the circuit court affirmed a district court’s order granting a preliminary nationwide injunction against the enforcement of final rules the district court found likely violated the APA and likely were not authorized by nor required by the ACA or RFRA. Id. at 556. In upholding the remedy, however, the circuit emphasized that the nationwide injunction was issued “not to conclusively determine the rights of the parties, but to balance the equities as the litigation moves forward.” Id. at 575 (quoting Trump v. Int’l Refugee Assistance
23

Case 7:16-cv-00108-O Document 175 Filed 10/15/19 Page 24 of 25 PageID 4758
Project, 137 S. Ct. 2080, 2087 (2017)). Indeed, “[w]hile vacatur [wa]s the ultimate remedy the States s[ought],” the preliminary injunction merely provided temporary relief until the rules’ validity could be “finally adjudicated.” Id. at 575–76. But because “Congress . . . provided vacatur as a standard remedy for APA violations,” the circuit clarified that courts in similar situations ultimately “invalidate—without qualification—unlawful administrative rules as a matter of course, leaving their predecessors in place until the agencies can take further action.” Id. at 575.
The District Court for the District of Columbia encountered the issue this Court now faces: whether, after vacatur of an unlawful rule, “issuance of an injunction is also warranted.” O.A. v. Trump, No. 18-2838, 2019 WL 3536334, at *29 (D.D.C. Aug. 2, 2019). The D.C. district court determined it was not. Id. It first noted that “[t]he Supreme Court has cautioned that a district court vacating an agency action under the APA should not issue an injunction unless doing so would ‘have [a] meaningful practical effect independent of its vacatur.’ Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010).” O.A., 2019 WL 3536334, at *29. It also noted that the defendants had “represented that they w[ould] abide by th[e c]ourt’s order.” Id. Accordingly, the court denied the plaintiffs’ request for issuance of an injunction, but it also stated that the plaintiffs were “free, however, to return to the [c]ourt for further relief if warranted.” Id.
Because the Court finds the circumstances here similar and the D.C. district court’s analysis persuasive, the Court follows suit—vacating the Rule and inviting Plaintiffs to return if further relief independent of vacature is later warranted. There is currently no indication that, once the Rule is vacated, Defendants will defy the Court’s order and attempt to apply the Rule against Plaintiffs or similarly situated non-parties. Rather, Defendants now “agree with Plaintiffs and the Court that the Rule’s prohibitions on discrimination on the basis of gender identity and termination of pregnancy conflict with Section 1557 and thus are substantively unlawful under the APA.”
24

Case 7:16-cv-00108-O Document 175 Filed 10/15/19 Page 25 of 25 PageID 4759
Defs.’ Resp. 1, ECF No. 154. Defendants correctly state that they have been “conscientiously complying with the injunction” and ask the Court to postpone ruling due to their “ongoing efforts to amend the Rule.” Id. at 2. Considering Defendants’ prior actions and current statements, the Court concludes that issuance of an injunction would not have a “meaningful practical effect independent of its vacatur” because vacatur and remand will likely prevent Defendants from applying the Rule. Monsanto, 561 U.S. at 165. However, should Defendants attempt to apply the vacated Rule—in violation of the APA, RFRA, and this Court’s Order—Plaintiffs may return to the Court for redress. As it stands, neither Plaintiffs nor similarly situated non-parties need injunctive relief from the vacated Rule. IV. CONCLUSION
For the foregoing reasons, the Court finds that Putative Intervenors’ Motion to Intervene (ECF No. 129) should be and is hereby GRANTED. The Court also finds that Plaintiffs’ Motions for Summary Judgment and Permanent Injunction (ECF Nos. 132, 135) should be and are hereby GRANTED in part. The Court SEVERS Plaintiffs’ APA and RFRA claims from their Title VII, Spending Clause, First Amendment, Tenth Amendment, and Eleventh Amendment claims. The Court ADOPTS its prior reasoning from the preliminary injunction (ECF No. 62) and now HOLDS that the Rule violates the APA and RFRA. Accordingly, the Court VACATES and REMANDS the Rule for further consideration.
SO ORDERED on this 15th day of October, 2019.
_____________________________________ Reed O’Connor UNITED STATES DISTRICT JUDGE
25

 
 Case: 7:16-cv-108 As of: 05/30/2020 02:35 PM CDT 1 of 26
APPEAL,CLOSED,JURY,STAYED
U.S. District Court Northern District of Texas (Wichita Falls) CIVIL DOCKET FOR CASE #: 7:16−cv−00108−O

Franciscan Alliance, Inc. et al v. Price et al Assigned to: Judge Reed C. O'Connor Related Case: 7:16−cv−00054−O Case in other court: USCA5, 17−10135
USCA5, 20−10093 Cause: 05:702 Administrative Procedure Act Plaintiff Franciscan Alliance, Inc.
Plaintiff Christian Medical and Dental Society

Date Filed: 08/23/2016 Date Terminated: 10/15/2019 Jury Demand: Plaintiff Nature of Suit: 890 Other Statutes: Other Statutory Actions Jurisdiction: U.S. Government Defendant
represented by Luke Goodrich The Becket Fund for Religious Liberty 1200 New Hampshire Ave NW Suite 700 Washington, DC 20036 202−349−7216 Fax: 202−955−0090 Email: lgoodrich@becketlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Joseph C Davis The Becket Fund for Religious Liberty 1200 New Hampshire Ave NW Suite 700 Washington, DC 20036 202−796−0204 Email: jdavis@becketlaw.org ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Mark Leonard Rienzi The Becket Fund for Religious Liberty 1200 New Hampshire Avenue NW Suite 700 Washington, DC 20036 202−349−7208 Fax: 20−955−0090 ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Stephanie Hall Barclay The Becket Fund for Religious Liberty 1200 New Hampshire Ave NW Suite 700 Washington, DC 20036 202−349−7216 Fax: 202−955−0090 Email: sbarclay@becketlaw.org ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by Luke Goodrich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Case: 7:16-cv-108 As of: 05/30/2020 02:35 PM CDT 2 of 26

Plaintiff Specialty Physicians of Illinois, LLC
Plaintiff State of Texas

Joseph C Davis (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Mark Leonard Rienzi (See above for address) Bar Status: Admitted/In Good Standing
Stephanie Hall Barclay (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by Luke Goodrich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Joseph C Davis (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Mark Leonard Rienzi (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Stephanie Hall Barclay (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by David Jonathan Hacker Office of the Texas Attorney General 209 W 14th Street PDB Ground Floor Austin, TX 78701 512−936−2330 Fax: 512−935−0545 Email: david.hacker@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Austin Nimocks Office of the Attorney General of Texas 209 West 14th Street 8th Floor Austin, TX 78701 512−936−2902 Fax: 512−936−0545 Email: austin.nimocks@oag.texas.gov TERMINATED: 12/06/2018 Bar Status: Admitted/In Good Standing
Michael Christopher Toth Office of the Attorney General of Texas 209 W 14th Street

Case: 7:16-cv-108 As of: 05/30/2020 02:35 PM CDT 3 of 26

Plaintiff State of Wisconsin TERMINATED: 04/02/2019
Plaintiff State of Nebraska

8th Floor Austin, TX 78701 512−936−0631 Fax: 512−936−0545 Email: michael.toth@oag.texas.gov TERMINATED: 09/17/2019 Bar Status: Admitted/In Good Standing
William Thomas Thompson Office of the Attorney General Special Litigation Unit P.O. Box 12548 (MC−076) Austin, TX 78711−2548 210−286−0806 Email: william.thompson@oag.texas.gov ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by David Jonathan Hacker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Austin Nimocks (See above for address) TERMINATED: 12/06/2018 Bar Status: Admitted/In Good Standing
Michael Christopher Toth (See above for address) TERMINATED: 09/17/2019 Bar Status: Admitted/In Good Standing
Steven Carl Kilpatrick Wisconsin Department of Justice 17 W Main St PO Box 7857 Madison, WI 53707−7857 608−266−1792 Fax: 608−267−2223 Email: kilpatricksc@doj.state.wi.us PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by David Jonathan Hacker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Austin Nimocks (See above for address) TERMINATED: 12/06/2018 Bar Status: Admitted/In Good Standing
Michael Christopher Toth (See above for address) TERMINATED: 09/17/2019 Bar Status: Admitted/In Good Standing

Case: 7:16-cv-108 As of: 05/30/2020 02:35 PM CDT 4 of 26

Plaintiff Commonwealth of Kentucky, by and through Governor Matthew G. Bevin
Plaintiff State of Kansas
Plaintiff State of Louisiana

William Thomas Thompson (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by David Jonathan Hacker (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Michael Christopher Toth (See above for address) TERMINATED: 09/17/2019 Bar Status: Admitted/In Good Standing
William Thomas Thompson (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Austin Nimocks (See above for address) TERMINATED: 12/06/2018 ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by David Jonathan Hacker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Austin Nimocks (See above for address) TERMINATED: 12/06/2018 Bar Status: Admitted/In Good Standing
Michael Christopher Toth (See above for address) TERMINATED: 09/17/2019 Bar Status: Admitted/In Good Standing
William Thomas Thompson (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by David Jonathan Hacker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Austin Nimocks (See above for address) TERMINATED: 12/06/2018 Bar Status: Admitted/In Good Standing
Michael Christopher Toth (See above for address)

Case: 7:16-cv-108 As of: 05/30/2020 02:35 PM CDT 5 of 26

Plaintiff State of Arizona
Plaintiff State of Mississippi by and through Governor Phil Bryant

TERMINATED: 09/17/2019 Bar Status: Admitted/In Good Standing
William Thomas Thompson (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by David Jonathan Hacker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Austin Nimocks (See above for address) TERMINATED: 12/06/2018 Bar Status: Admitted/In Good Standing
Michael Christopher Toth (See above for address) TERMINATED: 09/17/2019 Bar Status: Admitted/In Good Standing
William Thomas Thompson (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by David Jonathan Hacker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Austin Nimocks (See above for address) TERMINATED: 12/06/2018 Bar Status: Admitted/In Good Standing
Michael Christopher Toth (See above for address) TERMINATED: 09/17/2019 Bar Status: Admitted/In Good Standing
William Thomas Thompson (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

V. Defendant Thomas E. Price

represented by Bradley Philip Humphreys United States Department of Justice Civil Divsiion Federal Programs Branch 1100 L Street, NW Washington, DC 20005 202/305−0878 Fax: 202/616−8470

Case: 7:16-cv-108 As of: 05/30/2020 02:35 PM CDT 6 of 26

Defendant
U.S. Department of Health and Human Services

Email: bradley.humphreys@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Rhett Martin Department of Justice 20 Massachusetts Ave NW Room 6141 Washington, DC 20530 202−514−4960 Email: rhett.martin@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Adam Anderson Grogg U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave. NW Washington, DC 20001 202−514−2395 Fax: 202−616−8470 Email: adam.a.grogg@usdoj.gov TERMINATED: 08/16/2017 Bar Status: Not Admitted
Alexander Haas US Department of Justice 950 Pennsylvania Ave NW Civil Division Washington, DC 20530 202−353−8679 Email: alex.haas@usdoj.gov ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Bailey Wilson Heaps United States Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Ave NW Washington, DC 20001 202−514−1280 Fax: 202−616−8470 Email: bailey.w.heaps@usdoj.gov ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Emily Brooke Nestler United States Department of Justice 20 Massachusetts Avenue NW Washington, DC 20530 202−616−8489 Email: emily.b.nestler@usdoj.gov TERMINATED: 04/10/2018 Bar Status: Not Admitted
represented by Bradley Philip Humphreys (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Case: 7:16-cv-108 As of: 05/30/2020 02:35 PM CDT 7 of 26

V.
Intervenor Defendant
American Civil Liberties Union of Texas

Rhett Martin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Adam Anderson Grogg (See above for address) TERMINATED: 08/16/2017 Bar Status: Not Admitted
Alexander Haas (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Bailey Wilson Heaps (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Emily Brooke Nestler (See above for address) TERMINATED: 04/10/2018 Bar Status: Not Admitted
represented by Kali Alanna Cohn ACLU of Texas 6440 North Central Expressway, Ste 318 Dallas, TX 75206 214−346−6577 Fax: 713−942−8966 Email: kcohn@aclutx.org LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Amy Anne Miller ACLU of Nebraska Foundation 623 S. 32nd St Lincoln, NE 68510 TERMINATED: 02/20/2020 Bar Status: Admitted/In Good Standing
Andre Segura ACLU Foundation of Texas 5225 Katy Freeway Suite 350 Houston, TX 77007 713−325−7012 Email: asegura@aclutx.org ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Brian Matthew Hauss American Civil Liberties Union Foundation 125 Broad St 18th Floor New York, NY 10004

Case: 7:16-cv-108 As of: 05/30/2020 02:35 PM CDT 8 of 26
212−549−2604 Email: bhauss@aclu.org TERMINATED: 02/08/2019 Bar Status: Admitted/In Good Standing
Brian Klosterboer ACLU of Texas PO Box 8306 Houston, TX 77288 713−942−8146 x1035 Fax: 713−942−8966 Email: bklosterboer@aclutx.org ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Brigitte Adrienne Amiri American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212−519−7897 Fax: 212−549−2651 Email: bamiri@aclu.org ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Daniel Mach American Civil Liberties Union Foundation 915 15th Street NW Suite 600 Washington, DC 20005 202−675−2330 Fax: 202−546−0738 Email: dmach@aclu.org ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
James Esseks American Civil Liberties Union 125 Broad St 18th Floor New York, NY 10004 212−549−2627 Email: jesseks@aclu.org ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Joshua Block American Civil Liberties Union 125 Broad St 18th Floor New York, NY 10004 212−549−2627 Email: jblock@aclu.org ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Lindsey Breton Kaley American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004−2454 212−519−7823

Case: 7:16-cv-108 As of: 05/30/2020 02:35 PM CDT 9 of 26

Intervenor Defendant River City Gender Alliance

Email: lkaley@aclu.org ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Louise Melling American Civil Liberties Union 125 Broad St 18th Floor New York, NY 10004 212−549−2637 Email: lmelling@aclu.org ATTORNEY TO BE NOTICED
Rebecca Scout Richters ACLU of Nebraska 134 S. 13th Street #1010 Lincoln, NE 68508 402−476−8091 Fax: 402−176−8135 Email: srichters@aclunebraska.org ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Rebecca L Robertson American Civil Liberties Union of Texas 1500 McGowen Suite 250 Houston, TX 77004 713−942−8146 Fax: 713−942−8966 Email: rl.robertson@comcast.net TERMINATED: 06/02/2017 Bar Status: Admitted/In Good Standing
represented by Amy Anne Miller 623 S 32nd Street Lincoln, NE 68510 TERMINATED: 02/20/2020 Bar Status: Admitted/In Good Standing
Andre Segura (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Brian Matthew Hauss (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Brigitte Adrienne Amiri (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Daniel Mach (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
James Esseks (See above for address) ATTORNEY TO BE NOTICED

Case: 7:16-cv-108 As of: 05/30/2020 02:35 PM CDT 10 of 26
Bar Status: Admitted/In Good Standing
Joshua Block (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Kali Alanna Cohn (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Lindsey Breton Kaley (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Louise Melling (See above for address) ATTORNEY TO BE NOTICED
Rebecca Scout Richters (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Rebecca L Robertson (See above for address) TERMINATED: 06/02/2017 Bar Status: Admitted/In Good Standing

Date Filed 08/23/2016
08/23/2016 08/23/2016 08/26/2016 09/02/2016

# Docket Text
1 COMPLAINT WITH JURY DEMAND against All Defendants filed by Nebraska, State of, Speciality Physicians of illinois, LLC, Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, Christian Medical and Dental Society, Kansas, Franciscan Alliance, Inc., Texas, State of, Wisconsin State of. (Filing fee $400; Receipt number 0539−7816698) Clerk to issue summons(es). In each Notice of Electronic Filing, the judge assignment is indicated, and a link to the Judges Copy Requirements is provided. The court reminds the filer that any required copy of this and future documents must be delivered to the judge, in the manner prescribed, within three business days of filing. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information − Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (Attachments: # 1 Cover Sheet, # 2 Cover Sheet Supplement, # 3 Additional Page(s) Notice of Related Case) (Nimocks, Austin) (Entered: 08/23/2016)
2 New Case Notes: A filing fee has been paid. No court file needed. Pursuant to Misc. Order 6, Plaintiff is provided the Notice of Right to Consent to Proceed Before A U.S. Magistrate Judge (Judge Ray). Clerk to provide copy to plaintiff if not received electronically. (plp) (Entered: 08/23/2016)
3 Summons issued as to Sylvia Burwell, U.S. Department of Health and Human Services, U.S. Attorney, and U.S. Attorney General. (plp) (Entered: 08/23/2016)
4 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by Christian Medical and Dental Society, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC. (Nimocks, Austin) (Entered: 08/26/2016)
5 SUMMONS Returned Executed as to Sylvia Burwell ; served on 8/30/2016. (Nimocks, Austin) (Entered: 09/02/2016)

Case: 7:16-cv-108 As of: 05/30/2020 02:35 PM CDT 11 of 26

09/02/2016 09/16/2016
09/16/2016 09/16/2016 09/16/2016
09/16/2016 10/03/2016 10/05/2016 10/05/2016 10/05/2016
10/05/2016
10/06/2016
10/07/2016 10/07/2016 10/07/2016 10/17/2016

6 SUMMONS Returned Executed as to U.S. Department of Health and Human Services ; served on 8/30/2016. (Nimocks, Austin) (Entered: 09/02/2016)
7 MOTION to Intervene filed by American Civil Liberties Union of Texas, River City Gender Alliance (Attachments: # 1 Proposed Order). Party American Civil Liberties Union of Texas added.Attorney Rebecca L Robertson added to party American Civil Liberties Union of Texas (pty:intvd), Attorney Rebecca L Robertson added to party River City Gender Alliance(pty:intvd) (Robertson, Rebecca) (Entered: 09/16/2016)
8 Brief/Memorandum in Support filed by American Civil Liberties Union of Texas, River City Gender Alliance re 7 MOTION to Intervene (Robertson, Rebecca) (Entered: 09/16/2016)
9 Appendix in Support filed by American Civil Liberties Union of Texas, River City Gender Alliance re 8 Brief/Memorandum in Support of Motion (Robertson, Rebecca) (Entered: 09/16/2016)
10 ANSWER to 1 Complaint,,,,, filed by American Civil Liberties Union of Texas, River City Gender Alliance. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms and Instructions found at www.txnd.uscourts.gov, or by clicking here: Attorney Information − Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (Robertson, Rebecca) (Entered: 09/16/2016)
11 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by American Civil Liberties Union of Texas, River City Gender Alliance. (Robertson, Rebecca) (Entered: 09/16/2016)
12 MOTION for Extension of Time to File Response/Reply to 7 MOTION to Intervene filed by Christian Medical and Dental Society, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC (Goodrich, Luke) (Entered: 10/03/2016)
13 SUMMONS Returned Executed. (Nimocks, Austin) (Entered: 10/05/2016)
14 SUMMONS Returned Executed. (Nimocks, Austin) (Entered: 10/05/2016)
15 ORDER: It is ORDERED that counsel for the putative intervenors, James Esseks and Rebecca Robertson, file briefing explaining why they are opposed to Plaintiffs' Motion for Extension of Time 12 on or before October 7, 2016. Should Plaintiffs find it necessary to reply, they must do so on or before October 10, 2016. (Ordered by Judge Reed C O'Connor on 10/5/2016) (skg) (Entered: 10/05/2016)
16 Brief/Memorandum in Support filed by American Civil Liberties Union of Texas, River City Gender Alliance re 12 MOTION for Extension of Time to File Response/Reply to 7 MOTION to Intervene , 15 Order Setting Deadline/Hearing, (Robertson, Rebecca) (Entered: 10/05/2016)
17 REPLY filed by Christian Medical and Dental Society, Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC, State of Kansas, State of Nebraska, State of Texas, State of Wisconsin re: 12 MOTION for Extension of Time to File Response/Reply to 7 MOTION to Intervene (Goodrich, Luke) (Entered: 10/06/2016)
18 NOTICE of Attorney Appearance by Adam Anderson Grogg on behalf of Sylvia Burwell, U.S. Department of Health and Human Services. (Filer confirms contact info in ECF is current.) (Grogg, Adam) (Entered: 10/07/2016)
19 RESPONSE filed by Sylvia Burwell, U.S. Department of Health and Human Services re: 7 MOTION to Intervene (Grogg, Adam) (Entered: 10/07/2016)
20 ORDER granting 12 Motion for Extension of Time to Respond to Motion toIntervene. (Ordered by Judge Reed C O'Connor on 10/7/2016) (trt) (Entered: 10/07/2016)
21 AMENDED COMPLAINT WITH JURY DEMAND against All Defendants filed by State of Nebraska, Specialty Physicians of Illinois, LLC, Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, Christian Medical and Dental Society, State of Kansas, Franciscan Alliance, Inc., State of Texas, State of Wisconsin, State of Louisiana, State of Arizona, State of Mississippi. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission

Case: 7:16-cv-108 As of: 05/30/2020 02:35 PM CDT 12 of 26

10/21/2016
10/21/2016 10/21/2016 10/21/2016 10/21/2016 10/24/2016 10/26/2016 10/28/2016
10/31/2016 11/01/2016 11/01/2016 11/01/2016 11/02/2016

promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information − Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (Nimocks, Austin) (Entered: 10/17/2016)
22 MOTION for Summary Judgment (Partial) filed by Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas, State of Wisconsin (Attachments: # 1 Proposed Order)Attorney Austin R Nimocks added to party State of Arizona(pty:pla), Attorney Austin R Nimocks added to party State of Louisiana(pty:pla), Attorney Austin R Nimocks added to party State of Mississippi(pty:pla) (Nimocks, Austin) (Entered: 10/21/2016)
23 Brief/Memorandum in Support filed by Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas, State of Wisconsin re 22 MOTION for Summary Judgment (Partial) (Nimocks, Austin) (Entered: 10/21/2016)
24 MOTION for Summary Judgment (Partial) filed by Christian Medical and Dental Society, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC (Goodrich, Luke) (Entered: 10/21/2016)
25 Brief/Memorandum in Support filed by Christian Medical and Dental Society, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC re 24 MOTION for Summary Judgment (Partial) (Goodrich, Luke) (Entered: 10/21/2016)
26 Appendix in Support filed by Christian Medical and Dental Society, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC re 24 MOTION for Summary Judgment (Partial) (Goodrich, Luke) (Entered: 10/21/2016)
27 MOTION to Stay BRIEFING ON PLAINTIFFS DISPOSITIVE MOTIONS AND RESET DEADLINES FOR RESPONDING TO MOTION TO INTERVENE filed by American Civil Liberties Union of Texas, River City Gender Alliance (Attachments: # 1 Proposed Order) (Robertson, Rebecca) (Entered: 10/24/2016)
28 MOTION to Set Schedule for Preliminary Injunction Proceedings filed by Sylvia Burwell, U.S. Department of Health and Human Services with Brief/Memorandum in Support. (Grogg, Adam) (Entered: 10/26/2016)
29 RESPONSE filed by Christian Medical and Dental Society, Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas, State of Wisconsin re: 27 MOTION to Stay BRIEFING ON PLAINTIFFS DISPOSITIVE MOTIONS AND RESET DEADLINES FOR RESPONDING TO MOTION TO INTERVENE (Goodrich, Luke) (Entered: 10/28/2016)
30 REPLY filed by American Civil Liberties Union of Texas, River City Gender Alliance re: 27 MOTION to Stay BRIEFING ON PLAINTIFFS DISPOSITIVE MOTIONS AND RESET DEADLINES FOR RESPONDING TO MOTION TO INTERVENE (Robertson, Rebecca) (Entered: 10/31/2016)
31 MOTION to Expedite Telephonic Status Conference filed by Sylvia Burwell, U.S. Department of Health and Human Services with Brief/Memorandum in Support. (Grogg, Adam) (Entered: 11/01/2016)
32 ORDER granting in part and denying in part 28 Motion. See order for details. (Ordered by Judge Reed C O'Connor on 11/1/2016) (Judge Reed C O'Connor) (Entered: 11/01/2016)
Hearing/Deadline Modification: Deadlines/hearings set per 32 Order on Motion for Miscellaneous Relief. Supplemental briefing due by 11/9/2016. Responses due by 11/23/2016. Replies due by 11/30/2016. (skg) (Entered: 11/02/2016)
33 ORDER: Defendants' Motion to Expedite Telephonic Status Conference 31 is GRANTED in part and DENIED in part. This motion is GRANTED in that their request for a hearing will take place at 9:00 AM on November 7, 2016. Note: the hearing will take place in the District Judge's Courtroom, 2nd floor, 501 W. 10th

Case: 7:16-cv-108 As of: 05/30/2020 02:35 PM CDT 13 of 26

11/02/2016 11/03/2016 11/03/2016 11/09/2016
11/10/2016 11/15/2016 11/15/2016
11/17/2016
11/17/2016 11/21/2016 11/21/2016 11/22/2016 11/22/2016 11/22/2016

Street, Fort Worth, Texas. This motion is DENIED in that the Court does not typically hold hearings by telephone. (Ordered by Judge Reed C O'Connor on 11/2/2016) (skg) (Entered: 11/02/2016)
34 NOTICE of Defendants re: 33 Order Setting Deadline/Hearing, Terminate Motions,, filed by Sylvia Burwell, U.S. Department of Health and Human Services (Grogg, Adam) (Entered: 11/02/2016)
35 CERTIFICATE OF SERVICE by State of Texas on U.S. Attorney, Northern District of Texas (Nimocks, Austin) (Entered: 11/03/2016)
36 ORDER: Defendants have withdrawn their request for a status conference and indicate the concerns that motivated them to request a status conference have been fully resolved. Accordingly, the hearing set for November 7, 2016 is cancelled. (Ordered by Judge Reed C O'Connor on 11/3/2016) (skg) (Entered: 11/03/2016)
37 Brief/Memorandum in Support filed by Christian Medical and Dental Society, Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas, State of Wisconsin re 22 MOTION for Summary Judgment (Partial), 24 MOTION for Summary Judgment (Partial) Supplemental Brief in support of Motions for Preliminary Injunction (Nimocks, Austin) (Entered: 11/09/2016)
38 MOTION for Reconsideration filed by American Civil Liberties Union of Texas, River City Gender Alliance with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order) (Robertson, Rebecca) (Entered: 11/10/2016)
39 Consent MOTION for Leave to File Excess Pages (), Motion for Extension of Time to File Answer filed by Sylvia Burwell, U.S. Department of Health and Human Services with Brief/Memorandum in Support. (Grogg, Adam) (Entered: 11/15/2016)
40 ORDER granting 39 Defendants' Consent Motion for Expanded Page Limit for Opposition to Plaintiffs' Preliminary Injunction Motions and for Extension of Time to Respond to the Complaint. Defendants' answer to Plaintiffs' operative complaint shall be due 25 days after the Court issues its ruling on Plaintiffs' preliminary injunction motions. (Ordered by Judge Reed C O'Connor on 11/15/2016) (ewd) (Entered: 11/15/2016)
41 RESPONSE filed by Christian Medical and Dental Society, Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas, State of Wisconsin re: 38 MOTION for Reconsideration (Nimocks, Austin) (Entered: 11/17/2016)
42 NOTICE of Attorney Appearance by Emily Brooke Nestler−DOJ on behalf of Sylvia Burwell, U.S. Department of Health and Human Services. (Filer confirms contact info in ECF is current.) (Nestler−DOJ, Emily) (Entered: 11/17/2016)
43 REPLY filed by American Civil Liberties Union of Texas, River City Gender Alliance re: 38 MOTION for Reconsideration (Robertson, Rebecca) (Entered: 11/21/2016)
44 Unopposed MOTION for Leave to File Overlength Brief filed by American Civil Liberties Union of Texas, River City Gender Alliance (Attachments: # 1 Proposed Order) (Robertson, Rebecca) (Entered: 11/21/2016)
45 ORDER: Putative Intervenors' Unopposed Motion for Expanding Page Limit for Amici Curiae Brief in Opposition to Plaintiffs' Motions for Preliminary Injunction 44 should be and is hereby GRANTED. (Ordered by Judge Reed C O'Connor on 11/22/2016) (skg) (Entered: 11/22/2016)
46 NOTICE of Attorney Appearance by Bailey Wilson Heaps−DOJ on behalf of Sylvia Burwell, U.S. Department of Health and Human Services. (Filer confirms contact info in ECF is current.) (Heaps−DOJ, Bailey) (Entered: 11/22/2016)
47 NOTICE of Attorney Appearance by Brian Matthew Hauss on behalf of American Civil Liberties Union of Texas, River City Gender Alliance. (Filer confirms contact info in ECF is current.) (Hauss, Brian) (Entered: 11/22/2016)

Case: 7:16-cv-108 As of: 05/30/2020 02:35 PM CDT 14 of 26

11/22/2016 11/22/2016 11/23/2016 11/23/2016 11/23/2016 11/23/2016 11/28/2016
11/29/2016
12/02/2016
12/02/2016 12/06/2016 12/15/2016 12/19/2016
12/22/2016

48 NOTICE of Attorney Appearance by Brigitte Adrienne Amiri on behalf of American Civil Liberties Union of Texas, River City Gender Alliance. (Filer confirms contact info in ECF is current.) (Amiri, Brigitte) (Entered: 11/22/2016)
49 NOTICE of Attorney Appearance by Louise Melling on behalf of American Civil Liberties Union of Texas, River City Gender Alliance. (Filer confirms contact info in ECF is current.) (Melling, Louise) (Entered: 11/22/2016)
50 RESPONSE filed by Sylvia Burwell, U.S. Department of Health and Human Services re: 22 MOTION for Summary Judgment (Partial), 24 MOTION for Summary Judgment (Partial) (Grogg, Adam) (Entered: 11/23/2016)
51 NOTICE of Attorney Appearance by James Esseks on behalf of American Civil Liberties Union of Texas, River City Gender Alliance. (Filer confirms contact info in ECF is current.) (Esseks, James) (Entered: 11/23/2016)
52 NOTICE of Attorney Appearance by Joshua Block on behalf of American Civil Liberties Union of Texas, River City Gender Alliance. (Filer confirms contact info in ECF is current.) (Block, Joshua) (Entered: 11/23/2016)
53 RESPONSE filed by American Civil Liberties Union of Texas, River City Gender Alliance re: 22 MOTION for Summary Judgment (Partial), 24 MOTION for Summary Judgment (Partial) (Hauss, Brian) (Entered: 11/23/2016)
54 Consent MOTION for Leave to File Excess Pages, MOTION for Extension of Time to File Response/Reply to 50 Response/Objection () filed by Christian Medical and Dental Society, Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas, State of Wisconsin (Goodrich, Luke) (Entered: 11/28/2016)
55 ORDER: GRANTING Plaintiffs' Consent Motion for Expanded Page Limit and Extension of Time to File Replies in Support of Preliminary Injunction 54 , filed November 28, 2016. Plaintiffs request (1) extension of the deadline to file replies in support of preliminary injunction; (2) leave to file reply briefs that exceed the Courts 10−page limit. Accordingly, Plaintiffs reply briefs may exceed the 10−page limit and shall be due December 2, 2016. (Ordered by Judge Reed C O'Connor on 11/29/2016) (skg) (Entered: 11/29/2016)
56 REPLY filed by Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas, State of Wisconsin re: 22 MOTION for Summary Judgment (Partial) (Attachments: # 1 Declaration(s) in support of State Plaintiffs' Reply Brief) (Nimocks, Austin) (Entered: 12/02/2016)
57 REPLY filed by Christian Medical and Dental Society, Franciscan Alliance, Inc. re: 24 MOTION for Summary Judgment (Partial) (Attachments: # 1 Declaration(s)) (Goodrich, Luke) (Entered: 12/02/2016)
58 ORDER: The Court sets Plaintiffs' Motions for Preliminary Injunction 22 AND 24 for hearing at 9:00 a.m. on December 20, 2016. The hearing will convene in the District Judges Courtroom, 2nd floor, 1000 Lamar Street, Wichita Falls, Texas. (Ordered by Judge Reed C O'Connor on 12/6/2016) (skg) (Entered: 12/06/2016)
59 NOTICE of Attorney Appearance by Mark Rienzi on behalf of Christian Medical and Dental Society, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC. (Filer confirms contact info in ECF is current.) (Rienzi, Mark) (Entered: 12/15/2016)
60 NOTICE of Filing Evidence in Support re: 56 Reply, 22 MOTION for Summary Judgment (Partial) filed by Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas, State of Wisconsin (Nimocks, Austin) (Entered: 12/19/2016)
61 ELECTRONIC Minute Entry for proceedings held before Judge Reed C O'Connor: Evidentiary Hearing held on 12/20/2016. Attorney Appearances: Plaintiff − Mark Rienzi, Austin R Nimocks; Defense − Adam Anderson Grogg. (Court Reporter: Denver Roden) (No exhibits) Time in Court − 3:10. (chmb) (Entered: 12/22/2016)

Case: 7:16-cv-108 As of: 05/30/2020 02:35 PM CDT 15 of 26

12/31/2016 01/09/2017 01/09/2017 01/09/2017 01/17/2017 01/17/2017 01/17/2017
01/19/2017 01/24/2017
01/30/2017 01/30/2017
02/02/2017

62 ORDER granting injunction and not reaching Motions for Summary Judgment. (Ordered by Judge Reed C O'Connor on 12/31/2016) (Judge Reed C O'Connor) (Entered: 12/31/2016)
63 MOTION to Stay Preliminary Injunction filed by American Civil Liberties Union of Texas, River City Gender Alliance (Hauss, Brian) (Entered: 01/09/2017)
64 ORDER Expediting Briefing on 63 Motion to Stay (Ordered by Judge Reed C. O'Connor on 1/9/2017) (chmb) (Entered: 01/09/2017)
Hearing/Deadline Modification: Deadlines/hearings set per 64 Order on Motion to Stay. Responses due by 1/17/2017. Replies due by 1/20/2017. (skg) (Entered: 01/10/2017)
65 RESPONSE filed by Sylvia Burwell, U.S. Department of Health and Human Services re: 63 MOTION to Stay Preliminary Injunction (Grogg, Adam) (Entered: 01/17/2017)
66 Motion for Extension of Time to File Answer filed by Sylvia Burwell, U.S. Department of Health and Human Services with Brief/Memorandum in Support. (Grogg, Adam) (Entered: 01/17/2017)
67 RESPONSE filed by Christian Medical and Dental Society, Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas, State of Wisconsin re: 63 MOTION to Stay Preliminary Injunction (Nimocks, Austin) (Entered: 01/17/2017)
68 REPLY filed by American Civil Liberties Union of Texas, River City Gender Alliance re: 63 MOTION to Stay Preliminary Injunction (Hauss, Brian) (Entered: 01/19/2017)
69 ORDER granting in part and denying in part 63 Motion for Ruling and Stay; and granting 66 Motion for Extension. Defendants' answer to Plaintiffs' operative complaint shall be due on or before March 1, 2017. Plaintiffs and Defendants must file a response to Putative Intervenors' request for permissive intervention on or before February 8, 2017. See order for details. (Ordered by Judge Reed C. O'Connor on 1/24/2017) (chmb) (aba) (Entered: 01/24/2017)
70 NOTICE of Attorney Appearance by Daniel Irwin Mach on behalf of American Civil Liberties Union of Texas, River City Gender Alliance. (Filer confirms contact info in ECF is current.) (Mach, Daniel) (Entered: 01/30/2017)
71 NOTICE OF INTERLOCUTORY APPEAL as to 62 Order on Motion for Summary Judgment to the Fifth Circuit by American Civil Liberties Union of Texas, River City Gender Alliance. Filing fee $505, receipt number 0539−8170756. T.O. form to appellant electronically at Transcript Order Form or US Mail as appropriate. Copy of NOA to be sent US Mail to parties not electronically noticed. IMPORTANT ACTION REQUIRED: Provide an electronic copy of any exhibit you offered during a hearing or trial that was admitted into evidence to the clerk of the district court within 14 days of the date of this notice. Copies must be transmitted as PDF attachments through ECF by all ECF Users or delivered to the clerk on a CD by all non−ECF Users. See detailed instructions here. (Exception: This requirement does not apply to a pro se prisoner litigant.) Please note that if original exhibits are in your possession, you must maintain them through final disposition of the case. (Hauss, Brian) (Entered: 01/30/2017)
72 NOTICE OF INTERLOCUTORY APPEAL as to 69 Order on Motion to Stay, to the Fifth Circuit by American Civil Liberties Union of Texas, River City Gender Alliance. Filing fee $505, receipt number 0539−8180447. T.O. form to appellant electronically at Transcript Order Form or US Mail as appropriate. Copy of NOA to be sent US Mail to parties not electronically noticed. IMPORTANT ACTION REQUIRED: Provide an electronic copy of any exhibit you offered during a hearing or trial that was admitted into evidence to the clerk of the district court within 14 days of the date of this notice. Copies must be transmitted as PDF attachments through ECF by all ECF Users or delivered to the clerk on a CD by all non−ECF Users. See detailed instructions here. (Exception: This requirement does not apply to a pro se prisoner litigant.) Please note that if original exhibits are in your possession, you must maintain them through final disposition of the case. (Hauss, Brian) (Entered: 02/02/2017)

Case: 7:16-cv-108 As of: 05/30/2020 02:35 PM CDT 16 of 26

02/08/2017 02/08/2017 02/09/2017 02/13/2017 02/14/2017
02/15/2017 02/16/2017
02/22/2017 02/24/2017 02/27/2017 02/28/2017 03/07/2017

73 RESPONSE filed by Sylvia Burwell, U.S. Department of Health and Human Services re: 69 Order on Motion to Stay, (Grogg, Adam) (Entered: 02/08/2017)
74 RESPONSE filed by Christian Medical and Dental Society, Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas, State of Wisconsin re: 69 Order on Motion to Stay, (Goodrich, Luke) (Entered: 02/08/2017)
USCA Case Number 17−10135 in USCA5 for 71 Notice of Appeal filed by River City Gender Alliance, American Civil Liberties Union of Texas. (skg) (Entered: 02/09/2017)
75 NOTICE of Attorney Appearance by Stephanie Hall Barclay on behalf of Christian Medical and Dental Society, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC. (Filer confirms contact info in ECF is current.) (Barclay, Stephanie) (Entered: 02/13/2017)
Record on Appeal for USCA5 17−10135 (related to 71 appeal): Record consisting of: 1 ECF electronic record on appeal (eROA) is certified,. PLEASE NOTE THE FOLLOWING: Licensed attorneys must have filed an appearance in the USCA5 case and be registered for electronic filing in the USCA5 to access the paginated eROA in the USCA5 ECF system. (Take these steps immediately if you have not already done so, since the USCA5 briefing deadline has now been set. Once you have filed the notice of appearance and/or USCA5 ECF registration, it may take up to 3 business days for the circuit to notify the district clerk that we may grant you access to the eROA in the USCA5 ECF system.) To access the paginated record, log in to the USCA5 ECF system, and under the Utilities menu, select Electronic Record on Appeal. Pro se litigants may request a copy of the record by contacting the appeals deputy in advance to arrange delivery. EROA Access granted to Attorney Brigitte Adrienne Amiri for Appellant River City Gender Alliance. (skg) (Entered: 02/14/2017)
76 REPLY filed by American Civil Liberties Union of Texas re: 7 MOTION to Intervene (Hauss, Brian) (Entered: 02/15/2017)
Re: USCA5 17−10135 APPEARANCE FORM FILED by Attorney(s): Scott A. Keller for party(s) Appellee State of Arizona Appellee State of Kansas Appellee Commonwealth of Kentucky Appellee State of Wisconsin Appellee State of Texas Appellee State of Louisiana Appellee State of Nebraska Appellee State of Mississippi, in case 17−10135 EROA access granted; APPEARANCE FORM FILED by Attorney: Luke William Goodrich for Appellee Specialty Physicians of Illinois, L.L.C. in 17−10135, Attorney Luke William Goodrich for Appellee Christian Medical and Dental Society in 17−10135, Attorney Luke William Goodrich for Appellee Franciscan Alliance, Incorporated in 17−10135 EROA access granted; APPEARANCE FORM FILED by Attorney: Stephanie Hall Barclay for party(s) Appellee Christian Medical and Dental Society Appellee Specialty Physicians of Illinois, L.L.C. Appellee Franciscan Alliance, Incorporated, in case 17−10135 EROA access granted. (skg) (Entered: 02/16/2017)
77 NOTICE of Attorney Appearance by Amy Anne Miller on behalf of American Civil Liberties Union of Texas, River City Gender Alliance. (Filer confirms contact info in ECF is current.) (Miller, Amy) (Entered: 02/22/2017)
78 Unopposed Motion for Extension of Time to File Answer or Otherwise Respond to the Complaint filed by Sylvia Burwell, U.S. Department of Health and Human Services (Attachments: # 1 Proposed Order) (Nestler−DOJ, Emily) (Entered: 02/24/2017)
79 ORDER granting 78 Motion for Extension of Time to File Answer Sylvia Burwell answer due 5/2/2017; U.S. Department of Health and Human Services answer due 5/2/2017. (Ordered by Judge Reed C. O'Connor on 2/27/2017) (chmb) (aba) (Entered: 02/27/2017)
***Clerk's Notice of delivery: (see NEF for details) Docket No:79. Tue Feb 28 12:36:34 CST 2017 (crt) (Entered: 02/28/2017)
80 APPEARANCE FORM FILED by Attorney(s) Heather Gebelin Hacker for party(s) Appellee State of Arizona Appellee State of Kansas Appellee Commonwealth of

Case: 7:16-cv-108 As of: 05/30/2020 02:35 PM CDT 17 of 26

03/14/2017
03/14/2017
03/14/2017
03/14/2017 03/27/2017 04/04/2017 04/04/2017
04/05/2017 04/05/2017 04/05/2017 04/10/2017 04/26/2017

Kentucky Appellee State of Wisconsin Appellee State of Texas Appellee State of Louisiana Appellee State of Nebraska Appellee State of Mississippi, in USCA5 case 17−10135. EROA access granted. (skg) (Entered: 03/07/2017)
81 NOTICE of Dismissal Without Prejudice of Counts III−X and XIII−XX filed by Christian Medical and Dental Society, Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas, State of Wisconsin (Nimocks, Austin) (Entered: 03/14/2017)
82 MOTION for Summary Judgment filed by Christian Medical and Dental Society, Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas, State of Wisconsin (Attachments: # 1 Proposed Order [Proposed] Order Granting Plaintiffs' Motion for Summary Judgment, # 2 Proposed Order [Proposed] Final Judgment and Permanent Injunction) (Nimocks, Austin) (Entered: 03/14/2017)
83 Brief/Memorandum in Support filed by Christian Medical and Dental Society, Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas, State of Wisconsin re 82 MOTION for Summary Judgment (Nimocks, Austin) (Entered: 03/14/2017)
84 Appendix in Support filed by Christian Medical and Dental Society, Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas, State of Wisconsin re 82 MOTION for Summary Judgment (Nimocks, Austin) (Entered: 03/14/2017)
85 MOTION to Stay Pending Appeal filed by American Civil Liberties Union of Texas, River City Gender Alliance (Block, Joshua) (Entered: 03/27/2017)
86 MOTION for Extension of Time to File Response/Reply to 82 MOTION for Summary Judgment filed by Sylvia Burwell, U.S. Department of Health and Human Services (Grogg, Adam) (Entered: 04/04/2017)
87 RESPONSE filed by Christian Medical and Dental Society, Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas, State of Wisconsin re: 86 MOTION for Extension of Time to File Response/Reply to 82 MOTION for Summary Judgment (Goodrich, Luke) (Entered: 04/04/2017)
88 ORDER: Defendants' Motion for Extension of Time 86 to Respond to Plaintiffs' Motion for Summary Judgment is GRANTED. Accordingly, Defendants must file a Response to 82 Plaintiffs' Motion for Summary Judgment on or before May 2, 2017. (Ordered by Judge Reed C. O'Connor on 4/5/2017) (skg) (Entered: 04/05/2017)
***Clerk's Notice of delivery: (see NEF for details) Docket No:88. Wed Apr 5 12:10:12 CDT 2017 (crt) (Entered: 04/05/2017)
89 RESPONSE filed by Christian Medical and Dental Society, Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas, State of Wisconsin re: 85 MOTION to Stay Pending Appeal (Goodrich, Luke) (Entered: 04/05/2017)
90 REPLY filed by American Civil Liberties Union of Texas, River City Gender Alliance re: 85 MOTION to Stay Pending Appeal (Block, Joshua) (Entered: 04/10/2017)
91 NOTICE OF APPEARANCE FORM FILED by Attorney Joshua A. Block for Appellant River City Gender Alliance in 17−10135, Attorney Joshua A. Block for Appellant American Civil Liberties Union of Texas in USCA5 (17−10135) EROA access granted. (skg) (Entered: 04/26/2017)

Case: 7:16-cv-108 As of: 05/30/2020 02:35 PM CDT 18 of 26

05/02/2017 05/02/2017 05/04/2017
05/18/2017 06/01/2017 06/01/2017 06/02/2017 06/02/2017 06/08/2017 06/08/2017 06/13/2017
06/13/2017 06/26/2017 06/26/2017

92 MOTION to Remand to United States Department of Health and Human Services , MOTION to Stay () filed by Sylvia Burwell, U.S. Department of Health and Human Services with Brief/Memorandum in Support. (Grogg, Adam) (Entered: 05/02/2017)
93 Motion for Extension of Time to File Answer (), MOTION for Extension of Time to File Response/Reply to 82 MOTION for Summary Judgment , 21 Amended Complaint,,, filed by Sylvia Burwell, U.S. Department of Health and Human Services with Brief/Memorandum in Support. (Grogg, Adam) (Entered: 05/02/2017)
94 RESPONSE AND OBJECTION filed by Christian Medical and Dental Society, Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas, State of Wisconsin re: 93 Motion for Extension of Time to File Answer MOTION for Extension of Time to File Response/Reply to 82 MOTION for Summary Judgment , 21 Amended Complaint,,,, 92 MOTION to Remand to United States Department of Health and Human Services MOTION to Stay (Nimocks, Austin) (Entered: 05/04/2017)
95 REPLY filed by Sylvia Burwell, U.S. Department of Health and Human Services re: 92 MOTION to Remand to United States Department of Health and Human Services MOTION to Stay (Grogg, Adam) (Entered: 05/18/2017)
96 MOTION to Withdraw as Attorney filed by American Civil Liberties Union of Texas, River City Gender Alliance (Robertson, Rebecca) (Entered: 06/01/2017)
97 Amended MOTION to Withdraw as Attorney filed by American Civil Liberties Union of Texas, River City Gender Alliance (Robertson, Rebecca) (Entered: 06/01/2017)
98 ORDER granting 97 Amended Motion to Withdraw as Counsel for Intervenors. Attorney Rebecca L Robertson terminated. (Ordered by Judge Reed C. O'Connor on 6/2/2017) (baa) (Entered: 06/02/2017)
***Clerk's Notice of delivery: (see NEF for details) Docket No:98. Fri Jun 2 16:09:55 CDT 2017 (crt) (Entered: 06/02/2017)
99 NOTICE of Attorney Appearance by Kali Alanna Cohn on behalf of American Civil Liberties Union of Texas, River City Gender Alliance. (Filer confirms contact info in ECF is current.) (Cohn, Kali) (Entered: 06/08/2017)
100 Received letter from USCA5 (17−10135): LETTER OF ADVISEMENT. Reason: sent to Distrct Court inquiring about the estimated timeframe for their ruling on the putative−intervenors' motion for permissive intervention. (skg) (Entered: 06/08/2017)
101 ORDER: The Court sets Putative Intervenors' Motion for Stay of Proceedings Pending Appeal (ECF No. 85 ) and Defendants' Motion for Voluntary Remand and Stay (ECF No. 92 ) for hearing on June 26, 2017 at 2:00 pm. Note, the hearing will convene in the United States District Judge's Second Floor Courtroom, 501 West 10th Street, Fort Worth, Texas. Counsel for Putative Intervenors, Defendants, Private Plaintiffs, and State Plaintiffs should appear and be prepared to discuss all issues related to any pending motions, including Putative Intervenors' Motion to Intervene (ECF No. 7 ). (Ordered by Judge Reed C. O'Connor on 6/13/2017) (skg) (Entered: 06/13/2017)
***Clerk's Notice of delivery: (see NEF for details) Docket No:101. Tue Jun 13 15:03:43 CDT 2017 (crt) (Entered: 06/13/2017)
102 NOTICE of Attorney Appearance by Alexander Haas on behalf of Thomas E. Price, M.D., U.S. Department of Health and Human Services. (Filer confirms contact info in ECF is current.) (Haas, Alexander) (Entered: 06/26/2017)
103 ELECTRONIC Minute Entry for proceedings held before Judge Reed C. O'Connor: Motion Hearing held on 6/26/2017 re 85 Motion to Stay filed by River City Gender Alliance, American Civil Liberties Union of Texas. Attorney Appearances: Plaintiff − Mark Rienzi, Luke Goodrich, Austin Nimocks; Defense − Alexander Haas, Adam Grogg, Briam Hauss, Joshua Block, Kali Cohn. (Court Reporter: Denver Roden) (No exhibits) Time in Court − 1:25. (chmb) (Entered: 06/26/2017)

Case: 7:16-cv-108 As of: 05/30/2020 02:35 PM CDT 19 of 26

06/30/2017
07/10/2017
07/10/2017 08/04/2017 08/16/2017 08/16/2017
08/16/2017 10/16/2017 12/15/2017 02/13/2018 04/10/2018 04/16/2018 06/25/2018 08/14/2018 09/19/2018

104 JUDGMENT/MANDATE of USCA (17−10135) as to 72 Notice of Appeal filed by River City Gender Alliance, American Civil Liberties Union of Texas. IT IS ORDERED that appellees' motion to dismiss appellants' appeal from the denial of intervention as of right is GRANTED. IT IS FURTHER ORDERED that because appellants have not been granted intervention and are not parties to this case, we lack jurisdiction to adjudicate the merits of the protective appeal from the preliminary injunction order. Accordingly, appellants' motion for a stay of the preliminary injunction order pending appeal is DENIED without prejudice to appellants reasserting the motion if they become parties to the case. Issued as Mandate: 6/30/2017. See Order for further specifics. (Attachments: # 1 USCA5 cover letter) (skg) (Entered: 06/30/2017)
105 ORDER: For the foregoing reasons, the Court finds that Defendants' Motion for Voluntary Remand and Stay (ECF No. 92 ) should be and is hereby GRANTED in part. Accordingly, the case is hereby STAYED until further order of the Court and all pending motions are held in abeyance. Defendants are hereby ORDERED to file a status report on or before August 4, 2017, identifying any rulemaking proceedings initiated with respect to the challenged Rule. The Court expressly RETAINS jurisdiction over Plaintiffs' asserted claims and will maintain a supervisory role until the stay is lifted by requiring periodic status reports from the existing parties. Further, the Court CLARIFIES that the December 31, 2016 Preliminary Injunction Order (ECF No. 62 ) is unaffected by this Order and remains in full force and effect throughout the duration of the stay until further order of the Court. (Ordered by Judge Reed C. O'Connor on 7/10/2017) (skg) (Entered: 07/10/2017)
***Clerk's Notice of delivery: (see NEF for details) Docket No:105. Mon Jul 10 13:25:43 CDT 2017 (crt) (Entered: 07/10/2017)
106 STATUS REPORT filed by Thomas E. Price, M.D., U.S. Department of Health and Human Services. (Haas, Alexander) (Entered: 08/04/2017)
107 Notice of Substitution of Counsel by AUSA. (Grogg, Adam) (Entered: 08/16/2017)
108 ORDER: Pursuant to the Court's July 10, 2017 Order, Defendants filed a Status Report (ECF No. 106 ) on August 4, 2017, indicating "a draft of a proposed rule is going through the clearance process within the Executive Branch." Status Report 1, ECF No. 106 . In order for the Court to continue monitoring any and all "rulemaking proceedings initiated with respect to the challenged Rule" the Court hereby ORDERS Defendants to file a Status Report with updates on the rulemaking proceedings on or before October 16, 2017, and every 60 days thereafter. (Ordered by Judge Reed C. O'Connor on 8/16/2017) (skg) (Entered: 08/16/2017)
***Clerk's Notice of delivery: (see NEF for details) Docket No:108. Wed Aug 16 11:44:05 CDT 2017 (crt) (Entered: 08/16/2017)
109 STATUS REPORT filed by Thomas E. Price, U.S. Department of Health and Human Services. (Nestler, Emily) (Entered: 10/16/2017)
110 STATUS REPORT filed by Thomas E. Price, U.S. Department of Health and Human Services. (Nestler, Emily) (Entered: 12/15/2017)
111 STATUS REPORT filed by Thomas E. Price, U.S. Department of Health and Human Services. (Nestler, Emily) (Entered: 02/13/2018)
112 Notice of Substitution of Counsel by Rhett Martin, U.S. Department of Justice Civil Division (Martin, Rhett) Modified text on 4/10/2018 (skg). (Entered: 04/10/2018)
113 STATUS REPORT filed by Thomas E. Price, U.S. Department of Health and Human Services. (Martin, Rhett) (Entered: 04/16/2018)
114 STATUS REPORT filed by Thomas E. Price, U.S. Department of Health and Human Services. (Martin, Rhett) (Entered: 06/25/2018)
115 STATUS REPORT filed by Thomas E. Price, U.S. Department of Health and Human Services. (Martin, Rhett) (Entered: 08/14/2018)
116 NOTICE of Attorney Appearance by David Jonathan Hacker on behalf of Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska,

Case: 7:16-cv-108 As of: 05/30/2020 02:35 PM CDT 20 of 26

09/19/2018 09/20/2018
10/15/2018 12/06/2018
12/06/2018 12/11/2018
12/13/2018 12/13/2018
12/13/2018 12/14/2018 12/17/2018
12/17/2018 12/19/2018 01/31/2019

State of Texas, State of Wisconsin. (Filer confirms contact info in ECF is current.) (Hacker, David) (Entered: 09/19/2018)
117 Unopposed MOTION to Withdraw as Attorney for State Plaintiffs (Austin R. Nimocks) filed by State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas, State of Wisconsin (Attachments: # 1 Proposed Order) (Nimocks, Austin) (Entered: 09/19/2018)
118 ORDER of USCA (17−10135) as to 72 Notice of Appeal filed by River City Gender Alliance, American Civil Liberties Union of Texas. The court has granted the motion to withdraw David Nimocks as counsel in this case. Heather Hacker will now proceed as lead counsel for Texas and the other State Appellees in this case. (skg) (Entered: 09/20/2018)
119 STATUS REPORT filed by Thomas E. Price, U.S. Department of Health and Human Services. (Martin, Rhett) (Entered: 10/15/2018)
120 ORDER granting 117 Plaintiffs' Unopposed Motion to Withdraw Austin R. Nimocks as Counsel. Attorney Austin Nimocks terminated. Austin R. Nimocks is no longer counsel for Plaintiffs in this case. David J. Hacker remains as counsel of record for State Plaintiffs. (Ordered by Judge Reed C. O'Connor on 12/6/2018) (skg) (Entered: 12/06/2018)
***Clerk's Notice of delivery: (see NEF for details) Docket No:120. Thu Dec 6 13:45:02 CST 2018 (crt) (Entered: 12/06/2018)
121 MOTION for Status Conference filed by Christian Medical and Dental Society, Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas, State of Wisconsin with Brief/Memorandum in Support. (Goodrich, Luke) (Entered: 12/11/2018)
122 RESPONSE filed by American Civil Liberties Union of Texas, River City Gender Alliance re: 121 MOTION for Status Conference (Block, Joshua) (Entered: 12/13/2018)
123 ***VACATED per Order 126 *** ORDER: The Court sets this matter for a status conference hearing on Wednesday, December 19, 2018, at 8:30 a.m. in the Second Floor Courtroom of the Eldon B. Mahon United States Courthouse, located at 501 W. 10th Street, Fort Worth, Texas. (Ordered by Judge Reed C. O'Connor on 12/13/2018) (skg) Modified on 12/19/2018 (plp). (Entered: 12/13/2018)
***Clerk's Notice of delivery: (see NEF for details) Docket No:123. Thu Dec 13 13:38:48 CST 2018 (crt) (Entered: 12/13/2018)
124 STATUS REPORT filed by Thomas E. Price, U.S. Department of Health and Human Services. (Martin, Rhett) (Entered: 12/14/2018)
125 MOTION to lift stay, vacate status conference, and set briefing schedule filed by Christian Medical and Dental Society, Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas, State of Wisconsin with Brief/Memorandum in Support. (Goodrich, Luke) (Entered: 12/17/2018)
126 ORDER granting 125 Motion to Lift Stay, Vacate Status Conference, and Set Briefing Schedule.(Ordered by Judge Reed C. O'Connor on 12/17/2018)(chmb)(bca) (Entered: 12/17/2018)
***Clerk's Notice of delivery: (see NEF for details) Docket No:126. Wed Dec 19 09:17:26 CST 2018 (crt) (Entered: 12/19/2018)
127 NOTICE of Attorney Appearance by Michael Christopher Toth on behalf of Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas, State of Wisconsin. (Filer confirms contact info in ECF is current.) (Toth, Michael) (Entered: 01/31/2019)

Case: 7:16-cv-108 As of: 05/30/2020 02:35 PM CDT 21 of 26

02/01/2019 02/01/2019 02/01/2019 02/01/2019 02/04/2019
02/04/2019 02/04/2019 02/04/2019 02/04/2019 02/04/2019 02/08/2019 02/08/2019 02/25/2019
02/25/2019
02/25/2019 03/08/2019

128 MOTION to Withdraw as Attorney filed by American Civil Liberties Union of Texas, River City Gender Alliance (Hauss, Brian) (Entered: 02/01/2019)
129 MOTION to Intervene filed by American Civil Liberties Union of Texas, River City Gender Alliance (Attachments: # 1 Proposed Order) (Cohn, Kali) (Entered: 02/01/2019)
130 Brief/Memorandum in Support filed by American Civil Liberties Union of Texas, River City Gender Alliance re 129 MOTION to Intervene (Cohn, Kali) (Entered: 02/01/2019)
131 Appendix in Support filed by American Civil Liberties Union of Texas, River City Gender Alliance re 129 MOTION to Intervene , 130 Brief/Memorandum in Support of Motion (Cohn, Kali) (Entered: 02/01/2019)
132 MOTION for Summary Judgment filed by Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas, State of Wisconsin (Attachments: # 1 Proposed Order, # 2 Proposed Final Judgment and Permanent Injunction) (Hacker, David) (Entered: 02/04/2019)
133 Brief/Memorandum in Support filed by Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas, State of Wisconsin re 132 MOTION for Summary Judgment (Hacker, David) (Entered: 02/04/2019)
134 Appendix in Support filed by Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas, State of Wisconsin re 132 MOTION for Summary Judgment (Hacker, David) (Entered: 02/04/2019)
135 MOTION for Summary Judgment filed by Christian Medical and Dental Society, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC (Attachments: # 1 Proposed Order) (Goodrich, Luke) (Entered: 02/04/2019)
136 Brief/Memorandum in Support filed by Christian Medical and Dental Society, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC re 135 MOTION for Summary Judgment (Goodrich, Luke) (Entered: 02/04/2019)
137 Appendix in Support filed by Christian Medical and Dental Society, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC re 136 Brief/Memorandum in Support of Motion, 135 MOTION for Summary Judgment (Goodrich, Luke) (Entered: 02/04/2019)
138 ORDER granting 128 Proposed Intervenor American Civil Liberties Union of Texas's ("ACLU") Motion to Withdraw Brian Hauss as Counsel. (Ordered by Judge Reed C. O'Connor on 2/8/2019) (skg) (Entered: 02/08/2019)
***Clerk's Notice of delivery: (see NEF for details) Docket No:138. Fri Feb 8 16:32:56 CST 2019 (crt) (Entered: 02/08/2019)
139 OBJECTION filed by Christian Medical and Dental Society, Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas, State of Wisconsin re: 131 Appendix in Support (Hacker, David) (Entered: 02/25/2019)
140 RESPONSE filed by Christian Medical and Dental Society, Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas, State of Wisconsin re: 129 MOTION to Intervene (Hacker, David) (Entered: 02/25/2019)
141 RESPONSE filed by Thomas E. Price, U.S. Department of Health and Human Services re: 129 MOTION to Intervene (Martin, Rhett) (Entered: 02/25/2019)
142 NOTICE of Attorney Appearance by Lindsey Breton Kaley on behalf of American Civil Liberties Union of Texas, River City Gender Alliance. (Filer confirms contact info in ECF is current.) (Kaley, Lindsey) (Entered: 03/08/2019)

Case: 7:16-cv-108 As of: 05/30/2020 02:35 PM CDT 22 of 26

03/11/2019 03/11/2019 03/15/2019 03/18/2019 03/21/2019 03/28/2019 03/29/2019 04/02/2019 04/02/2019 04/04/2019 04/04/2019
04/04/2019
04/04/2019 04/05/2019 04/05/2019

143 RESPONSE filed by American Civil Liberties Union of Texas, River City Gender Alliance re: 139 Response/Objection, (Cohn, Kali) (Entered: 03/11/2019)
144 REPLY filed by American Civil Liberties Union of Texas, River City Gender Alliance re: 141 Response/Objection, 140 Response/Objection, (Cohn, Kali) (Entered: 03/11/2019)
145 Application for Admission Pro Hac Vice with Certificate of Good Standing (Filing fee $25; Receipt number 0539−9850529) filed by State of Wisconsin Attorney Steven Carl Kilpatrick added to party State of Wisconsin(pty:pla) (Kilpatrick, Steven) (Entered: 03/15/2019)
146 ELECTRONIC ORDER granting 145 Application for Admission Pro Hac Vice of Steven C. Kilpatrick. If not already done, Applicant must register as an ECF User within 14 days (LR 5.1(f)).(Ordered by Judge Reed C. O'Connor on 3/18/2019) (chmb) (bca) (Entered: 03/18/2019)
147 MOTION to Dismiss Plaintiff State of Wisconsin filed by State of Wisconsin (Kilpatrick, Steven) (Entered: 03/21/2019)
148 Unopposed MOTION to Dismiss Plaintiff State of Wisconsin filed by State of Wisconsin (Attachments: # 1 Proposed Order) (Kilpatrick, Steven) (Entered: 03/28/2019)
149 ORDER of USCA (17−10135) as to 72 Notice of Appeal filed by River City Gender Alliance, American Civil Liberties Union of Texas. IT IS ORDERED that the unopposed motion to dismiss the appeal as to Appellee State of Wisconsin is GRANTED. (Attachments: # 1 USCA5 cover letter) (skg) (Entered: 03/29/2019)
150 ORDER: It is therefore ORDERED, ADJUDGED, and DECREED that all claims brought by Plaintiff State of Wisconsin against Defendants in this case are hereby DISMISSED with prejudice. (Ordered by Judge Reed C. O'Connor on 4/2/2019) (skg) (Entered: 04/02/2019)
***Clerk's Notice of delivery: (see NEF for details) Docket No:150. Tue Apr 2 13:39:29 CDT 2019 (crt) (Entered: 04/02/2019)
151 MOTION to Extend Time (), MOTION for Extension of Time to File Response/Reply to 135 MOTION for Summary Judgment , 132 MOTION for Summary Judgment filed by Thomas E. Price, U.S. Department of Health and Human Services with Brief/Memorandum in Support. (Martin, Rhett) (Entered: 04/04/2019)
152 RESPONSE filed by Christian Medical and Dental Society, Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas re: 151 MOTION to Extend TimeMOTION for Extension of Time to File Response/Reply to 135 MOTION for Summary Judgment , 132 MOTION for Summary Judgment (Goodrich, Luke) (Entered: 04/04/2019)
153 ORDER: Before the Court is Defendants' Motion for Extension of Time to Respond (ECF No. 151), filed April 4, 2019. Plaintiffs oppose the extension. Accordingly, the Court ORDERS Plaintiffs to respond to the motion, explaining their opposition, no later than Monday, April 8, 2019. The Court further ORDERS Defendants to reply no later than Wednesday, April 10, 2019. All other deadlines remain in place. (Ordered by Judge Reed C. O'Connor on 4/4/2019) (trt) (Entered: 04/04/2019)
***Clerk's Notice of delivery: (see NEF for details) Docket No:153. Thu Apr 4 16:42:59 CDT 2019 (crt) (Entered: 04/04/2019)
154 RESPONSE filed by Thomas E. Price, U.S. Department of Health and Human Services re: 135 MOTION for Summary Judgment , 132 MOTION for Summary Judgment (Martin, Rhett) (Entered: 04/05/2019)
155 RESPONSE filed by American Civil Liberties Union of Texas, River City Gender Alliance re: 135 MOTION for Summary Judgment , 132 MOTION for Summary Judgment (Block, Joshua) (Entered: 04/05/2019)

Case: 7:16-cv-108 As of: 05/30/2020 02:35 PM CDT 23 of 26

04/05/2019 05/03/2019
05/03/2019 05/31/2019 06/06/2019
06/07/2019 06/07/2019 06/10/2019 06/12/2019 08/07/2019
08/07/2019 08/12/2019
08/12/2019 08/14/2019 09/10/2019
09/10/2019 09/11/2019

156 Appendix in Support filed by American Civil Liberties Union of Texas, River City Gender Alliance re 155 Response/Objection (Block, Joshua) (Entered: 04/05/2019)
157 REPLY filed by Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas re: 132 MOTION for Summary Judgment (Hacker, David) (Entered: 05/03/2019)
158 REPLY filed by Christian Medical and Dental Society, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC re: 135 MOTION for Summary Judgment (Goodrich, Luke) (Entered: 05/03/2019)
159 NOTICE of Proposed Rulemaking filed by Thomas E. Price, U.S. Department of Health and Human Services (Attachments: # 1 Exhibit(s)) (Martin, Rhett) (Entered: 05/31/2019)
160 RESPONSE filed by Christian Medical and Dental Society, Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas re: 159 Notice (Other) (Goodrich, Luke) (Entered: 06/06/2019)
161 ORDER: The Court hereby ORDERS Defendants to submit a reply to the response 160 on or before June 12, 2019. (Ordered by Judge Reed C. O'Connor on 6/7/2019) (skg) (Entered: 06/07/2019)
***Clerk's Notice of delivery: (see NEF for details) Docket No:161. Fri Jun 7 13:23:28 CDT 2019 (crt) (Entered: 06/07/2019)
162 NOTICE of Attorney Appearance by Bradley Philip Humphreys on behalf of Thomas E. Price, U.S. Department of Health and Human Services. (Filer confirms contact info in ECF is current.) (Humphreys, Bradley) (Entered: 06/10/2019)
163 REPLY filed by Thomas E. Price, U.S. Department of Health and Human Services re: 161 Order Setting Deadline/Hearing (Humphreys, Bradley) (Entered: 06/12/2019)
164 ORDER: The Court hereby ORDERS Plaintiffs and Defendants to submit briefing on this issue on or before August 12, 2019. Putative Intervenors are ORDERED to respond on or before August 14, 2019. (Ordered by Judge Reed C. O'Connor on 8/7/2019) (skg) (Entered: 08/07/2019)
***Clerk's Notice of delivery: (see NEF for details) Docket No:164. Wed Aug 7 13:44:14 CDT 2019 (crt) (Entered: 08/07/2019)
165 Brief/Memorandum in Support filed by Christian Medical and Dental Society, Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas re 164 Order Setting Deadline/Hearing, (Goodrich, Luke) (Entered: 08/12/2019)
166 RESPONSE filed by Thomas E. Price, U.S. Department of Health and Human Services re: 164 Order Setting Deadline/Hearing, (Humphreys, Bradley) (Entered: 08/12/2019)
167 Brief/Memorandum in Support filed by American Civil Liberties Union of Texas, River City Gender Alliance re 164 Order Setting Deadline/Hearing, (Kaley, Lindsey) (Entered: 08/14/2019)
168 ORDER: The Court sets this matter for a hearing on Monday, September 16, 2019, at 10:00 a.m. in the Second Floor Courtroom of the Eldon B. Mahon United States Courthouse, located at 501 W. 10th Street, Fort Worth, Texas. (Ordered by Judge Reed C. O'Connor on 9/10/2019) (skg) (Entered: 09/10/2019)
***Clerk's Notice of delivery: (see NEF for details) Docket No:168. Tue Sep 10 13:42:05 CDT 2019 (crt) (Entered: 09/10/2019)
169 NOTICE of Attorney Appearance by Brian Klosterboer on behalf of American Civil Liberties Union of Texas. (Filer confirms contact info in ECF is current.) (Klosterboer, Brian) (Entered: 09/11/2019)

Case: 7:16-cv-108 As of: 05/30/2020 02:35 PM CDT 24 of 26

09/12/2019 09/13/2019 09/13/2019
09/13/2019 09/17/2019 09/17/2019 10/15/2019
10/15/2019
10/15/2019 10/15/2019 10/15/2019 11/12/2019

170 NOTICE of Attorney Appearance by Andre Segura on behalf of American Civil Liberties Union of Texas, River City Gender Alliance. (Filer confirms contact info in ECF is current.) (Segura, Andre) (Entered: 09/12/2019)
171 NOTICE of Attorney Appearance by Joseph C Davis on behalf of Christian Medical and Dental Society, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC. (Filer confirms contact info in ECF is current.) (Davis, Joseph) (Entered: 09/13/2019)
172 Unopposed MOTION to Substitute Attorney, added attorney Michael Christopher Toth,William Thomas Thompson for State of Nebraska,William Thomas Thompson for Commonwealth of Kentucky, by and through Governor Matthew G. Bevin,William Thomas Thompson for State of Mississippi,William Thomas Thompson for State of Kansas,William Thomas Thompson for State of Texas,William Thomas Thompson for State of Arizona,William Thomas Thompson for State of Louisiana. Motion filed by State of Nebraska, Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, State of Mississippi, State of Kansas, State of Texas, State of Arizona, State of Louisiana (Attachments: # 1 Proposed Order) (Toth, Michael) (Entered: 09/13/2019)
173 ELECTRONIC Minute Entry for proceedings held before Judge Reed C. O'Connor: Motion Hearing held on 9/16/2019. (Court Reporter: Denver Roden) (No exhibits) Attorneys: Bradley Humphries; David Hacker; Joshua Brook; Joseph Davis. Time in Court − :40. (chmb) (Entered: 09/17/2019)
174 ORDER granting 172 Motion to Substitute Attorney. Accordingly, the Court SUBSTITUTES William T. Thompson of the Office of the Attorney General of Texas as co−counsel for State Plaintiffs. It is FURTHER ORDERED that Michael Toth is permitted to withdraw and is hereby removed as counsel for State Plaintiffs. (Ordered by Judge Reed C. O'Connor on 9/17/2019) (skg) (Entered: 09/17/2019)
***Clerk's Notice of delivery: (see NEF for details) Docket No:174. Tue Sep 17 16:35:08 CDT 2019 (crt) (Entered: 09/17/2019)
175 MEMORANDUM OPINION AND ORDER: For the foregoing reasons, the Court finds that Putative Intervenors' Motion to Intervene (ECF No. 129 ) should be and is hereby GRANTED. The Court also finds that Plaintiffs' Motions for Summary Judgment and Permanent Injunction (ECF Nos. 132 , 135 ) should be and are hereby GRANTED in part. The Court SEVERS Plaintiffs' APA and RFRA claims from their Title VII, Spending Clause, First Amendment, Tenth Amendment, and Eleventh Amendment claims. The Court ADOPTS its prior reasoning from the preliminary injunction (ECF No. 62 ) and now HOLDS that the Rule violates the APA and RFRA. Accordingly, the Court VACATES and REMANDS the Rule for further consideration. (Ordered by Judge Reed C. O'Connor on 10/15/2019) (skg) (Entered: 10/15/2019)
176 FINAL JUDGMENT: The Court SEVERS Plaintiffs' APA and RFRA claims from their Title VII, Spending Clause, First Amendment, Tenth Amendment, and Eleventh Amendment claims. The Court ADOPTS the reasoning from its December 31, 2016 Order granting Plaintiffs' request for a preliminary injunction (ECF No. 62 ) and now HOLDS that Nondiscrimination in Health Programs & Activities ("the Rule"), 81 Fed. Reg. 31376 (May 18, 2016), codified at 45 C.F.R. § 92, violates the APA and RFRA and enters this Final Judgment on those claims. Accordingly, the Court VACATES and REMANDS the Rule for further consideration. (Ordered by Judge Reed C. O'Connor on 10/15/2019) (skg) (Entered: 10/15/2019)
***Clerk's Notice of delivery: (see NEF for details) Docket No:175, 176. Tue Oct 15 09:37:54 CDT 2019 (crt) (Entered: 10/15/2019)
177 ORDER: The Court now STAYS the case involving Plaintiffs' Title VII, Spending Clause, First Amendment, Tenth Amendment, and Eleventh Amendment pending notice by the parties that these claims should go forward. The case shall be administratively closed until further order from the Court. (Ordered by Judge Reed C. O'Connor on 10/15/2019) (skg) (Entered: 10/15/2019)
***Clerk's Notice of delivery: (see NEF for details) Docket No:177. Tue Oct 15 12:10:43 CDT 2019 (crt) (Entered: 10/15/2019)
178 MOTION to Amend/Correct 176 Judgment,, filed by Thomas E. Price, U.S. Department of Health and Human Services with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order) (Humphreys, Bradley) (Entered: 11/12/2019)

Case: 7:16-cv-108 As of: 05/30/2020 02:35 PM CDT 25 of 26

11/13/2019 11/13/2019 11/20/2019 11/20/2019 11/21/2019
11/21/2019 12/06/2019 01/17/2020 01/21/2020
01/30/2020 02/06/2020

179 ORDER: Accordingly, before the Court rules on the motion, any party opposed to the 178 Motion to Modify Final Judgment shall respond on or before November 20, 2019, explaining its opposition. (Ordered by Judge Reed C. O'Connor on 11/13/2019) (skg) (Entered: 11/13/2019)
***Clerk's Notice of delivery: (see NEF for details) Docket No:179. Wed Nov 13 11:25:31 CST 2019 (crt) (Entered: 11/13/2019)
180 RESPONSE filed by Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, State of Arizona, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of Texas re: 178 MOTION to Amend/Correct 176 Judgment,, (Thompson, William) (Entered: 11/20/2019)
181 RESPONSE filed by Christian Medical and Dental Society, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC re: 178 MOTION to Amend/Correct 176 Judgment,, (Goodrich, Luke) (Entered: 11/20/2019)
182 ORDER: Having considered the Defendants' motion and Plaintiffs' responses, the GRANTS in part the motion and MODIFIES the Final Judgment (ECF No. 176 ), filed October 15, 2019, to confirm that, consistent with the Court's discussion in the accompanying Memorandum Opinion and Order (ECF No. 175 ), the Court vacates only the portions of the Rule that Plaintiffs challenged in this litigation. Specifically, the Court VACATES the Rule insofar as the Rule defines "On the basis of sex" to include gender identity and termination of pregnancy, and the Court REMANDS for further consideration. The remainder of 45 C.F.R. § 92 remains in effect. (Ordered by Judge Reed C. O'Connor on 11/21/2019) (skg) (Entered: 11/21/2019)
***Clerk's Notice of delivery: (see NEF for details) Docket No:182. Thu Nov 21 14:25:28 CST 2019 (crt) (Entered: 11/21/2019)
183 JUDGMENT/MANDATE of USCA as to 72 Notice of Appeal filed by River City Gender Alliance, American Civil Liberties Union of Texas. Under FED. R. APP. P. 42(b), the appeal is dismissed as of December 06, 2019, pursuant to the joint motion of the parties. Issued as Mandate: 12/6/2019. (Attachments: # 1 USCA5 cover letter) (skg) (Entered: 12/06/2019)
184 MOTION Set Deadline for Filing Petition for Fees and Expenses filed by Christian Medical and Dental Society, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order) (Goodrich, Luke) (Entered: 01/17/2020)
185 NOTICE OF APPEAL as to 176 Judgment,, 175 Memorandum Opinion and Order,,,, Terminate Motions,,, 182 Order on Motion to Amend/Correct,, to the Fifth Circuit by Christian Medical and Dental Society, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC. Filing fee $505, receipt number 0539−10560516. T.O. form to appellant electronically at Transcript Order Form or US Mail as appropriate. Copy of NOA to be sent US Mail to parties not electronically noticed. IMPORTANT ACTION REQUIRED: Provide an electronic copy of any exhibit you offered during a hearing or trial that was admitted into evidence to the clerk of the district court within 14 days of the date of this notice. Copies must be transmitted as PDF attachments through ECF by all ECF Users or delivered to the clerk on a CD by all non−ECF Users. See detailed instructions here. (Exception: This requirement does not apply to a pro se prisoner litigant.) Please note that if original exhibits are in your possession, you must maintain them through final disposition of the case. (Goodrich, Luke) (Entered: 01/21/2020)
USCA Case Number 20−10093 in USCA5 for 185 Notice of Appeal filed by Specialty Physicians of Illinois, LLC, Franciscan Alliance, Inc., Christian Medical and Dental Society. (skg) (Entered: 01/30/2020)
186 Notice of Filing of Official Electronic Transcript of Preliminary Injunction Proceedings held on 12−20−2016 before Judge Reed C. O'Connor. Court Reporter/Transcriber Denver B. Roden, RMR, RPR, Telephone number 214−753−2298. Parties are notified of their duty to review the transcript. A copy may be purchased from the court reporter or viewed at the clerk's office. If the transcript contains personal identifiers that must be redacted under MO 61, Fed.R.Civ.P. 5.2 or Fed.R.Crim.P. 49.1, or if the transcript contains the name of a minor child victim or a minor child witness that must be redacted under 18 U.S.C. § 3509, file a Redaction Request − Transcript within 21 days. If no action is taken, the entire transcript will be

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made available through PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed. (109 pages) Redaction Request due 2/27/2020. Redacted Transcript Deadline set for 3/9/2020. Release of Transcript Restriction set for 5/6/2020. (dbr) (Entered: 02/06/2020)
187 RESPONSE filed by Thomas E. Price, River City Gender Alliance, U.S. Department of Health and Human Services re: 184 MOTION Set Deadline for Filing Petition for Fees and Expenses (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Exhibit(s)) (Humphreys, Bradley) (Entered: 02/07/2020)
188 Transcript Order Form: transcript not requested Reminder to appellant: this document must also be filed with the appeals court. (Davis, Joseph) (Entered: 02/10/2020)
189 MOTION to Withdraw as Attorney filed by Amy Anne Miller. (Attachments: # 1 Proposed Order) (skg) (Entered: 02/18/2020)
190 ORDER granting 189 Motion to Withdraw as Attorney. Attorney Amy Anne Miller terminated. (Ordered by Judge Reed C. O'Connor on 2/20/2020) (skg) (Entered: 02/20/2020)
191 REPLY filed by Christian Medical and Dental Society, Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC re: 184 MOTION Set Deadline for Filing Petition for Fees and Expenses (Goodrich, Luke) (Entered: 02/21/2020)
Record on Appeal (related to 185 appeal): Record consisting of: 1 ECF electronic record on appeal (eROA) is certified, 186 Volume(s) electronic transcript. PLEASE NOTE THE FOLLOWING: Licensed attorneys must have filed an appearance in the USCA5 case and be registered for electronic filing in the USCA5 to access the paginated eROA in the USCA5 ECF system. (Take these steps immediately if you have not already done so. Once you have filed the notice of appearance and/or USCA5 ECF registration, it may take up to 3 business days for the circuit to notify the district clerk that we may grant you access to the eROA in the USCA5 ECF system.) To access the paginated record, log in to the USCA5 ECF system, and under the Utilities menu, select Electronic Record on Appeal. Pro se litigants may request a copy of the record by contacting the appeals deputy in advance to arrange delivery. EROA Access granted to: Attorney: Davis, Joseph Charles − Franciscan Alliance, Incorporated, Christian Medical and Dental Society, Specialty Physicians of Illinois, L.L.C. (Granted Access to 15, of 15 Volumes); Attorney: Goodrich, Luke William − Franciscan Alliance, Incorporated, Christian Medical and Dental Society, Specialty Physicians of Illinois, L.L.C. (Granted Access to 15, of 15 Volumes); Attorney: Rienzi, Mark − Franciscan Alliance, Incorporated, Christian Medical and Dental Society, Specialty Physicians of Illinois, L.L.C. (Granted Access to 15, of 15 Volumes); Attorney: Windham, Lori Halstead − Franciscan Alliance, Incorporated, Christian Medical and Dental Society, Specialty Physicians of Illinois, L.L.C. (Granted Access to 15, of 15 Volumes). (skg) (Entered: 02/26/2020)
192 NOTICE of Attorney Appearance by Rebecca Scout Richters on behalf of American Civil Liberties Union of Texas, River City Gender Alliance. (Filer confirms contact info in ECF is current.) (Richters, Rebecca) (Main Document 192 replaced on 4/21/2020) (cea). (Entered: 04/21/2020)
193 ORDER granting 184 Plaintiffs Franciscan Alliance, Inc.'s, Christian Medical and Dental Society's, Specialty Physicians of Illinois, LLC's Motion to Set Deadline for Filing Petition for Fees and Expenses. The Court further ORDERS the Private Plaintiffs to file a petition for attorneys' fees and expenses by 30 days after the final resolution of all claims. (Ordered by Judge Reed C. O'Connor on 4/21/2020) (skg) (Entered: 04/21/2020)