Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 1 of 60
STAYED,SPECIAL,SUSPENSE
United States District Court Eastern District of Pennsylvania (Philadelphia) CIVIL DOCKET FOR CASE #: 2:17−cv−04540−WB

COMMONWEALTH OF PENNSYLVANIA v. TRUMP et al Assigned to: HONORABLE WENDY BEETLESTONE Case in other court: USCA, 17−03679
USCA, 17−03752 USCA, 18−01253 USCA, 19−01129 USCA, 19−01189 Cause: 28:1331 Federal Question: Other Civil Rights Plaintiff

Date Filed: 10/11/2017 Date Terminated: 07/31/2019 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

COMMONWEALTH OF PENNSYLVANIA

represented by JONATHAN SCOTT GOLDMAN OFFICE OF ATTORNEY GENERAL STRAWBERRY SQUARE 16TH FL HARRISBURG, PA 17120 717−787−3391 Email: jgoldman@attorneygeneral.gov TERMINATED: 05/22/2019 LEAD ATTORNEY

AIMEE D. THOMSON PA OFFICE OF ATTORNEY GENERAL 1600 ARCH ST SUITE 300 PHILADELPHIA, PA 19103 267−940−6696 Email: athomson@attorneygeneral.gov ATTORNEY TO BE NOTICED

LAUREN E. SULCOVE OFFICE OF THE ATTORNEY GENERAL STRAWBERRY SQUARE 15TH FL HARRISBURG, PA 17120 717−787−1179 Email: lsulcove@attorneygeneral.gov TERMINATED: 01/14/2019

MICHAEL J. FISCHER PA OFFICE OF ATTORNEY GENERAL 1600 ARCH ST., SUITE 300 PHILADELPHIA, PA 19103 215−560−2171 Email: mfischer@attorneygeneral.gov ATTORNEY TO BE NOTICED

NICOLE J. BOLAND PA OFFICE OF ATTORNEY GENERAL 15TH FLR, STRAWBERRY SQUARE HARRISBURG, PA 17022 717−783−3146 Email: nboland@attorneygeneral.gov ATTORNEY TO BE NOTICED

NIKOLE BROCK PA OFFICE OF ATTORNEY GENERAL 1600 STRAWBERRY SQUARE HARRISBURG, PA 17120 717−705−5790

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Plaintiff STATE OF NEW JERSEY

Email: nbrock@attorneygeneral.gov ATTORNEY TO BE NOTICED
represented by ELSPETH L.F. HANS STATE OF NJ DIV LAW SPEC LIT SECT RJ HUGHES JUSTICE COMPLEX 25 MARKET ST POBOX 112 TRENTON, NJ 08625 609−376−3232 Email: elspeth.hans@law.njoag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
GLENN J. MORAMARCO STATE OF NEW JERSEY DIV OF LAW RJ HUGHES JUSTICE COMPLES 25 MARKET ST POBOX 112 TRENTON, NJ 08625 609−376−3235 Email: Glenn.Moramarco@law.njoag.gov ATTORNEY TO BE NOTICED
MARC ALAN KREFETZ NJ DIVISION OF LAW JUSTICE COMPLEX, 25 MARKET STREET P.O. BOX 106 TRENTON, NJ 08625−0106 609−984−0183 Email: marc.krefetz@dol.lps.state.nj.us ATTORNEY TO BE NOTICED
MICHAEL J. FISCHER (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
DONALD J. TRUMP IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED STATES

represented by ELIZABETH L. KADE U.S. DEPARTMENT OF JUSTICE 20 MASSACHUSETTS AVE., N.W. WASHINGTON, DC 20530 202−616−8491 Email: elizabeth.l.kade@usdoj.gov TERMINATED: 01/22/2018 LEAD ATTORNEY
CHRISTOPHER HEALY U.S. DEP'T OF JUSTICE 20 MASSACHUSETTS AVENUE, NW WASHINGTON, DC 20001 202−514−8095 Email: christopher.healy@usdoj.gov ATTORNEY TO BE NOTICED
ETHAN PRICE DAVIS U.S. DEPT OF JUSTICE 950 PENNSYLVANIA AVENUE, NW

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Defendant
DONALD J. WRIGHT IN HIS OFFICIAL CAPACITY AS ACTING SECRETARY OF HEALTH AND HUMAN SERVICES

ROOM 3133 WASHINGTON, DC 20530 202−514−9242 Email: ethan.davis@usdoj.gov TERMINATED: 07/11/2018
JOEL L. MCELVAIN U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH 20 MASSACHUSETTS AVE., NW WASHINGTON, DC 20530 202−514−2988 Email: JOEL.L.MCELVAIN@USDOJ.GOV TERMINATED: 07/02/2018
JUSTIN MICHAEL SANDBERG US DEPT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH 20 MASSACHUSETTS AVE NW ROOM 7302 WASHINGTON, DC 20530 202−514−5838 Email: justin.sandberg@usdoj.gov ATTORNEY TO BE NOTICED
REBECCA M. KOPPLIN UNITED STATES DEPARTMENT OFJUSTICE 20 MASSACHUSETTS AVENUE NW WASHINGTON, DC 20001 202−514−3953 Email: rebecca.m.kopplin@usdoj.gov ATTORNEY TO BE NOTICED
SCOTT WEBSTER REID U.S. ATTORNEY'S OFFICE − EDPA 615 CHESTNUT ST SUITE 1250 PHILADELPHIA, PA 19106 215−861−8358 Email: scott.reid@usdoj.gov ATTORNEY TO BE NOTICED
represented by ELIZABETH L. KADE (See above for address) TERMINATED: 01/22/2018 LEAD ATTORNEY
CHRISTOPHER HEALY (See above for address) ATTORNEY TO BE NOTICED
ETHAN PRICE DAVIS (See above for address) TERMINATED: 07/11/2018
JOEL L. MCELVAIN (See above for address) TERMINATED: 07/02/2018
JUSTIN MICHAEL SANDBERG (See above for address)

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Defendant UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES
Defendant STEVEN T. MNUCHIN IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE TREASURY

ATTORNEY TO BE NOTICED
REBECCA M. KOPPLIN (See above for address) ATTORNEY TO BE NOTICED
SCOTT WEBSTER REID (See above for address) ATTORNEY TO BE NOTICED
represented by ELIZABETH L. KADE (See above for address) TERMINATED: 01/22/2018 LEAD ATTORNEY
CHRISTOPHER HEALY (See above for address) ATTORNEY TO BE NOTICED
ETHAN PRICE DAVIS (See above for address) TERMINATED: 07/11/2018
JOEL L. MCELVAIN (See above for address) TERMINATED: 07/02/2018
JUSTIN MICHAEL SANDBERG (See above for address) ATTORNEY TO BE NOTICED
REBECCA M. KOPPLIN (See above for address) ATTORNEY TO BE NOTICED
SCOTT WEBSTER REID (See above for address) ATTORNEY TO BE NOTICED
represented by ELIZABETH L. KADE (See above for address) TERMINATED: 01/22/2018 LEAD ATTORNEY
CHRISTOPHER HEALY (See above for address) ATTORNEY TO BE NOTICED
ETHAN PRICE DAVIS (See above for address) TERMINATED: 07/11/2018
JOEL L. MCELVAIN (See above for address) TERMINATED: 07/02/2018
JUSTIN MICHAEL SANDBERG (See above for address) ATTORNEY TO BE NOTICED
REBECCA M. KOPPLIN (See above for address)

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Defendant UNITED STATES DEPARTMENT OF THE TREASURY
Defendant RENE ALEXANDER ACOSTA IN HIS OFFICIAL CAPACITY AS SECRETARY OF LABOR

ATTORNEY TO BE NOTICED
SCOTT WEBSTER REID (See above for address) ATTORNEY TO BE NOTICED
represented by ELIZABETH L. KADE (See above for address) TERMINATED: 01/22/2018 LEAD ATTORNEY
CHRISTOPHER HEALY (See above for address) ATTORNEY TO BE NOTICED
ETHAN PRICE DAVIS (See above for address) TERMINATED: 07/11/2018
JOEL L. MCELVAIN (See above for address) TERMINATED: 07/02/2018
JUSTIN MICHAEL SANDBERG (See above for address) ATTORNEY TO BE NOTICED
REBECCA M. KOPPLIN (See above for address) ATTORNEY TO BE NOTICED
SCOTT WEBSTER REID (See above for address) ATTORNEY TO BE NOTICED
represented by ELIZABETH L. KADE (See above for address) TERMINATED: 01/22/2018 LEAD ATTORNEY
CHRISTOPHER HEALY (See above for address) ATTORNEY TO BE NOTICED
ETHAN PRICE DAVIS (See above for address) TERMINATED: 07/11/2018
JOEL L. MCELVAIN (See above for address) TERMINATED: 07/02/2018
JUSTIN MICHAEL SANDBERG (See above for address) ATTORNEY TO BE NOTICED
REBECCA M. KOPPLIN (See above for address) ATTORNEY TO BE NOTICED
SCOTT WEBSTER REID (See above for address)

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Defendant UNITED STATES DEPARTMENT OF LABOR
Defendant ALEX M. AZAR, II IN HIS OFFICIAL CAPACITY AS SECRETARY OF HEALTH AND HUMAN SERVICES Defendant UNITED STATES OF AMERICA

ATTORNEY TO BE NOTICED
represented by ELIZABETH L. KADE (See above for address) TERMINATED: 01/22/2018 LEAD ATTORNEY
CHRISTOPHER HEALY (See above for address) ATTORNEY TO BE NOTICED
ETHAN PRICE DAVIS (See above for address) TERMINATED: 07/11/2018
JOEL L. MCELVAIN (See above for address) TERMINATED: 07/02/2018
JUSTIN MICHAEL SANDBERG (See above for address) ATTORNEY TO BE NOTICED
REBECCA M. KOPPLIN (See above for address) ATTORNEY TO BE NOTICED
SCOTT WEBSTER REID (See above for address) ATTORNEY TO BE NOTICED
represented by JUSTIN MICHAEL SANDBERG (See above for address) ATTORNEY TO BE NOTICED
represented by JUSTIN MICHAEL SANDBERG (See above for address) ATTORNEY TO BE NOTICED

V. Respondent STATE OF NEVADA
Respondent STATE OF MICHIGAN Respondent

represented by JONATHAN B. MILLER OFFICE OF THE MA ATTORNEY GENERAL ONE ASHBURTON PLACE BOSTON, MA 02108 617−963−2073 Email: jonathan.miller@state.ma.us ATTORNEY TO BE NOTICED
represented by JONATHAN B. MILLER (See above for address) ATTORNEY TO BE NOTICED

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U.S. WOMEN'S CHAMBER OF COMMERCE
Respondent NATIONAL ASSOCIATION FOR FEMALE EXECUTIVES

represented by JEFFREY S. FELDMAN THE FELDMAN FIRM, LLC 600 West Germantown Pike Suite 400 Plymouth Meeting Plymouth Meeting, PA 19462 215−764−6364 Email: jeff@thefeldmanfirm.com ATTORNEY TO BE NOTICED
LEAH R. BRUNO DENTONS US LLP 233 S WACKER DR SUITE 5900 CHICAGO, IL 60606 312−876−8000 ATTORNEY TO BE NOTICED
represented by JEFFREY S. FELDMAN (See above for address) ATTORNEY TO BE NOTICED
LEAH R. BRUNO (See above for address) ATTORNEY TO BE NOTICED

V.
Intervenor Defendant
LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME

represented by LORI H. WINDHAM BECKET FUND FRO RELIGIOUS LIBERTY 1200 NEW HAMPSHIRE AVENUE NW, SUITE 700 WASHINGTON, DC 20171 202−349−7202 Email: lwindham@becketlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
MARK L. RIENZI THE BECKET FUND FOR RELIGIOUS LIBERTY 1200 NEW HAMPSHIRE AVENUE NW, SUITE 700 WASHINGTON, DC 20036 202−955−0095 Email: mrienzi@becketlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
DIANA M. VERM THE BECKET FUND FOR RELIGIOUS LIBERTY 1200 NEW HAMPSHIRE AVE NW SUITE 700 WASHINGTON, DC 20036 202−955−0095 Email: dverm@becketlaw.org ATTORNEY TO BE NOTICED
ERIC C. RASSBACH THE BECKET FUND FOR RELIGIOUS

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LIBERTY 1200 NEW HAMPSHIRE AVE NW SUITE 700 WASHINGTON, DC 20036 202−955−0095 ATTORNEY TO BE NOTICED
NICHOLAS M. CENTRELLA CONRAD O'BRIEN 1500 MARKET ST., CENTRE SQUARE WEST TOWER 39TH FLOOR PHILADELPHIA, PA 19102 215−864−8098 Fax: 215−864−0798 Email: ncentrella@conradobrien.com ATTORNEY TO BE NOTICED

V. Movant THE AMERICAN ASSOCIATION OF UNIVERSITY WOMEN
Movant THE AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES (AFL−CIO)

represented by JAMIE A. LEVITT MORRISON & FOERSTER LLP 250 WEST 55TH STREET NEW YORK, NY 10019 212−468−8000 Email: jlevitt@mofo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
JANIE F. SCHULMAN MORRISON & FOERSTER 707 WILSHIRE BLVD. SUITE 6000 LOS ANGELES, CA 90071 213−892−5393 Email: jschulman@mofo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
RHIANNON N. BATCHELDER MORRISON & FOERSTER LLP 250 WEST 55TH STREET NEW YORK, NY 10019 212−336−4155 Email: rbatchelder@mofo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JAMIE A. LEVITT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JANIE F. SCHULMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
RHIANNON N. BATCHELDER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Movant IF/WHEN/HOW: LAWYERING FOR REPRODUCTIVE JUSTICE
Movant THE NATIONAL ASSOCIATION OF SOCIAL WORKERS
Movant THE NATIONAL ASSOCIATION OF WOMEN LAWYERS
Movant GIRLS INC.

represented by JAMIE A. LEVITT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JANIE F. SCHULMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
RHIANNON N. BATCHELDER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JAMIE A. LEVITT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JANIE F. SCHULMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
RHIANNON N. BATCHELDER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JAMIE A. LEVITT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JANIE F. SCHULMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
RHIANNON N. BATCHELDER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JAMIE A. LEVITT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JANIE F. SCHULMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
RHIANNON N. BATCHELDER (See above for address) LEAD ATTORNEY

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Movant THE AMERICAN FEDERATION OF TEACHERS
Movant SERVICE EMPLOYEES INTERNATIONAL UNION
Movant THE WOMENS BAR ASSOCIATION OF MASSACHUSETTS
Movant THE COLORADO WOMENS BAR ASSOCIATION

ATTORNEY TO BE NOTICED
represented by JAMIE A. LEVITT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JANIE F. SCHULMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
RHIANNON N. BATCHELDER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JAMIE A. LEVITT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JANIE F. SCHULMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
RHIANNON N. BATCHELDER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JAMIE A. LEVITT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JANIE F. SCHULMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
RHIANNON N. BATCHELDER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JAMIE A. LEVITT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JANIE F. SCHULMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
RHIANNON N. BATCHELDER

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Movant AMERICAN CENTER FOR LAW AND JUSTICE
Movant COMMONWEALTH OF MASSACHUSETTS Movant COMMONWEALTH OF VIRGINIA
Movant STATE OF CALIFORNIA
Movant STATE OF CONNECTICUT
Movant STATE OF DELAWARE
Movant STATE OF HAWAII
Movant STATE OF ILLINOIS
Movant STATE OF IOWA
Movant STATE OF MAINE

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by FRANCIS J. MANION AMERICAN CENTER FOR LAW & JUSTICE P.O. BOX 60 NEW HOPE, KY 40052 502−549−7020 Email: fmanion@aclj.org ATTORNEY TO BE NOTICED
represented by JONATHAN B. MILLER (See above for address) ATTORNEY TO BE NOTICED
represented by JONATHAN B. MILLER (See above for address) ATTORNEY TO BE NOTICED
represented by JONATHAN B. MILLER (See above for address) ATTORNEY TO BE NOTICED
represented by JONATHAN B. MILLER (See above for address) ATTORNEY TO BE NOTICED
represented by JONATHAN B. MILLER (See above for address) ATTORNEY TO BE NOTICED
represented by JONATHAN B. MILLER (See above for address) ATTORNEY TO BE NOTICED
represented by JONATHAN B. MILLER (See above for address) ATTORNEY TO BE NOTICED
represented by JONATHAN B. MILLER (See above for address) ATTORNEY TO BE NOTICED
represented by JONATHAN B. MILLER (See above for address) ATTORNEY TO BE NOTICED

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Movant STATE OF MARYLAND
Movant STATE OF MINNESOTA
Movant STATE OF NEW MEXICO
Movant STATE OF NEW YORK
Movant STATE OF NORTH CAROLINA
Movant STATE OF OREGON
Movant STATE OF RHODE ISLAND
Movant STATE OF VERMONT
Movant STATE OF WASHINGTON
Movant DISTRICT OF COLUMBIA
Movant CALIFORNIA WOMEN LAWYERS

represented by JONATHAN B. MILLER (See above for address) ATTORNEY TO BE NOTICED
represented by JONATHAN B. MILLER (See above for address) ATTORNEY TO BE NOTICED
represented by JONATHAN B. MILLER (See above for address) ATTORNEY TO BE NOTICED
represented by JONATHAN B. MILLER (See above for address) ATTORNEY TO BE NOTICED
represented by JONATHAN B. MILLER (See above for address) ATTORNEY TO BE NOTICED
represented by JONATHAN B. MILLER (See above for address) ATTORNEY TO BE NOTICED
represented by JONATHAN B. MILLER (See above for address) ATTORNEY TO BE NOTICED
represented by JONATHAN B. MILLER (See above for address) ATTORNEY TO BE NOTICED
represented by JONATHAN B. MILLER (See above for address) ATTORNEY TO BE NOTICED
represented by JONATHAN B. MILLER (See above for address) ATTORNEY TO BE NOTICED
represented by JAMIE A. LEVITT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JANIE F. SCHULMAN (See above for address)

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Movant LAWYERS CLUB OF SAN DIEGO
Movant THE WOMEN LAWYERS ASSOCIATION OF LOS ANGELES
Movant THE WOMEN'S BAR ASSOCIATION OF THE DISTRICT OF COLUMBIA
Movant AMERICAN NURSES ASSOCIATION

LEAD ATTORNEY ATTORNEY TO BE NOTICED
RHIANNON N. BATCHELDER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JAMIE A. LEVITT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JANIE F. SCHULMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
RHIANNON N. BATCHELDER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JAMIE A. LEVITT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JANIE F. SCHULMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
RHIANNON N. BATCHELDER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JAMIE A. LEVITT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JANIE F. SCHULMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
RHIANNON N. BATCHELDER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by LISA A. MATHEWSON THE LAW OFFICES OF LISA A MATHEWSON LLC 123 S BROAD ST STE 810 PHILADELPHIA, PA 19109

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Movant AMERICAN COLLEGE OF OBSTETRICIANS & GYNECOLOGISTS
Movant AMERICAN ACADEMY OF NURSING
Movant AMERICAN ACADEMY OF PEDIATRICS
Movant PHYSICIANS FOR REPRODUCTIVE HEALTH
Movant PROGRAM FOR THE STUDY OF REPRODUCTIVE JUSTICE AT YALE LAW SCHOOL
Movant PLANNED PARENTHOOD FEDERATION OF AMERICA

215−399−9592 Fax: 215−399−5783 Email: lam@mathewson−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by LISA A. MATHEWSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by LISA A. MATHEWSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by LISA A. MATHEWSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by LISA A. MATHEWSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DAVID SAMUEL COHEN DREXEL UNIVERSITY COLLEGE OF LAW 3320 MARKET ST., SUITE 232 PHILADELPHIA, PA 19104 215−571−4714 Email: dsc39@drexel.edu ATTORNEY TO BE NOTICED
PRISCILLA J. SMITH YALE LAW SCHOOL RRJP CLINIC 319 STERLING PLACE BROOKLYN, NY 11238 347−262−5177 ATTORNEY TO BE NOTICED
represented by CARRIE Y. FLAXMAN PLANNED PARENTHOOD FED. OF AMERICA 1110 VERMONT AVE, NW SUITE 300 WASHINGTON, DC 20005 202−973−4830 Email: carrie.flaxman@ppfa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
ALLAN J. ARFFA

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Movant THE NATIONAL HEALTH LAW PROGRAM
Movant THE NATIONAL FAMILY PLANNING AND REPRODUCTIVE HEALTH ASSOCIATION

PAUL, WEISS, RIFKIND, WHARTON & GARRISON 1285 AVENUE OF THE AMERICAS NEW YORK, NY 10019 Email: aarffa@paulweiss.com ATTORNEY TO BE NOTICED
JESSICA B. FUHRMAN PAUL WEISS RIFKIND WHARTON GARRISON LLP 1285 AVENUE OF THE AMERICAS NEW YORK, NY 10019 212−373−3366 ATTORNEY TO BE NOTICED
MELINA M. MENEGUIN LAYERENZA PAUL WEISS RIFKIND WHARTON GARRISON LLP 1285 AVENUE OF THE AMERICAS NEW YORK, NY 10019 212−373−3713 Email: mmeneguin@paulweiss.com ATTORNEY TO BE NOTICED
SIERRA A.Y. ROBART PAUL WEISS RIFKIND WHARTON GARRISON LLP 1285 AVENUE OF THE AMERICAS NEW YORK, NY 10019 212−373−3915 ATTORNEY TO BE NOTICED
represented by CARRIE Y. FLAXMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ALLAN J. ARFFA (See above for address) ATTORNEY TO BE NOTICED
JESSICA B. FUHRMAN (See above for address) ATTORNEY TO BE NOTICED
MELINA M. MENEGUIN LAYERENZA (See above for address) ATTORNEY TO BE NOTICED
SIERRA A.Y. ROBART (See above for address) ATTORNEY TO BE NOTICED
represented by CARRIE Y. FLAXMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ALLAN J. ARFFA (See above for address)

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Movant AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE
Movant BEND THE ARC: A JEWISH PARTNERSHIP FOR JUSTICE

ATTORNEY TO BE NOTICED
JESSICA B. FUHRMAN (See above for address) ATTORNEY TO BE NOTICED
MELINA M. MENEGUIN LAYERENZA (See above for address) ATTORNEY TO BE NOTICED
SIERRA A.Y. ROBART (See above for address) ATTORNEY TO BE NOTICED
represented by ALISON TANNER AMERICANS UNITED FOR SEPARATION OF CHURCH & STATE 1310 L STREET NW SUITE 200 WASHINGTON, DC 20005 202−466−3234 Email: tanner@au.org TERMINATED: 08/01/2019
CARMEN N. GREEN AMERICANS UNITED FOR SEPARATION OF CHURCH & STATE 1310 L STREET NW SUITE 200 WASHINGTON, DC 20005 202−466−3234 ATTORNEY TO BE NOTICED
JEFFREY I. PASEK COZEN O'CONNOR 1650 MARKET STREET PHILADELPHIA, PA 19103 215−665−2072 Fax: 215−701−2072 Email: jpasek@cozen.com TERMINATED: 08/01/2019
RICHARD B. KATSKEE AMERICANS UNITED FOR SEPARATION OF CHURCH & STATE 1310 L STREET NW SUITE 200 WASHINGTON, DC 20005 202−466−3234 ATTORNEY TO BE NOTICED
represented by ALISON TANNER (See above for address) TERMINATED: 08/01/2019
CARMEN N. GREEN (See above for address) ATTORNEY TO BE NOTICED
JEFFREY I. PASEK (See above for address) TERMINATED: 08/01/2019

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Movant CENTRAL CONFERENCE OF AMERICAN RABBIS
Movant GLOBAL JUSTICE INSTITUTE, METROPOLITAN COMMUNITY CHURCHES
Movant INTERFAITH ALLIANCE FOUNDATION
Movant JEWISH SOCIAL POLICY ACTION NETWORK

RICHARD B. KATSKEE (See above for address) ATTORNEY TO BE NOTICED
represented by ALISON TANNER (See above for address) TERMINATED: 08/01/2019
CARMEN N. GREEN (See above for address) ATTORNEY TO BE NOTICED
JEFFREY I. PASEK (See above for address) TERMINATED: 08/01/2019
RICHARD B. KATSKEE (See above for address) ATTORNEY TO BE NOTICED
represented by ALISON TANNER (See above for address) TERMINATED: 08/01/2019
CARMEN N. GREEN (See above for address) ATTORNEY TO BE NOTICED
JEFFREY I. PASEK (See above for address) TERMINATED: 08/01/2019
RICHARD B. KATSKEE (See above for address) ATTORNEY TO BE NOTICED
represented by ALISON TANNER (See above for address) TERMINATED: 08/01/2019
CARMEN N. GREEN (See above for address) ATTORNEY TO BE NOTICED
JEFFREY I. PASEK (See above for address) TERMINATED: 08/01/2019
RICHARD B. KATSKEE (See above for address) ATTORNEY TO BE NOTICED
represented by ALISON TANNER (See above for address) TERMINATED: 08/01/2019
CARMEN N. GREEN (See above for address)

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Movant MEN OF REFORM JUDAISM
Movant METHODIST FEDERATION FOR SOCIAL ACTION
Movant NATIONAL COUNCIL OF JEWISH WOMEN, INC
Movant

ATTORNEY TO BE NOTICED
JEFFREY I. PASEK (See above for address) TERMINATED: 08/01/2019
RICHARD B. KATSKEE (See above for address) ATTORNEY TO BE NOTICED
represented by ALISON TANNER (See above for address) TERMINATED: 08/01/2019
CARMEN N. GREEN (See above for address) ATTORNEY TO BE NOTICED
JEFFREY I. PASEK (See above for address) TERMINATED: 08/01/2019
RICHARD B. KATSKEE (See above for address) ATTORNEY TO BE NOTICED
represented by ALISON TANNER (See above for address) TERMINATED: 08/01/2019
CARMEN N. GREEN (See above for address) ATTORNEY TO BE NOTICED
JEFFREY I. PASEK (See above for address) TERMINATED: 08/01/2019
RICHARD B. KATSKEE (See above for address) ATTORNEY TO BE NOTICED
represented by ALISON TANNER (See above for address) TERMINATED: 08/01/2019
CARMEN N. GREEN (See above for address) ATTORNEY TO BE NOTICED
JEFFREY I. PASEK (See above for address) TERMINATED: 08/01/2019
RICHARD B. KATSKEE (See above for address) ATTORNEY TO BE NOTICED

Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 19 of 60

RECONSTRUCTIONIST RABBINICAL ASSOCIATION
Movant RELIGIOUS COALITION FOR REPRODUCTIVE CHOICE
Movant RELIGIOUS INSTITUTE
Movant THE SIKH COALITION

represented by ALISON TANNER (See above for address) TERMINATED: 08/01/2019
CARMEN N. GREEN (See above for address) ATTORNEY TO BE NOTICED
JEFFREY I. PASEK (See above for address) TERMINATED: 08/01/2019
RICHARD B. KATSKEE (See above for address) ATTORNEY TO BE NOTICED
represented by ALISON TANNER (See above for address) TERMINATED: 08/01/2019
CARMEN N. GREEN (See above for address) ATTORNEY TO BE NOTICED
JEFFREY I. PASEK (See above for address) TERMINATED: 08/01/2019
RICHARD B. KATSKEE (See above for address) ATTORNEY TO BE NOTICED
represented by ALISON TANNER (See above for address) TERMINATED: 08/01/2019
CARMEN N. GREEN (See above for address) ATTORNEY TO BE NOTICED
JEFFREY I. PASEK (See above for address) TERMINATED: 08/01/2019
RICHARD B. KATSKEE (See above for address) ATTORNEY TO BE NOTICED
represented by ALISON TANNER (See above for address) TERMINATED: 08/01/2019
CARMEN N. GREEN (See above for address) ATTORNEY TO BE NOTICED
JEFFREY I. PASEK (See above for address) TERMINATED: 08/01/2019

Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 20 of 60

Movant T'RUAH: THE RABBINIC CALL FOR HUMAN RIGHTS
Movant UNION FOR REFORM JUDAISM
Movant CHURCH−STATE SCHOLARS

RICHARD B. KATSKEE (See above for address) ATTORNEY TO BE NOTICED
represented by ALISON TANNER (See above for address) TERMINATED: 08/01/2019
CARMEN N. GREEN (See above for address) ATTORNEY TO BE NOTICED
JEFFREY I. PASEK (See above for address) TERMINATED: 08/01/2019
RICHARD B. KATSKEE (See above for address) ATTORNEY TO BE NOTICED
represented by ALISON TANNER (See above for address) TERMINATED: 08/01/2019
CARMEN N. GREEN (See above for address) ATTORNEY TO BE NOTICED
JEFFREY I. PASEK (See above for address) TERMINATED: 08/01/2019
RICHARD B. KATSKEE (See above for address) ATTORNEY TO BE NOTICED
represented by JOSHUA A. MATZ KAPLAN HECKER & FINK LLP 350 FIFTH AVENUE SUITE 7110 NEW YORK, NY 10118 TERMINATED: 10/16/2019
NANCY B.G. LASSEN WILLIG WILLIAMS & DAVIDSON 1845 WALNUT ST., 24TH FL PHILADELPHIA, PA 19103 215−656−3600 Fax: 215−561−5135 Email: nlassen@wwdlaw.com ATTORNEY TO BE NOTICED
TALIA NISSIMYAN KAPLAN HECKER & FINK LLP 350 FIFTH AVENUE SUITE 7110 NEW YORK, NY 10118 ATTORNEY TO BE NOTICED

Date Filed # Docket Text

Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 21 of 60

10/11/2017
10/11/2017
10/20/2017 10/23/2017 10/23/2017 10/25/2017 10/25/2017 10/27/2017 11/01/2017
11/02/2017 11/02/2017
11/03/2017 11/07/2017

1 COMPLAINT against RENE ALEXANDER ACOSTA, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, DONALD J. WRIGHT ( Filing fee $ 400 receipt number 167178.), filed by COMMONWEALTH OF PENNSYLVANIA.(Attachments: # 1 Civil Cover Sheet, # 2 Designation Form, # 3 Case Management Track Form, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C)(ahf) (Entered: 10/12/2017)
Summons Issued as to RENE ALEXANDER ACOSTA, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, DONALD J. WRIGHT, U.S. Attorney and U.S. Attorney General. Eight Forwarded To: Counsel and One Given to AUSA on 10/12/2017.(ahf) (Entered: 10/12/2017)
2 Acceptance of Service by U.S. Attorney Re: accepted summons and complaint on behalf of the United States Attorney (only). (aeg) (Entered: 10/23/2017)
3 NOTICE of Appearance by MICHAEL J. FISCHER on behalf of COMMONWEALTH OF PENNSYLVANIA (FISCHER, MICHAEL) (Entered: 10/23/2017)
4 NOTICE of Appearance by NICOLE J. BOLAND on behalf of COMMONWEALTH OF PENNSYLVANIA (BOLAND, NICOLE) (Entered: 10/23/2017)
5 Praecipe to Re−Issue Summons by COMMONWEALTH OF PENNSYLVANIA. (BOLAND, NICOLE) (Entered: 10/25/2017)
Alias Summons Issued as to RENE ALEXANDER ACOSTA, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, DONALD J. WRIGHT. 8 Given To: Counsel on 10/25/2017. (ahf) (Entered: 10/25/2017)
6 NOTICE of Appearance by ELIZABETH L. KADE on behalf of RENE ALEXANDER ACOSTA, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, DONALD J. WRIGHT (KADE, ELIZABETH) (Entered: 10/27/2017)
7 NOTICE of Appearance by SCOTT WEBSTER REID on behalf of RENE ALEXANDER ACOSTA, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, DONALD J. WRIGHT with Certificate of Service(REID, SCOTT) (Entered: 11/01/2017)
8 Consent MOTION for Leave to File Excess Pages in Support of Motion for a Preliminary Injunction filed by COMMONWEALTH OF PENNSYLVANIA.Certificate of Service. (Attachments: # 1 Text of Proposed Order, # 2 Memorandum Proposed Memorandum of Law)(FISCHER, MICHAEL) (Entered: 11/02/2017)
9 MOTION for Preliminary Injunction filed by COMMONWEALTH OF PENNSYLVANIA.Certificate of Service. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O)(FISCHER, MICHAEL) (Entered: 11/02/2017)
10 PAPERLESS ORDER GRANTING 8 MOTION FOR LEAVE TO FILE EXCESS PAGES BY HONORABLE WENDY BEETLESTONE ON 11/03/2017.11/03/2017 ENTERED AND COPIES MAILED, E−MAILED AND FAXED.(amw, ) (Entered: 11/03/2017)
11 ORDER THAT DEFENDANTS' BRIEF IN RESPONSE TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION IS DUE NO LATER THAN 11/16/2017.

Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 22 of 60

11/14/2017 11/15/2017 11/16/2017
11/16/2017 11/16/2017 11/20/2017 11/21/2017 11/22/2017 11/22/2017

PLAINTIFF'S REPLY BRIEF IN FURTHER SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION IS DUE NO LATER THAN 11/27/2017. A HEARING ON PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION SHALL COMMENCE ON 12/14/2017, AT 8:30 AM, IN COURTROOM 3B. FURTHER INFORMATION OUTLINED HEREIN. SIGNED BY HONORABLE WENDY BEETLESTONE ON 11/7/2017. 11/7/2017 ENTERED AND COPIES E−MAILED.(amas) (Entered: 11/07/2017)
12 MOTION for Leave to File Excess Pages and for Leave to File Reply in Support of Their Motion to Dismiss filed by RENE ALEXANDER ACOSTA, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, DONALD J. WRIGHT.Certificate of Service. (Attachments: # 1 Text of Proposed Order)(KADE, ELIZABETH) (Entered: 11/14/2017)
13 RESPONSE to Motion re 12 MOTION for Leave to File Excess Pages and for Leave to File Reply in Support of Their Motion to Dismiss filed by COMMONWEALTH OF PENNSYLVANIA. (Attachments: # 1 Text of Proposed Order)(FISCHER, MICHAEL) (Entered: 11/15/2017)
14 ORDER THAT DEFENDANTS MAY FILE A MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION OF UP TO 55 PAGES. DEFENDANTS MAY ALSO FILE A SEPARATE MOTION TO DISMISS. DEFENDANTS REQUEST FOR LEAVE TO FILE A REPLY TO ANY AMICUS CURIAE BRIEFS IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION IS DENIED. SIGNED BY HONORABLE WENDY BEETLESTONE ON 11/15/17.11/16/17 ENTERED AND COPIES E−MAILED.(ti, ) (Entered: 11/16/2017)
15 RESPONSE in Opposition re 9 MOTION for Preliminary Injunction filed by RENE ALEXANDER ACOSTA, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, DONALD J. WRIGHT. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(KADE, ELIZABETH) (Entered: 11/16/2017)
16 MOTION to Dismiss filed by RENE ALEXANDER ACOSTA, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, DONALD J. WRIGHT.Certificate of Service. (Attachments: # 1 Memorandum, # 2 Text of Proposed Order, # 3 Exhibit A, # 4 Exhibit B)(KADE, ELIZABETH) (Entered: 11/16/2017)
17 ORDER THAT DEFENDANTS' LETTER REQUEST TO FILE THE GOVERNMENTS' PRELIMINARY PARTIAL ADMINISTRATIVE RECORD BY CD RATHER THAN HARD COPIES WHICH IS IN EXCESS OF 500,000 PAGES IS GRANTED. SIGNED BY HONORABLE WENDY BEETLESTONE ON 11/17/17. 11/20/17 ENTERED & E−MAILED.(fdc) (Entered: 11/20/2017)
18 Preliminary Partial Administrative Record by RENE ALEXANDER ACOSTA, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, DONALD J. WRIGHT. (Attachments: # 1 Appendix Index to the Preliminary Partial Administrative Record)(KADE, ELIZABETH) (Entered: 11/21/2017)
19 EMERGENCY MOTION TO INTERVENE FILED BY LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME, MEMORANDUM, DECLARATION, CERTIFICATE OF SERVICE.(Attachments: # 1 Memorandum, # 2 Declaration, # 3 Certificate of Service, # 4 Text of Proposed Order)(fdc) (Entered: 11/22/2017)
20 Proposed Answer of Proposed Defendant−Intervenor LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME.(fdc) (Entered: 11/22/2017)

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11/22/2017 11/22/2017 11/22/2017

21 MOTION for Pro Hac Vice of Lori Windham ( Filing fee $ 40 receipt number 0313−12472728.) filed by LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME.Certificate of Service.(CENTRELLA, NICHOLAS) (Entered: 11/22/2017)
22 MOTION for Pro Hac Vice Admission for Mark Rienzi ( Filing fee $ 40 receipt number 0313−12472808.) filed by LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME.Certificate of Service.(CENTRELLA, NICHOLAS) (Entered: 11/22/2017)
23 Administrative Record. (nd) (Additional attachment(s) added on 11/22/2017: # 2 II. A. Studies and Articles Part 1, # 3 II. A Studies and Articles Part 2, # 4 II. A Studies and Articles Part 3, # 5 II. A Studies and Articles Part 4, # 6 II B. Regulatory Analysis Part 1, # 7 II B. Regulatory Analysis Part 2, # 8 II B. Regulatory Analysis Part 3, # 9 II B. Regulatory Analysis Part 4, # 10 II B. Regulatory Analysis Part 5) (nd, ). (Additional attachment(s) added on 11/22/2017: # 11 III Congressional Correspondence) (nd, ). (Additional attachment(s) added on 11/22/2017: # 12 IV. Public Comments Part 1) (nd, ). (Additional attachment(s) added on 11/22/2017: # 13 IV Public Comments Part 2) (nd, ). (Additional attachment(s) added on 11/22/2017: # 14 IV. Public Comments Part 3, # 15 IV. Public Comments Part 4, # 16 IV. Public Comments Part 5, # 17 IV. Public Comments Part 6, # 18 IV. Public Comments Part 7) (nd, ). (Additional attachment(s) added on 11/22/2017: # 19 HHS−OS−2011−0023−0001 − 2814_Part1, # 20 HHS−OS−2011−0023−0001 − 2814_Part2, # 21 HHS−OS−2011−0023−0001 − 2814_Part3, # 22 HHS−OS−2011−0023−0001 − 2814_Part4, # 23 HHS−OS−2011−0023−0001 − 2814_Part5, # 24 HHS−OS−2011−0023−0001 − 2814_Part6, # 25 HHS−OS−2011−0023−2814 Dft0003 − Dft84603_Part1, # 26 HHS−OS−2011−0023−2814 Dft0003 − Dft84603_Part2, # 27 HHS−OS−2011−0023−2814 Dft0003 − Dft84603_Part3, # 28 HHS−OS−2011−0023−2814 Dft0003 − Dft84603_Part4) (nd, ). (Additional attachment(s) added on 11/22/2017: # 29 HHS−OS−2011−0023−2815 − 3899_Part1, # 30 HHS−OS−2011−0023−2815 − 3899_Part2, # 31 HHS−OS−2011−0023−2815 − 3899_Part3, # 32 HHS−OS−2011−0023−3900 − 4999_Part1, # 33 HHS−OS−2011−0023−3900 − 4999_Part2, # 34 HHS−OS−2011−0023−5000 − 5999_Part1, # 35 HHS−OS−2011−0023−5000 − 5999_Part2) (nd, ). (Additional attachment(s) added on 11/22/2017: # 36 HHS−OS−2011−0023−7816 − 8999_Part1, # 37 HHS−OS−2011−0023−7816 − 8999_Part2, # 38 HHS−OS−2011−0023−7816 − 8999_Part3, # 39 HHS−OS−2011−0023−7816 − 8999_Part4, # 40 HHS−OS−2011−0023−7816 − 8999_Part5, # 41 HHS−OS−2011−0023−7816 − 8999_Part6, # 42 HHS−OS−2011−0023−7816 − 8999_Part7, # 43 HHS−OS−2011−0023−7816 − 8999_Part8, # 44 HHS−OS−2011−0023−7816 − 8999_Part9, # 45 HHS−OS−2011−0023−7816 − 8999_Part10, # 46 HHS−OS−2011−0023−7816 − 8999_Part11, # 47 HHS−OS−2011−0023−7816 − 8999_Part12, # 48 HHS−OS−2011−0023−7816 − 8999_Part13, # 49 HHS−OS−2011−0023−7816 − 8999_Part14, # 50 HHS−OS−2011−0023−7816 − 8999_Part15, # 51 HHS−OS−2011−0023−7816 − 8999_Part16, # 52 HHS−OS−2011−0023−7816 − 8999_Part17, # 53 HHS−OS−2011−0023−7816 − 8999_Part18, # 54 HHS−OS−2011−0023−7816 − 8999_Part19, # 55 HHS−OS−2011−0023−7816 − 8999_Part20, # 56 HHS−OS−2011−0023−7816 − 8999_Part21, # 57 HHS−OS−2011−0023−7816 − 8999_Part22, # 58 HHS−OS−2011−0023−7816 − 8999_Part23, # 59 HHS−OS−2011−0023−7816 − 8999_Part24, # 60 HHS−OS−2011−0023−7816 − 8999_Part25, # 61 HHS−OS−2011−0023−7816 − 8999_Part26) (nd, ). (Additional attachment(s) added on 11/22/2017: # 62 HHS−OS−2011−0023−9000 − 9999, # 63 HHS−OS−2011−0023−10000 − 10999, # 64 HHS−OS−2011−0023−11000 − 11999, # 65 HHS−OS−2011−0023−12000 − 12816, # 66 HHS−OS−2011−0023−12817 − 13999) (nd, ). (Additional attachment(s) added on 11/22/2017: # 67 HHS−OS−2011−0023−14000 − 14999_Part1, # 68 HHS−OS−2011−0023−14000 − 14999_Part2) (nd, ). (Additional attachment(s) added on 11/22/2017: # 69 HHS−OS−2011−0023−15000 − 15999, # 70 HHS−OS−2011−0023−16000 − 16999, # 71 HHS−OS−2011−0023−17000 − 17817) (nd, ). (Additional attachment(s) added on 11/22/2017: # 72 HHS−OS−2011−0023−17818 − 18999_Part1, # 73 HHS−OS−2011−0023−17818 − 18999_Part2, # 74 HHS−OS−2011−0023−19000 − 19999_Part1, # 75 HHS−OS−2011−0023−19000 − 19999_Part2, # 76 HHS−OS−2011−0023−20000 − 20999, # 77 HHS−OS−2011−0023−21000 − 21999., # 78 HHS−OS−2011−0023−22000 − 22818) (nd, ). (Additional attachment(s) added

Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 24 of 60
on 11/24/2017: # 79 HHS−OS−2011−0023−22819 − 27819_Part1, # 80 HHS−OS−2011−0023−22819 − 27819_Part2, # 81 HHS−OS−2011−0023−22819 − 27819_Part3, # 82 HHS−OS−2011−0023−22819 − 27819_Part4, # 83 HHS−OS−2011−0023−22819 − 27819_Part5, # 84 HHS−OS−2011−0023−22819 − 27819_Part6, # 85 HHS−OS−2011−0023−22819 − 27819_Part7, # 86 HHS−OS−2011−0023−22819 − 27819_Part8, # 87 HHS−OS−2011−0023−22819 − 27819_Part9, # 88 HHS−OS−2011−0023−27820 − 32820_Part1, # 89 HHS−OS−2011−0023−27820 − 32820_Part2, # 90 HHS−OS−2011−0023−27820 − 32820_Part3, # 91 HHS−OS−2011−0023−27820 − 32820_Part4, # 92 HHS−OS−2011−0023−27820 − 32820_Part5, # 93 HHS−OS−2011−0023−27820 − 32820_Part6, # 94 HHS−OS−2011−0023−27820 − 32820_Part7, # 95 HHS−OS−2011−0023−27820 − 32820_Part8, # 96 HHS−OS−2011−0023−27820 − 32820_Part9) (nd, ). (Additional attachment(s) added on 11/24/2017: # 97 HHS−OS−2011−0023−32821 − 33999_Part1, # 98 HHS−OS−2011−0023−32821 − 33999_Part2, # 99 HHS−OS−2011−0023−32821 − 33999_Part3, # 100 HHS−OS−2011−0023−33555−A1, # 101 HHS−OS−2011−0023−34000 − 34999, # 102 HHS−OS−2011−0023−35000 − 35999, # 103 HHS−OS−2011−0023−36000 − 36999., # 104 HHS−OS−2011−0023−37000 − 37821, # 105 HHS−OS−2011−0023−37822 − 38899, # 106 HHS−OS−2011−0023−38900 − 39999., # 107 HHS−OS−2011−0023−40000 − 40999) (nd, ). (Additional attachment(s) added on 11/24/2017: # 108 HHS−OS−2011−0023−41000 − 41999, # 109 HHS−OS−2011−0023−42000 − 42822, # 110 HHS−OS−2011−0023−42823 − 43999, # 111 HHS−OS−2011−0023−44000 − 44999_Part1, # 112 HHS−OS−2011−0023−44000 − 44999_Part2, # 113 HHS−OS−2011−0023−44000 − 44999_Part3, # 114 HHS−OS−2011−0023−45000 − 45999, # 115 HHS−OS−2011−0023−46000 − 46999, # 116 HHS−OS−2011−0023−47000 − 47823, # 117 HHS−OS−2011−0023−47824 − 48999, # 118 HHS−OS−2011−0023−49000 − 49999., # 119 HHS−OS−2011−0023−50000 − 50999, # 120 HHS−OS−2011−0023−51000 − 51999, # 121 HHS−OS−2011−0023−52000 − 52824, # 122 HHS−OS−2011−0023−52825 − 53999, # 123 HHS−OS−2011−0023−54000 − 54999) (nd, ). (Additional attachment(s) added on 11/24/2017: # 124 HHS−OS−2011−0023−55000 − 55999_Part1, # 125 HHS−OS−2011−0023−55000 − 55999_Part2, # 126 HHS−OS−2011−0023−55000 − 55999_Part3) (nd, ). (Additional attachment(s) added on 11/24/2017: # 127 HHS−OS−2011−0023−56000 − 56999, # 128 HHS−OS−2011−0023−57000 − 57825, # 129 \HHS−OS−2011−0023−57826 − 57999, # 130 HHS−OS−2011−0023−58000 − 58999, # 131 \HHS−OS−2011−0023−59000 − 59999_Part1, # 132 \HHS−OS−2011−0023−59000 − 59999_Part2, # 133 \HHS−OS−2011−0023−59000 − 59999_Part3, # 134 HHS−OS−2011−0023−60000 − 60999, # 135 HHS−OS−2011−0023−61000 − 61999_Part1, # 136 HHS−OS−2011−0023−61000 − 61999_Part2, # 137 HHS−OS−2011−0023−61000 − 61999_Part3, # 138 HHS−OS−2011−0023−62000 − 62826, # 139 HHS−OS−2011−0023−62827 − 63999, # 140 HHS−OS−2011−0023−64000 − 64999) (nd, ). (Additional attachment(s) added on 11/24/2017: # 141 HHS−OS−2011−0023−65000 − 65999_Part1, # 142 HHS−OS−2011−0023−65000 − 65999_Part2, # 143 HHS−OS−2011−0023−65000 − 65999_Part3, # 144 HHS−OS−2011−0023−66000 − 66999_Part1, # 145 HHS−OS−2011−0023−66000 − 66999_Part2, # 146 HHS−OS−2011−0023−66000 − 66999_Part3, # 147 HHS−OS−2011−0023−66000 − 66999_Part4, # 148 HHS−OS−2011−0023−67000 − 67827_Part1, # 149 HHS−OS−2011−0023−67000 − 67827_Part2, # 150 HHS−OS−2011−0023−67000 − 67827_Part3, # 151 HHS−OS−2011−0023−67828 − 68999_Part1, # 152 HHS−OS−2011−0023−67828 − 68999_Part2, # 153 HHS−OS−2011−0023−67828 − 68999_Part3, # 154 HHS−OS−2011−0023−69000 − 69999, # 155 HHS−OS−2011−0023−70000 − 70999, # 156 \HHS−OS−2011−0023−71000 − 71999, # 157 HHS−OS−2011−0023−72000 − 72828, # 158 HHS−OS−2011−0023−72829 − 73999_Part1, # 159 HHS−OS−2011−0023−72829 − 73999_Part2, # 160 HHS−OS−2011−0023−72829 − 73999_Part3, # 161 HHS−OS−2011−0023−74000 − 74999, # 162 HHS−OS−2011−0023−75000 − 75571) (nd, ). (Additional attachment(s) added on 11/24/2017: # 163 HHS−OS−2011−0023−75572_Part1, # 164 HHS−OS−2011−0023−75572_Part2, # 165 HHS−OS−2011−0023−75572_Part3, # 166 HHS−OS−2011−0023−75572_Part4, # 167 HHS−OS−2011−0023−75572_Part5, # 168 HHS−OS−2011−0023−75572_Part6, # 169 HHS−OS−2011−0023−75572_Part7, # 170 HHS−OS−2011−0023−75572_Part8, # 171 HHS−OS−2011−0023−75572_Part9, # 172 HHS−OS−2011−0023−75572_Part10,

Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 25 of 60
# 173 HHS−OS−2011−0023−75572_Part11, # 174 HHS−OS−2011−0023−75573 − 75999_Part1, # 175 HHS−OS−2011−0023−75573 − 75999_Part2, # 176 HHS−OS−2011−0023−75573 − 75999_Part3, # 177 HHS−OS−2011−0023−75573 − 75999_Part4, # 178 HHS−OS−2011−0023−75573 − 75999_Part5, # 179 HHS−OS−2011−0023−76000 − 76024_Part1, # 180 HHS−OS−2011−0023−76000 − 76024_Part2, # 181 HHS−OS−2011−0023−76000 − 76024_Part3, # 182 HHS−OS−2011−0023−76000 − 76024_Part4) (nd, ). (Additional attachment(s) added on 11/24/2017: # 183 HHS−OS−2011−0023−76025 − 76041_Part1, # 184 HHS−OS−2011−0023−76025 − 76041_Part2, # 185 HHS−OS−2011−0023−76025 − 76041_Part3, # 186 HHS−OS−2011−0023−76025 − 76041_Part4, # 187 HHS−OS−2011−0023−76042 − 76049_Part1, # 188 HHS−OS−2011−0023−76042 − 76049_Part2, # 189 HHS−OS−2011−0023−76042 − 76049_Part3, # 190 HHS−OS−2011−0023−76042 − 76049_Part4) (nd, ). (Additional attachment(s) added on 11/24/2017: # 191 HHS−OS−2011−0023−76050 − 76168_Part1, # 192 HHS−OS−2011−0023−76050 − 76168_Part2, # 193 HHS−OS−2011−0023−76050 − 76168_Part3, # 194 HHS−OS−2011−0023−76050 − 76168_Part4, # 195 HHS−OS−2011−0023−76169 − 76179_Part1, # 196 HHS−OS−2011−0023−76169 − 76179_Part2, # 197 HHS−OS−2011−0023−76169 − 76179_Part3, # 198 HHS−OS−2011−0023−76169 − 76179_Part4, # 199 HHS−OS−2011−0023−76180 − 76187_Part1, # 200 HHS−OS−2011−0023−76180 − 76187_Part2, # 201 HHS−OS−2011−0023−76180 − 76187_Part3, # 202 HHS−OS−2011−0023−76180 − 76187_Part4, # 203 HHS−OS−2011−0023−76188 − 76200_Part1, # 204 HHS−OS−2011−0023−76188 − 76200_Part2, # 205 HHS−OS−2011−0023−76188 − 76200_Part3, # 206 HHS−OS−2011−0023−76188 − 76200_Part4, # 207 HHS−OS−2011−0023−76201 − 76214_Part1, # 208 HHS−OS−2011−0023−76201 − 76214_Part2, # 209 HHS−OS−2011−0023−76201 − 76214_Part3, # 210 HHS−OS−2011−0023−76201 − 76214_Part4, # 211 \HHS−OS−2011−0023−76215 − 76245_Part1, # 212 \HHS−OS−2011−0023−76215 − 76245_Part2, # 213 \HHS−OS−2011−0023−76215 − 76245_Part3, # 214 \HHS−OS−2011−0023−76215 − 76245_Part4, # 215 HHS−OS−2011−0023−76246 − 76254_Part1, # 216 HHS−OS−2011−0023−76246 − 76254_Part2, # 217 HHS−OS−2011−0023−76246 − 76254_Part3, # 218 HHS−OS−2011−0023−76246 − 76254_Part4, # 219 HHS−OS−2011−0023−76255 − 76265_Part1, # 220 HHS−OS−2011−0023−76255 − 76265_Part2, # 221 HHS−OS−2011−0023−76255 − 76265_Part3, # 222 HHS−OS−2011−0023−76255 − 76265_Part4) (nd, ). (Additional attachment(s) added on 11/24/2017: # 223 HHS−OS−2011−0023−76266 − 76268_Part1, # 224 HHS−OS−2011−0023−76266 − 76268_Part2, # 225 HHS−OS−2011−0023−76266 − 76268_Part3, # 226 HHS−OS−2011−0023−76266 − 76268_Part4, # 227 HHS−OS−2011−0023−76304 −76348_Part1, # 228 HHS−OS−2011−0023−76304 −76348_Part2, # 229 HHS−OS−2011−0023−76304 −76348_Part3, # 230 HHS−OS−2011−0023−76304 −76348_Part4, # 231 HHS−OS−2011−0023−76349_Part1, # 232 HHS−OS−2011−0023−76349_Part2, # 233 HHS−OS−2011−0023−76349_Part3, # 234 HHS−OS−2011−0023−76349_Part4) (nd, ). (Additional attachment(s) added on 11/24/2017: # 235 HHS−OS−2011−0023−76350 − 76999_Part1, # 236 HHS−OS−2011−0023−76350 − 76999_Part2, # 237 HHS−OS−2011−0023−77000 − 77829, # 238 HHS−OS−2011−0023−77830 − 78999_Part1, # 239 HHS−OS−2011−0023−77830 − 78999_Part2, # 240 HHS−OS−2011−0023−77830 − 78999_Part3, # 241 HHS−OS−2011−0023−77830 − 78999_Part4, # 242 \HHS−OS−2011−0023−79000 − 79999_Part1, # 243 \HHS−OS−2011−0023−79000 − 79999_Part2, # 244 \HHS−OS−2011−0023−79000 − 79999_Part3, # 245 HHS−OS−2011−0023−80000 − 80999, # 246 HHS−OS−2011−0023−81000 − 81999, # 247 HHS−OS−2011−0023−82000 − 82515_Part1, # 248 HHS−OS−2011−0023−82000 − 82515_Part2, # 249 HHS−OS−2011−0023−82000 − 82515_Part3, # 250 HHS−OS−2011−0023−82000 − 82515_Part4, # 251 HHS−OS−2011−0023−82000 − 82515_Part5, # 252 HHS−OS−2011−0023−82000 − 82515_Part6, # 253 HHS−OS−2011−0023−82000 − 82515_Part7, # 254 HHS−OS−2011−0023−82000 − 82515_Part8, # 255 HHS−OS−2011−0023−82000 − 82515_Part9, # 256 HHS−OS−2011−0023−82000 − 82515_Part10, # 257 HHS−OS−2011−0023−82000 − 82515_Part11, # 258 HHS−OS−2011−0023−82000 − 82515_Part12, # 259 HHS−OS−2011−0023−82000 − 82515_Part13, # 260 HHS−OS−2011−0023−82000 − 82515_Part14, # 261 HHS−OS−2011−0023−82000 − 82515_Part15) (nd, ). (Additional attachment(s) added on 11/24/2017: # 262 2011 IFR AMENDMENT − 1−3000 combined_Part1, # 263 2011 IFR AMENDMENT − 1−3000 combined_Part2,

Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 26 of 60
# 264 2011 IFR AMENDMENT − 1−3000 combined_Part3, # 265 2011 IFR AMENDMENT − 1−3000 combined_Part4, # 266 2011 IFR AMENDMENT − 1−3000 combined_Part5, # 267 2011 IFR AMENDMENT − 1−3000 combined_Part6, # 268 2011 IFR AMENDMENT − 1−3000 combined_Part7, # 269 2011 IFR AMENDMENT − 1−3000 combined_Part8, # 270 2011 IFR AMENDMENT − 1−3000 combined_Part9, # 271 2011 IFR AMENDMENT − 1−3000 combined_Part10, # 272 2011 IFR AMENDMENT − 3001−6000 combined_Part1, # 273 2011 IFR AMENDMENT − 3001−6000 combined_Part2, # 274 2011 IFR AMENDMENT − 3001−6000 combined_Part3, # 275 2011 IFR AMENDMENT − 3001−6000 combined_Part4, # 276 2011 IFR AMENDMENT − 3001−6000 combined_Part5, # 277 2011 IFR AMENDMENT − 9001−12000 combined_Part1, # 278 2011 IFR AMENDMENT − 9001−12000 combined_Part2, # 279 2011 IFR AMENDMENT − 9001−12000 combined_Part3, # 280 2011 IFR AMENDMENT − 9001−12000 combined_Part4, # 281 2011 IFR AMENDMENT − 9001−12000 combined_Part5) (nd, ). (Additional attachment(s) added on 11/24/2017: # 282 2011 IFR AMENDMENT − 12001−14874 combined_Part1, # 283 2011 IFR AMENDMENT − 12001−14874 combined_Part2, # 284 2011 IFR AMENDMENT − 12001−14874 combined_Part3, # 285 2011 IFR AMENDMENT − 12001−14874 combined_Part4, # 286 2011 IFR AMENDMENT − 12001−14874 combined_Part5, # 287 2011 IFR AMENDMENT − 12001−14874 combined_Part6, # 288 2011 IFR AMENDMENT − 12001−14874 combined_Part7, # 289 2011 IFR AMENDMENT − 12001−14874 combined_Part8, # 290 2011 IFR AMENDMENT − 12001−14874 combined_Part9, # 291 2011 IFR AMENDMENT − 12001−14874 combined_Part10, # 292 2011 IFR AMENDMENT − 12001−14874 combined_Part11, # 293 2011 IFR AMENDMENT − 12001−14874 combined_Part12, # 294 IRS−2010−0017−0039 thru 1014_Part1, # 295 IRS−2010−0017−0039 thru 1014_Part2, # 296 IRS−2010−0017−0039 thru 1014_Part3, # 297 IRS−2010−0017−0039 thru 1014_Part4, # 298 IRS−2010−0017−0039 thru 1014_Part5, # 299 IRS−2010−0017−0039 thru 1014_Part6, # 300 IRS−2010−0017−0039 thru 1014_Part7, # 301 IRS−2010−0017−0039 thru 1014_Part8, # 302 IRS−2010−0017−0039 thru 1014_Part9, # 303 IRS−2010−0017−0039 thru 1014_Part10, # 304 IRS−2010−0017−0039 thru 1014_Part11, # 305 IRS−2010−0017−0039 thru 1014_Part12, # 306 IRS−2010−0017−0039 thru 1014_Part13, # 307 IRS−2010−0017−0039 thru 1014_Part14) (nd, ). (Additional attachment(s) added on 11/24/2017: # 308 IRS−2010−0040−0007 thru 0742_Part1, # 309 IRS−2010−0040−0007 thru 0742_Part2, # 310 IRS−2010−0040−0007 thru 0742_Part3, # 311 IRS−2010−0040−0007 thru 0742_Part4, # 312 IRS−2010−0040−0007 thru 0742_Part5, # 313 IRS−2010−0040−0007 thru 0742_Part6, # 314 IRS−2010−0040−0007 thru 0742_Part7, # 315 IRS−2010−0040−0007 thru 0742_Part8, # 316 IRS−2010−0040−0007 thru 0742_Part9, # 317 IRS−2010−0040−0007 thru 0742_Part10) (nd, ). (Additional attachment(s) added on 11/24/2017: # 318 2011 IFR AMENDMENT − 1−3000 combined_Part1, # 319 2011 IFR AMENDMENT − 1−3000 combined_Part2) (nd, ). (Additional attachment(s) added on 11/24/2017: # 320 II. Supporting Documentation Materials for July 2013 Final Rule_Part1, # 321 II. Supporting Documentation Materials for July 2013 Final Rule_Part2, # 322 II. Supporting Documentation Materials for July 2013 Final Rule_Part3, # 323 II. Supporting Documentation Materials for July 2013 Final Rule_Part4, # 324 II. Supporting Documentation Materials for July 2013 Final Rule_Part5, # 325 II. Supporting Documentation Materials for July 2013 Final Rule_Part6, # 326 II. Supporting Documentation Materials for July 2013 Final Rule_Part7, # 327 II. Supporting Documentation Materials for July 2013 Final Rule_Part8, # 328 II. Supporting Documentation Materials for July 2013 Final Rule_Part9, # 329 II. Supporting Documentation Materials for July 2013 Final Rule_Part10, # 330 II. Supporting Documentation Materials for July 2013 Final Rule_Part11, # 331 II. Supporting Documentation Materials for July 2013 Final Rule_Part12, # 332 II. Supporting Documentation Materials for July 2013 Final Rule_Part13, # 333 II. Supporting Documentation Materials for July 2013 Final Rule_Part14, # 334 II. Supporting Documentation Materials for July 2013 Final Rule_Part15, # 335 II. Supporting Documentation Materials for July 2013 Final Rule_Part16, # 336 II. Supporting Documentation Materials for July 2013 Final Rule_Part17, # 337 II. Supporting Documentation Materials for July 2013 Final Rule_Part18, # 338 II. Supporting Documentation Materials for July 2013 Final Rule_Part19, # 339 II. Supporting Documentation Materials for July 2013 Final Rule_Part20, # 340 II. Supporting Documentation

Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 27 of 60
Materials for July 2013 Final Rule_Part21, # 341 II. Supporting Documentation Materials for July 2013 Final Rule_Part22) (nd, ). (Additional attachment(s) added on 11/24/2017: # 342 Medical Loss Ratio Table 1, # 343 Medical Loss Ratio Table 2_Part1, # 344 Medical Loss Ratio Table 2_Part2, # 345 Medical Loss Ratio Table 2_Part3, # 346 Medical Loss Ratio Table 2_Part4, # 347 Medical Loss Ratio Table 3_Part1, # 348 Medical Loss Ratio Table 3_Part2, # 349 Medical Loss Ratio Table 3_Part3, # 350 Medical Loss Ratio Table 3_Part4, # 351 Medical Loss Ratio Table 3_Part5, # 352 Medical Loss Ratio Table 4_Part1., # 353 Medical Loss Ratio Table 4_Part2, # 354 Medical Loss Ratio Table 4_Part3, # 355 Medical Loss Ratio Table 4_Part4, # 356 Medical Loss Ratio Table 4_Part5, # 357 Medical Loss Ratio Table 5_Part1, # 358 Medical Loss Ratio Table 5_Part2, # 359 Medical Loss Ratio Table 5_Part3, # 360 Medical Loss Ratio Table 5_Part4, # 361 Medical Loss Ratio Table 6) (nd, ). (Additional attachment(s) added on 11/24/2017: # 362 CMS−2012−0031−0000_Part1, # 363 CMS−2012−0031−0000_Part2, # 364 CMS−2012−0031−0000_Part3, # 365 CMS−2012−0031−63162, # 366 CMS−2012−0031−63162−A1, # 367 CMS−2012−0031−63163, # 368 CMS−2012−0031−63164, # 369 CMS−2012−0031−63165, # 370 CMS−2012−0031−63166, # 371 CMS−2012−0031−63167, # 372 CMS−2012−0031−63168, # 373 CMS−2012−0031−63169, # 374 CMS−2012−0031−63170, # 375 CMS−2012−0031−63171, # 376 CMS−2012−0031−63172, # 377 CMS−2012−0031−63173, # 378 CMS−2012−0031−63174, # 379 CMS−2012−0031−63174−A1, # 380 CMS−2012−0031−63175, # 381 CMS−2012−0031−63176, # 382 CMS−2012−0031−63177, # 383 CMS−2012−0031−63178, # 384 CMS−2012−0031−63179) (nd, ). (Additional attachment(s) added on 11/24/2017: # 385 CMS−2012−0031−63280, # 386 CMS−2012−0031−63281, # 387 CMS−2012−0031−63282, # 388 CMS−2012−0031−63283, # 389 CMS−2012−0031−63284, # 390 CMS−2012−0031−63285, # 391 CMS−2012−0031−63286, # 392 CMS−2012−0031−63287, # 393 CMS−2012−0031−63188, # 394 CMS−2012−0031−63189, # 395 CMS−2012−0031−63190, # 396 CMS−2012−0031−63191, # 397 CMS−2012−0031−63192, # 398 CMS−2012−0031−63193, # 399 CMS−2012−0031−63194, # 400 CMS−2012−0031−63195, # 401 CMS−2012−0031−63196, # 402 CMS−2012−0031−63197, # 403 CMS−2012−0031−63198, # 404 CMS−2012−0031−63199) (nd, ). (Additional attachment(s) added on 11/24/2017: # 405 CMS−2012−0031−63200, # 407 CMS−2012−0031−63201, # 408 CMS−2012−0031−63202, # 409 CMS−2012−0031−63203, # 410 CMS−2012−0031−63204, # 411 CMS−2012−0031−63204−A1, # 412 CMS−2012−0031−63205, # 413 CMS−2012−0031−63206, # 414 CMS−2012−0031−63207, # 415 CMS−2012−0031−63208, # 416 CMS−2012−0031−63209, # 417 CMS−2012−0031−63210, # 418 CMS−2012−0031−63211, # 419 CMS−2012−0031−63212, # 420 CMS−2012−0031−63213, # 421 CMS−2012−0031−63214, # 422 CMS−2012−0031−63215, # 423 CMS−2012−0031−63216, # 424 CMS−2012−0031−63217, # 425 CMS−2012−0031−63218, # 426 CMS−2012−0031−63219, # 427 CMS−2012−0031−63220, # 428 CMS−2012−0031−63221, # 429 CMS−2012−0031−63222, # 430 CMS−2012−0031−63223, # 431 CMS−2012−0031−63224, # 432 CMS−2012−0031−63225, # 433 CMS−2012−0031−63226, # 434 CMS−2012−0031−63227, # 435 CMS−2012−0031−63228, # 436 CMS−2012−0031−63229) (nd, ). (Additional attachment(s) added on 11/24/2017: # 437 CMS−2012−0031−63230, # 438 CMS−2012−0031−63231, # 439 CMS−2012−0031−63232, # 440 CMS−2012−0031−63233, # 441 CMS−2012−0031−63234, # 442 CMS−2012−0031−63235, # 443 CMS−2012−0031−63236, # 444 CMS−2012−0031−63237, # 445 CMS−2012−0031−63238, # 446 CMS−2012−0031−63239, # 447 CMS−2012−0031−63240, # 448 CMS−2012−0031−63241, # 449 CMS−2012−0031−63242, # 450 CMS−2012−0031−63243, # 451 CMS−2012−0031−63244, # 452 CMS−2012−0031−63245, # 453 CMS−2012−0031−63246, # 454 CMS−2012−0031−63247, # 455 CMS−2012−0031−63248, # 456 CMS−2012−0031−63249, # 457 CMS−2012−0031−63250) (nd, ). (Additional attachment(s) added on 11/24/2017: # 458 CMS−2012−0031−63251, # 459 CMS−2012−0031−63252, # 460 CMS−2012−0031−63253, # 461

Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 28 of 60
CMS−2012−0031−63254, # 462 CMS−2012−0031−63255, # 463 CMS−2012−0031−63256, # 464 CMS−2012−0031−63257, # 465 CMS−2012−0031−63258, # 466 CMS−2012−0031−63259, # 467 CMS−2012−0031−63260, # 468 CMS−2012−0031−63261, # 469 CMS−2012−0031−63262, # 470 CMS−2012−0031−63263, # 471 CMS−2012−0031−63264, # 472 CMS−2012−0031−63265, # 473 CMS−2012−0031−63266, # 474 CMS−2012−0031−63267, # 475 CMS−2012−0031−63268, # 476 CMS−2012−0031−63269, # 477 CMS−2012−0031−63270, # 478 CMS−2012−0031−63271, # 479 CMS−2012−0031−63272, # 480 CMS−2012−0031−63273, # 481 CMS−2012−0031−63274, # 482 CMS−2012−0031−63275, # 483 CMS−2012−0031−63276, # 484 CMS−2012−0031−63277, # 485 CMS−2012−0031−63278, # 486 CMS−2012−0031−63279, # 487 CMS−2012−0031−63280, # 488 CMS−2012−0031−63281, # 489 CMS−2012−0031−63282, # 490 CMS−2012−0031−63283, # 491 CMS−2012−0031−63284, # 492 CMS−2012−0031−63285, # 493 CMS−2012−0031−63286, # 494 CMS−2012−0031−63287, # 495 CMS−2012−0031−63288, # 496 CMS−2012−0031−63289) (nd, ). (Additional attachment(s) added on 11/24/2017: # 497 CMS−2012−0031−63290, # 498 CMS−2012−0031−63291, # 499 CMS−2012−0031−63292, # 500 CMS−2012−0031−63293, # 501 CMS−2012−0031−63294, # 502 CMS−2012−0031−63295, # 503 CMS−2012−0031−63296, # 504 CMS−2012−0031−63297, # 505 CMS−2012−0031−63298, # 506 CMS−2012−0031−63299) (nd, ). (Additional attachment(s) added on 11/24/2017: # 507 CMS−2012−0031−63300, # 508 CMS−2012−0031−63301, # 509 CMS−2012−0031−63302, # 510 CMS−2012−0031−63303, # 511 CMS−2012−0031−63304, # 512 CMS−2012−0031−63305, # 513 CMS−2012−0031−63306, # 514 CMS−2012−0031−63307, # 515 CMS−2012−0031−63308, # 516 CMS−2012−0031−63309, # 517 CMS−2012−0031−63310) (nd, ). (Additional attachment(s) added on 11/24/2017: # 518 CMS−2012−0031−63311, # 519 CMS−2012−0031−63312, # 520 CMS−2012−0031−63313, # 521 CMS−2012−0031−63314, # 522 CMS−2012−0031−63315, # 523 CMS−2012−0031−63316, # 524 CMS−2012−0031−63317, # 525 CMS−2012−0031−63318, # 526 CMS−2012−0031−63319, # 527 CMS−2012−0031−63320, # 528 CMS−2012−0031−63321, # 529 CMS−2012−0031−63322, # 530 CMS−2012−0031−63323, # 531 CMS−2012−0031−63324, # 532 CMS−2012−0031−63325, # 533 CMS−2012−0031−63326, # 534 CMS−2012−0031−63327, # 535 CMS−2012−0031−63328, # 536 CMS−2012−0031−63329, # 537 CMS−2012−0031−63330, # 538 CMS−2012−0031−63331, # 539 CMS−2012−0031−63332, # 540 CMS−2012−0031−63333, # 541 CMS−2012−0031−63334, # 542 CMS−2012−0031−63335, # 543 CMS−2012−0031−63336, # 544 CMS−2012−0031−63337, # 545 CMS−2012−0031−63338, # 546 CMS−2012−0031−63339, # 547 CMS−2012−0031−63340, # 548 CMS−2012−0031−63341, # 549 CMS−2012−0031−63343, # 550 CMS−2012−0031−63342, # 551 CMS−2012−0031−63344, # 552 CMS−2012−0031−63345, # 553 CMS−2012−0031−63346, # 554 CMS−2012−0031−63347, # 555 CMS−2012−0031−63348, # 556 CMS−2012−0031−63349) (nd, ). (Additional attachment(s) added on 11/24/2017: # 557 CMS−2012−0031−63350, # 558 CMS−2012−0031−63351, # 559 CMS−2012−0031−63352, # 560 CMS−2012−0031−63353, # 561 CMS−2012−0031−63354, # 562 CMS−2012−0031−63355, # 563 CMS−2012−0031−63356, # 564 CMS−2012−0031−63357, # 565 CMS−2012−0031−63358, # 566 CMS−2012−0031−63359, # 567 CMS−2012−0031−63360, # 568 CMS−2012−0031−63361, # 569 CMS−2012−0031−63362, # 570 CMS−2012−0031−63363, # 571 CMS−2012−0031−63364, # 572 CMS−2012−0031−63365, # 573 CMS−2012−0031−63366, # 574 CMS−2012−0031−63367, # 575 CMS−2012−0031−63368, # 576 CMS−2012−0031−63369, # 577 CMS−2012−0031−63370, # 578 CMS−2012−0031−63371, # 579 CMS−2012−0031−63372, # 580 CMS−2012−0031−63373, # 581 CMS−2012−0031−63374, # 582 CMS−2012−0031−63375, # 583 CMS−2012−0031−63376, # 584 CMS−2012−0031−63377, # 585

Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 29 of 60
CMS−2012−0031−63378, # 586 CMS−2012−0031−63379, # 587 CMS−2012−0031−63380) (nd, ). (Additional attachment(s) added on 11/24/2017: # 588 CMS−2012−0031−63381, # 589 CMS−2012−0031−63382, # 590 CMS−2012−0031−63383, # 591 CMS−2012−0031−63384, # 592 CMS−2012−0031−63385, # 593 CMS−2012−0031−63386, # 594 CMS−2012−0031−63387, # 595 CMS−2012−0031−63388, # 596 CMS−2012−0031−63389, # 597 CMS−2012−0031−63390, # 598 CMS−2012−0031−63391, # 599 CMS−2012−0031−63392, # 600 CMS−2012−0031−63393, # 601 CMS−2012−0031−63394, # 602 CMS−2012−0031−63395, # 603 CMS−2012−0031−63396, # 604 CMS−2012−0031−63397, # 605 CMS−2012−0031−63398, # 606 CMS−2012−0031−63399) (nd, ). (Additional attachment(s) added on 11/27/2017: # 607 CMS−2012−0031−63400, # 608 CMS−2012−0031−63401, # 609 CMS−2012−0031−63402, # 610 CMS−2012−0031−63403, # 611 CMS−2012−0031−63404, # 612 CMS−2012−0031−63405, # 613 CMS−2012−0031−63406, # 614 CMS−2012−0031−63407, # 615 CMS−2012−0031−63408, # 616 CMS−2012−0031−63409, # 617 CMS−2012−0031−63410, # 618 CMS−2012−0031−63411, # 619 CMS−2012−0031−63412, # 620 CMS−2012−0031−63413, # 621 CMS−2012−0031−63414, # 622 CMS−2012−0031−63415, # 623 CMS−2012−0031−63416, # 624 CMS−2012−0031−63417, # 625 CMS−2012−0031−63418, # 626 CMS−2012−0031−63419, # 627 CMS−2012−0031−63420, # 628 CMS−2012−0031−63421, # 629 CMS−2012−0031−63422, # 630 CMS−2012−0031−63423, # 631 CMS−2012−0031−63424, # 632 CMS−2012−0031−63425, # 633 CMS−2012−0031−63426, # 634 CMS−2012−0031−63427, # 635 CMS−2012−0031−63428, # 636 CMS−2012−0031−63429, # 637 CMS−2012−0031−63430) (nd, ). (Additional attachment(s) added on 11/28/2017: # 638 CMS−2012−0031−63431, # 639 CMS−2012−0031−63432, # 640 CMS−2012−0031−63433, # 641 CMS−2012−0031−63434, # 642 CMS−2012−0031−63435, # 643 CMS−2012−0031−63436, # 644 CMS−2012−0031−63437, # 645 CMS−2012−0031−63438, # 646 CMS−2012−0031−63439, # 647 CMS−2012−0031−63440, # 648 CMS−2012−0031−63441, # 649 CMS−2012−0031−63442, # 650 CMS−2012−0031−63443, # 651 CMS−2012−0031−63444, # 652 CMS−2012−0031−63445, # 653 CMS−2012−0031−63446, # 654 CMS−2012−0031−63447, # 655 CMS−2012−0031−63448, # 656 CMS−2012−0031−63449, # 657 CMS−2012−0031−63450, # 658 CMS−2012−0031−63451, # 659 CMS−2012−0031−63452, # 660 CMS−2012−0031−63453, # 661 CMS−2012−0031−63454, # 662 CMS−2012−0031−63455, # 663 CMS−2012−0031−63456, # 664 CMS−2012−0031−63457, # 665 CMS−2012−0031−63458, # 666 CMS−2012−0031−63459) (nd, ). (Additional attachment(s) added on 11/28/2017: # 667 CMS−2012−0031−63460, # 668 CMS−2012−0031−63461, # 669 CMS−2012−0031−63462, # 670 CMS−2012−0031−63463, # 671 CMS−2012−0031−63464, # 672 CMS−2012−0031−63465, # 673 CMS−2012−0031−63466, # 674 CMS−2012−0031−63467, # 675 CMS−2012−0031−63468, # 676 CMS−2012−0031−63469, # 677 CMS−2012−0031−63470, # 678 CMS−2012−0031−63471, # 679 CMS−2012−0031−63472, # 680 CMS−2012−0031−63473, # 681 CMS−2012−0031−63474, # 682 CMS−2012−0031−63475, # 683 CMS−2012−0031−63476, # 684 CMS−2012−0031−63477, # 685 CMS−2012−0031−63478, # 686 CMS−2012−0031−63479, # 687 CMS−2012−0031−63480, # 688 CMS−2012−0031−63481, # 689 CMS−2012−0031−63482, # 690 CMS−2012−0031−63483, # 691 CMS−2012−0031−63484, # 692 CMS−2012−0031−63485, # 693 CMS−2012−0031−63486, # 694 CMS−2012−0031−63487, # 695 CMS−2012−0031−63488, # 696 CMS−2012−0031−63489, # 697 CMS−2012−0031−63490, # 698 CMS−2012−0031−63491, # 699 CMS−2012−0031−63492, # 700 CMS−2012−0031−63493, # 701 CMS−2012−0031−63494, # 702 CMS−2012−0031−63495, # 703 CMS−2012−0031−63496, # 704 CMS−2012−0031−63497, # 705 CMS−2012−0031−63498, # 706 CMS−2012−0031−63499) (nd, ). (Additional attachment(s) added on 11/28/2017: # 707 CMS−2012−0031−63500, # 708

Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 30 of 60
CMS−2012−0031−63501, # 709 CMS−2012−0031−63502, # 710 CMS−2012−0031−63503, # 711 CMS−2012−0031−63504, # 712 CMS−2012−0031−63505, # 713 CMS−2012−0031−63506, # 714 CMS−2012−0031−63507, # 715 CMS−2012−0031−63508, # 716 CMS−2012−0031−63509, # 717 CMS−2012−0031−63510, # 718 CMS−2012−0031−63511, # 719 CMS−2012−0031−63512, # 720 CMS−2012−0031−63513, # 721 CMS−2012−0031−63514, # 722 CMS−2012−0031−63515, # 723 CMS−2012−0031−63516, # 724 CMS−2012−0031−63517, # 725 CMS−2012−0031−63518, # 726 CMS−2012−0031−63519, # 727 CMS−2012−0031−63520, # 728 CMS−2012−0031−63521, # 729 CMS−2012−0031−63522, # 730 CMS−2012−0031−63523, # 731 CMS−2012−0031−63524, # 732 CMS−2012−0031−63525, # 733 CMS−2012−0031−63526, # 734 CMS−2012−0031−63527, # 735 CMS−2012−0031−63528, # 736 CMS−2012−0031−63529, # 737 CMS−2012−0031−63530) (nd, ). (Additional attachment(s) added on 11/28/2017: # 738 CMS−2012−0031−63531, # 739 CMS−2012−0031−63532, # 740 CMS−2012−0031−63533, # 741 CMS−2012−0031−63534, # 742 CMS−2012−0031−63535, # 743 CMS−2012−0031−63536, # 744 CMS−2012−0031−63537, # 745 CMS−2012−0031−63538, # 746 CMS−2012−0031−63539) (nd, ). (Additional attachment(s) added on 12/5/2017: # 747 CMS−2012−0031−63540, # 748 CMS−2012−0031−63541, # 749 CMS−2012−0031−63542, # 750 CMS−2012−0031−63543, # 751 CMS−2012−0031−63544, # 752 CMS−2012−0031−63545, # 753 CMS−2012−0031−63546, # 754 CMS−2012−0031−63547, # 755 CMS−2012−0031−63548, # 756 CMS−2012−0031−63549, # 757 CMS−2012−0031−63550, # 758 CMS−2012−0031−63551, # 759 CMS−2012−0031−6355, # 760 CMS−2012−0031−63553, # 761 CMS−2012−0031−63554, # 762 CMS−2012−0031−63555, # 763 CMS−2012−0031−6355, # 764 CMS−2012−0031−63557, # 765 CMS−2012−0031−63558, # 766 CMS−2012−0031−63559, # 767 CMS−2012−0031−63560, # 768 CMS−2012−0031−63561, # 769 CMS−2012−0031−63562, # 770 CMS−2012−0031−63563, # 771 CMS−2012−0031−63564, # 772 CMS−2012−0031−63565, # 773 CMS−2012−0031−63566, # 774 CMS−2012−0031−63567, # 775 CMS−2012−0031−63568, # 776 CMS−2012−0031−63569) (nd, ). (Additional attachment(s) added on 12/5/2017: # 777 CMS−2012−0031−63570, # 778 CMS−2012−0031−63571, # 779 CMS−2012−0031−63572, # 780 CMS−2012−0031−63573, # 781 CMS−2012−0031−63574, # 782 CMS−2012−0031−63575, # 783 CMS−2012−0031−63576, # 784 CMS−2012−0031−63577, # 785 CMS−2012−0031−63579, # 786 CMS−2012−0031−63580, # 787 CMS−2012−0031−63581, # 788 CMS−2012−0031−63582, # 789 CMS−2012−0031−63583, # 790 CMS−2012−0031−63584, # 791 CMS−2012−0031−63585, # 792 CMS−2012−0031−63586, # 793 CMS−2012−0031−63587, # 794 CMS−2012−0031−63588, # 795 CMS−2012−0031−63589, # 796 CMS−2012−0031−63590, # 797 CMS−2012−0031−63591, # 798 CMS−2012−0031−63592, # 799 CMS−2012−0031−63593, # 800 CMS−2012−0031−63594, # 801 CMS−2012−0031−63595, # 802 CMS−2012−0031−63596, # 803 CMS−2012−0031−63597, # 804 CMS−2012−0031−63598, # 805 CMS−2012−0031−63599) (nd, ). (Additional attachment(s) added on 12/5/2017: # 806 CMS−2012−0031−63600, # 807 CMS−2012−0031−63601, # 808 CMS−2012−0031−63602, # 809 CMS−2012−0031−63603, # 810 CMS−2012−0031−63604, # 811 CMS−2012−0031−63605, # 812 CMS−2012−0031−63606, # 813 CMS−2012−0031−63607, # 814 CMS−2012−0031−63608, # 815 CMS−2012−0031−63609, # 816 CMS−2012−0031−63610, # 817 CMS−2012−0031−636114, # 818 CMS−2012−0031−63612, # 819 CMS−2012−0031−63613, # 820 CMS−2012−0031−63614, # 821 CMS−2012−0031−63615, # 822 CMS−2012−0031−63616, # 823 CMS−2012−0031−63617, # 824 CMS−2012−0031−63618, # 825 CMS−2012−0031−63619, # 826 CMS−2012−0031−63620, # 827 CMS−2012−0031−63621, # 828 CMS−2012−0031−63622, # 829 CMS−2012−0031−63623, # 830 CMS−2012−0031−63624, # 831 CMS−2012−0031−63625, # 832

Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 31 of 60
CMS−2012−0031−63626, # 833 CMS−2012−0031−63627, # 834 CMS−2012−0031−63628, # 835 CMS−2012−0031−63629, # 836 CMS−2012−0031−63630, # 837 CMS−2012−0031−63631, # 838 CMS−2012−0031−63632, # 839 CMS−2012−0031−63633, # 840 CMS−2012−0031−63634) (nd, ). (Additional attachment(s) added on 12/5/2017: # 841 CMS−2012−0031−63635, # 842 CMS−2012−0031−63636, # 843 CMS−2012−0031−63637, # 844 CMS−2012−0031−63638, # 845 CMS−2012−0031−63639, # 846 CMS−2012−0031−63640, # 847 CMS−2012−0031−63641, # 848 CMS−2012−0031−63642, # 849 CMS−2012−0031−63643, # 850 CMS−2012−0031−63644, # 851 CMS−2012−0031−63645, # 852 CMS−2012−0031−63646, # 853 CMS−2012−0031−63647, # 854 CMS−2012−0031−63648, # 855 CMS−2012−0031−63649, # 856 CMS−2012−0031−63650, # 857 CMS−2012−0031−63651, # 858 CMS−2012−0031−63652, # 859 CMS−2012−0031−63653, # 860 CMS−2012−0031−63654, # 861 CMS−2012−0031−63655, # 862 CMS−2012−0031−63656, # 863 CMS−2012−0031−63657, # 864 CMS−2012−0031−63658, # 865 CMS−2012−0031−63659, # 866 CMS−2012−0031−63660, # 867 CMS−2012−0031−63661, # 868 CMS−2012−0031−63663, # 869 CMS−2012−0031−63664, # 870 CMS−2012−0031−63665, # 871 CMS−2012−0031−63666, # 872 CMS−2012−0031−63667, # 873 CMS−2012−0031−63668, # 874 CMS−2012−0031−63669, # 875 CMS−2012−0031−63670, # 876 CMS−2012−0031−63671, # 877 CMS−2012−0031−63672, # 878 CMS−2012−0031−63673, # 879 CMS−2012−0031−63674, # 880 CMS−2012−0031−63675, # 881 CMS−2012−0031−63676, # 882 CMS−2012−0031−63677, # 883 CMS−2012−0031−63678, # 884 CMS−2012−0031−63679, # 885 CMS−2012−0031−63681, # 886 CMS−2012−0031−63681, # 887 CMS−2012−0031−63682, # 888 CMS−2012−0031−63683, # 889 CMS−2012−0031−63684, # 890 CMS−2012−0031−63685, # 891 CMS−2012−0031−63686, # 892 CMS−2012−0031−63687, # 893 CMS−2012−0031−63688, # 894 CMS−2012−0031−63689, # 895 CMS−2012−0031−63690, # 896 CMS−2012−0031−63691, # 897 CMS−2012−0031−63692, # 898 CMS−2012−0031−63693, # 899 CMS−2012−0031−63694, # 900 CMS−2012−0031−63695, # 901 CMS−2012−0031−63696, # 902 CMS−2012−0031−63697, # 903 CMS−2012−0031−63698, # 904 CMS−2012−0031−63699) (nd, ). (Additional attachment(s) added on 12/5/2017: # 905 CMS−2012−0031−63700, # 906 CMS−2012−0031−63701, # 907 CMS−2012−0031−63702, # 908 CMS−2012−0031−63703, # 909 CMS−2012−0031−63704, # 910 CMS−2012−0031−63705) (nd, ). (Additional attachment(s) added on 12/5/2017: # 911 CMS−2012−0031−63706, # 912 CMS−2012−0031−63707, # 913 CMS−2012−0031−63708, # 914 CMS−2012−0031−63709, # 915 CMS−2012−0031−63710, # 916 CMS−2012−0031−63711, # 917 CMS−2012−0031−63712, # 918 CMS−2012−0031−63713, # 919 CMS−2012−0031−63714) (nd, ). (Additional attachment(s) added on 12/13/2017: # 920 CMS−2012−0031−63715, # 921 CMS−2012−0031−63716, # 922 CMS−2012−0031−63717, # 923 CMS−2012−0031−63718, # 924 CMS−2012−0031−63719, # 925 CMS−2012−0031−63720, # 926 CMS−2012−0031−63721, # 927 CMS−2012−0031−63722, # 928 CMS−2012−0031−63723, # 929 CMS−2012−0031−63724, # 930 CMS−2012−0031−63725, # 931 CMS−2012−0031−63726, # 932 CMS−2012−0031−63727, # 933 CMS−2012−0031−63728, # 934 CMS−2012−0031−63729, # 935 CMS−2012−0031−63730, # 936 CMS−2012−0031−63731, # 937 CMS−2012−0031−63732, # 938 CMS−2012−0031−63733, # 939 CMS−2012−0031−63734, # 940 CMS−2012−0031−63735, # 941 CMS−2012−0031−63736, # 942 CMS−2012−0031−63737, # 943 CMS−2012−0031−63738, # 944 CMS−2012−0031−63739, # 945 CMS−2012−0031−63740, # 946 CMS−2012−0031−63741, # 947 CMS−2012−0031−63742, # 948 CMS−2012−0031−63743, # 949 CMS−2012−0031−63744, # 950 CMS−2012−0031−63745, # 951 CMS−2012−0031−63746, # 952 CMS−2012−0031−63747, # 953 CMS−2012−0031−63748, # 954 CMS−2012−0031−63749, # 955 CMS−2012−0031−63750, # 956

Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 32 of 60
CMS−2012−0031−63751, # 957 CMS−2012−0031−63752, # 958 CMS−2012−0031−63753, # 959 CMS−2012−0031−63754, # 960 CMS−2012−0031−63755, # 961 CMS−2012−0031−63756, # 962 CMS−2012−0031−63757, # 963 CMS−2012−0031−63758, # 964 CMS−2012−0031−63760, # 965 CMS−2012−0031−63760, # 966 CMS−2012−0031−63761, # 967 CMS−2012−0031−63762, # 968 CMS−2012−0031−63763, # 969 CMS−2012−0031−63764, # 970 CMS−2012−0031−63765, # 971 CMS−2012−0031−63766, # 972 CMS−2012−0031−63767, # 973 CMS−2012−0031−63768, # 974 CMS−2012−0031−63769, # 975 CMS−2012−0031−63770, # 976 CMS−2012−0031−63771, # 977 CMS−2012−0031−63772, # 978 CMS−2012−0031−63774, # 979 CMS−2012−0031−63774, # 980 CMS−2012−0031−63775, # 981 CMS−2012−0031−63776, # 982 CMS−2012−0031−63777, # 983 CMS−2012−0031−63779, # 984 CMS−2012−0031−63779, # 985 CMS−2012−0031−63780, # 986 CMS−2012−0031−63781) (nd, ). (Additional attachment(s) added on 12/13/2017: # 987 CMS−2012−0031−63782', # 988 CMS−2012−0031−63783, # 989 CMS−2012−0031−63784, # 990 CMS−2012−0031−63785, # 991 CMS−2012−0031−63786, # 992 CMS−2012−0031−63787, # 993 CMS−2012−0031−63788, # 994 CMS−2012−0031−63789, # 995 CMS−2012−0031−63790, # 996 CMS−2012−0031−63791, # 997 CMS−2012−0031−63792, # 998 CMS−2012−0031−63793, # 999 CMS−2012−0031−63794, # 1000 CMS−2012−0031−63795, # 1001 CMS−2012−0031−63796, # 1002 CMS−2012−0031−63797, # 1003 CMS−2012−0031−63798, # 1004 CMS−2012−0031−63799, # 1005 CMS−2012−0031−63800, # 1006 CMS−2012−0031−63801, # 1007 CMS−2012−0031−63802, # 1008 CMS−2012−0031−63803, # 1009 CMS−2012−0031−63804, # 1010 CMS−2012−0031−63805, # 1011 CMS−2012−0031−63806, # 1012 CMS−2012−0031−63807, # 1013 CMS−2012−0031−63808, # 1014 CMS−2012−0031−63809, # 1015 CMS−2012−0031−63810, # 1016 CMS−2012−0031−63811, # 1017 CMS−2012−0031−63812, # 1018 CMS−2012−0031−63813, # 1019 CMS−2012−0031−63814, # 1020 CMS−2012−0031−63815, # 1021 CMS−2012−0031−63816, # 1022 CMS−2012−0031−63817, # 1023 CMS−2012−0031−63818, # 1024 CMS−2012−0031−63819, # 1025 CMS−2012−0031−63820, # 1026 CMS−2012−0031−63821, # 1027 CMS−2012−0031−63822, # 1028 CMS−2012−0031−63823, # 1029 CMS−2012−0031−63824, # 1030 CMS−2012−0031−63825, # 1031 CMS−2012−0031−63826, # 1032 CMS−2012−0031−63827, # 1033 CMS−2012−0031−63828, # 1034 CMS−2012−0031−63829, # 1035 CMS−2012−0031−63830, # 1036 CMS−2012−0031−638, # 1037 CMS−2012−0031−63832, # 1038 CMS−2012−0031−63834, # 1039 CMS−2012−0031−63834, # 1040 CMS−2012−0031−63835, # 1041 CMS−2012−0031−63836, # 1042 CMS−2012−0031−63837, # 1043 CMS−2012−0031−63838, # 1044 CMS−2012−0031−63839, # 1045 CMS−2012−0031−63840, # 1046 CMS−2012−0031−63841, # 1047 CMS−2012−0031−63842, # 1048 CMS−2012−0031−63843, # 1049 CMS−2012−0031−63844, # 1050 CMS−2012−0031−63845, # 1051 CMS−2012−0031−63846, # 1052 CMS−2012−0031−63847, # 1053 CMS−2012−0031−63848, # 1054 CMS−2012−0031−63849, # 1055 CMS−2012−0031−63850, # 1056 CMS−2012−0031−63851, # 1057 CMS−2012−0031−63852, # 1058 CMS−2012−0031−63853, # 1059 CMS−2012−0031−63854, # 1060 CMS−2012−0031−63855, # 1061 CMS−2012−0031−63856, # 1062 CMS−2012−0031−63857, # 1063 CMS−2012−0031−63858, # 1064 CMS−2012−0031−63859, # 1065 CMS−2012−0031−63860, # 1066 CMS−2012−0031−63861) (nd, ). (Additional attachment(s) added on 12/13/2017: # 1067 CMS−2012−0031−63862, # 1068, # 1070 CMS−2012−0031−63864, # 1071 CMS−2012−0031−63865, # 1072 CMS−2012−0031−63866, # 1073 CMS−2012−0031−63867, # 1074 CMS−2012−0031−63868, # 1075 CMS−2012−0031−63869, # 1076 CMS−2012−0031−63870, # 1077 CMS−2012−0031−63871, # 1078 CMS−2012−0031−63872, # 1079 CMS−2012−0031−63873, # 1080 CMS−2012−0031−63874, # 1081 CMS−2012−0031−63875, # 1082 CMS−2012−0031−63876, # 1083 CMS−2012−0031−63877, # 1084

Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 33 of 60
CMS−2012−0031−63878, # 1085 CMS−2012−0031−63879, # 1086 CMS−2012−0031−63880, # 1087 CMS−2012−0031−63881, # 1088 CMS−2012−0031−63882, # 1089 CMS−2012−0031−63883, # 1090 CMS−2012−0031−63884, # 1091 CMS−2012−0031−63885, # 1092 CMS−2012−0031−63886, # 1093 CMS−2012−0031−63887, # 1094 CMS−2012−0031−63888, # 1095 CMS−2012−0031−63889, # 1096 CMS−2012−0031−63890, # 1097 CMS−2012−0031−63891, # 1098 CMS−2012−0031−63892, # 1099 CMS−2012−0031−6389, # 1100 CMS−2012−0031−63894, # 1101 CMS−2012−0031−63895, # 1102 CMS−2012−0031−63896, # 1103 CMS−2012−0031−63897, # 1104 CMS−2012−0031−63898, # 1105 CMS−2012−0031−63899, # 1106 CMS−2012−0031−63900, # 1107 CMS−2012−0031−63901, # 1108 CMS−2012−0031−63902, # 1109 CMS−2012−0031−63903, # 1110 CMS−2012−0031−63904, # 1111 CMS−2012−0031−639005, # 1112 CMS−2012−0031−63906, # 1113 CMS−2012−0031−63907, # 1114 CMS−2012−0031−63908, # 1115 CMS−2012−0031−63909, # 1116 CMS−2012−0031−63910, # 1117 CMS−2012−0031−63911, # 1118 CMS−2012−0031−63912, # 1119 CMS−2012−0031−63913, # 1120 CMS−2012−0031−63914, # 1121 CMS−2012−0031−63915, # 1122 CMS−2012−0031−63916, # 1123 CMS−2012−0031−63917, # 1124 CMS−2012−0031−63918, # 1125 CMS−2012−0031−63919, # 1126 CMS−2012−0031−63920, # 1127 CMS−2012−0031−63921, # 1128 CMS−2012−0031−63922, # 1129 CMS−2012−0031−63923, # 1130 CMS−2012−0031−63924, # 1131 CMS−2012−0031−63925, # 1132 CMS−2012−0031−63926, # 1133 CMS−2012−0031−63927, # 1134 CMS−2012−0031−63928, # 1135 CMS−2012−0031−63929, # 1136 CMS−2012−0031−63930) (nd, ). (Additional attachment(s) added on 12/13/2017: # 1137 CMS−2012−0031−63931, # 1138 CMS−2012−0031−63932, # 1139 CMS−2012−0031−63933, # 1140 CMS−2012−0031−63934, # 1141 CMS−2012−0031−63935, # 1142 CMS−2012−0031−63936, # 1143 CMS−2012−0031−63937, # 1144 CMS−2012−0031−63938, # 1145 CMS−2012−0031−63939, # 1146 CMS−2012−0031−63940, # 1147 CMS−2012−0031−63941, # 1148 CMS−2012−0031−63942, # 1149 CMS−2012−0031−63943, # 1150 CMS−2012−0031−63944, # 1151 CMS−2012−0031−63945, # 1152 CMS−2012−0031−63946, # 1153 CMS−2012−0031−63947, # 1154 CMS−2012−0031−63948, # 1155 CMS−2012−0031−63949, # 1156 CMS−2012−0031−63950) (nd, ). (Additional attachment(s) added on 12/13/2017: # 1157 CMS−2012−0031−63951, # 1158 CMS−2012−0031−63952, # 1159 CMS−2012−0031−63953, # 1160 CMS−2012−0031−63954, # 1161 CMS−2012−0031−63955, # 1162 CMS−2012−0031−63956, # 1163 CMS−2012−0031−63957, # 1164 CMS−2012−0031−63958, # 1165 CMS−2012−0031−63959, # 1166 CMS−2012−0031−63960, # 1167 CMS−2012−0031−63961, # 1168 CMS−2012−0031−63962, # 1169 CMS−2012−0031−63963, # 1170 CMS−2012−0031−63964, # 1171 CMS−2012−0031−63965, # 1172 CMS−2012−0031−63966, # 1173 CMS−2012−0031−63967, # 1174 CMS−2012−0031−63968, # 1175 CMS−2012−0031−63969, # 1176 CMS−2012−0031−63970, # 1177 CMS−2012−0031−63971, # 1178 CMS−2012−0031−63972, # 1179 CMS−2012−0031−63973, # 1180 CMS−2012−0031−63974, # 1181 CMS−2012−0031−63975, # 1182 CMS−2012−0031−63976, # 1183 CMS−2012−0031−63977, # 1184 CMS−2012−0031−8, # 1185 CMS−2012−0031−63979, # 1186 CMS−2012−0031−63980, # 1187 CMS−2012−0031−63981, # 1188 CMS−2012−0031−63982, # 1189 CMS−2012−0031−63983, # 1190 CMS−2012−0031−63983, # 1191 CMS−2012−0031−63984, # 1192 CMS−2012−0031−63985, # 1193 CMS−2012−0031−63986, # 1194 CMS−2012−0031−63987, # 1195 CMS−2012−0031−63988, # 1196 CMS−2012−0031−63989, # 1197 CMS−2012−0031−63990, # 1198 CMS−2012−0031−63991, # 1199 CMS−2012−0031−63992, # 1200 CMS−2012−0031−63993, # 1201 CMS−2012−0031−63994, # 1202 CMS−2012−0031−63995, # 1203 CMS−2012−0031−63996, # 1204 CMS−2012−0031−63997, # 1205 CMS−2012−0031−63998, # 1206 CMS−2012−0031−63999) (nd, ). (Additional attachment(s) added on 12/13/2017: # 1207 CMS−2012−0031−64549−A1, # 1208 \CMS−2012−0031−64950−A1, # 1209

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11/22/2017 11/22/2017 11/27/2017 11/27/2017
11/27/2017

\CMS−2012−0031−65414−A1, # 1210 CMS−2012−0031−65733−A1) (nd, ). (Additional attachment(s) added on 12/13/2017: # 1211 CMS−2012−0031−65768−A1, # 1212 \CMS−2012−0031−65792−A1, # 1213 CMS−2012−0031−65861−A1, # 1214 CMS−2012−0031−66015−A1, # 1215 CMS−2012−0031−66015−A2, # 1216 CMS−2012−0031−66117−A1, # 1217 CMS−2012−0031−66118−A1, # 1218 CMS−2012−0031−66119−A1, # 1219 CMS−2012−0031−66168−A1, # 1220 CMS−2012−0031−66205−A1) (nd, ). (Additional attachment(s) added on 12/13/2017: # 1221 CMS−2012−0031−66211−A1, # 1222 CMS−2012−0031−66644−A1, # 1223 CMS−2012−0031−67194−A1, # 1224 CMS−2012−0031−68356−A1, # 1225 CMS−2012−0031−68667−A1, # 1226 CMS−2012−0031−68742−A1, # 1227 CMS−2012−0031−68978−A1) (nd, ). (Additional attachment(s) added on 12/13/2017: # 1228 CMS−2012−0031−69156−A1, # 1229 CMS−2012−0031−69919−A1) (nd, ). (Additional attachment(s) added on 12/13/2017: # 1230 CMS−2012−0031−71928−A1, # 1231 CMS−2012−0031−71958−A1) (nd, ). (Additional attachment(s) added on 12/13/2017: # 1232 CMS−2012−0031−71990−A1, # 1233 CMS−2012−0031−72412−A1, # 1234 CMS−2012−0031−72600−A1, # 1235 \CMS−2012−0031−73317−A1, # 1236 CMS−2012−0031−73635−A1) (nd, ). (Additional attachment(s) added on 12/13/2017: # 1237 CMS−2012−0031−73981−A1, # 1238 CMS−2012−0031−74003−A1) (nd, ). (Entered: 11/22/2017)
24 ORDER THAT THE APPLICATION OF LORI H. WINDHAM, ESQ. TO PRACTICE IN THIS COURT PURSUANT TO LRCP 83.5.2(B) IS GRANTED. SIGNED BY HONORABLE WENDY BEETLESTONE ON 11/22/17. 11/22/17 ENTERED AND COPIES MAILED, E−MAILED.(fdc) (Entered: 11/22/2017)
25 ORDER THAT THE APPLICATION OF MARK L. RIENZI, ESQ. TO PRACTICE IN THIS COURT PURSUANT TO LRCP 83.5.2(B) IS GRANTED. SIGNED BY HONORABLE WENDY BEETLESTONE ON 11/22/17. 11/22/17 ENTERED AND COPIES MAILED, E−MAILED.(fdc) (Entered: 11/22/2017)
26 MOTION to File Amicus Brief filed by AMERICAN CENTER FOR LAW AND JUSTICE.Brief. (Attachments: # 1 Brief of Amicus Curiae American Center for Law & Justice in Support of Defendants' Opposition to Plaintiff's Motion for a Preliminary Injunction, # 2 Text of Proposed Order, # 3 Disclosure Statement Form)(MANION, FRANCIS) (Entered: 11/27/2017)
27 MOTION to File Amicus Brief filed by GIRLS INC., IF/WHEN/HOW: LAWYERING FOR REPRODUCTIVE JUSTICE, SERVICE EMPLOYEES INTERNATIONAL UNION, THE AMERICAN ASSOCIATION OF UNIVERSITY WOMEN, THE AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES (AFL−CIO), THE AMERICAN FEDERATION OF TEACHERS, THE COLORADO WOMENS BAR ASSOCIATION, THE NATIONAL ASSOCIATION OF SOCIAL WORKERS, THE NATIONAL ASSOCIATION OF WOMEN LAWYERS, THE WOMENS BAR ASSOCIATION OF MASSACHUSETTS, CALIFORNIA WOMEN LAWYERS, LAWYERS CLUB OF SAN DIEGO, THE WOMEN LAWYERS ASSOCIATION OF LOS ANGELES,THE WOMEN'S BAR ASSOCIATION OF THE DISTRICT OF COLUMBIA .Brief, Certificate of Service. (Attachments: # 1 Brief, # 2 Exhibit A: Amicus Brief, # 3 Text of Proposed Order, # 4 Certificate of Service)(LEVITT, JAMIE) Modified on 11/28/2017 (nd, ). (Entered: 11/27/2017)
28 NOTICE of Appearance by JANIE F. SCHULMAN on behalf of GIRLS INC., IF/WHEN/HOW: LAWYERING FOR REPRODUCTIVE JUSTICE, SERVICE EMPLOYEES INTERNATIONAL UNION, THE AMERICAN ASSOCIATION OF UNIVERSITY WOMEN, THE AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES (AFL−CIO), THE AMERICAN FEDERATION OF TEACHERS, THE COLORADO WOMENS BAR ASSOCIATION, THE NATIONAL ASSOCIATION OF SOCIAL WORKERS, THE NATIONAL ASSOCIATION OF WOMEN LAWYERS, THE WOMENS BAR ASSOCIATION OF MASSACHUSETTS, CALIFORNIA WOMEN LAWYERS, LAWYERS CLUB OF SAN DIEGO, THE WOMEN LAWYERS ASSOCIATION OF LOS ANGELES,THE WOMEN'S BAR ASSOCIATION OF THE DISTRICT OF COLUMBIA with Certificate of Service(SCHULMAN, JANIE) Modified on 11/28/2017 (nd, ). (Entered: 11/27/2017)

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11/27/2017
11/27/2017 11/28/2017 11/28/2017 11/28/2017 11/28/2017 11/28/2017
11/28/2017
11/30/2017 12/06/2017

29 NOTICE of Appearance by RHIANNON N. BATCHELDER on behalf of GIRLS INC., IF/WHEN/HOW: LAWYERING FOR REPRODUCTIVE JUSTICE, SERVICE EMPLOYEES INTERNATIONAL UNION, THE AMERICAN ASSOCIATION OF UNIVERSITY WOMEN, THE AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES (AFL−CIO), THE AMERICAN FEDERATION OF TEACHERS, THE COLORADO WOMENS BAR ASSOCIATION, THE NATIONAL ASSOCIATION OF SOCIAL WORKERS, THE NATIONAL ASSOCIATION OF WOMEN LAWYERS, THE WOMENS BAR ASSOCIATION OF MASSACHUSETTSM, CALIFORNIA WOMEN LAWYERS, LAWYERS CLUB OF SAN DIEGO, THE WOMEN LAWYERS ASSOCIATION OF LOS ANGELES,THE WOMEN'S BAR ASSOCIATION OF THE DISTRICT OF COLUMBIA with Certificate of Service(BATCHELDER, RHIANNON) Modified on 11/28/2017 (nd, ). (Entered: 11/27/2017)
30 REPLY to Response to Motion re 9 MOTION for Preliminary Injunction filed by COMMONWEALTH OF PENNSYLVANIA. (FISCHER, MICHAEL) (Entered: 11/27/2017)
31 NOTICE of Appearance by JONATHAN B. MILLER on behalf of COMMONWEALTH OF MASSACHUSETTS (MILLER, JONATHAN) (Entered: 11/28/2017)
32 MOTION to File Amicus Brief on behalf of Amici States Massachusetts, California, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Minnesota, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington filed by COMMONWEALTH OF MASSACHUSETTS.Brief. (Attachments: # 1 Brief, # 2 Text of Proposed Order)(MILLER, JONATHAN) (Entered: 11/28/2017)
33 ORDER THAT THE MOTIONS FOR LEAVE TO FILE AMICUS BRIEFS [ECF NOS. 26, 27, AND 32] ARE GRANTED. SIGNED BY HONORABLE WENDY BEETLESTONE ON 11/28/17.11/28/17 ENTERED AND COPIES MAILED, E−MAILED.(fdc) (Entered: 11/28/2017)
34 Brief of Amicus Curiae, AMERICAN CENTER FOR LAW AND JUSTICE, in Support of Defendants' Opposition to Plaintiff's Motion for a Preliminary Injunction. (fdc) (Entered: 11/28/2017)
35 Brief of Amicus Curiae filed by CALIFORNIA WOMEN LAWYERS, GIRLS INC., IF/WHEN/HOW: LAWYERING FOR REPRODUCTIVE JUSTICE, LAWYERS CLUB OF SAN DIEGO, SERVICE EMPLOYEES INTERNATIONAL UNION, THE AMERICAN ASSOCIATION OF UNIVERSITY WOMEN, THE AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES (AFL−CIO), THE AMERICAN FEDERATION OF TEACHERS, THE COLORADO WOMENS BAR ASSOCIATION, THE NATIONAL ASSOCIATION OF SOCIAL WORKERS, THE NATIONAL ASSOCIATION OF WOMEN LAWYERS, THE WOMEN LAWYERS ASSOCIATION OF LOS ANGELES, THE WOMEN'S BAR ASSOCIATION OF THE DISTRICT OF COLUMBIA, THE WOMENS BAR ASSOCIATION OF MASSACHUSETTS in Support of Plaintiff's Motion 9 for a Preliminary Injunction. (fdc) (Entered: 11/28/2017)
36 Amicus Curiae Brief of COMMONWEALTH OF MASSACHUSETTS, COMMONWEALTH OF VIRGINIA, DISTRICT OF COLUMBIA, STATE OF CALIFORNIA, STATE OF CONNECTICUT, STATE OF DELAWARE, STATE OF HAWAII, STATE OF ILLINOIS, STATE OF IOWA, STATE OF MAINE, STATE OF MARYLAND, STATE OF MINNESOTA, STATE OF NEW MEXICO, STATE OF NEW YORK, STATE OF NORTH CAROLINA, STATE OF OREGON, STATE OF RHODE ISLAND, STATE OF VERMONT, STATE OF WASHINGTON in Support of 9 Motion for Preliminary Injunction, Certificate of Service. (fdc) (Entered: 11/28/2017)
37 RESPONSE in Opposition re 16 MOTION to Dismiss filed by COMMONWEALTH OF PENNSYLVANIA. (Attachments: # 1 Text of Proposed Order)(FISCHER, MICHAEL) (Entered: 11/30/2017)
38 RESPONSE in Opposition re 19 MOTION to Intervene by Little Sisters of the Poor filed by COMMONWEALTH OF PENNSYLVANIA. (Attachments: # 1 Exhibit Press

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12/07/2017 12/07/2017 12/08/2017 12/08/2017 12/08/2017 12/11/2017 12/11/2017 12/11/2017 12/11/2017
12/11/2017 12/12/2017

Release from Little Sisters' Counsel Becket Fund for Religious Liberty, # 2 Text of Proposed Order)(GOLDMAN, JONATHAN) (Entered: 12/06/2017)
39 REPLY to Response to Motion re 16 MOTION to Dismiss filed by RENE ALEXANDER ACOSTA, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, DONALD J. WRIGHT. (KADE, ELIZABETH) (Entered: 12/07/2017)
40 REPLY to Response to Motion re 19 MOTION to Intervene filed by LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME. (RIENZI, MARK) (Entered: 12/07/2017)
41 MEMORANDUM AND OPINION. SIGNED BY HONORABLE WENDY BEETLESTONE ON 12/8/17. 12/8/17 ENTERED & E−MAILED.(fdc) (VACATED PURSUANT TO JUDGE BEETLESTONE'S ORDER OF 5/10/18 77 ) Modified 5/10/18 (fdc). (Entered: 12/08/2017)
42 MEMORANDUM AND ORDER THAT THE LITTLE SISTERS' MOTION TO INTERVENE IS DENIED. SIGNED BY HONORABLE WENDY BEETLESTONE ON 12/8/17. 12/8/17 ENTERED & E−MAILED.(fdc) (VACATED PURSUANT TO JUDGE BEETLESTONE'S ORDER OF 5/10/18 77 ) Modified 5/10/18 (fdc). (Entered: 12/08/2017)
43 NOTICE OF APPEAL as to 42 Order (Memorandum and/or Opinion) by LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME. Filing fee $ 505, receipt number 0313−12506386. Copies to Judge, Clerk USCA, Appeals Clerk and (RIENZI, MARK) (Entered: 12/08/2017)
44 NOTICE of Appearance by JUSTIN MICHAEL SANDBERG on behalf of RENE ALEXANDER ACOSTA, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, DONALD J. WRIGHT (SANDBERG, JUSTIN) (Entered: 12/11/2017)
45 NOTICE of Appearance by ETHAN PRICE DAVIS on behalf of RENE ALEXANDER ACOSTA, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, DONALD J. WRIGHT (DAVIS, ETHAN) (Entered: 12/11/2017)
46 NOTICE of Appearance by REBECCA M. KOPPLIN on behalf of RENE ALEXANDER ACOSTA, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, DONALD J. WRIGHT with Certificate of Service(KOPPLIN, REBECCA) (Entered: 12/11/2017)
47 Praecipe to file Additional Attachments to Administrative Record ECF 23 by RENE ALEXANDER ACOSTA, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, DONALD J. WRIGHT. (Attachments: # 1 Certification, # 2 Index)(KADE, ELIZABETH) Modified on 12/12/2017 (lvj, ). Modified on 12/14/2017 (nd, ). (Entered: 12/11/2017)
48 MOTION in Limine TO LIMIT EVIDENCE AT PI HEARING filed by RENE ALEXANDER ACOSTA, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, DONALD J. WRIGHT.Brief. (Attachments: # 1 Text of Proposed Order)(KADE, ELIZABETH) (Entered: 12/11/2017)
49 NOTICE of Appearance by CHRISTOPHER HEALY on behalf of RENE ALEXANDER ACOSTA, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE

Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 37 of 60

12/13/2017 12/13/2017
12/13/2017 12/13/2017 12/13/2017
12/13/2017 12/13/2017 12/14/2017 12/15/2017 12/15/2017 12/15/2017

TREASURY, DONALD J. WRIGHT (HEALY, CHRISTOPHER) (Entered: 12/12/2017)
50 RESPONSE in Opposition re 48 MOTION in Limine TO LIMIT EVIDENCE AT PI HEARING filed by COMMONWEALTH OF PENNSYLVANIA. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(FISCHER, MICHAEL) (Entered: 12/13/2017)
51 NOTICE of Appearance by JOEL L. MCELVAIN on behalf of RENE ALEXANDER ACOSTA, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, DONALD J. WRIGHT (MCELVAIN, JOEL) (Entered: 12/13/2017)
52 NOTICE of Appearance by LAUREN E. SULCOVE on behalf of COMMONWEALTH OF PENNSYLVANIA (SULCOVE, LAUREN) (Entered: 12/13/2017)
53 NOTICE of Appearance by NIKOLE BROCK on behalf of COMMONWEALTH OF PENNSYLVANIA (BROCK, NIKOLE) (Entered: 12/13/2017)
54 RESPONSE in Support re 48 MOTION in Limine TO LIMIT EVIDENCE AT PI HEARING filed by DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, DONALD J. WRIGHT. (HEALY, CHRISTOPHER) (Entered: 12/13/2017)
55 Minute Entry for proceedings held before HONORABLE WENDY BEETLESTONE. A Conference Call was held on 12/12/17. (fdc) (Entered: 12/13/2017)
56 ORDER THAT DEFENDANT'S 48 MOTION IN LIMINE IS DENIED. SIGNED BY HONORABLE WENDY BEETLESTONE ON 12/13/17.12/13/17 ENTERED & E−MAILED.(fdc) (Entered: 12/13/2017)
57 NOTICE of Docketing Record on Appeal from USCA re 43 Notice of Appeal (Credit Card Payment) filed by LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME. USCA Case Number 17−3679 (dmc, ) (Entered: 12/14/2017)
58 Minute Entry for proceedings held before HONORABLE WENDY BEETLESTONE. Preliminary Injunction Hearing held on 12/14/17. Court Reporter: S. White. (fdc) (Entered: 12/15/2017)
59 MEMORANDUM AND OPINION. SIGNED BY HONORABLE WENDY BEETLESTONE ON 12/15/17. 12/15/17 ENTERED & E−MAILED.(fdc) (Entered: 12/15/2017)
60 MEMORANDUM AND ORDER THAT THE COMMONWEALTH OF PENNSYLVANIA'S MOTION FOR A PRELIMINARY INJUNCTION 9 IS GRANTED. IT IS FURTHER ORDERED THAT DEFENDANTS ERIC D. HARGAN, AS ACTING SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (SUBSTITUTED PURSUANT TO RULE 25(D) OF THE FRCP); THE U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES; STEVEN T. MNUCHIN, AS SECRETARY OF THE U.S. DEPARTMENT OF TREASURY; THE U.S. DEPARTMENT OF TREASURY, RENE ALEXANDER ACOSTA, AS SECRETARY OF THE U.S. DEPARTMENT OF LABOR; AND THE U.S. DEPARTMENT OF LABOR; AND THEIR OFFICERS, AGENTS, SERVANTS, EMPLOYEES, ATTORNEYS, DESIGNEES, AND SUBORDINATES, AS WELL AS ANY PERSON ACTING IN CONCERT OR PARTICIPATION WITH THEM, ARE HEREBY ENJOINED FROM ENFORCING THE FOLLOWING INTERIM FINAL RULES PENDING FURTHER ORDER OF THIS COURT: 1. RELIGIOUS EXEMPTIONS AND ACCOMODATIONS FOR COVERAGE OF CERTAIN PREVENTIVE SERVICES UNDER THE AFFORDABLE CARE ACT DESCRIBED AT 82 FED. REG. 47792; AND 2. MORAL EXEMPTIONS AND ACCOMODATIONS FOR COVERAGE OF CERTAIN PREVENTIVE SERVICES UNDER THE AFFORDABLE CARE ACT DESCRIBED AT 82 FED. REG. 47838. THE COURT HAS CONSIDERED THE ISSUE OF SECURITY PURSUANT TO RULE 65(C) OF THE FRCP AND DETERMINES THAT DEFENDANTS WILL NOT SUFFER ANY FINANCIAL

Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 38 of 60

12/15/2017
12/21/2017 01/04/2018 01/09/2018 01/11/2018 01/22/2018 02/05/2018 02/06/2018
02/06/2018
02/06/2018 02/07/2018

LOSS THAT WARRANTS THE NEED FOR THE PLAINTIFF TO POST SECURITY. AFTER CONSIDERING THE FACTS AND CIRCUMSTANCES OF THIS CASE, THE COURT FINDS THAT SECURITY IS UNNECESSARY AND EXERCISES ITS DISCRETION NOT TO REQUIRE THE POSTING OF SECURITY IN THIS SITUATION. SIGNED BY HONORABLE WENDY BEETLESTONE ON 12/15/17. 12/15/17 ENTERED & E−MAILED.(fdc) (Entered: 12/15/2017)
61 NOTICE OF APPEAL as to 60 Order (Memorandum and/or Opinion), 59 Memorandum and/or Opinion by LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME. Filing fee $ 505, receipt number 0313−12521339. Copies to Judge, Clerk USCA, and Appeals Clerk. Certificate of Service. (RIENZI, MARK) Modified on 12/15/2017 (tjd). (Entered: 12/15/2017)
62 NOTICE of Docketing Record on Appeal from USCA re 61 Notice of Appeal (Credit Card Payment), filed by LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME. USCA Case Number 17−3752 (dmc, ) (Entered: 12/21/2017)
63 NOTICE by LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME [TRANSCRIPT ORDER FORM]. (FILED IN ERROR; ATTORNEY MUST RE−FILE ORIGINAL HARD COPY WITH CLERK'S OFFICE). (RIENZI, MARK) Modified on 1/9/2018 (fb). (Entered: 01/04/2018)
64 NOTICE OF CONFERENCE: PRETRIAL CONFERENCE SET FOR 2/15/2018 04:30 PM IN JUDGE'S CHAMBERS 3809 BEFORE HONORABLE WENDY BEETLESTONE. (Attachments: # 1 Electronic Discovery Order, # 2 Joint Report of Rule 26(f) Meeting and Proposed Discovery Plan)(amw, ) (Entered: 01/09/2018)
65 Copy of TPO Form re 61 Notice of Appeal (Credit Card Payment), : (fdc, ) (Entered: 01/11/2018)
66 NOTICE of Withdrawal of Appearance by ELIZABETH L. KADE on behalf of All Defendants (KADE, ELIZABETH) (Entered: 01/22/2018)
67 NOTICE by LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME of Transcript Order for 12/14/2017 proceedings (RIENZI, MARK) (Entered: 02/05/2018)
68 NOTICE OF APPEAL as to 60 Order (Memorandum and/or Opinion),,,,,, 59 Memorandum and/or Opinion by RENE ALEXANDER ACOSTA, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, DONALD J. WRIGHT. Filing fee $ 505. Copies to Judge, Clerk USCA, Appeals Clerk and (SANDBERG, JUSTIN) (Entered: 02/06/2018)
69 TRANSCRIPT of Preliminary Injunction Hearing held on 12/14/17, before Judge Beetlestone. Court Reporter/Transcriber Suzanne R. White, RPR, FCRR, CM. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 2/27/2018. Redacted Transcript Deadline set for 3/9/2018. Release of Transcript Restriction set for 5/7/2018. (fdc) (Entered: 02/07/2018)
70 Notice of Filing of Official Transcript with Certificate of Service re 69 Transcript − PDF,, 2/7/18 Entered and Copies Emailed and Mailed. (fdc) (Entered: 02/07/2018)
71 NOTICE − AT THE REQUEST OF COUNSEL FOR BOTH PARTIES IN CORRESPONDENCE DATED FEBRUARY 7, 2018 AND UPON REPRESENTATION THAT DEFENDANTS INTEND TO FILE SHORTLY A MOTION TO STAY DISTRICT COURT PROCEEDINGS IN THIS CASE, PENDING RESOLUTION OF THEIR APPEAL OF THE PRELIMINARY INJUNCTION IN THE THIRD CIRCUIT COURT OF APPEALS, THE RULE 16 CONFERENCE ON FEBRUARY 15, 2018 IS HEREBY CANCELLED AND THE JOINT RULE 26 (F) REPORT DEADLINE IS VACATED.(amw, ) (Entered: 02/07/2018)

Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 39 of 60

02/08/2018 02/09/2018
02/15/2018 03/12/2018

72 MOTION to Stay filed by RENE ALEXANDER ACOSTA, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, DONALD J. WRIGHT.Brief. (Attachments: # 1 Text of Proposed Order)(SANDBERG, JUSTIN) (Entered: 02/08/2018)
73 ORDER THAT DEFENDANTS' 72 MOTION TO STAY IS GRANTED. THIS CIVIL ACTION SHALL BE MARKED STAYED PENDING DEFENDANT'S APPEAL OF THIS COURT'S ORDER ON PENNSYLVANIA'S MOTION FOR PRELIMINARY INJUNCTION (ECF NO. 59 & 60) TO THE THIRD CIRCUIT COURT OF APPEALS. IT IS FURTHER ORDERED THAT THE CLERK OF COURT SHALL MARK THIS ACTION CLOSED FOR STATISTICAL PURPOSES AND PLACE THE MATTER IN THE CIVIL SUSPENSE FILE. SIGNED BY HONORABLE WENDY BEETLESTONE ON 2/8/18.2/9/18 ENTERED & E−MAILED.(fdc) (Entered: 02/09/2018)
74 NOTICE of Docketing Record on Appeal from USCA re 68 Notice of Appeal, filed by DONALD J. TRUMP, RENE ALEXANDER ACOSTA, UNITED STATES DEPARTMENT OF LABOR, STEVEN T. MNUCHIN, DONALD J. WRIGHT, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. USCA Case Number 18−1253 (dmc, ) (Entered: 02/15/2018)
75 Request to File Supplemented Administrative Record by RENE ALEXANDER ACOSTA, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, DONALD J. WRIGHT. (Attachments: # 1 Exhibit, # 2 Exhibit)(SANDBERG, JUSTIN) (Additional attachment(s) added on 3/28/2018: # 3 Rulemaking Notices and Guidance., # 4 attachment, # 5 attachment, # 6 attachment, # 7 attachment, # 8 attachment, # 9 attachment, # 10 attachment, # 11 attachment, # 12 attachment, # 13 attachment, # 14 attachment) (nd, ). (Additional attachment(s) added on 3/28/2018: # 15 attachment, # 16 attachment) (nd, ). (Additional attachment(s) added on 3/28/2018: # 17 attachment) (nd, ). (Additional attachment(s) added on 3/28/2018: # 18 attachment, # 19 attachment) (nd, ). (Additional attachment(s) added on 3/28/2018: # 20 attachment, # 21 attachment) (nd, ). (Additional attachment(s) added on 3/28/2018: # 22 attachment, # 23 attachment, # 24 attachment, # 25 attachment, # 26 attachment, # 27 attachment, # 28 attachment, # 29 attachment, # 30 attachment, # 31 attachment, # 32 attachment, # 33 attachment, # 34 attachment, # 35 attachment) (nd, ). (Additional attachment(s) added on 3/28/2018: # 36 attachment, # 37 attachment, # 38 attachment, # 39 attachment, # 40 attachment, # 41 attachment, # 42 attachment, # 43 attachment, # 44 attachment) (nd, ). (Additional attachment(s) added on 3/28/2018: # 45 attachment, # 46 attachment, # 47 attachment, # 48 attachment, # 49 attachment, # 50 attachment, # 51 attachment, # 52 attachment, # 53 attachment, # 54 attachment, # 55 attachment, # 56 attachment, # 57 attachment, # 58 attachment, # 59 attachment, # 60 attachment, # 61 attachment, # 62 attachment, # 63 attachment, # 64 attachment, # 65 attachment, # 66 attachment, # 67 attachment) (nd, ). (Additional attachment(s) added on 3/28/2018: # 68 attachment, # 69 attachment, # 70 attachment, # 71 attachment, # 72 attachment, # 73 attachment, # 74 attachment, # 75 attachment, # 76 attachment, # 77 attachment) (nd, ). (Additional attachment(s) added on 3/28/2018: # 78 attachment, # 79 attachment, # 80 attachment, # 81 attachment, # 82 attachment, # 83 attachment, # 84 attachment, # 85 attachment, # 86 attachment, # 87 attachment, # 88 attachment, # 89 attachment, # 90 attachment, # 91 attachment, # 92 attachment, # 93 attachment, # 94 attachment, # 95 attachment, # 96 attachment, # 97 attachment, # 98 attachment, # 99 attachment, # 100 attachment, # 101 attachment, # 102 attachment, # 103 attachment, # 104 attachment, # 105 attachment, # 106 attachment, # 107 attachment, # 108 attachment) (nd, ). (Additional attachment(s) added on 3/28/2018: # 109 attachment, # 110 attachment, # 111 attachment, # 112 attachment, # 113 attachment, # 114 attachment, # 115 attachment, # 116 attachment, # 117 attachment, # 118 attachment, # 119 attachment, # 120 attachment, # 121 attachment, # 122 attachment) (nd, ). (Additional attachment(s) added on 3/28/2018: # 123 attachment, # 124 attachment, # 125 attachment, # 126 attachment, # 127 attachment, # 128 attachment, # 129 attachment, # 130 attachment, # 131 attachment, # 132 attachment, # 133 attachment, # 134 attachment, # 135

Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 40 of 60
attachment, # 136 attachment) (nd, ). (Additional attachment(s) added on 3/28/2018: # 137 attachment, # 138 attachment, # 139 attachment, # 140 attachment, # 141 attachment, # 142 attachment, # 143 attachment, # 144 attachment, # 145 attachment, # 146 attachment, # 147 attachment, # 148 attachment, # 149 attachment, # 150 attachment, # 151 attachment, # 152 attachment, # 153 attachment, # 154 attachment, # 155 attachment, # 156 attachment, # 157 attachment, # 158 attachment, # 159 attachment, # 160 attachment, # 161 attachment, # 162 attachment, # 163 attachment) (nd, ). (Additional attachment(s) added on 3/28/2018: # 164 attachment, # 165 attachment, # 166 attachment, # 167 attachment, # 168 attachment, # 169 attachment, # 170 attachment, # 171 attachment, # 172 attachment, # 173 attachment, # 174 attachment, # 175 attachment, # 176 attachment, # 177 attachment, # 178 attachment, # 179 attachment, # 180 attachment, # 181 attachment, # 182 attachment, # 183 attachment, # 184 attachment, # 185 attachment, # 186 attachment) (nd, ). (Additional attachment(s) added on 3/28/2018: # 187 attachment, # 188 attachment, # 189 attachment, # 190 attachment, # 191 attachment, # 192 attachment, # 193 attachment, # 194 attachment, # 195 attachment, # 196 attachment, # 197 attachment, # 198 attachment, # 199 attachment, # 200 attachment, # 201 attachment, # 202 attachment, # 203 attachment, # 204 attachment, # 205 attachment, # 206 attachment, # 207 attachment, # 208 attachment, # 209 attachment, # 210 attachment, # 211 attachment, # 212 attachment, # 213 attachment, # 214 attachment, # 215 attachment) (nd, ). (Additional attachment(s) added on 3/28/2018: # 216 attachment, # 217 attachment, # 218 attachment, # 219 attachment, # 220 attachment, # 221 attachment, # 222 attachment, # 223 attachment, # 224 attachment, # 225 attachment, # 226 attachment, # 227 attachment) (nd, ). (Additional attachment(s) added on 3/28/2018: # 228 attachment, # 229 attachment, # 230 attachment, # 231 attachment, # 232 attachment, # 233 attachment, # 234 attachment, # 235 attachment, # 236 attachment, # 237 attachment, # 238 attachment, # 239 attachment, # 240 attachment, # 241 attachment, # 242 attachment, # 243 attachment, # 244 attachment, # 245 attachment, # 246 attachment, # 247 attachment, # 248 attachment, # 249 attachment, # 250 attachment, # 251 attachment) (nd, ). (Additional attachment(s) added on 3/28/2018: # 252 attachment, # 253 attachment, # 254 attachment, # 255 attachment, # 256 attachment) (nd, ). (Additional attachment(s) added on 3/28/2018: # 257 attachment, # 258 attachment, # 259 attachment, # 260 attachment, # 261 attachment, # 262 attachment, # 263 attachment, # 264 attachment, # 265 attachment, # 266 attachment, # 267 attachment, # 268 attachment, # 269 attachment, # 270 attachment, # 271 attachment, # 272 attachment, # 273 attachment, # 274 attachment, # 275 attachment, # 276 attachment, # 277 attachment, # 278 attachment, # 279 attachment, # 280 attachment, # 281 attachment, # 282 attachment, # 283 attachment, # 284 attachment, # 285 attachment, # 286 attachment, # 287 attachment, # 288 attachment, # 289 attachment, # 290 attachment) (nd, ). (Additional attachment(s) added on 3/28/2018: # 291 attachment, # 292 attachment, # 293 attachment, # 294 attachment, # 295 attachment, # 296 attachment, # 297 attachment, # 298 attachment) (nd, ). (Additional attachment(s) added on 3/28/2018: # 299 attachment, # 300 attachment, # 301 attachment, # 302 attachment, # 303 attachment, # 304 attachment, # 305 attachment, # 306 attachment, # 307 attachment, # 308 attachment, # 309 attachment, # 310 attachment, # 311 attachment, # 312 attachment, # 313 attachment) (nd, ). (Additional attachment(s) added on 3/28/2018: # 314 attachment, # 315 attachment, # 316 attachment) (nd, ). (Additional attachment(s) added on 3/29/2018: # 317 attachment, # 318 attachment, # 319 attachment, # 320 attachment, # 321 attachment, # 322 attachment, # 323 attachment, # 324 attachment, # 325 attachment, # 326 attachment, # 327 attachment, # 328 attachment) (nd, ). (Additional attachment(s) added on 3/29/2018: # 329 attachment, # 330 attachment, # 331 attachment, # 332 attachment, # 333 attachment, # 334 attachment, # 335 attachment, # 336 attachment, # 337 attachment, # 338 attachment, # 339 attachment, # 340 attachment, # 341 attachment, # 342 attachment, # 343 attachment, # 344 attachment, # 345 attachment, # 346 attachment, # 347 attachment, # 348 attachment, # 349 attachment, # 350 attachment) (nd, ). (Additional attachment(s) added on 3/29/2018: # 351 attachment, # 352 attachment, # 353 attachment, # 354 attachment, # 355 attachment, # 356 attachment, # 357 attachment, # 358 attachment) (nd, ). (Additional attachment(s) added on 4/5/2018: # 359 attachment, # 360 attachment, # 361 attachment, # 362 attachment, # 363 attachment, # 364 attachment, # 365 attachment, # 366 attachment, # 367 attachment, # 368 attachment, # 369 attachment, # 370 attachment, # 371 attachment, # 372 attachment, # 373 attachment, # 374 attachment, # 375 attachment, # 376 attachment, # 377 attachment, # 378 attachment, # 379 attachment, # 380 attachment,

Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 41 of 60
# 381 attachment, # 382 attachment) (nd, ). (Additional attachment(s) added on 4/5/2018: # 383 attachment, # 384 attachment, # 385 attachment, # 386 attachment, # 387 attachment, # 388 attachment, # 389 attachment, # 390 attachment, # 391 attachment, # 392 attachment, # 393 attachment, # 394 attachment, # 395 attachment, # 396 attachment, # 397 attachment, # 398 attachment, # 399 attachment, # 400 attachment, # 401 attachment, # 402 attachment) (nd, ). (Additional attachment(s) added on 4/6/2018: # 403 attachment, # 404 attachment, # 405 attachment, # 406 attachment, # 407 attachment, # 408 attachment, # 409 attachment, # 410 attachment, # 411 attachment, # 412 attachment, # 413 attachment, # 414 attachment, # 415 attachment, # 416 attachment, # 417 attachment, # 418 attachment, # 419 attachment, # 420 attachment, # 421 attachment, # 422 attachment, # 423 attachment, # 424 attachment, # 425 attachment, # 426 attachment, # 427 attachment, # 428 attachment, # 429 attachment, # 430 attachment, # 431 attachment, # 432 attachment, # 433 attachment, # 434 attachment, # 435 attachment, # 436 attachment, # 437 attachment, # 438 attachment, # 439 attachment, # 440 attachment, # 441 attachment, # 442 attachment, # 443 attachment, # 444 attachment, # 445 attachment, # 446 attachment, # 447 attachment, # 448 attachment, # 449 attachment, # 450 attachment, # 451 attachment) (nd, ). (Additional attachment(s) added on 4/6/2018: # 452 attachment, # 453 attachment, # 454 attachment, # 455 attachment, # 456 attachment, # 457 attachment, # 458 attachment, # 459 attachment, # 460 attachment, # 461 attachment, # 462 attachment, # 463 attachment, # 464 attachment, # 465 attachment, # 466 attachment, # 467 attachment, # 468 attachment, # 469 attachment, # 470 attachment, # 471 attachment, # 472 attachment, # 473 attachment, # 474 attachment, # 475 attachment, # 476 attachment, # 477 attachment, # 478 attachment, # 479 attachment, # 480 attachment, # 481 attachment, # 482 attachment, # 483 attachment, # 484 attachment, # 485 attachment, # 486 attachment, # 487 attachment, # 488 attachment, # 489 attachment, # 490 attachment, # 491 attachment, # 492 attachment, # 493 attachment, # 494 attachment, # 495 attachment, # 496 attachment, # 497 attachment, # 498 attachment, # 499 attachment, # 500 attachment) (nd, ). (Additional attachment(s) added on 4/6/2018: # 501 attachment, # 502 attachment, # 503 attachment, # 504 attachment, # 505 attachment, # 506 attachment, # 507 attachment, # 508 attachment, # 509 attachment, # 510 attachment, # 511 attachment, # 512 attachment, # 513 attachment, # 514 attachment, # 515 attachment, # 516 attachment, # 517 attachment, # 518 attachment, # 519 attachment, # 520 attachment, # 521 attachment, # 522 attachment, # 523 attachment, # 524 attachment, # 525 attachment, # 526 attachment, # 527 attachment, # 528 attachment, # 529 attachment, # 530 attachment, # 531 attachment, # 532 attachment, # 533 attachment, # 534 attachment, # 535 attachment, # 536 attachment, # 537 attachment, # 538 attachment, # 539 attachment, # 540 attachment, # 541 attachment, # 542 attachment, # 543 attachment, # 544 attachment, # 545 attachment, # 546 attachment, # 547 attachment, # 548 attachment, # 549 attachment, # 550 attachment) (nd, ). (Additional attachment(s) added on 4/6/2018: # 551 attachment, # 552 attachment, # 553 attachment, # 554 attachment, # 555 attachment, # 556 attachment, # 557 attachment, # 558 attachment, # 559 attachment, # 560 attachment, # 561 attachment, # 562 attachment, # 563 attachment, # 564 attachment, # 565 attachment, # 566 attachment, # 567 attachment, # 568 attachment, # 569 attachment, # 570 attachment, # 571 attachment, # 572 attachment, # 573 attachment, # 574 attachment, # 575 attachment) (nd, ). (Additional attachment(s) added on 4/6/2018: # 576 attachment, # 577 attachment, # 578 attachment, # 579 attachment, # 580 attachment, # 581 attachment, # 582 attachment, # 583 attachment, # 584 attachment, # 585 attachment, # 586 attachment, # 587 attachment, # 588 attachment, # 589 attachment, # 590 attachment, # 591 attachment, # 592 attachment, # 593 attachment, # 594 attachment, # 595 attachment, # 596 attachment, # 597 attachment, # 598 attachment, # 599 attachment, # 600 attachment) (nd, ). (Additional attachment(s) added on 4/9/2018: # 601 attachment, # 602 attachment, # 603 attachment, # 604 attachment, # 605 attachment, # 606 attachment, # 607 attachment, # 608 attachment, # 609 attachment, # 610 attachment, # 611 attachment, # 612 attachment, # 613 attachment, # 614 attachment, # 615 attachment, # 616 attachment, # 617 attachment, # 618 attachment, # 619 attachment, # 620 attachment, # 621 attachment, # 622 attachment, # 623 attachment, # 624 attachment, # 625 attachment, # 626 attachment, # 627 attachment, # 628 attachment, # 629 attachment, # 630 attachment, # 631 attachment, # 632 attachment, # 633 attachment, # 634 attachment, # 635 attachment, # 636 attachment, # 637 attachment, # 638 attachment, # 639 attachment, # 640 attachment, # 641 attachment, # 642 attachment, # 643 attachment, # 644 attachment, # 645 attachment, # 646 attachment, # 647

Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 42 of 60
attachment, # 648 attachment, # 649 attachment, # 650 attachment) (nd, ). (Additional attachment(s) added on 4/9/2018: # 651 attachment, # 652 attachment, # 653 attachment, # 654 attachment, # 655 attachment, # 656 attachment, # 657 attachment, # 658 attachment, # 659 attachment, # 660 attachment, # 661 attachment, # 662 attachment, # 663 attachment, # 664 attachment, # 665 attachment, # 666 attachment, # 667 attachment, # 668 attachment, # 669 attachment, # 670 attachment, # 671 attachment, # 672 attachment, # 673 attachment, # 674 attachment, # 675 attachment, # 676 attachment, # 677 attachment, # 678 attachment, # 679 attachment, # 680 attachment, # 681 attachment, # 682 attachment, # 683 attachment, # 684 attachment, # 685 attachment, # 686 attachment, # 687 attachment, # 688 attachment, # 689 attachment, # 690 attachment, # 691 attachment, # 692 attachment, # 693 attachment, # 694 attachment, # 695 attachment, # 696 attachment, # 697 attachment, # 698 attachment, # 699 attachment, # 700 attachment, # 701 attachment, # 702 attachment, # 703 attachment, # 704 attachment, # 705 attachment, # 706 attachment, # 707 attachment, # 708 attachment, # 709 attachment, # 710 attachment, # 711 attachment, # 712 attachment, # 713 attachment, # 714 attachment, # 715 attachment, # 716 attachment, # 717 attachment, # 718 attachment, # 719 attachment, # 720 attachment) (nd, ). (Additional attachment(s) added on 4/9/2018: # 721 attachment, # 722 attachment, # 723 attachment, # 724 attachment, # 725 attachment, # 726 attachment, # 727 attachment, # 728 attachment, # 729 attachment, # 730 attachment, # 731 attachment, # 732 attachment, # 733 attachment, # 734 attachment, # 735 attachment, # 736 attachment, # 737 attachment, # 738 attachment, # 739 attachment, # 740 attachment, # 741 attachment, # 742 attachment, # 743 attachment, # 744 attachment, # 745 attachment, # 746 attachment, # 747 attachment, # 748 attachment, # 749 attachment, # 750 attachment, # 751 attachment, # 752 attachment, # 753 attachment, # 754 attachment, # 755 attachment, # 756 attachment, # 757 attachment, # 758 attachment, # 759 attachment, # 760 attachment, # 761 attachment, # 762 attachment, # 763 attachment, # 764 attachment, # 765 attachment, # 766 attachment, # 767 attachment, # 768 attachment, # 769 attachment, # 770 attachment, # 771 attachment, # 772 attachment, # 773 attachment, # 774 attachment, # 775 attachment, # 776 attachment, # 777 attachment, # 778 attachment, # 779 attachment, # 780 attachment, # 781 attachment, # 782 attachment, # 783 attachment, # 784 attachment, # 785 attachment, # 786 attachment, # 787 attachment, # 788 attachment, # 789 attachment, # 790 attachment, # 791 attachment, # 792 attachment, # 793 attachment, # 794 attachment, # 795 attachment, # 796 attachment, # 797 attachment, # 798 attachment, # 799 attachment) (nd, ). (Additional attachment(s) added on 4/9/2018: # 800 attachment, # 801 attachment, # 802 attachment, # 803 attachment, # 804 attachment, # 805 attachment, # 806 attachment, # 807 attachment, # 808 attachment, # 809 attachment, # 810 attachment, # 811 attachment, # 812 attachment, # 813 attachment, # 814 attachment, # 815 attachment, # 816 attachment, # 817 attachment, # 818 attachment, # 819 attachment, # 820 attachment, # 821 attachment, # 822 attachment, # 823 attachment, # 824 attachment, # 825 attachment, # 826 attachment, # 827 attachment, # 828 attachment, # 829 attachment, # 830 attachment, # 831 attachment, # 832 attachment, # 833 attachment, # 834 attachment, # 835 attachment, # 836 attachment, # 837 attachment, # 838 attachment, # 839 attachment, # 840 attachment, # 841 attachment, # 842 attachment, # 843 attachment, # 844 attachment, # 845 attachment, # 846 attachment, # 847 attachment, # 848 attachment, # 849 attachment, # 850 attachment, # 851 attachment, # 852 attachment, # 853 attachment, # 854 attachment, # 855 attachment, # 856 attachment, # 857 attachment, # 858 attachment, # 859 attachment, # 860 attachment, # 861 attachment, # 862 attachment, # 863 attachment, # 864 attachment, # 865 attachment, # 866 attachment, # 867 attachment, # 868 attachment, # 869 attachment, # 870 attachment, # 871 attachment, # 872 attachment, # 873 attachment, # 874 attachment) (nd, ). (Additional attachment(s) added on 4/9/2018: # 875 attachment, # 876 attachment, # 877 attachment, # 878 attachment, # 879 attachment, # 880 attachment, # 881 attachment, # 882 attachment, # 883 attachment, # 884 attachment, # 885 attachment, # 886 attachment, # 887 attachment, # 888 attachment, # 889 attachment, # 890 attachment, # 891 attachment, # 892 attachment, # 893 attachment) (nd, ). (Additional attachment(s) added on 4/9/2018: # 894 attachment, # 895 attachment, # 896 attachment, # 897 attachment, # 898 attachment, # 899 attachment, # 900 attachment, # 901 attachment, # 902 attachment, # 903 attachment, # 904 attachment, # 905 attachment, # 906 attachment, # 907 attachment, # 908 attachment, # 909 attachment, # 910 attachment, # 911 attachment, # 912 attachment) (nd, ). (Additional attachment(s) added on 4/9/2018: # 913 attachment, # 914 attachment, # 915 attachment, # 916 attachment, # 917

Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 43 of 60
attachment, # 918 attachment, # 919 attachment, # 920 attachment, # 921 attachment, # 922 attachment, # 923 attachment, # 924 attachment, # 925 attachment, # 926 attachment, # 927 attachment, # 928 attachment, # 929 attachment, # 930 attachment, # 931 attachment, # 932 attachment, # 933 attachment, # 934 attachment, # 935 attachment, # 936 attachment, # 937 attachment, # 938 attachment, # 939 attachment, # 940 attachment, # 941 attachment, # 942 attachment, # 943 attachment, # 944 attachment, # 945 attachment, # 946 attachment, # 947 attachment, # 948 attachment, # 949 attachment, # 950 attachment, # 951 attachment, # 952 attachment, # 953 attachment, # 954 attachment, # 955 attachment, # 956 attachment, # 957 attachment, # 958 attachment, # 959 attachment, # 960 attachment, # 961 attachment, # 962 attachment, # 963 attachment) (nd, ). (Additional attachment(s) added on 4/9/2018: # 964 attachment, # 965 attachment, # 966 attachment, # 967 attachment, # 968 attachment, # 969 attachment, # 970 attachment, # 971 attachment, # 972 attachment, # 973 attachment, # 974 attachment, # 975 attachment, # 976 attachment, # 977 attachment, # 978 attachment, # 979 attachment, # 980 attachment, # 981 attachment, # 982 attachment, # 983 attachment, # 984 attachment, # 985 attachment, # 986 attachment, # 987 attachment, # 988 attachment, # 989 attachment, # 990 attachment, # 991 attachment, # 992 attachment, # 993 attachment, # 994 attachment, # 995 attachment, # 996 attachment, # 997 attachment, # 998 attachment, # 999 attachment, # 1000 attachment, # 1001 attachment, # 1002 attachment, # 1003 attachment, # 1004 attachment, # 1005 attachment, # 1006 attachment, # 1007 attachment, # 1008 attachment, # 1009 attachment, # 1010 attachment, # 1011 attachment, # 1012 attachment, # 1013 attachment, # 1014 attachment, # 1015 attachment, # 1016 attachment, # 1017 attachment, # 1018 attachment, # 1019 attachment, # 1020 attachment) (nd, ). (Additional attachment(s) added on 4/9/2018: # 1021 attachment, # 1022 attachment, # 1023 attachment, # 1024 attachment, # 1025 attachment, # 1026 attachment, # 1027 attachment, # 1028 attachment, # 1029 attachment, # 1030 attachment, # 1031 attachment, # 1032 attachment, # 1033 attachment, # 1034 attachment, # 1035 attachment, # 1036 attachment, # 1037 attachment, # 1038 attachment, # 1039 attachment, # 1040 attachment, # 1041 attachment, # 1042 attachment, # 1043 attachment, # 1044 attachment, # 1045 attachment, # 1046 attachment, # 1047 attachment, # 1048 attachment, # 1049 attachment, # 1050 attachment, # 1051 attachment, # 1052 attachment, # 1053 attachment, # 1054 attachment, # 1055 attachment) (nd, ). (Additional attachment(s) added on 4/9/2018: # 1056 attachment, # 1057 attachment, # 1066 attachment, # 1067 attachment, # 1068 attachment, # 1069 attachment, # 1070 attachment, # 1071 attachment, # 1072 attachment, # 1073 attachment, # 1074 attachment, # 1075 attachment, # 1076 attachment, # 1077 attachment, # 1078 attachment, # 1079 attachment, # 1080 attachment, # 1081 attachment, # 1082 attachment, # 1083 attachment, # 1084 attachment, # 1085 attachment, # 1086 attachment, # 1087 attachment, # 1088 attachment, # 1089 attachment, # 1090 attachment) (nd, ). (Additional attachment(s) added on 4/9/2018: # 1091 attachment, # 1092 attachment, # 1093 attachment, # 1094 attachment, # 1095 attachment, # 1096 attachment, # 1097 attachment, # 1098 attachment, # 1099 attachment, # 1100 attachment, # 1101 attachment, # 1102 attachment, # 1103 attachment, # 1104 attachment, # 1105 attachment, # 1106 attachment, # 1107 attachment) (nd, ). (Additional attachment(s) added on 4/9/2018: # 1108 attachment, # 1109 attachment, # 1110 attachment, # 1111 attachment, # 1112 attachment, # 1113 attachment, # 1114 attachment, # 1115 attachment, # 1116 attachment, # 1117 attachment, # 1118 attachment, # 1119 attachment, # 1120 attachment, # 1121 attachment, # 1122 attachment, # 1123 attachment, # 1124 attachment, # 1125 attachment, # 1126 attachment) (nd, ). (Additional attachment(s) added on 4/30/2018: # 1127 attachment, # 1128, # 1129, # 1130 attachment, # 1131 attachment, # 1132 attachment, # 1133 attachment, # 1134 attachment, # 1135 attachment, # 1136 attachment, # 1137 attachment, # 1138 attachment, # 1139 attachment, # 1140 attachment, # 1141 attachment, # 1142 attachment, # 1143 attachment, # 1144 attachment, # 1145 attachment, # 1146 attachment, # 1147 attachment, # 1148 attachment, # 1149 attachment, # 1150 attachment, # 1151 attachment, # 1152 attachment, # 1153 attachment, # 1154 attachment, # 1155 attachment, # 1156 attachment, # 1157 attachment, # 1158 attachment, # 1159 attachment, # 1160 attachment, # 1161 attachment, # 1162 attachment, # 1163 attachment, # 1164 attachment, # 1165 attachment, # 1166 attachment, # 1167 attachment, # 1168 attachment, # 1169, # 1170, # 1171, # 1172, # 1173, # 1174, # 1175, # 1176, # 1177, # 1178, # 1179) (nd, ). (Additional attachment(s) added on 4/30/2018: # 1180, # 1181, # 1182, # 1183, # 1184, # 1185, # 1186, # 1187, # 1188, #

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04/24/2018 05/10/2018 07/02/2018 07/11/2018 11/26/2018 11/26/2018 12/07/2018
12/07/2018 12/10/2018 12/10/2018 12/12/2018 12/14/2018 12/14/2018
12/14/2018

1189, # 1190, # 1191, # 1192, # 1193, # 1194, # 1195, # 1196, # 1197, # 1198, # 1199, # 1200, # 1201, # 1202, # 1203, # 1204, # 1205, # 1206, # 1207, # 1208, # 1209, # 1210, # 1211, # 1212, # 1213) (nd, ). (Entered: 03/12/2018)
76 MANDATE of USCA as to 43 Notice of Appeal (Credit Card Payment) filed by LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME. RE: ORDERED THAT THE ORDER OF THE DISTRICT COURT IS HEREBY REVERSED AND REMANDED. (fdc) (Entered: 04/24/2018)
77 ORDER THAT THIS COURT'S MEMORANDUM AND ORDER (ECF NOS. 41 42 ) ARE VACATED, AND THE LITTLE SISTERS' MOTION TO INTERVENE (ECF NO. 19 ) IS GRANTED. SIGNED BY HONORABLE WENDY BEETLESTONE ON 5/9/18. 5/10/18 ENTERED & E−MAILED.(fdc) (Entered: 05/10/2018)
78 NOTICE of Withdrawal of Appearance by JOEL L. MCELVAIN on behalf of All Defendants (MCELVAIN, JOEL) (Entered: 07/02/2018)
79 NOTICE of Withdrawal of Appearance by ETHAN PRICE DAVIS on behalf of All Defendants (Attachments: # 1 Certificate of Service)(DAVIS, ETHAN) (Entered: 07/11/2018)
80 NOTICE of Appearance by AIMEE D. THOMSON on behalf of COMMONWEALTH OF PENNSYLVANIA (THOMSON, AIMEE) (Entered: 11/26/2018)
81 MOTION Lift Stay of Proceedings filed by COMMONWEALTH OF PENNSYLVANIA.Certificate of Service. (Attachments: # 1 Text of Proposed Order)(THOMSON, AIMEE) (Entered: 11/26/2018)
82 RESPONSE to Motion re 81 MOTION Lift Stay of Proceedings filed by RENE ALEXANDER ACOSTA, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, DONALD J. WRIGHT. (SANDBERG, JUSTIN) (Entered: 12/07/2018)
83 NOTICE OF STATUS CONFERENCE: STATUS CONFERENCE SET FOR 12/13/2018 03:30 PM IN COURTROOM 3B BEFORE THE HONORABLE WENDY BEETLESTONE.(amw, ) (Entered: 12/07/2018)
84 MOTION Appear by Telephone filed by LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME.Motion. (Attachments: # 1 Text of Proposed Order)(RIENZI, MARK) (Entered: 12/10/2018)
85 RESPONSE in Opposition re 81 MOTION Lift Stay of Proceedings filed by LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME. (Attachments: # 1 Exhibit Order, # 2 Exhibit Motion)(RIENZI, MARK) (Entered: 12/10/2018)
86 PAPERLESS ORDER DENYING 84 MOTION TO APPEAR BY TELEPHONE BY HONORABLE WENDY BEETLESTONE ON 12/12/2018.12/12/2018 ENTERED AND COPIES E−MAILED.(amw, ) (Entered: 12/12/2018)
87 MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE WENDY BEETLESTONE ON 12/14/18. 12/14/18 ENTERED AND COPIES E−MAILED.(mbh, ) (Entered: 12/14/2018)
88 ORDER THAT PLAINTIFF'S MOTION TO LIFE STAY OF DISTRICT COURT PROCEEDINGS IS GRANTED AND THE CLERK SHALL TRANFER THIS CASE TO THE COURT'S ACTIVE DOCKET. IT IS FURTHER ORDERED THAT PLAINTIFF SHALL SUPPLEMENT OR AMEND ITS COMPLAINT AND FILE A MOTION FOR PRELIMINARY INJUNCTION NO LATER THAN 12/17/18. A HEARING ON PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION SHALL COMMENCE ON JANUARY 10, 2019 at 9:00 AM. SIGNED BY HONORABLE WENDY BEETLESTONE ON 12/14/18. 12/14/18 ENTERED AND COPIES E−MAILED.(mbh, ) . (Entered: 12/14/2018)
89 AMENDED COMPLAINT for Declaratory and Injunctive Relief against RENE ALEXANDER ACOSTA, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED

Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 45 of 60

12/14/2018 12/14/2018 12/17/2018
12/17/2018 12/18/2018 12/18/2018 12/19/2018 12/20/2018 12/26/2018
12/26/2018 12/27/2018 12/27/2018 12/27/2018

STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, DONALD J. WRIGHT, ALEX M. AZAR, II, UNITED STATES OF AMERICA, filed by COMMONWEALTH OF PENNSYLVANIA, STATE OF NEW JERSEY. (Attachments: # 1 Ex.A, # 2 Ex.B)(fdc) (Entered: 12/17/2018)
Three Summons Issued as to ALEX M. AZAR, II, UNITED STATES OF AMERICA, U.S. Attorney's Office. Forwarded To: Michael J. Fischer, PA Atty. General, U.S. Attorney's Office on 12/17/18. (fdc) (Entered: 12/17/2018)
MOTION HEARING SET FOR 1/10/2019 09:00 AM IN COURTROOM BEFORE HONORABLE WENDY BEETLESTONE. (mbh, ) (Entered: 12/18/2018)
90 Second MOTION for Preliminary Injunction filed by COMMONWEALTH OF PENNSYLVANIA, STATE OF NEW JERSEY.. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Index, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L, # 15 Exhibit M, # 16 Exhibit N, # 17 Exhibit O, # 18 Exhibit P, # 19 Exhibit Q, # 20 Exhibit R, # 21 Exhibit S, # 22 Exhibit T, # 23 Exhibit U, # 24 Exhibit V, # 25 Exhibit W, # 26 Exhibit X)(FISCHER, MICHAEL) (Entered: 12/17/2018)
91 MOTION for Leave to File Excess Pages filed by COMMONWEALTH OF PENNSYLVANIA, STATE OF NEW JERSEY.Memorandum. (Attachments: # 1 Text of Proposed Order, # 2 Memorandum)(FISCHER, MICHAEL) (Entered: 12/17/2018)
92 APPLICATION for Admission Pro Hac Vice of Elspeth L.F. Hans by STATE OF NEW JERSEY. ( Filing fee $ 40 receipt number 0313−13234262.). (Attachments: # 1 Affidavit, # 2 Certificate of Service, # 3 Text of Proposed Order)(KREFETZ, MARC) (Entered: 12/18/2018)
93 PAPERLESS ORDER GRANTING 91 MOTION FOR LEAVE TO FILE EXCESS PAGES BY HONORABLE WENDY BEETLESTONE ON 12/18/2018.12/18/2018 ENTERED AND COPIES E−MAILED.(amw, ) (Entered: 12/18/2018)
94 Minute Entry for proceedings held before HONORABLE WENDY BEETLESTONEin Courtroom 3B. A Status Conference was held on 12/13/18. Court Reporter: Suzanne White/ESR. (fdc) (Entered: 12/19/2018)
95 ORDER THAT ATTORNEY ELSPETH L.F. HANS APPLICATION FOR PRO HAC VICE FOR STATE OF NEW JERSEY IS GRANTED. SIGNED BY HONORABLE WENDY BEETLESTONE ON 12/20/2018. 12/21/2018 ENTERED AND COPIES MAILED AND E−MAILED. ECF APP MAILED.(sg, ) (Entered: 12/21/2018)
96 MOTION to Stay , MOTION for Extension of Time to File Answer filed by RENE ALEXANDER ACOSTA, ALEX M. AZAR, II, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES OF AMERICA, DONALD J. WRIGHT.Certificate of Service.(SANDBERG, JUSTIN) (Entered: 12/26/2018)
97 MOTION for Extension of Time to File Answer filed by LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME.Brief. (Attachments: # 1 Brief, # 2 Text of Proposed Order)(RIENZI, MARK) (Entered: 12/26/2018)
98 APPLICATION for Admission Pro Hac Vice of Glenn J Moramarco by STATE OF NEW JERSEY. ( Filing fee $ 40 receipt number 0313−13250752.). (KREFETZ, MARC) (Entered: 12/27/2018)
99 RESPONSE in Opposition re 96 MOTION to Stay MOTION for Extension of Time to File Answer filed by COMMONWEALTH OF PENNSYLVANIA, STATE OF NEW JERSEY. (FISCHER, MICHAEL) (Entered: 12/27/2018)
103 ORDER THAT DEFTS' MOTION FOR STAY OF PROCEEDINGS OR IN THE ALTERNATIVE FOR EXTENSION OF THE ANSWER DEADLINE (ECF #96) IS GRANTED IN PART & DENIED IN PART. DEFTS' MOTION FOR EXTENSION OF THE ANSWER DEADLINE IS GRANTED. IT IS ORDERED THAT DEFTS HAVE UNTIL 2/28/2019 TO ANSWER OR OTHERWISE RESPOND TO THE COMPLAINT. DEFTS' MOTION TO STAY IS DENIED. IT IS FURTHER

Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 46 of 60

12/28/2018
12/28/2018 12/28/2018 12/31/2018 01/02/2019 01/03/2019 01/03/2019
01/03/2019 01/04/2019 01/07/2019
01/07/2019

ORDERED THAT INTERVENOR−DEFT'S MOTION TO EXTEND TIME TO RESPOND TO AMENDED COMPLAINT (ECF #97) IS GRANTED. INTERVENOR−DEFT HAS UNTIL 2/28/2019 TO ANSWER OR OTHERWISE RESPOND TO THE COMPLAINT, ETC. SIGNED BY HONORABLE WENDY BEETLESTONE ON 12/27/18. 12/28/18 ENTERED AND COPIES E−MAILED.(kw, ) (Entered: 12/28/2018)
100 REPLY to Response to Motion re 96 MOTION to Stay MOTION for Extension of Time to File Answer filed by RENE ALEXANDER ACOSTA, ALEX M. AZAR, II, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES OF AMERICA, DONALD J. WRIGHT. (SANDBERG, JUSTIN) (Entered: 12/28/2018)
101 CERTIFICATE of Counsel certifying motion as unopposed by MARK L. RIENZI on behalf of LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME(RIENZI, MARK) (Entered: 12/28/2018)
102 CERTIFICATE of Counsel re 97 MOTION for Extension of Time to File Answer certifying motion as unopposed by MARK L. RIENZI on behalf of LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME(RIENZI, MARK) (FILED IN ERROR BY ATTY; DUPLICATE ENTRY) Modified on 1/2/2019 (md). (Entered: 12/28/2018)
104 MOTION for Leave to File Excess Pages filed by LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME.. (Attachments: # 1 Text of Proposed Order)(RIENZI, MARK) (Entered: 12/31/2018)
105 PAPERLESS ORDER GRANTING 104 MOTION FOR LEAVE TO FILE EXCESS PAGES BY HONORABLE WENDY BEETLESTONE ON 01/02/2018.01/02/2018 ENTERED AND COPIES E−MAILED.(amw, ) (Entered: 01/02/2019)
106 Acceptance of Service by U.S. Attorney Re: accepted summons and complaint on behalf of the United States Attorney (only). (fdc, ) (Entered: 01/03/2019)
107 MOTION for Leave to File Excess Pages filed by RENE ALEXANDER ACOSTA, ALEX M. AZAR, II, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES OF AMERICA, DONALD J. WRIGHT.Certificate of Service. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(SANDBERG, JUSTIN) (Entered: 01/03/2019)
108 RESPONSE in Opposition re 90 Second MOTION for Preliminary Injunction filed by LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(RIENZI, MARK) (Entered: 01/03/2019)
109 PAPERLESS ORDER GRANTING 107 MOTION FOR LEAVE TO FILE EXCESS PAGES BY HONORABLE WENDY BEETLESTONE ON 01/04/2019.01/04/2019 ENTERED AND COPIES MAILED AND E−MAILED.(amw,) (Entered: 01/04/2019)
110 Consent MOTION to File Amicus Brief and to Appear Amici Curiae filed by PHYSICIANS FOR REPRODUCTIVE HEALTH, AMERICAN ACADEMY OF NURSING, AMERICAN ACADEMY OF PEDIATRICS, AMERICAN COLLEGE OF OBSTETRICIANS & GYNECOLOGISTS, AMERICAN NURSES ASSOCIATION, Certificate of Service. (Attachments: # 1 Memorandum in Support of Motion for Leave, # 2 Exhibit A, Brief Amici Curiae, # 3 Text of Proposed Order)(MATHEWSON, LISA) Modified on 1/8/2019 (md). (Entered: 01/07/2019)
111 MOTION for Pro Hac Vice of Leah R. Bruno filed by NATIONAL ASSOCIATION FOR FEMALE EXECUTIVES, U.S. WOMEN'S CHAMBER OF COMMERCE.Certificate of Service. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(FELDMAN, JEFFREY) (Filing Fee Paid) Modified 1/8/19 (fdc). (Entered: 01/07/2019)

Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 47 of 60

01/07/2019 01/07/2019
01/07/2019 01/07/2019 01/07/2019 01/07/2019
01/07/2019 01/07/2019

112 Consent MOTION to File Amicus Brief and to Appear as Amici Curiae filed by NATIONAL ASSOCIATION FOR FEMALE EXECUTIVES, U.S. WOMEN'S CHAMBER OF COMMERCE.Certificate of Service. (Attachments: # 1 Memorandum in Support of Motion for Leave, # 2 Exhibit A to Memorandum (Brief of Amici Curiae), # 3 Text of Proposed Order)(FELDMAN, JEFFREY) (Entered: 01/07/2019)
113 Consent MOTION to File Amicus Brief filed by COMMONWEALTH OF MASSACHUSETTS, COMMONWEALTH OF VIRGINIA, DISTRICT OF COLUMBIA, STATE OF CALIFORNIA, STATE OF CONNECTICUT, STATE OF DELAWARE, STATE OF HAWAII, STATE OF ILLINOIS, STATE OF IOWA, STATE OF MAINE, STATE OF MARYLAND, STATE OF MICHIGAN, STATE OF MINNESOTA, STATE OF NEVADA, STATE OF NEW MEXICO, STATE OF NEW YORK, STATE OF NORTH CAROLINA, STATE OF OREGON, STATE OF RHODE ISLAND, STATE OF VERMONT, STATE OF WASHINGTON.Brief. (Attachments: # 1 Brief Amici Curiae Brief of Massachusetts et al., # 2 Text of Proposed Order)(MILLER, JONATHAN) (Entered: 01/07/2019)
114 Request to Manually File Supplemented Admin. Record by RENE ALEXANDER ACOSTA, ALEX M. AZAR, II, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES OF AMERICA, DONALD J. WRIGHT. (Attachments: # 1 Exhibit, # 2 Exhibit)(SANDBERG, JUSTIN) (Entered: 01/07/2019)
115 MOTION to File Amicus Brief on behalf of Amici Curiae the National Women's Law Center, the National Latina Institute for Reproductive Health, SisterLove, Inc., and the National Asian Pacific American Women's Forum in support of Plaintiffs' Motion for a Preliminary Injunction filed by COMMONWEALTH OF PENNSYLVANIA, STATE OF NEW JERSEY.Brief, Certificate of Service. (Attachments: # 1 Brief, # 2 Text of Proposed Order, # 3 Corporate Disclosure Statement)(KAPLAN, MICHAEL) (Entered: 01/07/2019)
116 NOTICE of Appearance by MICHAEL A. KAPLAN on behalf of THE NATIONAL WOMEN'S LAW CENTER, THE NATIONAL LATINA INSTITUTE FOR REPRODUCTIVE HEALTH, SISTERLOVE, INC., AND THE NATIONAL ASIAN PACIFIC AMERICAN WOMEN'S FORUM with Certificate of Service (Attachments: # 1 Certificate of Service)(KAPLAN, MICHAEL) Modified 2/15/19 (fdc). (Entered: 01/07/2019)
117 Consent MOTION to File Amicus Brief filed by CALIFORNIA WOMEN LAWYERS, GIRLS INC., IF/WHEN/HOW: LAWYERING FOR REPRODUCTIVE JUSTICE, LAWYERS CLUB OF SAN DIEGO, SERVICE EMPLOYEES INTERNATIONAL UNION, THE AMERICAN ASSOCIATION OF UNIVERSITY WOMEN, THE AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES (AFL−CIO), THE AMERICAN FEDERATION OF TEACHERS, THE COLORADO WOMENS BAR ASSOCIATION, THE NATIONAL ASSOCIATION OF SOCIAL WORKERS, THE NATIONAL ASSOCIATION OF WOMEN LAWYERS, THE WOMEN'S BAR ASSOCIATION OF THE DISTRICT OF COLUMBIA, THE WOMENS BAR ASSOCIATION OF MASSACHUSETTS.Memorandum, Proposed Brief, Certificate of Service. (Attachments: # 1 Memorandum, # 2 Brief [Proposed] Brief of Amici Curiae, # 3 Text of Proposed Order)(LEVITT, JAMIE) (Entered: 01/07/2019)
118 MOTION for Leave to File Excess Pages filed by COMMONWEALTH OF PENNSYLVANIA, STATE OF NEW JERSEY.. (Attachments: # 1 Text of Proposed Order, # 2 Memorandum, # 3 Exhibit)(FISCHER, MICHAEL) (Entered: 01/07/2019)
126 Supplemental Administrative Record. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit)(fdc, ) (Additional attachment(s) added on 1/9/2019: # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit, # 24 Exhibit, # 25 Exhibit, # 26 Exhibit, # 27 Exhibit, # 28 Exhibit, # 29 Exhibit, # 30 Exhibit, # 31 Exhibit, # 32 Exhibit, # 33 Exhibit, # 34 Exhibit, # 35 Exhibit, # 36 Exhibit, # 37 Exhibit, # 38 Exhibit, # 39 Exhibit, # 40 Exhibit, # 41 Exhibit, # 42 Exhibit, # 43 Exhibit, # 44 Exhibit, # 45 Exhibit, # 46 Exhibit, # 47 Exhibit, # 48 Exhibit, # 49 Exhibit, # 50 Exhibit, # 51 Exhibit, # 52 Exhibit, # 53 Exhibit, # 54

Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 48 of 60
Exhibit, # 55 Exhibit, # 56 Exhibit, # 57 Exhibit, # 58 Exhibit, # 59 Exhibit, # 60 Exhibit, # 61 Exhibit, # 62 Exhibit, # 63 Exhibit, # 64 Exhibit, # 65 Exhibit, # 66 Exhibit, # 67 Exhibit, # 68 Exhibit, # 69 Exhibit, # 70 Exhibit, # 71 Exhibit, # 72 Exhibit, # 73 Exhibit, # 74 Exhibit, # 75 Exhibit, # 76 Exhibit, # 77 Exhibit, # 78 Exhibit, # 79 Exhibit, # 80 Exhibit, # 81 Exhibit, # 82 Exhibit, # 83 Exhibit, # 84 Exhibit, # 85 Exhibit, # 86 Exhibit, # 87 Exhibit, # 88 Exhibit) (fdc, ). (Additional attachment(s) added on 1/9/2019: # 89 Exhibit, # 90 Exhibit, # 91 Exhibit, # 92 Exhibit) (fdc, ). (Additional attachment(s) added on 1/10/2019: # 93 Exhibit, # 94 Exhibit) (fdc, ). (Additional attachment(s) added on 1/10/2019: # 95 Exhibit, # 96 Exhibit, # 97 Exhibit, # 98 Exhibit, # 99 Exhibit, # 100 Exhibit, # 101 Exhibit, # 102 Exhibit, # 103 Exhibit, # 104 Exhibit) (fdc, ). (Additional attachment(s) added on 1/10/2019: # 105 Exhibit, # 106 Exhibit, # 107 Exhibit, # 108 Exhibit, # 109 Exhibit, # 110 Exhibit, # 111 Exhibit) (fdc, ). (Additional attachment(s) added on 1/10/2019: # 112 Exhibit, # 113 Exhibit, # 114 Exhibit, # 115 Exhibit, # 116 Exhibit, # 117 Exhibit, # 118 Exhibit, # 119 Exhibit, # 120 Exhibit, # 121 Exhibit, # 122 Exhibit, # 123 Exhibit, # 124 Exhibit, # 125 Exhibit, # 126 Exhibit, # 127 Exhibit, # 128 Exhibit, # 129 Exhibit, # 130 Exhibit, # 131 Exhibit, # 132 Exhibit, # 133 Exhibit, # 134 Exhibit, # 135 Exhibit, # 136 Exhibit, # 137 Exhibit, # 138 Exhibit, # 139 Exhibit, # 140 Exhibit, # 141 Exhibit, # 142 Exhibit, # 143 Exhibit, # 144 Exhibit, # 145 Exhibit, # 146 Exhibit, # 147 Exhibit, # 148 Exhibit, # 149 Exhibit, # 150 Exhibit, # 151 Exhibit, # 152 Exhibit, # 153 Exhibit, # 154 Exhibit, # 155 Exhibit, # 156 Exhibit, # 157 Exhibit, # 158 Exhibit, # 159 Exhibit, # 160 Exhibit, # 161 Exhibit, # 162 Exhibit, # 163 Exhibit, # 164 Exhibit, # 165 Exhibit, # 166 Exhibit, # 167 Exhibit, # 168 Exhibit) (fdc, ). (Additional attachment(s) added on 1/15/2019: # 169 Exhibit, # 170 Exhibit, # 171 Exhibit, # 172 Exhibit, # 173 Exhibit, # 174 Exhibit, # 175 Exhibit, # 176 Exhibit, # 177 Exhibit, # 178 Exhibit, # 179 Exhibit, # 180 Exhibit, # 181 Exhibit, # 182 Exhibit, # 183 Exhibit, # 184 Exhibit, # 185 Exhibit, # 186 Exhibit, # 187 Exhibit, # 188 Exhibit, # 189 Exhibit, # 190 Exhibit, # 191 Exhibit, # 192 Exhibit, # 193 Exhibit, # 194 Exhibit, # 195 Exhibit, # 196 Exhibit, # 197 Exhibit, # 198 Exhibit, # 199 Exhibit, # 200 Exhibit, # 201 Exhibit, # 202 Exhibit, # 203 Exhibit, # 204 Exhibit, # 205 Exhibit, # 206 Exhibit, # 207 Exhibit, # 208 Exhibit, # 209 Exhibit, # 210 Exhibit, # 211 Exhibit, # 212 Exhibit, # 213 Exhibit, # 214 Exhibit, # 215 Exhibit, # 216 Exhibit, # 217 Exhibit, # 218 Exhibit, # 219 Exhibit, # 220 Exhibit, # 221 Exhibit, # 222 Exhibit, # 223 Exhibit, # 224 Exhibit, # 225 Exhibit, # 226 Exhibit, # 227 Exhibit) (fdc, ). (Additional attachment(s) added on 1/16/2019: # 228 Exhibit, # 229 Exhibit, # 230 Exhibit, # 231 Exhibit, # 232 Exhibit, # 233 Exhibit, # 234 Exhibit, # 235 Exhibit, # 236 Exhibit, # 237 Exhibit, # 238 Exhibit, # 239 Exhibit, # 240 Exhibit, # 241 Exhibit, # 242 Exhibit, # 243 Exhibit, # 244 Exhibit, # 245 Exhibit, # 246 Exhibit, # 247 Exhibit, # 248 Exhibit, # 249 Exhibit, # 250 Exhibit, # 251 Exhibit, # 252 Exhibit, # 253 Exhibit, # 254 Exhibit, # 255 Exhibit, # 256 Exhibit, # 257 Exhibit, # 258 Exhibit, # 259 Exhibit, # 260 Exhibit, # 261 Exhibit, # 262 Exhibit, # 263 Exhibit, # 264 Exhibit, # 265 Exhibit, # 266 Exhibit, # 267 Exhibit, # 268 Exhibit, # 269 Exhibit, # 270 Exhibit, # 271 Exhibit, # 272 Exhibit, # 273 Exhibit, # 274 Exhibit, # 275 Exhibit, # 276 Exhibit, # 277 Exhibit, # 278 Exhibit, # 279 Exhibit, # 280 Exhibit, # 281 Exhibit, # 282 Exhibit, # 283 Exhibit, # 284 Exhibit, # 285 Exhibit, # 286 Exhibit, # 287 Exhibit) (fdc, ). (Additional attachment(s) added on 1/22/2019: # 288 Exhibit, # 289 Exhibit, # 290 Exhibit, # 291 Exhibit, # 292 Exhibit, # 293 Exhibit, # 294 Exhibit, # 295 Exhibit, # 296 Exhibit, # 297 Exhibit, # 298 Exhibit, # 299 Exhibit, # 300 Exhibit, # 301 Exhibit, # 302 Exhibit, # 303 Exhibit, # 304 Exhibit, # 305 Exhibit, # 306 Exhibit, # 307 Exhibit, # 308 Exhibit, # 309 Exhibit, # 310 Exhibit, # 311 Exhibit, # 312 Exhibit, # 313 Exhibit, # 314 Exhibit, # 315 Exhibit, # 316 Exhibit, # 317 Exhibit, # 318 Exhibit, # 319 Exhibit, # 320 Exhibit, # 321 Exhibit, # 322 Exhibit, # 323 Exhibit, # 324 Exhibit, # 325 Exhibit, # 326 Exhibit, # 327 Exhibit, # 328 Exhibit, # 329 Exhibit, # 330 Exhibit, # 331 Exhibit, # 332 Exhibit, # 333 Exhibit, # 334 Exhibit, # 335 Exhibit, # 336 Exhibit, # 337 Exhibit, # 338 Exhibit, # 339 Exhibit, # 340 Exhibit, # 341 Exhibit, # 342 Exhibit, # 343 Exhibit, # 344 Exhibit, # 345 Exhibit, # 346 Exhibit, # 347 Exhibit, # 348 Exhibit, # 349 Exhibit, # 350 Exhibit, # 351 Exhibit, # 352 Exhibit, # 353 Exhibit, # 354 Exhibit, # 355 Exhibit, # 356 Exhibit, # 357 Exhibit, # 358 Exhibit, # 359 Exhibit, # 360 Exhibit, # 361 Exhibit, # 362 Exhibit, # 363 Exhibit, # 364 Exhibit, # 365 Exhibit, # 366 Exhibit, # 367 Exhibit, # 368 Exhibit, # 369 Exhibit, # 370 Exhibit, # 371 Exhibit, # 372 Exhibit, # 373 Exhibit, # 374 Exhibit, # 375 Exhibit, # 376 Exhibit, # 377 Exhibit, # 378 Exhibit, # 379 Exhibit, # 380 Exhibit, # 381 Exhibit, # 382 Exhibit, # 383 Exhibit, # 384 Exhibit, # 385 Exhibit, # 386 Exhibit, # 387 Exhibit, # 388 Exhibit) (fdc, ). (Additional attachment(s)

Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 49 of 60

01/08/2019
01/08/2019 01/08/2019 01/08/2019

added on 1/29/2019: # 389 Exhibit, # 390 Exhibit, # 391 Exhibit, # 392 Exhibit, # 393 Exhibit, # 394 Exhibit, # 395 Exhibit, # 396 Exhibit, # 397 Exhibit, # 398 Exhibit, # 399 Exhibit, # 400 Exhibit, # 401 Exhibit, # 402 Exhibit, # 403 Exhibit, # 404 Exhibit, # 405 Exhibit) (fdc, ). (Additional attachment(s) added on 2/5/2019: # 406 Exhibit, # 407 Exhibit, # 408 Exhibit, # 409 Exhibit, # 410 Exhibit, # 411 Exhibit, # 412 Exhibit, # 413 Exhibit, # 414 Exhibit, # 415 Exhibit, # 416 Exhibit, # 417 Exhibit, # 418 Exhibit, # 419 Exhibit, # 420 Exhibit, # 421 Exhibit, # 422 Exhibit, # 423 Exhibit, # 424 Exhibit, # 425 Exhibit, # 426 Exhibit, # 427 Exhibit, # 428 Exhibit, # 429 Exhibit, # 430 Exhibit, # 431 Exhibit, # 432 Exhibit, # 433 Exhibit, # 434 Exhibit, # 435 Exhibit, # 436 Exhibit, # 437 Exhibit, # 438 Exhibit, # 439 Exhibit, # 440 Exhibit, # 441 Exhibit, # 442 Exhibit, # 443 Exhibit, # 444 Exhibit, # 445 Exhibit, # 446 Exhibit, # 447 Exhibit, # 448 Exhibit, # 449 Exhibit, # 450 Exhibit, # 451 Exhibit, # 452 Exhibit, # 453 Exhibit, # 454 Exhibit, # 455 Exhibit, # 456 Exhibit, # 457 Exhibit, # 458 Exhibit, # 459 Exhibit, # 460 Exhibit, # 461 Exhibit, # 462 Exhibit, # 463 Exhibit, # 464 Exhibit, # 465 Exhibit, # 466 Exhibit, # 467 Exhibit, # 468 Exhibit, # 469 Exhibit, # 470 Exhibit, # 471 Exhibit, # 472 Exhibit, # 473 Exhibit, # 474 Exhibit, # 475 Exhibit, # 476 Exhibit, # 477 Exhibit, # 478 Exhibit, # 479 Exhibit, # 480 Exhibit, # 481 Exhibit, # 482 Exhibit, # 483 Exhibit, # 484 Exhibit, # 485 Exhibit, # 486 Exhibit, # 487 Exhibit, # 488 Exhibit, # 489 Exhibit, # 490 Exhibit, # 491 Exhibit, # 492 Exhibit, # 493 Exhibit, # 494 Exhibit, # 495 Exhibit, # 496 Exhibit, # 497 Exhibit, # 498 Exhibit, # 499 Exhibit, # 500 Exhibit, # 501 Exhibit, # 502 Exhibit, # 503 Exhibit, # 504 Exhibit, # 505 Exhibit, # 506 Exhibit) (fdc, ). (Additional attachment(s) added on 2/27/2019: # 507 Exhibit, # 508 Exhibit, # 509 Exhibit, # 510 Exhibit, # 511 Exhibit, # 512 Exhibit, # 513 Exhibit, # 514 Exhibit, # 515 Exhibit, # 516 Exhibit, # 517 Exhibit, # 518 Exhibit, # 519 Exhibit, # 520 Exhibit, # 521 Exhibit, # 522 Exhibit, # 523 Exhibit, # 524 Exhibit, # 525 Exhibit, # 526 Exhibit, # 527 Exhibit, # 528 Exhibit, # 529 Exhibit, # 530 Exhibit, # 531 Exhibit, # 532 Exhibit, # 533 Exhibit, # 534 Exhibit, # 535 Exhibit, # 536 Exhibit, # 537 Exhibit, # 538 Exhibit, # 539 Exhibit, # 540 Exhibit, # 541 Exhibit, # 542 Exhibit, # 543 Exhibit, # 544 Exhibit, # 545 Exhibit, # 546 Exhibit, # 547 Exhibit, # 548 Exhibit, # 549 Exhibit, # 550 Exhibit, # 551 Exhibit, # 552 Exhibit, # 553 Exhibit, # 554 Exhibit, # 555 Exhibit, # 556 Exhibit, # 557 Exhibit, # 558 Exhibit) (fdc, ). (Additional attachment(s) added on 4/3/2019: # 559 Exhibit, # 560 Exhibit, # 561 Exhibit, # 562 Exhibit, # 563 Exhibit, # 564 Exhibit, # 565 Exhibit, # 566 Exhibit, # 567 Exhibit, # 568 Exhibit, # 569 Exhibit, # 570 Exhibit, # 571 Exhibit, # 572 Exhibit, # 573 Exhibit, # 574 Exhibit, # 575 Exhibit, # 576 Exhibit, # 577 Exhibit, # 578 Exhibit, # 579 Exhibit, # 580 Exhibit, # 581 Exhibit, # 582 Exhibit, # 583 Exhibit, # 584 Exhibit, # 585 Exhibit, # 586 Exhibit, # 587 Exhibit, # 588 Exhibit, # 589 Exhibit, # 590 Exhibit, # 591 Exhibit, # 592 Exhibit, # 593 Exhibit, # 594 Exhibit, # 595 Exhibit, # 596 Exhibit, # 597 Exhibit, # 598 Exhibit, # 599 Exhibit, # 600 Exhibit, # 601 Exhibit, # 602 Exhibit, # 603 Exhibit, # 604 Exhibit, # 605 Exhibit, # 606 Exhibit, # 607 Exhibit, # 608 Exhibit, # 609 Exhibit, # 610 Exhibit, # 611 Exhibit, # 612 Exhibit, # 613 Exhibit, # 614 Exhibit, # 615 Exhibit) (fdc, ). (Entered: 01/08/2019)
119 ORDER THAT THE CONSENT 117 MOTION FOR LEAVE TO APPEAR AS AMICI CURIAE AND TO FILE A BRIEF AMICI CURIAE IN SUPPORT OF PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION BY AMERICAN NURSES ASSOCIATION, AMERICAN COLLEGE OF OBSTETRICIANS & GYNECOLOGISTS, AMERICAN ACADEMY OF NURSING, AMERICAN ACADEMY OF PEDIATRICS, AND PHYSICIANS FOR REPRODUCTIVE HEALTH IS GRANTED. THE BRIEF AMICI CURIAE ATTACHED AS EXHIBIT A TO THE MEMORANDUM IN SUPPORT OF THE MOTION IS HEREBY ACCEPTED FOR FILING. SIGNED BY HONORABLE WENDY BEETLESTONE ON 1/7/19.1/8/19 ENTERED & E−MAILED.(fdc) (Entered: 01/08/2019)
120 PAPERLESS ORDER GRANTING 110 MOTION TO FILE AMICUS BRIEF BY HONORABLE WENDY BEETLESTONE ON 01/08/2019.01/08/2019 ENTERED AND COPIES E−MAILED.(amw, ) (Entered: 01/08/2019)
121 PAPERLESS ORDER GRANTING 112 MOTION TO FILE AMICUS BRIEF BY HONORABLE WENDY BEETLESTONE ON 01/08/2019.01/08/2019 ENTERED AND COPIES E−MAILED.(amw, ) (Entered: 01/08/2019)
122 PAPERLESS ORDER GRANTING 113 MOTION TO FILE AMICUS BRIEF BY HONORABLE WENDY BEETLESTONE ON 01/08/2019.01/08/2019 ENTERED

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01/08/2019 01/08/2019 01/08/2019 01/09/2019
01/09/2019 01/10/2019 01/10/2019 01/10/2019 01/10/2019 01/14/2019 01/14/2019 01/14/2019

AND COPIES E−MAILED.(amw, ) (Entered: 01/08/2019)
123 PAPERLESS ORDER GRANTING 115 MOTION TO FILE AMICUS BRIEF BY HONORABLE WENDY BEETLESTONE ON 01/08/2019.01/08/2019 ENTERED AND COPIES E−MAILED.(amw, ) (Entered: 01/08/2019)
124 PAPERLESS ORDER granting 118 MOTION FOR LEAVE TO FILE EXCESS PAGES BY HONORABLE WENDY BEETLESTONE ON 01/08/2019.01/08/2019 ENTERED AND COPIES E−MAILED.(amw, ) (Entered: 01/08/2019)
125 ORDER THAT THE APPLICATION OF LEAH R. BRUNO, ESQ. TO PRACTICE IN THIS COURT PURSUANT TO LRCP 83.5.2(b) IS GRANTED. SIGNED BY HONORABLE WENDY BEETLESTONE ON 1/8/19.1/8/19 ENTERED AND COPIES MAILED & E−MAILED. ECF APPLICATION MAILED TO BRUNO. (fdc) (Entered: 01/08/2019)
127 Consent MOTION to File Amicus Brief (Corrected Version of ECF No. 117) filed by CALIFORNIA WOMEN LAWYERS, GIRLS INC., IF/WHEN/HOW: LAWYERING FOR REPRODUCTIVE JUSTICE, LAWYERS CLUB OF SAN DIEGO, SERVICE EMPLOYEES INTERNATIONAL UNION, THE AMERICAN ASSOCIATION OF UNIVERSITY WOMEN, THE AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES (AFL−CIO), THE AMERICAN FEDERATION OF TEACHERS, THE COLORADO WOMENS BAR ASSOCIATION, THE NATIONAL ASSOCIATION OF SOCIAL WORKERS, THE NATIONAL ASSOCIATION OF WOMEN LAWYERS, THE WOMEN'S BAR ASSOCIATION OF THE DISTRICT OF COLUMBIA, THE WOMENS BAR ASSOCIATION OF MASSACHUSETTS.Memorandum, Amicus Brief, Certificate of Service. (Attachments: # 1 Memorandum (Corrected Memorandum in Support of Motion for Leave to Appear as Amici Curiae and to File an Amicus Brief), # 2 Brief (Corrected Brief of Amici Curiae), # 3 Text of Proposed Order)(LEVITT, JAMIE) (Entered: 01/09/2019)
128 PAPERLESS ORDER granting 127 MOTION TO FILE AMICUS BRIEF BY HONORABLE WENDY BEETLESTONE ON 01/09/2019.01/09/2019 ENTERED AND COPIES E−MAILED.(amw, ) (Entered: 01/09/2019)
129 ORDER THAT THE APPLICATION OF GLENN J. MORAMARCO, ESQ. TO PRACTICE IN THIS COURT PURSUANT TO LRCP 83.5.2(B) IS GRANTED. SIGNED BY HONORABLE WENDY BEETLESTONE ON 1/10/19. 1/10/19 ENTERED AND COPIES MAILED AND E−MAILED.(fdc) (Entered: 01/10/2019)
130 Entry of Appearance by GLENN J. MORAMARCO on behalf of STATE OF NEW JERSEY. (fdc) (Entered: 01/10/2019)
131 Minute Entry for proceedings held before HONORABLE WENDY BEETLESTONE. Preliminary Injunction Hearing held on 1/10/19. Court Reporter: K. Feldman/ESR. (fdc) (Entered: 01/10/2019)
132 Consent MOTION to Amend/Correct 108 Response in Opposition to Motion Exhibit A filed by LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME.. (Attachments: # 1 Errata Exhibit A, # 2 Text of Proposed Order)(RIENZI, MARK) (Entered: 01/10/2019)
133 NOTICE by COMMONWEALTH OF PENNSYLVANIA of decision in California, et al. v. HHS, et al. (No. 17−5783) (N.D.Cal.) (Attachments: # 1 Exhibit Memorandum and Order (No. 17−5783) (N.D.Cal. Jan. 13, 2019))(THOMSON, AIMEE) (Entered: 01/14/2019)
134 NOTICE of Withdrawal of Appearance by LAUREN E. SULCOVE on behalf of COMMONWEALTH OF PENNSYLVANIA(SULCOVE, LAUREN) (Entered: 01/14/2019)
135 ORDER THAT PLAINTIFFS' SECOND MOTION FOR A PRELIMINARY INJUNCTION (ECF NO. 90 ) IS GRANTED AS OUTLINED HEREIN. SIGNED BY HONORABLE WENDY BEETLESTONE ON 01/14/2019. 01/14/2019 ENTERED AND COPIES MAILED AND E−MAILED.(nd, ) (Entered: 01/14/2019)

Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 51 of 60

01/14/2019 01/14/2019 01/14/2019 01/22/2019 01/23/2019
01/23/2019 01/24/2019
02/13/2019 02/14/2019
02/14/2019
02/15/2019 02/15/2019

136 MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE WENDY BEETLESTONE ON 01/14/2019. 01/14/2019 ENTERED AND COPIES MAILED AND E−MAILED.(nd, ) (Entered: 01/14/2019)
137 PAPERLESS ORDER GRANTING 132 MOTION TO AMEND/CORRECT BY HONORABLE WENDY BEETLESTONE ON 01/14/2019.01/14/2019 ENTERED AND COPIES E−MAILED.(amw, ) (Entered: 01/14/2019)
138 NOTICE OF APPEAL as to 135 Order (Memorandum and/or Opinion), 136 Memorandum and/or Opinion by LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME. . (No ifp or filing fee paid) Copies to Judge, Clerk USCA, Appeals Clerk (RIENZI, MARK) Modified on 1/16/2019 (lvj, ). (Entered: 01/14/2019)
USCA Appeal Fees received $ 505 receipt number 191199 re 138 Notice of Appeal, filed by LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME (fdc, ) (Entered: 01/22/2019)
139 NOTICE OF APPEAL as to 135 Order (Memorandum and/or Opinion), 136 Memorandum and/or Opinion by RENE ALEXANDER ACOSTA, ALEX M. AZAR, II, STEVEN T. MNUCHIN, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, Copies to Judge, Clerk USCA, Appeals Clerk and (SANDBERG, JUSTIN) Modified on 1/23/2019 (lvj, ). Modified on 1/24/2019 (nd, ). (Entered: 01/23/2019)
140 NOTICE of Docketing Record on Appeal from USCA re 138 Notice of Appeal, filed by LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME. USCA Case Number 19−1129 (dmc, ) (Entered: 01/23/2019)
141 NOTICE of Docketing Record on Appeal from USCA re 139 Notice of Appeal, filed by RENE ALEXANDER ACOSTA, UNITED STATES DEPARTMENT OF LABOR, STEVEN T. MNUCHIN, ALEX M. AZAR, II, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. USCA Case Number 19−1189 (dmc, ) (Entered: 01/24/2019)
142 APPLICATION for Admission Pro Hac Vice of Jeffrey Blumenfeld by NATIONAL WOMEN'S LAW CENTER. (Attachments: # 1 Jeffrey Blumenfeld DC Bar Cert. of Good Standing)(KAPLAN, MICHAEL) (Filing Fee Not Paid/Letter Sent) Modified 2/15/19 (fdc). Modified 2/15/19 (fdc). (FILING FEE PAID) Modified 3/4/19 (fdc). (Entered: 02/13/2019)
143 MOTION to Stay Proceedings filed by RENE ALEXANDER ACOSTA, ALEX M. AZAR, II, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES OF AMERICA, DONALD J. WRIGHT.Memorandum. (Attachments: # 1 Memorandum, # 2 Text of Proposed Order)(SANDBERG, JUSTIN) (Entered: 02/14/2019)
144 MOTION for Extension of Time to File Answer filed by RENE ALEXANDER ACOSTA, ALEX M. AZAR, II, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES OF AMERICA, DONALD J. WRIGHT.Certificate of Service. (Attachments: # 1 Text of Proposed Order)(SANDBERG, JUSTIN) (Entered: 02/14/2019)
145 MOTION for Pro Hac Vice Admission of Eric C. Rassbach ( Filing fee $ 40 receipt number 0313−13355878.) filed by LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME.Certificate of Service.(CENTRELLA, NICHOLAS) (Entered: 02/15/2019)
146 MOTION for Pro Hac Vice Admission of Diana M. Verm ( Filing fee $ 40 receipt number 0313−13355892.) filed by LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME.Certificate of Service.(CENTRELLA, NICHOLAS) (Entered: 02/15/2019)

Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 52 of 60

02/22/2019 02/22/2019 02/22/2019 02/26/2019 02/28/2019 02/28/2019 03/06/2019
03/07/2019 03/07/2019 03/13/2019 03/28/2019
03/28/2019

147 ORDER THAT THE APPLICATION OF ERIC C. RASSBACH, ESQ. TO PRACTICE IN THIS COURT PURSUANT TO LRCP 83.5.2(B) IS GRANTED. SIGNED BY HONORABLE WENDY BEETLESTONE ON 2/22/19.2/22/19 ENTERED AND COPIES MAILED AND E−MAILED. ECF APPLICATION MAILED TO RASSBACH. (fdc) (Entered: 02/22/2019)
148 ORDER THAT THE APPLICATION OF JEFFREY BLUMENFELD, ESQ. TO PRACTICE IN THIS COURT PURSUANT TO LRCP 83.5.2(B) IS GRANTED. SIGNED BY HONORABLE WENDY BEETLESTONE ON 2/22/19. 2/25/19 ENTERED AND COPIES MAILED AND E−MAILED. ECF APPLICATION MAILED TO BLUMENFELD. (fdc) (Entered: 02/25/2019)
149 ORDER THAT THE APPLICATION OF DIANA M. VERM, ESQ. TO PRACTICE IN THIS COURT PURSUANT TO LRCP 83.5.2(B) IS GRANTED. SIGNED BY HONORABLE WENDY BEETLESTONE ON 2/22/19.2/25/19 ENTERED AND COPIES MAILED AND E−MAILED. ECF APPLICATION MAILED TO VERM. (fdc) (Entered: 02/25/2019)
150 Consent MOTION for Extension of Time to File Answer filed by LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME.. (Attachments: # 1 Text of Proposed Order)(RIENZI, MARK) Modified on 3/5/2019 (lvj, ). (Entered: 02/26/2019)
151 ORDER THAT DEFENDANTS SHALL HAVE UNTIL 3/29/19 TO ANSWER OR OTHERWISE RESPOND TO PLAINTIFFS' AMENDED COMPLAINT. SIGNED BY HONORABLE WENDY BEETLESTONE ON 2/28/19. 2/28/19 ENTERED AND COPIES MAILED & E−MAILED.(fdc) (Entered: 02/28/2019)
152 RESPONSE in Opposition re 143 MOTION to Stay Proceedings filed by COMMONWEALTH OF PENNSYLVANIA, STATE OF NEW JERSEY. (Attachments: # 1 Exhibit)(FISCHER, MICHAEL) (Entered: 02/28/2019)
153 ORDER THAT FEDERAL DEFENDANTS' MOTION TO STAY PROCEEDINGS PENDING APPEAL 143 IS DENIED. IT IS FURTHER ORDERED, IN LIGHT OF THE COURT'S 2/28/19 ORDER PROVIDING DEFENDANTS UNTIL 3/29/19 TO ANSWER OR OTHERWISE RESPOND TO PLAINTIFFS' AMENDED COMPLAINT, THAT FEDERAL DEFENDANTS' MOTION FOR AN EXTENSION OF THE DEADLINE TO ANSWER OR OTHERWISE RESPOND TO THE AMENDED COMPLAINT 144 IS DENIED AS MOOT. SIGNED BY HONORABLE WENDY BEETLESTONE ON 3/6/19.3/6/19 ENTERED AND COPIES MAILED & E−MAILED.(fdc) (Entered: 03/06/2019)
154 TRANSCRIPT of Oral Argument held on 1/10/19, before Judge Beetlestone. Court Reporter/Transcriber: Kathleen Feldman. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 3/28/2019. Redacted Transcript Deadline set for 4/8/2019. Release of Transcript Restriction set for 6/5/2019. (fdc) (Entered: 03/07/2019)
155 Notice of Filing of Official Transcript with Certificate of Service re 154 Transcript − PDF, 3/7/19 Entered and Copies Emailed and Mailed. (fdc) (Entered: 03/07/2019)
156 NOTICE OF CONFERENCE: PRETRIAL CONFERENCE SET FOR 4/4/2019 10:00 AM IN COURTROOM 3B BEFORE HONORABLE WENDY BEETLESTONE. (Attachments: # 1 Electronic Discovery Order, # 2 Joint Report and Discovery Plan)(amw, ) (Entered: 03/13/2019)
157 MOTION to Dismiss for Lack of Jurisdiction and Improper Venue filed by RENE ALEXANDER ACOSTA, ALEX M. AZAR, II, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES OF AMERICA, DONALD J. WRIGHT.Memorandum, Certificate of Service. (Attachments: # 1 Memorandum, # 2 Text of Proposed Order)(SANDBERG, JUSTIN) (Entered: 03/28/2019)
158 Discovery Plan by COMMONWEALTH OF PENNSYLVANIA.(FISCHER, MICHAEL) (Entered: 03/28/2019)

Case: 2:17-cv-4540 As of: 03/04/2020 04:01 PM EST 53 of 60

03/29/2019 04/05/2019 04/05/2019
04/12/2019 04/18/2019 04/19/2019
05/02/2019 05/02/2019 05/09/2019
05/09/2019 05/15/2019
05/15/2019 05/16/2019

159 MOTION to Dismiss filed by LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME.Certificate of Service. (Attachments: # 1 Memorandum, # 2 Exhibit, # 3 Text of Proposed Order)(RIENZI, MARK) (Entered: 03/29/2019)
160 Minute Entry for proceedings held before HONORABLE WENDY BEETLESTONE. A Preliminary Pretrial Conference was held on 4/4/19. Court Reporter: ESR. (fdc) (Entered: 04/05/2019)
161 SCHEDULING ORDER. ORDER THAT BY 5/1/19, PLAINTIFFS SHALL FILE EITHER A MOTION TO PERMIT DISCOVERY, OR A NOTIFICATION THAT NO DISCOVERY IS NEEDED. IF THE COURT GRANTS PLAINTIFFS' MOTION TO PERMIT DISCOVERY, THE PARTIES SHALL HAVE NINETY (90( DAYS TO ENGAGE IN DISCOVERY, TO COMMENCE FROM THE DATE OF THE COURT'S ORDER GRANTING DISCOVERY. SIGNED BY HONORABLE WENDY BEETLESTONE ON 4/4/19. 4/5/19 ENTERED & E−MAILED.(fdc) (Entered: 04/05/2019)
162 RESPONSE in Opposition re 159 MOTION to Dismiss , 157 MOTION to Dismiss for Lack of Jurisdiction and Improper Venue filed by COMMONWEALTH OF PENNSYLVANIA, STATE OF NEW JERSEY. (FISCHER, MICHAEL) (Entered: 04/12/2019)
163 REPLY to Response to Motion re 159 MOTION to Dismiss filed by LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME. (RIENZI, MARK) (Entered: 04/18/2019)
164 REPLY to Response to Motion re 157 MOTION to Dismiss for Lack of Jurisdiction and Improper Venue filed by RENE ALEXANDER ACOSTA, ALEX M. AZAR, II, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES OF AMERICA, DONALD J. WRIGHT. (SANDBERG, JUSTIN) (Entered: 04/19/2019)
165 NOTICE by COMMONWEALTH OF PENNSYLVANIA, STATE OF NEW JERSEY regarding discovery (FISCHER, MICHAEL) (Entered: 05/02/2019)
166 NOTICE by COMMONWEALTH OF PENNSYLVANIA, STATE OF NEW JERSEY re 165 Notice (Other) Corrected Notice Regarding Discovery (FISCHER, MICHAEL) (Entered: 05/02/2019)
167 TRANSCRIPT of Preliminary Pre−Trial Conference held on 4/4/19, before Judge Beetlestone. Court Reporter/Transcriber: Neal R. Gross. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/30/2019. Redacted Transcript Deadline set for 6/10/2019. Release of Transcript Restriction set for 8/7/2019. (fdc, ) (Entered: 05/09/2019)
168 Notice of Filing of Official Transcript with Certificate of Service re 167 Transcript − PDF, 5/9/19 Entered and Copies Emailed and Mailed. (fdc) (Entered: 05/09/2019)
169 Exhibit List Index to Joint Appendix by COMMONWEALTH OF PENNSYLVANIA, STATE OF NEW JERSEY.. (Attachments: # 1 Appendix Joint Appendix Part I, # 2 Appendix Joint Appendix Part II, # 3 Appendix Joint Appendix Part III, # 4 Appendix Joint Appendix Part IV, # 5 Appendix Joint Appendix Part V, # 6 Appendix Joint Appendix Part VI, # 7 Appendix Joint Appendix Part VII, # 8 Appendix Joint Appendix Part VIII, # 9 Appendix Joint Appendix Part IX, # 10 Appendix Joint Appendix Part X)(FISCHER, MICHAEL) (Entered: 05/15/2019)
170 MOTION for Summary Judgment filed by COMMONWEALTH OF PENNSYLVANIA, STATE OF NEW JERSEY.Memorandum. (Attachments: # 1 Memorandum, # 2 Text of Proposed Order, # 3 Statement of Facts)(FISCHER, MICHAEL) (Entered: 05/15/2019)
171 NOTICE by COMMONWEALTH OF PENNSYLVANIA, STATE OF NEW JERSEY re 162 Response in Opposition to Motion, 159 MOTION to Dismiss , 157 MOTION to Dismiss for Lack of Jurisdiction and Improper Venue Notice of

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05/22/2019 06/07/2019 06/07/2019 06/07/2019
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Supplemental Authority (Attachments: # 1 Exhibit)(FISCHER, MICHAEL) (Entered: 05/16/2019)
172 NOTICE of Withdrawal of Appearance by JONATHAN SCOTT GOLDMAN on behalf of COMMONWEALTH OF PENNSYLVANIA(GOLDMAN, JONATHAN) (Entered: 05/22/2019)
173 MOTION to File Amicus Brief with notice of motion filed by PROGRAM FOR THE STUDY OF REPRODUCTIVE JUSTICE AT YALE LAW SCHOOL.Memorandum, Certificate of Service. (Attachments: # 1 Memorandum, # 2 Exhibit, # 3 Text of Proposed Order, # 4 Certificate of Service)(COHEN, DAVID) (Entered: 06/07/2019)
174 MOTION for Pro Hac Vice Admission of Priscilla J. Smith filed by PROGRAM FOR THE STUDY OF REPRODUCTIVE JUSTICE AT YALE LAW SCHOOL..(COHEN, DAVID) (FILING FEE NOT PAID/FEE LETTER SENT) Modified 6/7/19 (fdc). (Entered: 06/07/2019)
175 Consent MOTION to File Amicus Brief and to Appear Amici Curiae filed by AMERICAN ACADEMY OF NURSING, AMERICAN ACADEMY OF PEDIATRICS, AMERICAN COLLEGE OF OBSTETRICIANS & GYNECOLOGISTS, AMERICAN NURSES ASSOCIATION, PHYSICIANS FOR REPRODUCTIVE HEALTH. Certificate of Service. (Attachments: # 1 Memorandum in Support of Motion for Leave, # 2 Exhibit A, Brief Amici Curiae, # 3 Text of Proposed Order)(MATHEWSON, LISA) (Entered: 06/07/2019)
176 Consent MOTION to File Amicus Brief in Support of Plaintiffs' Motion for Summary Judgment filed by CALIFORNIA WOMEN LAWYERS, GIRLS INC., IF/WHEN/HOW: LAWYERING FOR REPRODUCTIVE JUSTICE, LAWYERS CLUB OF SAN DIEGO, SERVICE EMPLOYEES INTERNATIONAL UNION, THE AMERICAN ASSOCIATION OF UNIVERSITY WOMEN, THE AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES (AFL−CIO), THE COLORADO WOMENS BAR ASSOCIATION, THE NATIONAL ASSOCIATION OF SOCIAL WORKERS, THE WOMEN'S BAR ASSOCIATION OF THE DISTRICT OF COLUMBIA, THE WOMENS BAR ASSOCIATION OF MASSACHUSETTS.Memorandum, Certificate of Service. (Attachments: # 1 Exhibit [Proposed] Brief of Amici Curiae, # 2 Text of Proposed Order)(LEVITT, JAMIE) (Entered: 06/07/2019)
177 NOTICE of Appearance by AMAL MUNAS BASS on behalf of AMICI CURIAE THE CENTER FOR REPRODUCTIVE RIGHTS, ET AL with certificate of service(BASS, AMAL) (Entered: 06/07/2019)
178 NOTICE by AMICI CURIAE THE CENTER FOR REPRODUCTIVE RIGHTS, ET AL Notice of Appearance, Susan Frietsche (BASS, AMAL) (Entered: 06/07/2019)
179 MOTION to File Amicus Brief filed by AMICI CURIAE THE CENTER FOR REPRODUCTIVE RIGHTS, ET AL.Proposed Amicus Brief, Proposed Order, and Certificate of Service. (Attachments: # 1 Brief, # 2 Text of Proposed Order, # 3 Certificate of Service)(BASS, AMAL) (Entered: 06/07/2019)
180 Disclosure Statement Form pursuant to FRCP 7.1 by AMICI CURIAE THE CENTER FOR REPRODUCTIVE RIGHTS, ET AL.(BASS, AMAL) (Entered: 06/07/2019)
181 Disclosure Statement Form pursuant to FRCP 7.1 with certificate of service by AMERICAN ACADEMY OF NURSING, AMERICAN ACADEMY OF PEDIATRICS, AMERICAN COLLEGE OF OBSTETRICIANS & GYNECOLOGISTS, AMERICAN NURSES ASSOCIATION, PHYSICIANS FOR REPRODUCTIVE HEALTH.(MATHEWSON, LISA) (Entered: 06/07/2019)
182 Consent MOTION to File Amicus Brief filed by NATIONAL ASSOCIATION FOR FEMALE EXECUTIVES, U.S. WOMEN'S CHAMBER OF COMMERCE.Memorandum of Law, Certificate of Service. (Attachments: # 1 Memorandum of Law in Support of Motion, # 2 Exhibit A (Proposed Brief of Amici Curiae), # 3 Text of Proposed Order)(FELDMAN, JEFFREY) (Entered: 06/07/2019)
183 MOTION for Leave to File Appear Amici Curiae and File an Amicus Brief in Support of Plaintiff's Motion for Summary Judgment filed by AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, BEND THE ARC: A JEWISH

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06/07/2019
06/07/2019
06/07/2019
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PARTNERSHIP FOR JUSTICE, CENTRAL CONFERENCE OF AMERICAN RABBIS, GLOBAL JUSTICE INSTITUTE, METROPOLITAN COMMUNITY CHURCHES, INTERFAITH ALLIANCE FOUNDATION, JEWISH SOCIAL POLICY ACTION NETWORK, MEN OF REFORM JUDAISM, METHODIST FEDERATION FOR SOCIAL ACTION, NATIONAL COUNCIL OF JEWISH WOMEN, INC, RECONSTRUCTIONIST RABBINICAL ASSOCIATION, RELIGIOUS COALITION FOR REPRODUCTIVE CHOICE, RELIGIOUS INSTITUTE, T'RUAH: THE RABBINIC CALL FOR HUMAN RIGHTS, THE SIKH COALITION, UNION FOR REFORM JUDAISM.Memorandum, Brief, Certificate of Service. (Attachments: # 1 Brief, # 2 Appendix, # 3 Memorandum, # 4 Text of Proposed Order, # 5 Certificate of Service)(PASEK, JEFFREY) (Entered: 06/07/2019)
184 MOTION for Pro Hac Vice Admission of Carmen N. Green filed by AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, BEND THE ARC: A JEWISH PARTNERSHIP FOR JUSTICE, CENTRAL CONFERENCE OF AMERICAN RABBIS, GLOBAL JUSTICE INSTITUTE, METROPOLITAN COMMUNITY CHURCHES, INTERFAITH ALLIANCE FOUNDATION, JEWISH SOCIAL POLICY ACTION NETWORK, MEN OF REFORM JUDAISM, METHODIST FEDERATION FOR SOCIAL ACTION, NATIONAL COUNCIL OF JEWISH WOMEN, INC, RECONSTRUCTIONIST RABBINICAL ASSOCIATION, RELIGIOUS COALITION FOR REPRODUCTIVE CHOICE, RELIGIOUS INSTITUTE, T'RUAH: THE RABBINIC CALL FOR HUMAN RIGHTS, THE SIKH COALITION, UNION FOR REFORM JUDAISM.Certificate of Service. (Attachments: # 1 Text of Proposed Order)(PASEK, JEFFREY) (Filing Fee Paid) Modified 6/12/19 (fdc). (Entered: 06/07/2019)
185 MOTION for Pro Hac Vice Admission of Alison Tanner filed by AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, BEND THE ARC: A JEWISH PARTNERSHIP FOR JUSTICE, CENTRAL CONFERENCE OF AMERICAN RABBIS, GLOBAL JUSTICE INSTITUTE, METROPOLITAN COMMUNITY CHURCHES, INTERFAITH ALLIANCE FOUNDATION, JEWISH SOCIAL POLICY ACTION NETWORK, MEN OF REFORM JUDAISM, METHODIST FEDERATION FOR SOCIAL ACTION, NATIONAL COUNCIL OF JEWISH WOMEN, INC, RECONSTRUCTIONIST RABBINICAL ASSOCIATION, RELIGIOUS COALITION FOR REPRODUCTIVE CHOICE, RELIGIOUS INSTITUTE, T'RUAH: THE RABBINIC CALL FOR HUMAN RIGHTS, THE SIKH COALITION, UNION FOR REFORM JUDAISM.Certificate of Service. (Attachments: # 1 Text of Proposed Order)(PASEK, JEFFREY) (Filing Fee Paid) Modified 6/12/19 (fdc). (Entered: 06/07/2019)
186 MOTION for Pro Hac Vice Admission of Richard B. Katskee filed by AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, BEND THE ARC: A JEWISH PARTNERSHIP FOR JUSTICE, CENTRAL CONFERENCE OF AMERICAN RABBIS, GLOBAL JUSTICE INSTITUTE, METROPOLITAN COMMUNITY CHURCHES, INTERFAITH ALLIANCE FOUNDATION, JEWISH SOCIAL POLICY ACTION NETWORK, MEN OF REFORM JUDAISM, METHODIST FEDERATION FOR SOCIAL ACTION, NATIONAL COUNCIL OF JEWISH WOMEN, INC, RECONSTRUCTIONIST RABBINICAL ASSOCIATION, RELIGIOUS COALITION FOR REPRODUCTIVE CHOICE, RELIGIOUS INSTITUTE, T'RUAH: THE RABBINIC CALL FOR HUMAN RIGHTS, THE SIKH COALITION, UNION FOR REFORM JUDAISM.Certificate of Service. (Attachments: # 1 Text of Proposed Order)(PASEK, JEFFREY) (Filing Fee Paid) Modified 6/12/19 (fdc). (Entered: 06/07/2019)
187 Consent MOTION to File Amicus Brief filed by PLANNED PARENTHOOD FEDERATION OF AMERICA, THE NATIONAL FAMILY PLANNING AND REPRODUCTIVE HEALTH ASSOCIATION, THE NATIONAL HEALTH LAW PROGRAM.Certificate of Service. (Attachments: # 1 Memorandum in Support of Motion for Leave, # 2 Exhibit A − Proposed Amici Curiae Brief, # 3 Text of Proposed Order)(FLAXMAN, CARRIE) (Entered: 06/07/2019)
188 NOTICE of Appearance by NANCY B.G. LASSEN on behalf of CHURCH−STATE SCHOLARS with Certificate of Service(fdc, ) (Entered: 06/10/2019)
189 MOTION FOR THE PRO HAC VICE ADMISSION OF JOSHUA A. MATZ, ESQ. FILED BY CHURCH−STATE SCHOLARS, CERTIFICATE OF SERVICE.

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06/07/2019 06/07/2019 06/11/2019
06/11/2019
06/11/2019
06/11/2019
06/14/2019 06/14/2019 06/14/2019 06/14/2019 06/14/2019 06/14/2019 06/14/2019

(FILING FEE PAID)(fdc) (Entered: 06/10/2019)
190 MOTION FOR THE PRO HAC VICE ADMISSION OF TALIA NISSIMYAN, ESQ. FILED BY CHURCH−STATE SCHOLARS, CERTIFICATE OF SERVICE. (FILING FEE PAID)(fdc) (Entered: 06/10/2019)
191 MOTION FOR LEAVE TO APPEAR AS AMICI CURIAE AND FILE AN AMICUS BRIEF IN SUPPORT OF PLAINTIFFS' MOTION MOTION FOR SUMMARY JUDGMENT FILED BY CHURCH−STATE SCHOLARS, MEMORANDUM. (Attachments: # 1 Text of Proposed Order, # 2 Memorandum, # 3 Exhibit)(fdc) (Entered: 06/10/2019)
192 MOTION for Pro Hac Vice for Allan J. Arffa ( Filing fee $ 40 receipt number 0313−13600042.) filed by PLANNED PARENTHOOD FEDERATION OF AMERICA, THE NATIONAL FAMILY PLANNING AND REPRODUCTIVE HEALTH ASSOCIATION, THE NATIONAL HEALTH LAW PROGRAM.Certificate of Service. (Attachments: # 1 Text of Proposed Order)(FLAXMAN, CARRIE) (Entered: 06/11/2019)
193 MOTION for Pro Hac Vice for Sierra A. Y. Robart ( Filing fee $ 40 receipt number 0313−13600045.) filed by PLANNED PARENTHOOD FEDERATION OF AMERICA, THE NATIONAL FAMILY PLANNING AND REPRODUCTIVE HEALTH ASSOCIATION, THE NATIONAL HEALTH LAW PROGRAM.Certificate of Service. (Attachments: # 1 Text of Proposed Order)(FLAXMAN, CARRIE) (Entered: 06/11/2019)
194 MOTION for Pro Hac Vice for Melina M. Meneguin Layerenza ( Filing fee $ 40 receipt number 0313−13600047.) filed by PLANNED PARENTHOOD FEDERATION OF AMERICA, THE NATIONAL FAMILY PLANNING AND REPRODUCTIVE HEALTH ASSOCIATION, THE NATIONAL HEALTH LAW PROGRAM.Certificate of Service. (Attachments: # 1 Text of Proposed Order)(FLAXMAN, CARRIE) (Entered: 06/11/2019)
195 MOTION for Pro Hac Vice for Jessica B. Fuhrman ( Filing fee $ 40 receipt number 0313−13600058.) filed by PLANNED PARENTHOOD FEDERATION OF AMERICA, THE NATIONAL FAMILY PLANNING AND REPRODUCTIVE HEALTH ASSOCIATION, THE NATIONAL HEALTH LAW PROGRAM.Certificate of Service. (Attachments: # 1 Text of Proposed Order)(FLAXMAN, CARRIE) (Entered: 06/11/2019)
196 PAPERLESS ORDER GRANTING 173 MOTION TO FILE AMICUS BRIEF BY HONORABLE WENDY BEETLESTONE ON 06/14/2019.06/14/2019 ENTERED AND COPIES E−MAILED.(amw, ) (Entered: 06/14/2019)
197 PAPERLESS ORDER 175 MOTION TO FILE AMICUS BRIEF BY HONORABLE WENDY BEETLESTONE ON 06/14/2019.06/14/2019 ENTERED AND COPIES E−MAILED.(amw, ) (Entered: 06/14/2019)
198 PAPERLESS ORDER 176 MOTION TO FILE AMICUS BRIEF BY HONORABLE WENDY BEETLESTONE ON 06/14/2019.06/14/2019 ENTERED AND COPIES MAILED AND E−MAILED.(amw, ) (Entered: 06/14/2019)
199 PAPERLESS ORDER GRANTING 179 MOTION TO FILE AMICUS BRIEF BY HONORABLE WENDY BEETLESTONE ON 06/14/2019.06/14/2019 ENTERED AND COPIES E−MAILED.(amw, ) (Entered: 06/14/2019)
200 PAPERLESS ORDER GRANTING 182 MOTION TO FILE AMICUS BRIEF BY HONORABLE WENDY BEETLESTONE ON 06/14/2019.06/14/2019 ENTERED AND COPIES E−MAILED.(amw, ) (Entered: 06/14/2019)
201 PAPERLESS ORDER GRANTING 183 MOTION FOR LEAVE TO FILE BY HONORABLE WENDY BEETLESTONE ON 06/14/2019.06/14/2019 ENTERED AND COPIES MAILED AND E−MAILED.(amw, ) (Entered: 06/14/2019)
202 Amended MOTION for Pro Hac Vice for Priscilla Smith ( Filing fee $ 40 receipt number 0313−13607850.) filed by PROGRAM FOR THE STUDY OF REPRODUCTIVE JUSTICE AT YALE LAW SCHOOL..(COHEN, DAVID) (Entered: 06/14/2019)

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06/14/2019 06/14/2019 06/14/2019
06/14/2019 06/14/2019
06/14/2019 06/14/2019 06/14/2019
06/14/2019 06/18/2019 06/19/2019

203 ORDER THAT THE APPLICATION OF CARMEN N. GREEN, ESQ. TO PRACTICE IN THIS COURT PURSUANT TO LRCP 83.5.2(B) IS GRANTED. SIGNED BY HONORABLE WENDY BEETLESTONE ON 6/14/19.6/14/19 ENTERED AND COPIES MAILED & E−MAILED. ECF APPLICATION MAILED TO GREEN. (fdc) (Entered: 06/14/2019)
204 ORDER THAT THE APPLICATION OF ALISON TANNER, ESQ. TO PRACTICE IN THIS COURT PURSUANT TO LRCP 83.5.2(B) IS GRANTED. SIGNED BY HONORABLE WENDY BEETLESTONE ON 6/14/19.6/14/19 ENTERED AND COPIES MAILED & E−MAILED. ECF APPLICATION MAILED TO TANNER. (fdc) (Entered: 06/14/2019)
205 MOTION for Summary Judgment filed by RENE ALEXANDER ACOSTA, ALEX M. AZAR, II, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES OF AMERICA, DONALD J. WRIGHT.Memorandum, Certificate of Service. (Attachments: # 1 Memorandum, # 2 Exhibit Statement of Material Facts, # 3 Text of Proposed Order)(SANDBERG, JUSTIN) (Entered: 06/14/2019)
206 MOTION for Summary Judgment filed by LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME.Memorandum. (Attachments: # 1 Memorandum, # 2 Exhibit Statement of Facts, # 3 Text of Proposed Order)(RIENZI, MARK) (Entered: 06/14/2019)
207 Exhibit List Part One by RENE ALEXANDER ACOSTA, ALEX M. AZAR, II, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES OF AMERICA, DONALD J. WRIGHT.. Certificat of Service (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(SANDBERG, JUSTIN) (Entered: 06/14/2019)
208 RESPONSE in Opposition re 170 MOTION for Summary Judgment filed by LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME. (Attachments: # 1 Exhibit Response to Statement of Material Facts)(RIENZI, MARK) (Entered: 06/14/2019)
209 Exhibit List Supplemental Joint Appendix by LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME.. Certificate of Service (RIENZI, MARK) (Entered: 06/14/2019)
210 Exhibit List Part Two by RENE ALEXANDER ACOSTA, ALEX M. AZAR, II, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES OF AMERICA, DONALD J. WRIGHT.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit)(SANDBERG, JUSTIN) (Entered: 06/14/2019)
211 RESPONSE in Opposition re 170 MOTION for Summary Judgment filed by RENE ALEXANDER ACOSTA, ALEX M. AZAR, II, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES OF AMERICA. (SANDBERG, JUSTIN) (Entered: 06/14/2019)
212 PAPERLESS ORDER GRANTING 191 MOTION FOR LEAVE TO FILE BY HONORABLE WENDY BEETLESTONE ON 06/18/2019.06/18/2019 ENTERED AND COPIES MAILED AND E−MAILED.(amw, ) (Entered: 06/18/2019)
213 ORDER THAT THE APPLICATION OF RICHARD B. KATSKEE, ESQ. TO PRACTICE IN THIS COURT PURSUANT TO LRCP 83.5.2(B) IS GRANTED. SIGNED BY HONORABLE WENDY BEETLESTONE ON 6/18/19.6/19/19 ENTERED AND COPIES MAILED AND E−MAILED. ECF APPLICATION

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06/19/2019 06/19/2019 06/19/2019 06/19/2019 06/19/2019 06/19/2019 06/25/2019 06/27/2019 06/28/2019 06/28/2019 06/28/2019 07/01/2019

MAILED TO KATSKEE. (fdc) (Entered: 06/19/2019)
214 ORDER THAT THE APPLICATION OF JOSHUA A. MATZ, ESQ. TO PRACTICE IN THIS COURT PURSUANT TO LRCP 83.5.2(B) IS GRANTED. SIGNED BY HONORABLE WENDY BEETLESTONE ON 6/18/19.6/19/19 ENTERED AND COPIES MAILED AND E−MAILED. ECF APPLICATION MAILED TO MATZ.(fdc) (Entered: 06/19/2019)
215 ORDER THAT THE APPLICATION OF TALIA NISSIMYAN, ESQ. TO PRACTICE IN THIS COURT PURSUANT TO LRCP 83.5.2(B) IS GRANTED. SIGNED BY HONORABLE WENDY BEETLESTONE ON 6/18/19.6/19/19 ENTERED AND COPIES MAILED AND E−MAILED. ECF APPLICATION MAILED TO NISSIMYAN. (fdc) (Entered: 06/19/2019)
216 ORDER THAT THE APPLICATION OF ALLAN J. ARFFA, ESQ. TO PRACTICE IN THIS COURT PURSUANT TO LRCP 83.5.2(B) IS GRANTED. SIGNED BY HONORABLE WENDY BEETLESTONE ON 6/18/19.6/19/19 ENTERED AND COPIES MAILED AND E−MAILED. ECF APPLICATION MAILED TO ARFFA. (fdc) (Entered: 06/19/2019)
217 ORDER THAT THE APPLICATION OF SIERRA A.Y. ROBART, ESQ. TO PRACTICE IN THIS COURT PURSUANT TO LRCP 83.5.2(B) IS GRANTED. SIGNED BY HONORABLE WENDY BEETLESTONE ON 6/18/19.6/19/19 ENTERED AND COPIES MAILED AND E−MAILED. ECF APPLICATION MAILED TO ROBART. (fdc) (Entered: 06/19/2019)
218 ORDER THAT THE APPLICATION OF MELINA M. MENEGUIN LAYERENZA, ESQ., TO PRACTICE IN THIS COURT PURSUANT TO LRCP 83.5.2(B) IS GRANTED. SIGNED BY HONORABLE WENDY BEETLESTONE ON 6/18/19.6/19/19 ENTERED AND COPIES MAILED AND E−MAILED. ECF APPLICATION MAILED TO LAYERENZA. (fdc) (Entered: 06/19/2019)
219 ORDER THAT THE APPLICATION OF JESSICA B. FUHRMAN, ESQ. TO PRACTICE IN THIS COURT PURSUANT TO LRCP 83.5.2(B) IS GRANTED.. SIGNED BY HONORABLE WENDY BEETLESTONE ON 6/18/19.6/19/19 ENTERED AND COPIES MAILED AND E−MAILED. ECF APPLICATION MAILED TO FUHRMAN. (fdc) (Entered: 06/19/2019)
220 RESPONSE in Support re 170 MOTION for Summary Judgment Amicus Curiae Brief in Support of Plaintiffs' Motion for Summary Judgment filed by CHURCH−STATE SCHOLARS. (Attachments: # 1 Certificate of Service)(LASSEN, NANCY) (Entered: 06/25/2019)
221 APPLICATION for Admission Pro Hac Vice of Katherine Gregory by STATE OF NEW JERSEY. ( Filing fee $ 40 receipt number 0313−13635635.). (KREFETZ, MARC) (Entered: 06/27/2019)
222 REPLY to Response to Motion re 170 MOTION for Summary Judgment filed by COMMONWEALTH OF PENNSYLVANIA, STATE OF NEW JERSEY. (Attachments: # 1 Exhibit Corrected Statement of Undisputed Fact, # 2 Supplemental Exhibit Index, # 3 Supplemental Exhibits)(FISCHER, MICHAEL) (Entered: 06/28/2019)
223 RESPONSE in Opposition re 205 MOTION for Summary Judgment filed by COMMONWEALTH OF PENNSYLVANIA, STATE OF NEW JERSEY. (Attachments: # 1 Response to Statement of Undisputed Facts)(FISCHER, MICHAEL) (Entered: 06/28/2019)
224 RESPONSE in Opposition re 206 MOTION for Summary Judgment filed by COMMONWEALTH OF PENNSYLVANIA, STATE OF NEW JERSEY. (Attachments: # 1 Response to Statement of Undisputed Facts)(FISCHER, MICHAEL) (Entered: 06/28/2019)
225 NOTICE by COMMONWEALTH OF PENNSYLVANIA re 222 Reply to Response to Motion, (Attachments: # 1 Corrected Supplemental Exhibits)(THOMSON, AIMEE) (Entered: 07/01/2019)

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07/12/2019 07/12/2019
07/19/2019 07/24/2019 07/25/2019
07/25/2019 07/31/2019
07/31/2019 07/31/2019 07/31/2019 07/31/2019 08/01/2019

226 REPLY in Support re 206 MOTION for Summary Judgment filed by LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME. (Attachments: # 1 Exhibit Reply to Statement of Material Facts)(RIENZI, MARK) Modified on 7/15/2019 (fb). (Entered: 07/12/2019)
227 REPLY Brief in Support re 205 MOTION for Summary Judgment filed by RENE ALEXANDER ACOSTA, ALEX M. AZAR, II, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES OF AMERICA, DONALD J. WRIGHT. (SANDBERG, JUSTIN) Modified on 7/15/2019 (fb). (Entered: 07/12/2019)
228 NOTICE OF STATUS CONFERENCE CALL (FOLLOWING A THIRD CIRCUIT DECISION) − TUESDAY, JULY 23, 2019 AT 3:30 P.M. COUNSEL FOR PLAINTIFF SHALL INITIATE THE CALL AND ONCE ALL PARTIES ARE ON THE LINE CALL IN TO CHAMBERS AT 267−299−7450 TO CONNECT THE JUDGE. THANK YOU. (amw, ) (Entered: 07/19/2019)
229 Minute Entry for proceedings held before HONORABLE WENDY BEETLESTONE. A Telephone Status Call was held on 7/23/19. Court Reporter: ESR. (fdc) (Entered: 07/24/2019)
230 Statement Regarding Further Proceedings in Light of Third Circuit Opinion by RENE ALEXANDER ACOSTA, ALEX M. AZAR, II, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES OF AMERICA, DONALD J. WRIGHT. (SANDBERG, JUSTIN) (Entered: 07/25/2019)
231 Statement as to further proceedings by COMMONWEALTH OF PENNSYLVANIA, STATE OF NEW JERSEY. (FISCHER, MICHAEL) (Entered: 07/25/2019)
232 ORDER THAT FURTHER PROCEEDINGS IN THIS MATTER ARE STAYED, AND THE PARTIES' PENDING MOTIONS TO DISMISS AND MOTIONS FOR SUMMARY JUDGMENT 157 159 205 206 ARE HELD IN ABEYANCE, PENDING RESOLUTION OF ANY APPEAL OF THE THIRD CIRCUIT'S DECISION IN TRUMP III BY DEFENDANTS AND DEFENDANT−INTERVENOR. SIGNED BY HONORABLE WENDY BEETLESTONE ON 7/30/19. 7/31/19 ENTERED AND COPIES MAILED & E−MAILED.(fdc) (Entered: 07/31/2019)
233 PAPERLESS ORDER GRANTING 187 MOTION TO FILE AMICUS BRIEF BY HONORABLE WENDY BEETLESTONE ON 07/31/2019.07/31/2019 ENTERED AND COPIES E−MAILED.(amw, ) (Entered: 07/31/2019)
234 PAPERLESS ORDER DENYING AS MOOT 174 MOTION FOR PRO HAC VICE BY HONORABLE WENDY BEETLESTONE ON 07/31/2019.07/31/2019 ENTERED AND COPIES E−MAILED.(amw, ) (Entered: 07/31/2019)
235 ORDER THAT THE APPLICATION OF PRISCILLA J. SMITH, ESQ. TO PRACTICE IN THIS COURT PURSUANT TO LRCP 83.5.2(B) IS GRANTED. SIGNED BY HONORABLE WENDY BEETLESTONE ON 7/31/19.7/31/19 ENTERED AND COPIES MAILED AND E−MAILED. ECF APPLICATION MAILED TO SMITH. (fdc) (Entered: 07/31/2019)
236 ORDER THAT THE CLERK OF COURT SHALL TRANSFER THIS MATTER TO THE CIVIL SUSPENSE DOCKET. SIGNED BY HONORABLE WENDY BEETLESTONE ON 7/31/19. 7/31/19 ENTERED AND COPIES MAILED AND E−MAILED.(fdc, ) (Entered: 07/31/2019)
237 NOTICE of Withdrawal of Appearance by JEFFREY I. PASEK on behalf of AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, BEND THE ARC: A JEWISH PARTNERSHIP FOR JUSTICE, CENTRAL CONFERENCE OF AMERICAN RABBIS, GLOBAL JUSTICE INSTITUTE, METROPOLITAN COMMUNITY CHURCHES, INTERFAITH ALLIANCE FOUNDATION, JEWISH SOCIAL POLICY ACTION NETWORK, MEN OF REFORM JUDAISM, METHODIST FEDERATION FOR SOCIAL ACTION, NATIONAL COUNCIL OF JEWISH WOMEN, INC, RECONSTRUCTIONIST RABBINICAL ASSOCIATION,

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08/01/2019
09/03/2019
10/16/2019 10/25/2019 01/06/2020 01/23/2020

RELIGIOUS COALITION FOR REPRODUCTIVE CHOICE, RELIGIOUS INSTITUTE, T'RUAH: THE RABBINIC CALL FOR HUMAN RIGHTS, THE SIKH COALITION, UNION FOR REFORM JUDAISM(PASEK, JEFFREY) (Entered: 08/01/2019)
238 NOTICE of Withdrawal of Appearance by ALISON TANNER on behalf of AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, BEND THE ARC: A JEWISH PARTNERSHIP FOR JUSTICE, CENTRAL CONFERENCE OF AMERICAN RABBIS, GLOBAL JUSTICE INSTITUTE, METROPOLITAN COMMUNITY CHURCHES, INTERFAITH ALLIANCE FOUNDATION, JEWISH SOCIAL POLICY ACTION NETWORK, MEN OF REFORM JUDAISM, METHODIST FEDERATION FOR SOCIAL ACTION, NATIONAL COUNCIL OF JEWISH WOMEN, INC, RECONSTRUCTIONIST RABBINICAL ASSOCIATION, RELIGIOUS COALITION FOR REPRODUCTIVE CHOICE, RELIGIOUS INSTITUTE, T'RUAH: THE RABBINIC CALL FOR HUMAN RIGHTS, THE SIKH COALITION, UNION FOR REFORM JUDAISM(TANNER, ALISON) (Entered: 08/01/2019)
239 ORDER of USCA as to 139 Notice of Appeal, filed by RENE ALEXANDER ACOSTA, UNITED STATES DEPARTMENT OF LABOR, STEVEN T. MNUCHIN, ALEX M. AZAR, II, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. ORDERED and ADJUDGED that the orders of the District Court entered December 15, 2017 and January 14, 2019 is AFFIRMED. Costs will be taxed on Appellants. All of the above in accordance with the Opinion of this Court.(mbh, ) (Entered: 09/03/2019)
240 NOTICE of Withdrawal of Appearance of JOSHUA MATZ by NANCY B.G. LASSEN on behalf of CHURCH−STATE SCHOLARS(LASSEN, NANCY) Modified on 10/25/2019 (lvj, ). (Entered: 10/16/2019)
241 STATUS REPORT by RENE ALEXANDER ACOSTA, ALEX M. AZAR, II, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES OF AMERICA, DONALD J. WRIGHT. (SANDBERG, JUSTIN) (Entered: 10/25/2019)
242 NOTICE of Withdrawal of Appearance by JONATHAN B. MILLER on behalf of COMMONWEALTH OF MASSACHUSETTS(MILLER, JONATHAN) (Entered: 01/06/2020)
243 STATUS REPORT −Joint Status Report by RENE ALEXANDER ACOSTA, ALEX M. AZAR, II, STEVEN T. MNUCHIN, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES OF AMERICA, DONALD J. WRIGHT. (SANDBERG, JUSTIN) (Entered: 01/23/2020)

 
 Case 2:17-cv-04540-WB Document 1 Filed 10/11/17 Page 1 of 66

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA,
Plaintiff, v.
DONALD J. TRUMP, in his official capacity as President of the United States; DONALD J. WRIGHT, in his official capacity as Acting Secretary of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; STEVEN T. MNUCHIN, in his official capacity as Secretary of the Treasury; UNITED STATES DEPARTMENT OF THE TREASURY; RENE ALEXANDER ACOSTA, in his official capacity as Secretary of Labor; and UNITED STATES DEPARTMENT OF LABOR,
Defendants.

CIVIL ACTION NO: __________ COMPLAINT

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF The Commonwealth of Pennsylvania, by and through Attorney General Josh Shapiro, hereby files this Complaint against Defendants Donald J. Trump, in his official capacity as President of the United States; Donald J. Wright, in his official capacity as Acting Secretary of Health and Human Services; the United States Department of Health and Human Services; Steven T. Mnuchin, in his official capacity as Secretary of the Treasury; the United States Department of the Treasury; Rene Alexander Acosta, in his official capacity as Secretary of Labor; and the United States Department of Labor (collectively, the “Defendants”) and, in support thereof, states the following:

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PRELIMINARY STATEMENT 1. This lawsuit challenges the Defendants’ illegal and unjustified attempt to deny millions of women in Pennsylvania and across this country access to necessary preventive health care through their employer-sponsored insurance plans. As set forth more fully below, Defendants’ actions violate, among other provisions of law, the Administrative Procedure Act, the Affordable Care Act, the guarantee of equal protection enshrined in the Due Process Clause of the Fifth Amendment to the United States Constitution, Title VII of the Civil Rights Act, the Pregnancy Discrimination Act, and the Establishment Clause of the First Amendment. If Defendants are not blocked from implementing their unlawful rules, direct harm will result to the Commonwealth of Pennsylvania and the medical and economic health of its residents. Because these rules will cause irreparable harm and were issued in violation of law, the Commonwealth of Pennsylvania seeks declaratory and injunctive relief holding the new rules unlawful and preventing their further implementation.
INTRODUCTION 2. The Patient Protection and Affordable Care Act, 42 U.S.C. § 18001 et seq. (2010) (the “Affordable Care Act” or “ACA”), together with its implementing regulations, requires employer-sponsored health plans to cover all FDA-approved methods of contraception without imposing cost-sharing requirements on the insured. 3. Because of this requirement (the “Contraceptive Mandate”) over 55 million women have access to birth control without paying out-of-pocket costs, including 2.5 million Pennsylvanians. See Women’s Preventive Services Initiative, Recommendations for Preventive Services for Women: Final Report to the U.S. Department of Health and Human Services, Health Resources & Services Administration 84 (2016) (“WPSI Report”). American women and their
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families covered by private insurance have saved an estimated 70% on contraceptive costs as a result. WPSI Report at 84.
4. Contraception is medicine, and its use has been shown to reduce the rates of unintended pregnancies and abortions. See Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps 105 (2011) (the “Report”), attached hereto as Exhibit C.
5. But Doctors prescribe contraception to their patients for any number of reasons, some not having to do with birth control at all. For example, doctors frequently prescribe contraception for treatment of various menstrual disorders, acne, abnormal growth of bodily hair, and pelvic pain. According to a 2011 report, more than 1.5 million women rely on oral “birth control” pills for medical reasons unrelated to preventing pregnancy, and 58% of all users of birth control pills – more than half – use them, at least in part, for purposes other than pregnancy prevention. See Guttmacher Institute, Beyond Birth Control: The Overlooked Benefits of Oral Contraceptive Pills (2011), available at https://www.guttmacher.org/sites/default/files/ report_pdf/beyond-birth-control.pdf.
6. For these and other reasons, “access to contraception improves the social and economic status of women.” Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725, 8728 (Feb. 15, 2012) (citations omitted).
7. As a result of the Affordable Care Act, millions of American women enjoy a greater degree of control over their own medical health and have the ability to more fully participate in the workforce.
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8. Defendants, however, threaten to deny many of these women the contraceptive health coverage on which they have come to rely by, in effect, making the Contraceptive Mandate optional.
9. They have issued regulations, targeted solely at women, that create broad exemptions from the ACA’s Contraceptive Mandate, and they have done so in violation of the Administrative Procedure Act, 5 U.S.C. §§ 553, 701-706 (“APA”).
10. These regulations allow individual employers to decide whether women who are insured under their company’s health insurance – specifically the company’s female employees and the employees’ female family members – may have access to contraception without out-ofpocket charges.
11. Defendants have issued two separate rules that dramatically expand the ability of employers to opt out of their obligation under the ACA to ensure that women covered by employer-sponsored health insurance plans have access to contraception without copays or deductibles. See “Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act” (filed Oct. 6, 2017) (the “Moral Exemption”) and “Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act” (filed Oct. 6, 2017) (the “Religious Exemption”) (collectively, the “Exemption Rules”), which are attached hereto, respectively, as Exhibits A and B.
12. Because the Exemption Rules were styled as “Interim Final Rules” or “IFRs” under the APA, they went into effect immediately.
13. The Exemption Rules were issued in direct violation of the substantive and procedural requirements of the APA.
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14. Specifically, the Defendants failed to engage in notice-and-comment rulemaking, as required by the APA, and failed to offer an adequate justification for not doing so.
15. In addition, the Exemption Rules themselves violate the requirements of the Affordable Care Act.
16. They are also arbitrary and capricious, and their promulgation constitutes an abuse of discretion.
17. Furthermore, the Exemption Rules apply only to one category of health services: contraception. And contraception is used only by women.
18. By singling out women for such negative, differential treatment, the Defendants have violated the equal protection guarantee of the Due Process Clause of the Fifth Amendment to the Constitution of the United States.
19. The Commonwealth will suffer direct, proprietary harm as a result of the Exemption Rules. Where employers refuse to allow their health insurance plans to cover access to contraception, the Commonwealth will be forced to bear additional health care costs, in part, due to an increase in unintended pregnancies. Unintended pregnancies already cost the Commonwealth over $248 million per year and will surely cost more if contraception access and use decline. See Guttmacher Institute, Public Costs from Unintended Pregnancies and the Role of Public Insurance Programs in Paying for Pregnancy-Related Care National and State Estimates for 2010 at 13 (Feb. 2015).
20. In addition, the Commonwealth possesses strong interests in protecting the medical and economic health of its residents, minimizing unintended pregnancies and abortions, and ensuring that all of its residents – both men and women – are free and able to fully
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participate in the workforce, maximize their social and economic status, and contribute to Pennsylvania’s economy without facing discrimination on the basis of sex.
21. These interested are enshrined in the Pennsylvania Constitution, which declares, “Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.” PA. CONST. art. I, § 28.
22. Defendants’ actions directly undermine these vital state interests. 23. Because the Defendants have engaged in illegal conduct that will harm the Commonwealth and its citizens in these and other ways, this Court should hold that the Exemption Rules are unlawful and set them aside. The Commonwealth also seeks a preliminary injunction to maintain the status quo throughout all future proceedings in this matter.
JURISDICTION AND VENUE 24. This action arises under the Administrative Procedure Act, 5 U.S.C. §§ 553, 701706, and the United States Constitution. This Court has subject matter jurisdiction under 28 U.S.C. § 1331. 25. In addition, this Court has the authority to issue the declaratory relief sought pursuant to 28 U.S.C. § 2201. 26. Venue is proper in this Court because Plaintiff the Commonwealth of Pennsylvania resides in this district and because a substantial part of the events giving rise to this action occurred in this judicial district. See 28 U.S.C. §§ 1391(e)(1)(B) & (C).
THE PARTIES 27. Plaintiff, the Commonwealth of Pennsylvania, is a sovereign state of the United States of America. This action is brought on behalf of the Commonwealth by Attorney General Josh Shapiro, the “chief law officer of the Commonwealth.” PA. CONST. art. IV, § 4.1.
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28. In filing this action, the Attorney General seeks to protect the citizens and agencies of the Commonwealth from harm caused by Defendants’ illegal conduct, prevent further harm, and seek redress for the injuries caused to the Commonwealth by Defendants’ actions. Those injuries include harm to the Commonwealth’s sovereign, quasi-sovereign, and proprietary interests.
29. Defendant Donald J. Trump is the President of the United States of America and is sued in his official capacity. His principal address is 1600 Pennsylvania Avenue NW, Washington, D.C. 20201.
30. Defendant Donald J. Wright is the Acting Secretary of the United States Department of Health and Human Services and is sued in his official capacity. His principal address is 200 Independence Avenue, SW, Washington, D.C. 20201
31. Defendant the United States Department of Health and Humans Services is an executive agency of the United States of America. Its principal address is 200 Independence Avenue, SW, Washington, D.C. 20201
32. Defendant Steven T. Mnuchin is the Secretary of the United States Department of the Treasury and is sued in his official capacity. His principal address is 1500 Pennsylvania Avenue, NW, Washington, D.C. 20220.
33. Defendant the United States Department of the Treasury is an executive agency of the United States of America. Its principal address is 1500 Pennsylvania Avenue, NW, Washington, D.C. 20220.
34. Defendant Rene Alexander Acosta is the Secretary of the United States Department of Labor and is sued in his official capacity. His principal address is 200 Constitution Avenue, NW, Washington DC 20210.
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35. Defendant the United States Department of Labor is an executive agency of the United States of America. Its principal address is 200 Constitution Avenue, NW, Washington DC 20210.
36. Defendants the Department of Health and Humans Services, the Department of the Treasury, and the Department of Labor (collectively the “Departments”) are each responsible for implementing various provisions of the ACA. The Departments jointly issued the Exemption Rules, which gave rise to this action.
37. Defendants Wright, Mnuchin, and Acosta are each responsible for carrying out the duties of their respective agencies under the Constitution of the United States of America and relevant statutes, including the Affordable Care Act.
38. Defendant Trump is responsible for faithfully enforcing the laws of the United States of America pursuant to and in accordance with the Constitution of the United States of America.
BACKGROUND Congress Passes the Affordable Care Act and Women’s Health Amendment 39. Access to preventive health services, including contraception, is essential for women to exercise control over their own health care and fully participate as members of society. 40. Access to contraception, in particular, allows women greater control over their reproductive health choices so they can better pursue educational, career, and personal goals. 41. Indeed, the expansion of preventive health services for women was a specific goal of the health care reform efforts that led to the passage of the Affordable Care Act. 42. Recognizing this need to expand women’s access to preventive health services and reduce gender disparities in out-of-pocket costs, the U.S. Senate passed the “Women’s
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Health Amendment” during debate over the ACA. See S. Amdt. 2791, 111th Congress (20092010).
43. This Amendment was included in the final version of the ACA, which was signed into law on March 23, 2010. See ACA § 1001; Public Health Service Act (as amended by the ACA) § 2713, 42 U.S.C. § 300gg–13(a)(4).
44. During Senate debate on the Women’s Health Amendment, lead sponsor Senator Barbara Mikulski set forth that Amendment’s key feature: it “leaves the decision of which preventive services a patient will use between the doctor and the patient.” 155 Cong. Rec. S11988 (Nov. 30, 2009) (statement of Sen. Barbara Mikulski). Senator Mikulski explained that this is essential because the “decision about what is medically appropriate and medically necessary is between a woman and her doctor.” Id.
45. Another sponsor of the Amendment, Senator Al Franken, stressed that insurance coverage for contraceptive care allows “women and families to make informed decisions about when and how they become parents.” He described access to contraception as “a fundamental right of every adult American” that also “reduce[s] the number of unintended pregnancies.” 155 Cong. Rec. S12052 (Dec. 1, 2009) (statement of Sen. Al Franken) (“It is also a top priority for me that health reform includes another crucial women’s health service, which is access to affordable family planning services. These services enable women and families to make informed decisions about when and how they become parents. Access to contraception is fundamental, a fundamental right of every adult American, and when we fulfill this right, we are able to accomplish a goal we all share—all of us on both sides of the aisle to reduce the number of unintended pregnancies.”).
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46. The Women’s Health Amendment mandated that group health plans and health insurance issuers offering group or individual health insurance coverage cover preventive health services and screenings for women – and do so with no cost-sharing responsibilities. See 42 U.S.C.A. § 300gg-13(a)(3). Some employer-sponsored plans that were in existence prior to passage, were exempt from this requirement and most of the other requirements imposed by the ACA. See 29 C.F.R. § 2590.715-1251 (2010).
47. The specific services insurers were required to cover without charge were to be determined by guidelines issued by the Health Resources and Services Administration (the “HRSA”), an agency of Defendant the United States Department of Health and Human Services (“HHS”). Id.
The Institute of Medicine Report on Clinical Preventive Services for Women 48. Following passage of the Affordable Care Act, the HRSA complied with its legal responsibility to determine coverage guidelines by commissioning the Institute of Medicine (the “Institute”), a widely respected organization of medical professionals, to issue recommendations identifying what specific preventive women’s health services should be covered under the ACA’s mandate. 49. The Institute, in turn, convened a committee of sixteen members, including specialists in disease prevention, women’s health issues, adolescent health issues, and evidencebased guidelines, to formulate specific recommendations. See Report. 50. After conducting an extensive study, that committee issued a comprehensive report, which identified several evidence-based preventive health services, unique to women, that it recommended be included as part of the HRSA’s comprehensive guidelines under the ACA. See Report.
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51. As set forth in their Report, the Institute found that contraceptives are a preventive service that should be covered under the ACA’s mandate. See Report at 109-10. In making this finding, the Institute cited evidence that “contraception and contraceptive counseling” are “effective at reducing unintended pregnancies” and observed that “[n]umerous health professional associations recommend” that such family planning services be included as part of mandated preventive care for women. See id. at 109.
52. Relying, in part, on recommendations from the American Academy of Pediatrics, the Society of Adolescent Medicine, the American Medical Association, the American Public Health Association, and the Association of Women’s Health, Obstetric and Neonatal Nurses, the Institute recommended that all employer sponsored health plans cover the “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” Report at 109-10 (emphasis added).
53. The Institute based its recommendation on several important factors, including the prevalence of unintended pregnancy in the United States. As stated in their Report, in 2001, an estimated “49 percent of all pregnancies in the United States were unintended—defined as unwanted or mistimed at the time of conception.” Report at 102 (internal citations omitted).
54. The Institute found that these unintended pregnancies disproportionately impact the most vulnerable: Although one in every 20 American women has an unintended pregnancy each year, unintended pregnancy is “more likely among women who are aged 18 to 24 years and unmarried, who have a low income, who are not high school graduates, and who are members of a racial or ethnic minority group.” Id.
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55. And unintended pregnancies are more likely to result in abortions: “In 2001, 42 percent of [] unintended pregnancies [in the United States] ended in abortion.” Id.
56. Moreover, women carrying babies to term are less likely to follow best health practices where those pregnancies are unintended. According to the Institute Committee on Unintended Pregnancy, “women with unintended pregnancies are more likely than those with intended pregnancies to receive later or no prenatal care, to smoke and consume alcohol during pregnancy.” Report at 103.
57. Women facing unintended pregnancies are also more likely to be “depressed during pregnancy, and to experience domestic violence during pregnancy.” Id.
58. The Institute also found “significantly increased odds of preterm birth and low birth weight among unintended pregnancies ending in live births compared with pregnancies that were intended.” Id.
59. While all pregnancies carry inherent health risks, some women have serious medical conditions for which pregnancy is strictly contraindicated. The Institute specifically found that “women with serious medical conditions such as pulmonary hypertension (etiologies can include idiopathic pulmonary arterial hypertension and others) and cyanotic heart disease, and … Marfan Syndrome,” are advised against becoming pregnant. Report at 103. For these women, contraception can be necessary, lifesaving medical care.
60. Use of contraceptives also promotes medically recommended “spacing” between pregnancies. The Institute found that such pregnancy spacing is important because of the “increased risk of adverse pregnancy outcomes for pregnancies that are too closely spaced (within 18 months of a prior pregnancy)” and that “[s]hort interpregnancy intervals in particular
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have been associated with low birth weight, prematurity, and small for gestational age births.” Report at 103.
61. The Institute also found that contraceptives are effective in preventing unintended pregnancies. As stated in the Report, “greater use of contraception within the population produces lower unintended pregnancy and abortion rates nationally.” Report at 105.
62. The Committee specifically highlighted a study showing that, as the rate of contraceptive use by unmarried women increased in the United States between 1982 and 2002, their rates of unintended pregnancy and abortion declined. Id.
63. The Committee reported other studies that showed increased rates of contraceptive use by adolescents from the early 1990s to the early 2000s was associated with a “decline in teen pregnancies” and, conversely, that “periodic increases in the teen pregnancy rate are associated with lower rates of contraceptive use.” Report at 105.
64. The Institute also found that contraception, as a method of preventing unintended pregnancy, is highly cost-effective, citing, inter alia, savings in medical costs alone. It reported that “the direct medical cost of unintended pregnancy in the United States was estimated to be nearly $5 billion in 2002, with the cost savings due to contraceptive use estimated to be $19.3 billion.” Report at 107.
65. In addition to preventing unintended pregnancies, the Institute recognized that contraceptives have other significant health benefits unrelated to preventing unintended pregnancy. The Institute stated in its Report that these “non-contraceptive benefits of hormonal contraception include treatment of menstrual disorders, acne or hirsutism, and pelvic pain.” Report at 104. Long-term use of oral contraceptives has also been shown to “reduce a woman’s
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risk of endometrial cancer, as well as protect against pelvic inflammatory disease and some benign breast diseases.” Id.
66. Indeed, a leading research and policy organization committed to advancing sexual and reproductive health and rights in the United States and globally, found in a 2011 report that more than 1.5 million women rely on oral contraceptive “birth control” pills for medical reasons unrelated to preventing pregnancy and that that 58% of all users of birth control pills – more than half – use them, at least in part, for purposes other than pregnancy prevention. See Guttmacher Report.
67. As of 2008, there were still “approximately 36 million U.S. women of reproductive age (usually defined as ages 15 to 44 years)” who were “estimated to be in need of family planning services because they were sexually active, able to get pregnant, and not trying to get pregnant.” Report at 103.
68. Importantly, the Institute noted that cost is a meaningful barrier to contraceptive access, stating that “[d]espite increases in private health insurance coverage of contraception since the 1990s, many women do not have insurance coverage or are in health plans in which copayments for visits and for prescriptions have increased in recent years” and citing to a Kaiser Permanente study that found “when out-of-pocket costs for contraceptives were eliminated or reduced, women were more likely to rely on more effective long-acting contraceptive methods.” Report at 109.
The Health Resources and Services Administration Adopts the IOM Report and Promulgates Guidelines 69. The HRSA agreed with and adopted the Institute’s recommendation that contraceptive services be covered under the Women’s Health Amendment to the Affordable Care Act.
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70. In August 2011, pursuant to its responsibility under the ACA, the HRSA promulgated the Women’s Preventive Service Guidelines (the “Guidelines”). See HRSA, Women’s Preventive Service Guidelines (2011), available at https://www.hrsa.gov/womensguidelines/index.html#2.
71. These Guidelines required that, as part of their group health plans, employers must cover “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity,” without any cost-sharing or payment by the insureds. Id.
72. As recently as December 2016, HRSA updated the Guidelines, following yet another review of evidence-based facts, determining that full coverage for contraceptive care and services must continue to be required. See https://www.hrsa.gov/womens-guidelines-2016/ index.html. The Departments Grant Limited Exemptions and Accommodations to Religious Objectors
73. The Affordable Care Act does not contain a “conscience clause” that would allow employers to opt out of providing those preventive services required by the statute.
74. Nevertheless, in 2011, the Departments undertook regulatory action to accommodate religious objectors.
75. The Departments issued regulations in 2011 that exempt “churches, their integrated auxiliaries, and conventions or associations of churches” from the ACA’s requirement that employers cover contraceptive services, without cost-sharing requirements, under employee group health care plans – provided these conscientious objectors satisfied certain criteria (the “Original Religious Exemption”). See Group Health Plans and Health Insurance Issuers Relating
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to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46621 (Aug. 3, 2011).
76. To qualify, the purpose of the organization had to be “[t]he inculcation of religious values,” the organization had to primarily employ and serve, “persons who share the religious tenets of the organization,” and the organization had to be a certified non-profit. 76 Fed. Reg. 46621.
77. Following the issuance of the HRSA guidelines, several Senators proposed amending the Affordable Care Act to allow health plans to refuse to provide coverage for certain services if doing so was “contrary to the religious beliefs or moral convictions of the sponsor, issuer, or other entity offering the plan.” S. Amdt. 1520, 112th Congress (2011-2012).
78. The proposed amendment was necessary, as its signors specifically acknowledged, because the ACA “does not allow purchasers, plan sponsors, and other stakeholders with religious or moral objections to specific items or services to decline providing or obtaining coverage of such items or services, or allow health care providers with such objections to decline to provide them.” Id. (emphasis added).
79. That proposed amendment was rejected; it did not become law. 158 Cong. Rec. S1172-S1172 (Mar. 1, 2012).
80. The following year, the Departments issued regulations to accommodate additional religious nonprofit organizations that had not been exempted from the ACA’s Contraceptive Mandate under the Departments’ 2011 regulations but still wanted to avoid the ACA’s mandate of having to provide contraceptive services to their employees (the “Religious Non-Profit Accommodation”). See 80 FR 41318-01.
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81. Under the Religious Non-Profit Accommodation, an objecting employer could notify its health insurance provider of religious objections and the insurer – not the objecting employer – would then have to provide the necessary and required contraceptive services directly to women covered under the employer’s plan. See 80 FR 41318-01. In this way, women whose employers refused to pay for the legally mandated contraceptive coverage under the Religious Non-Profit Accommodation still had access to contraceptive care.
82. This was different from those women who were insured under coverage from “churches, their integrated auxiliaries, and conventions or associations of churches” that were wholly exempt from the ACA’s Contraceptive Mandate under the Original Religious Exemption.
83. At that time, the Defendant Departments declined to create any broader exceptions to the Contraceptive Mandate. Instead, they struck a balance by adhering to the evidence-based approach to women’s preventive health needs intended by Congress and allowing only the Original Religious Exemption and the Religious Non-Profit Accommodation, two reasonable exceptions under which religious organizations and nonprofit employers with religious objections, could opt out of the ACA’s Contraceptive Mandate.
84. Indeed, throughout this process, the government continued to focus on the evidence-based medical conclusion that guaranteeing women’s access to contraceptives is an essential healthcare component to allowing women to participate as full members of society.
85. For example, even while trying to accommodate the views of religious objectors, the Defendant Departments firmly articulated their evidence-based conclusion that barriers to contraceptive access “place[] women in the workforce at a disadvantage compared to their male co-workers” and observed that, “by reducing the number of unintended and potentially unhealthy pregnancies, [contraceptive coverage] furthers the goal of eliminating this disparity by allowing
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women to achieve equal status as healthy and productive members of the job force.” 77 Fed. Reg. 8725, 8728 (Feb. 15, 2012) (footnote omitted).
Litigation Challenging the ACA’s Contraceptive Mandate 86. Following enactment of the ACA and the relevant implementing regulations, several employers filed lawsuits to challenge the scope of the Contraceptive Mandate, the Original Religious Exemption and the Religious Non-Profit Accommodation. 87. In Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), the Supreme Court concluded that applying the ACA’s Contraceptive Mandate to closely held corporations that objected on the basis of sincerely held religious beliefs violated the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb–1. 88. That statute provides that the government may not “substantially burden a person’s exercise of religion” unless it did so “in furtherance of a compelling governmental interest” and adopted “the least restrictive means of furthering that compelling governmental interest.” Id. 89. As a result of the ruling in Hobby Lobby, the Defendant Departments began allowing such employers to take advantage of the Religious Non-Profit Accommodation process previously available only to nonprofit employers. 90. Two years later, in Zubik v. Burwell, 136 S. Ct. 1557 (2016), the Supreme Court considered several consolidated challenges to the accommodation process itself. Following oral argument, the Court sought clarification from the parties as to whether a modified accommodation process that did not require the employer to formally notify its insurance company of its objection – but would still ensure that the employer’s employees received
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contraceptive coverage – would accommodate both the government’s interests and the objections of certain religious employers.
91. After receiving clarification from the parties, the Supreme Court remanded to provide them with “an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’” Id. at 1560 (citation omitted).
92. On January 9, 2017, however, the Department of Labor announced that “no feasible approach has been identified … that would resolve the concerns of religious objectors, while still ensuring that the affected women receive full and equal health coverage, including contraceptive coverage.” FAQs about Affordable Care Act Implementation Part 36 (Jan. 9, 2017).
President Trump’s Executive Order “Promoting Free Speech and Religious Liberty” 93. On May 4, 2017, President Donald Trump issued an Executive Order entitled
“Promoting Free Speech and Religious Liberty.” President Donald Trump, “Presidential Executive Order Promoting Free Speech and Religious Liberty,” (May 4, 2017).
94. Among other provisions, this Executive Order directed the Defendant Departments to “consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under section 300gg13(a)(4) of Title 42, United States Code.” Id. § 3.
95. This Executive Order did not specifically mention the Contraceptive Mandate. Rather, the President directed the Defendant Departments to consider issuing amended
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regulations to address conscience-based objections to services provided under the Women’s Health Amendment to the Affordable Care Act only.
96. The President did not, for example, direct the Departments to consider regulations addressing objections to any other preventive services.
97. President Trump’s Executive Order did not identify any deficiencies with the existing regulations that addressed conscience-based objections (the Original Religious Exemption and the Religious Non-Profit Accommodation) or provide any guidance whatsoever as to the amended regulations that the President had directed the Departments to consider issuing.
98. The Executive Order stated only that any amended regulations issued must be “consistent with applicable law.” Id. § 6(b).
The Departments Issue New Exemption Rules Without Engaging in Required Notice-and-Comment Rulemaking 99. In May and June 2017, several news organizations obtained and published an otherwise unreleased draft regulation entitled “Coverage of Certain Preventive Services under the Affordable Care Act.” See, e.g., Vox.com, “Leaked regulation: Trump plans to roll back Obamacare birth control mandate” (May 31, 2017), available at https://www.vox.com/policyand-politics/2017/5/31/15716778/trump-birth-control-regulation.This draft regulation was dated May 23, 2017. 100. Last Friday on October 6, 2017, the Defendant Departments simultaneously issued both the Religious Exemption Rule and the Moral Exemption Rule. 101. These new Exemption Rules significantly expanded exemptions to the Contraceptive Mandate – they are the proverbial exceptions that swallowed the rule.
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102. Though more than four months had passed since the draft regulation had leaked, the Departments issued the Exemption Rules without any advance public notice and without inviting or providing opportunity for comment.
The Religious Exemption Rule 103. The Religious Exemption Rule significantly expands the scope of the existing Original Religious Exemption for certain religious employers. 104. Specifically, it allows all employers – including large, publicly traded corporations – to opt out of providing no-cost contraceptive coverage to their employees on the basis of “sincerely held religious beliefs.” Religious Exemption at 74. 105. In the context of publicly traded corporations, the Religious Exemption Rule suggests that, if owners of a majority of a company’s shares possess a religious objection to contraceptive coverage, the company can simply refuse to provide such coverage. 106. The Religious Exemption Rule states that “in a country as large as America comprised of a supermajority of religious persons … the majority of shares (or voting shares) of some publicly traded companies might be controlled by a small group of religiously devout persons so as to set forth such a religious character.” Religious Exemption at 68-69. 107. In other words, the rule is speculative, on its face, concerned with the possibility that a “religious publicly traded company might have objections to contraceptive coverage…” Religious Exemption at 69 (emphasis added). 108. The Religious Exemption Rule is not based on any identifiable injury to any group of people.
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The Moral Exemption Rule 109. The Moral Exemption Rule creates a brand new exemption allowing employers to refuse to provide their employees with contraceptive coverage solely “based on sincerely held moral convictions.” IFR 2017-21852. 110. This exemption applies to nonprofit entities and for-profit entities whose shares are not publicly traded. Unlike the Religious Exemption Rule, the Moral Exemption Rule does not allow publicly traded companies to opt out of the Mandate. 111. Taken together, however, the Exemption Rules eliminate the accommodation process entirely because objecting entities “do not need to file notices or certifications of their exemption.” See Moral Exemption 48-49; Religious Exemption 61. 112. Employees of companies that object under either Exemption Rule will lose access to the contraceptive coverage required under the ACA’s Contraceptive Mandate. The Defendant Departments’ Purported Justification for the New Exemption Rules 113. The Departments justify the Exemption Rules on the basis that some other federal statutes contain express provisions creating exemptions for individuals or organizations that object to certain conduct on religious or moral grounds. See Religious Exemption at 5 & n.1. 114. But the Affordable Care Act is not one of them – the ACA contains no exemption whatsoever for individuals or organizations that object to provisions of the law based on religious or moral grounds. 115. In fact, the Senate expressly rejected adding such an exemption to the ACA. See supra ¶¶ 74-76. 116. Despite Congress’s specific choice not to include such a provision in the ACA, the Defendant Departments claim that “Congress has consistently sought to protect religious
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beliefs in the context of health care and human services, including health insurance, even as it has sought to promote access to health services.” Religious Exemption at 5 (emphasis added).
117. The Departments further suggest that the Religious Exemption was necessary to comply with the Religious Freedom Restoration Act, id. at 32 – but state that, “even if exemptions are not required” under that Act, they will “exercise their discretion to address the substantial burden identified in Hobby Lobby by expanding the exemptions from the [Contraceptive] Mandate instead of revising accommodations previously offered,” id. at 53.
118. The Defendant Departments did not rely on the Religious Freedom Restoration Act in issuing the Moral Exemption; instead they claimed that the ACA granted them broad discretion to create exemptions from the Contraceptive Mandate. See IFR 2017-21852 at 9 (“The Departments have consistently interpreted section 2713(a)(4)’s of the PHS Act grant of authority to include broad discretion to decide the extent to which HRSA will provide for and support the coverage of additional women’s preventive care and screenings in the Guidelines. In turn, the Departments have interpreted that discretion to include the ability to exempt entities from coverage requirements announced in HRSA’s Guidelines.”).
119. The Exemption Rules did not say, however, that HRSA had determined that contraception was no longer preventive medical care; nor did they assert any valid medical reasons for exempting certain employers from the mandate.
120. Because both of the Exemption Rules were issued as Interim Final Rules (IFRs), they did not go through the ordinary notice-and-comment process—they became effective immediately.
121. The Departments argued that it was necessary to take this extraordinary step of issuing the Exemption Rules as IFRs because several lawsuits challenging varying aspects of the
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Contraceptive Mandate were ongoing and allowing the rules to go into effect immediately would “help settle or resolve cases, and … ensure, moving forward, that [the Departments’] regulations are consistent with any approach [they] have taken in resolving certain litigation matters.” Religious Exemption at 81.
122. Among the supposed burdens imposed by the ongoing litigation, the Departments identified the fact that “Courts of Appeals have been asking the parties in those cases to submit status reports every 30 through 90 days” and that “several courts have issued orders setting more pressing deadlines.” Religious Exemption at 80.
123. The Departments further asserted that they had been unable to comply with court orders directing them to set forth their position in specific lawsuits “because this interim final rule [the Religious Exemption] was not yet on public display.” Religious Exemption at 81.
124. The Departments do not explain why this litigation precluded them from following the notice-and-comment requirements of the APA, nor do they explain why their own inability to articulate their position in individual cases justifies imposing sweeping rules with immediate effect.
125. The Exemption Rules undermine the balance struck under the prior regulatory scheme and run counter to the Affordable Care Act’s mandate that evidence-based preventive services be provided.
126. As a result of these abuses, which replace evidence-based science and medical reasoning with political calculation, millions of women will be penalized and denied needed contraceptive care against the advice of science, public health and medical professionals.
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Specific Harm to the Commonwealth of Pennsylvania Caused by the New Exemption Rules 127. The States are generally preempted from regulating self-insured plans. Such plans
are, instead, governed by the Employee Retirement Income Security Act of 1974 (“ERISA”) (Pub. L. 93–406, 88 Stat. 829, enacted September 2, 1974, codified in part at 29 U.S.C. ch. 18), a federal law that establishes minimum standards for pension plans in private industry and provides for extensive rules on the federal income tax effects of transactions associated with employee benefit plans.
128. As of 2010, approximately 80% of “large employers” (with over 1000 employees), and 50% of “mid-sized employers” (with 200-1000 employees), offered self-insured plans. See Rand Corp., “Employer Self-Insurance Decisions,” at 17-18 (Mar. 2011) (prepared for United States Department of Labor and HHS).
129. As a result of the Defendants’ new Exemption Rules, it is estimated that many employers will claim newly expanded exemptions and will bar their own employees from receiving medical coverage that is otherwise required under the Contraceptive Mandate.
130. Upon information and belief, many of these newly-created Contraceptive Mandate-exempted employers are expected to be Pennsylvania companies.
131. This will result in numerous insureds – and their female dependents – losing medical coverage for contraceptive care under the Affordable Care Act.
132. Many of those losing this legally-mandated coverage will be Pennsylvania policy holders; all of the women affected will face an increased risk of medical harm or an increased economic burden if they choose to self-fund contraception
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133. This broad loss of formerly-mandated contraceptive care will result in significant, direct and proprietary harm to the Commonwealth, which will bear increased costs as a result of the Exemption Rules.
134. Some women who lose their employer-sponsored health coverage for contraceptive care will seek coverage through Pennsylvania’s subsidized family planning program, which provides preventive screenings and contraceptives for low-income women who are not eligible for Medicaid. This additional financial burden will be borne by the Commonwealth.
135. Other women will forgo contraceptive health services altogether, because the loss of their employer-sponsored coverage will make their formerly-mandated care unaffordable or inaccessible. But this will not help Pennsylvania’s coffers.
136. Rather, as a result of the affected women no longer receiving coverage, Pennsylvania will see an increase in unintended pregnancies and other negative health outcomes which, in addition to other personal, social and societal burdens, will impose direct costs on the Commonwealth.
137. Indeed, to date – before the Defendants issued their new Exemption Rules – the Contraceptive Mandate has resulted in extraordinary savings for women that are also enjoyed by the Commonwealth of Pennsylvania.
138. A recent study conducted by the University of Pennsylvania found, for example, that the ACA’s Contraceptive Mandate “is saving the average [contraceptive] pill user $255 per year” and “the average woman receiving an IUD is saving $248.”See University of Pennsylvania School of Medicine, “Affordable Care Act results in dramatic drop in out-of-pocket prices for
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prescription contraceptives,” Press Release (July 7, 2015), https://www.eurekalert.org/ pub_releases/2015-07/uops-aca070615.php.
139. Spread over an estimated 6.88 million privately insured oral contraceptive users in the United States, the University of Pennsylvania study estimates that, as a result of the ACA’s Contraceptive Mandate, “consumer annual contribution to spending on the pill could be reduced by almost $1.5 billion annually.” Id. It is believed that the Commonwealth has enjoyed increased tax revenue as a result of its female citizens enjoying increased savings borne from the contraceptive mandate.
140. In addition to the direct, proprietary harm set forth above, the new Exemption Rules impermissibly encroach on the Commonwealth’s sovereign interest in protecting the health, safety, and well-being of its residents, and in ensuring that they enjoy equal access to federal programs. As such, in addition to proprietary standing, the Commonwealth has parens patriae standing to vindicate these interests.
CAUSES OF ACTION COUNT I
Violation of Equal Protection of the Law 141. The Commonwealth incorporates by reference the foregoing paragraphs of this Complaint as if set forth at length. 142. Under the Due Process Clause of the Fifth Amendment to the U.S. Constitution, the federal government may not deny any person equal protection of the law. US CONST. amend. V. 143. Discrimination on the basis of sex violates this constitutional guarantee.
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144. The new Exemption Rules apply to one category of preventive medical care only – contraception.
145. And contraception is used solely by women. 146. Because the Exemption Rules allow employers to refuse previously-mandated preventive medical services for women only, they violate the Constitution’s guarantee of equal protection under the law.
COUNT II Violation of Title VII of the Civil Rights Act and the Pregnancy Discrimination Act
147. The Commonwealth incorporates by reference the foregoing paragraphs of this Complaint as if set forth at length.
148. The Exemption Rules violate Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, which prohibits discrimination based on sex. See 42 U.S.C. § 2000e et seq. (Title VII).
149. The Pregnancy Discrimination Act prohibits discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” See 42 U.S.C.A. § 2000e. That protects employees from discrimination based on their need for contraception.
150. Classifying employees on the basis of their childbearing capacity, regardless of whether they are, in fact, pregnant, is prohibited sex discrimination under Title VII.
151. Male and female employees have different health care needs, and only women can get pregnant, bear children, or use contraception.
152. The Exemption Rules violate Title VII because they discriminate against women on the basis of their capacity to get pregnant.
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COUNT III Violation of the Establishment Clause 153. The Commonwealth incorporates by reference the foregoing paragraphs of this Complaint as if set forth at length. 154. The IFRs violate the Establishment Clause of the First Amendment to the U.S. Constitution. 155. The Departments have used their rulemaking authority for the primary purpose, and with the actual effect, of advancing and endorsing religious interests. 156. The Departments have acted to promote employers’ religious beliefs over the selfdetermination of women who do not share those beliefs, and over the ACA’s mandate that preventive care be provided. 157. Through the IFRs, the government has endorsed employers’ religious beliefs, over science, to the detriment and discrimination of women. The expanded exemptions grant employers executive authority over whether employees receive contraceptive coverage, whether needed to prevent unintended pregnancy, and/or to treat a medical condition, with no accommodation process. 158. The IFRs elevate employers’ religious beliefs over the constitutional rights, and statutory guarantees, of women, in violation of the Establishment Clause to the United State Constitution.
COUNT IV Failure to Engage in Notice and Comment Rulemaking 159. The Commonwealth incorporates by reference the foregoing paragraphs of this Complaint as if set forth at length.
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160. Under the APA, a court shall “hold unlawful” and “set aside” any “agency action, findings, and conclusions found to be … without observance of procedure required by law.” 5 U.S.C. § 706(2)(D).
161. In issuing substantive rules, federal agencies are required to follow the notice and comment process set forth in the APA unless the agency “for good cause” finds that notice and public procedure are “impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. § 553(b)(3)(B) .Any such findings must be incorporated into the rules along with “a brief statement of reasons therefor.” Id.
162. Specifically, before issuing any rule, the agency must publish a “[g]eneral notice of proposed rule making” in the Federal Register. 5 U.S.C. § 553(b).
163. That notice must describe “either the terms or substance of the proposed rule or a description of the subjects and issues involved.” 5 U.S.C. § 553(b)(3).
164. The agency must further provide “interested persons” an “opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation.” 5 U.S.C. § 553(b)(c).
165. Here, in issuing the Exemption Rules, the Defendant Departments failed to follow these basic legal requirements of the APA.
166. Furthermore, the justifications offered by the Departments for their failure to engage in notice and comment rulemaking do not remotely satisfy the “good cause” standard required under section 553(b)(3)(B) of the APA; they are legally insufficient, contradictory, and inconsistent with the factual record.
167. Because the Departments failed to follow the procedural requirements of the APA, both Rules should be held unlawful and set aside pursuant to 5 U.S.C. § 706(2)(D).
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COUNT V Violation of the Substantive Requirements of the Administrative Procedure Act 168. The Commonwealth incorporates by reference the foregoing paragraphs of this Complaint as if set forth at length. 169. Under the APA, a 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.” 5 U.S.C. § 706(2)(A). 170. Both the Moral Exemption Rule and the Religious Exemption Rule are inconsistent with the Affordable Care Act’s requirement that group health plans and insurers provide women with preventive care as provided for in guidelines issued by the HRSA, without any cost-sharing requirements. 171. The Rules also violate the civil rights protections in the ACA prohibiting discrimination on the basis of sex and other protected categories in most health care programs and activities. These protections added to existing federal anti-discrimination provisions, including Title VII of the Civil Rights Act of 1964, which prohibits discrimination in the provision of employer sponsored health care plans. See 42 U.S.C.A. § 18116. 172. They are also in derogation of the provisions of the ACA that prohibit the promulgation of any regulation that “[c]reates any unreasonable barrier to the ability of individuals to obtain appropriate medical care,” “[i]mpedes timely access to health care services,” or “[l]imits the availability of health care treatment for the full duration of a patient’s medical needs.” 42 U.S.C. § 1811. 173. In addition, neither Rule is required by the Religious Freedom Restoration Act or any other relevant statute.
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Case 2:17-cv-04540-WB Document 1 Filed 10/11/17 Page 32 of 66 174. Indeed, when it passed the Affordable Care Act, Congress elected not to include a “conscientious objector” or other exemption for individuals or organizations who object to any portion of the ACA on religious or moral grounds. 175. The Departments further abused their discretion and acted in a manner that was arbitrary and capricious in issuing the Rules. 176. Both Rules should be held unlawful and set aside pursuant to 5 U.S.C. § 706(2)(A).
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PRAYER FOR RELIEF WHEREFORE, the Commonwealth of Pennsylvania requests that this Court enter judgment in its favor and grant the following relief: a. Declare the Moral Exemption Rule and the Religious Exemption Rule unlawful; b. Vacate the Moral Exemption Rule and the Religious Exemption Rule; c. Preliminarily and Permanently enjoin the application of the Moral Exemption Rule
and the Religious Exemption Rule; d. Award Plaintiff reasonable costs, including attorneys’ fees; and e. Grant such other and further relief as the Court deems just and proper.
Respectfully submitted, JOSH SHAPIRO Attorney General Commonwealth of Pennsylvania
/s Jonathan Scott Goldman JONATHAN SCOTT GOLDMAN MICHAEL J. FISCHER NICOLE J. BOLAND PA Atty. Nos. 93909, 322311, and 314061 Office of Attorney General Strawberry Square, 16th Floor Harrisburg, PA 17120 (717) 787-3391 jgoldman@attorneygeneral.gov
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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA,
Plaintiff, v.
DONALD J. TRUMP, in his official capacity as President of the United States; DONALD J. WRIGHT, in his official capacity as Acting Secretary of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; STEVEN T. MNUCHIN, in his official capacity as Secretary of the Treasury; UNITED STATES DEPARTMENT OF THE TREASURY; RENE ALEXANDER ACOSTA, in his official capacity as Secretary of Labor; and UNITED STATES DEPARTMENT OF LABOR,
Defendants.

CIVIL ACTION NO: __________ COMPLAINT

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF The Commonwealth of Pennsylvania, by and through Attorney General Josh Shapiro, hereby files this Complaint against Defendants Donald J. Trump, in his official capacity as President of the United States; Donald J. Wright, in his official capacity as Acting Secretary of Health and Human Services; the United States Department of Health and Human Services; Steven T. Mnuchin, in his official capacity as Secretary of the Treasury; the United States Department of the Treasury; Rene Alexander Acosta, in his official capacity as Secretary of Labor; and the United States Department of Labor (collectively, the “Defendants”) and, in support thereof, states the following:

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PRELIMINARY STATEMENT 1. This lawsuit challenges the Defendants’ illegal and unjustified attempt to deny millions of women in Pennsylvania and across this country access to necessary preventive health care through their employer-sponsored insurance plans. As set forth more fully below, Defendants’ actions violate, among other provisions of law, the Administrative Procedure Act, the Affordable Care Act, the guarantee of equal protection enshrined in the Due Process Clause of the Fifth Amendment to the United States Constitution, Title VII of the Civil Rights Act, the Pregnancy Discrimination Act, and the Establishment Clause of the First Amendment. If Defendants are not blocked from implementing their unlawful rules, direct harm will result to the Commonwealth of Pennsylvania and the medical and economic health of its residents. Because these rules will cause irreparable harm and were issued in violation of law, the Commonwealth of Pennsylvania seeks declaratory and injunctive relief holding the new rules unlawful and preventing their further implementation.
INTRODUCTION 2. The Patient Protection and Affordable Care Act, 42 U.S.C. § 18001 et seq. (2010) (the “Affordable Care Act” or “ACA”), together with its implementing regulations, requires employer-sponsored health plans to cover all FDA-approved methods of contraception without imposing cost-sharing requirements on the insured. 3. Because of this requirement (the “Contraceptive Mandate”) over 55 million women have access to birth control without paying out-of-pocket costs, including 2.5 million Pennsylvanians. See Women’s Preventive Services Initiative, Recommendations for Preventive Services for Women: Final Report to the U.S. Department of Health and Human Services, Health Resources & Services Administration 84 (2016) (“WPSI Report”). American women and their
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families covered by private insurance have saved an estimated 70% on contraceptive costs as a result. WPSI Report at 84.
4. Contraception is medicine, and its use has been shown to reduce the rates of unintended pregnancies and abortions. See Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps 105 (2011) (the “Report”), attached hereto as Exhibit C.
5. But Doctors prescribe contraception to their patients for any number of reasons, some not having to do with birth control at all. For example, doctors frequently prescribe contraception for treatment of various menstrual disorders, acne, abnormal growth of bodily hair, and pelvic pain. According to a 2011 report, more than 1.5 million women rely on oral “birth control” pills for medical reasons unrelated to preventing pregnancy, and 58% of all users of birth control pills – more than half – use them, at least in part, for purposes other than pregnancy prevention. See Guttmacher Institute, Beyond Birth Control: The Overlooked Benefits of Oral Contraceptive Pills (2011), available at https://www.guttmacher.org/sites/default/files/ report_pdf/beyond-birth-control.pdf.
6. For these and other reasons, “access to contraception improves the social and economic status of women.” Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725, 8728 (Feb. 15, 2012) (citations omitted).
7. As a result of the Affordable Care Act, millions of American women enjoy a greater degree of control over their own medical health and have the ability to more fully participate in the workforce.
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8. Defendants, however, threaten to deny many of these women the contraceptive health coverage on which they have come to rely by, in effect, making the Contraceptive Mandate optional.
9. They have issued regulations, targeted solely at women, that create broad exemptions from the ACA’s Contraceptive Mandate, and they have done so in violation of the Administrative Procedure Act, 5 U.S.C. §§ 553, 701-706 (“APA”).
10. These regulations allow individual employers to decide whether women who are insured under their company’s health insurance – specifically the company’s female employees and the employees’ female family members – may have access to contraception without out-ofpocket charges.
11. Defendants have issued two separate rules that dramatically expand the ability of employers to opt out of their obligation under the ACA to ensure that women covered by employer-sponsored health insurance plans have access to contraception without copays or deductibles. See “Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act” (filed Oct. 6, 2017) (the “Moral Exemption”) and “Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act” (filed Oct. 6, 2017) (the “Religious Exemption”) (collectively, the “Exemption Rules”), which are attached hereto, respectively, as Exhibits A and B.
12. Because the Exemption Rules were styled as “Interim Final Rules” or “IFRs” under the APA, they went into effect immediately.
13. The Exemption Rules were issued in direct violation of the substantive and procedural requirements of the APA.
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14. Specifically, the Defendants failed to engage in notice-and-comment rulemaking, as required by the APA, and failed to offer an adequate justification for not doing so.
15. In addition, the Exemption Rules themselves violate the requirements of the Affordable Care Act.
16. They are also arbitrary and capricious, and their promulgation constitutes an abuse of discretion.
17. Furthermore, the Exemption Rules apply only to one category of health services: contraception. And contraception is used only by women.
18. By singling out women for such negative, differential treatment, the Defendants have violated the equal protection guarantee of the Due Process Clause of the Fifth Amendment to the Constitution of the United States.
19. The Commonwealth will suffer direct, proprietary harm as a result of the Exemption Rules. Where employers refuse to allow their health insurance plans to cover access to contraception, the Commonwealth will be forced to bear additional health care costs, in part, due to an increase in unintended pregnancies. Unintended pregnancies already cost the Commonwealth over $248 million per year and will surely cost more if contraception access and use decline. See Guttmacher Institute, Public Costs from Unintended Pregnancies and the Role of Public Insurance Programs in Paying for Pregnancy-Related Care National and State Estimates for 2010 at 13 (Feb. 2015).
20. In addition, the Commonwealth possesses strong interests in protecting the medical and economic health of its residents, minimizing unintended pregnancies and abortions, and ensuring that all of its residents – both men and women – are free and able to fully
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participate in the workforce, maximize their social and economic status, and contribute to Pennsylvania’s economy without facing discrimination on the basis of sex.
21. These interested are enshrined in the Pennsylvania Constitution, which declares, “Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.” PA. CONST. art. I, § 28.
22. Defendants’ actions directly undermine these vital state interests. 23. Because the Defendants have engaged in illegal conduct that will harm the Commonwealth and its citizens in these and other ways, this Court should hold that the Exemption Rules are unlawful and set them aside. The Commonwealth also seeks a preliminary injunction to maintain the status quo throughout all future proceedings in this matter.
JURISDICTION AND VENUE 24. This action arises under the Administrative Procedure Act, 5 U.S.C. §§ 553, 701706, and the United States Constitution. This Court has subject matter jurisdiction under 28 U.S.C. § 1331. 25. In addition, this Court has the authority to issue the declaratory relief sought pursuant to 28 U.S.C. § 2201. 26. Venue is proper in this Court because Plaintiff the Commonwealth of Pennsylvania resides in this district and because a substantial part of the events giving rise to this action occurred in this judicial district. See 28 U.S.C. §§ 1391(e)(1)(B) & (C).
THE PARTIES 27. Plaintiff, the Commonwealth of Pennsylvania, is a sovereign state of the United States of America. This action is brought on behalf of the Commonwealth by Attorney General Josh Shapiro, the “chief law officer of the Commonwealth.” PA. CONST. art. IV, § 4.1.
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28. In filing this action, the Attorney General seeks to protect the citizens and agencies of the Commonwealth from harm caused by Defendants’ illegal conduct, prevent further harm, and seek redress for the injuries caused to the Commonwealth by Defendants’ actions. Those injuries include harm to the Commonwealth’s sovereign, quasi-sovereign, and proprietary interests.
29. Defendant Donald J. Trump is the President of the United States of America and is sued in his official capacity. His principal address is 1600 Pennsylvania Avenue NW, Washington, D.C. 20201.
30. Defendant Donald J. Wright is the Acting Secretary of the United States Department of Health and Human Services and is sued in his official capacity. His principal address is 200 Independence Avenue, SW, Washington, D.C. 20201
31. Defendant the United States Department of Health and Humans Services is an executive agency of the United States of America. Its principal address is 200 Independence Avenue, SW, Washington, D.C. 20201
32. Defendant Steven T. Mnuchin is the Secretary of the United States Department of the Treasury and is sued in his official capacity. His principal address is 1500 Pennsylvania Avenue, NW, Washington, D.C. 20220.
33. Defendant the United States Department of the Treasury is an executive agency of the United States of America. Its principal address is 1500 Pennsylvania Avenue, NW, Washington, D.C. 20220.
34. Defendant Rene Alexander Acosta is the Secretary of the United States Department of Labor and is sued in his official capacity. His principal address is 200 Constitution Avenue, NW, Washington DC 20210.
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35. Defendant the United States Department of Labor is an executive agency of the United States of America. Its principal address is 200 Constitution Avenue, NW, Washington DC 20210.
36. Defendants the Department of Health and Humans Services, the Department of the Treasury, and the Department of Labor (collectively the “Departments”) are each responsible for implementing various provisions of the ACA. The Departments jointly issued the Exemption Rules, which gave rise to this action.
37. Defendants Wright, Mnuchin, and Acosta are each responsible for carrying out the duties of their respective agencies under the Constitution of the United States of America and relevant statutes, including the Affordable Care Act.
38. Defendant Trump is responsible for faithfully enforcing the laws of the United States of America pursuant to and in accordance with the Constitution of the United States of America.
BACKGROUND Congress Passes the Affordable Care Act and Women’s Health Amendment 39. Access to preventive health services, including contraception, is essential for women to exercise control over their own health care and fully participate as members of society. 40. Access to contraception, in particular, allows women greater control over their reproductive health choices so they can better pursue educational, career, and personal goals. 41. Indeed, the expansion of preventive health services for women was a specific goal of the health care reform efforts that led to the passage of the Affordable Care Act. 42. Recognizing this need to expand women’s access to preventive health services and reduce gender disparities in out-of-pocket costs, the U.S. Senate passed the “Women’s
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Health Amendment” during debate over the ACA. See S. Amdt. 2791, 111th Congress (20092010).
43. This Amendment was included in the final version of the ACA, which was signed into law on March 23, 2010. See ACA § 1001; Public Health Service Act (as amended by the ACA) § 2713, 42 U.S.C. § 300gg–13(a)(4).
44. During Senate debate on the Women’s Health Amendment, lead sponsor Senator Barbara Mikulski set forth that Amendment’s key feature: it “leaves the decision of which preventive services a patient will use between the doctor and the patient.” 155 Cong. Rec. S11988 (Nov. 30, 2009) (statement of Sen. Barbara Mikulski). Senator Mikulski explained that this is essential because the “decision about what is medically appropriate and medically necessary is between a woman and her doctor.” Id.
45. Another sponsor of the Amendment, Senator Al Franken, stressed that insurance coverage for contraceptive care allows “women and families to make informed decisions about when and how they become parents.” He described access to contraception as “a fundamental right of every adult American” that also “reduce[s] the number of unintended pregnancies.” 155 Cong. Rec. S12052 (Dec. 1, 2009) (statement of Sen. Al Franken) (“It is also a top priority for me that health reform includes another crucial women’s health service, which is access to affordable family planning services. These services enable women and families to make informed decisions about when and how they become parents. Access to contraception is fundamental, a fundamental right of every adult American, and when we fulfill this right, we are able to accomplish a goal we all share—all of us on both sides of the aisle to reduce the number of unintended pregnancies.”).
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46. The Women’s Health Amendment mandated that group health plans and health insurance issuers offering group or individual health insurance coverage cover preventive health services and screenings for women – and do so with no cost-sharing responsibilities. See 42 U.S.C.A. § 300gg-13(a)(3). Some employer-sponsored plans that were in existence prior to passage, were exempt from this requirement and most of the other requirements imposed by the ACA. See 29 C.F.R. § 2590.715-1251 (2010).
47. The specific services insurers were required to cover without charge were to be determined by guidelines issued by the Health Resources and Services Administration (the “HRSA”), an agency of Defendant the United States Department of Health and Human Services (“HHS”). Id.
The Institute of Medicine Report on Clinical Preventive Services for Women 48. Following passage of the Affordable Care Act, the HRSA complied with its legal responsibility to determine coverage guidelines by commissioning the Institute of Medicine (the “Institute”), a widely respected organization of medical professionals, to issue recommendations identifying what specific preventive women’s health services should be covered under the ACA’s mandate. 49. The Institute, in turn, convened a committee of sixteen members, including specialists in disease prevention, women’s health issues, adolescent health issues, and evidencebased guidelines, to formulate specific recommendations. See Report. 50. After conducting an extensive study, that committee issued a comprehensive report, which identified several evidence-based preventive health services, unique to women, that it recommended be included as part of the HRSA’s comprehensive guidelines under the ACA. See Report.
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51. As set forth in their Report, the Institute found that contraceptives are a preventive service that should be covered under the ACA’s mandate. See Report at 109-10. In making this finding, the Institute cited evidence that “contraception and contraceptive counseling” are “effective at reducing unintended pregnancies” and observed that “[n]umerous health professional associations recommend” that such family planning services be included as part of mandated preventive care for women. See id. at 109.
52. Relying, in part, on recommendations from the American Academy of Pediatrics, the Society of Adolescent Medicine, the American Medical Association, the American Public Health Association, and the Association of Women’s Health, Obstetric and Neonatal Nurses, the Institute recommended that all employer sponsored health plans cover the “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” Report at 109-10 (emphasis added).
53. The Institute based its recommendation on several important factors, including the prevalence of unintended pregnancy in the United States. As stated in their Report, in 2001, an estimated “49 percent of all pregnancies in the United States were unintended—defined as unwanted or mistimed at the time of conception.” Report at 102 (internal citations omitted).
54. The Institute found that these unintended pregnancies disproportionately impact the most vulnerable: Although one in every 20 American women has an unintended pregnancy each year, unintended pregnancy is “more likely among women who are aged 18 to 24 years and unmarried, who have a low income, who are not high school graduates, and who are members of a racial or ethnic minority group.” Id.
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55. And unintended pregnancies are more likely to result in abortions: “In 2001, 42 percent of [] unintended pregnancies [in the United States] ended in abortion.” Id.
56. Moreover, women carrying babies to term are less likely to follow best health practices where those pregnancies are unintended. According to the Institute Committee on Unintended Pregnancy, “women with unintended pregnancies are more likely than those with intended pregnancies to receive later or no prenatal care, to smoke and consume alcohol during pregnancy.” Report at 103.
57. Women facing unintended pregnancies are also more likely to be “depressed during pregnancy, and to experience domestic violence during pregnancy.” Id.
58. The Institute also found “significantly increased odds of preterm birth and low birth weight among unintended pregnancies ending in live births compared with pregnancies that were intended.” Id.
59. While all pregnancies carry inherent health risks, some women have serious medical conditions for which pregnancy is strictly contraindicated. The Institute specifically found that “women with serious medical conditions such as pulmonary hypertension (etiologies can include idiopathic pulmonary arterial hypertension and others) and cyanotic heart disease, and … Marfan Syndrome,” are advised against becoming pregnant. Report at 103. For these women, contraception can be necessary, lifesaving medical care.
60. Use of contraceptives also promotes medically recommended “spacing” between pregnancies. The Institute found that such pregnancy spacing is important because of the “increased risk of adverse pregnancy outcomes for pregnancies that are too closely spaced (within 18 months of a prior pregnancy)” and that “[s]hort interpregnancy intervals in particular
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have been associated with low birth weight, prematurity, and small for gestational age births.” Report at 103.
61. The Institute also found that contraceptives are effective in preventing unintended pregnancies. As stated in the Report, “greater use of contraception within the population produces lower unintended pregnancy and abortion rates nationally.” Report at 105.
62. The Committee specifically highlighted a study showing that, as the rate of contraceptive use by unmarried women increased in the United States between 1982 and 2002, their rates of unintended pregnancy and abortion declined. Id.
63. The Committee reported other studies that showed increased rates of contraceptive use by adolescents from the early 1990s to the early 2000s was associated with a “decline in teen pregnancies” and, conversely, that “periodic increases in the teen pregnancy rate are associated with lower rates of contraceptive use.” Report at 105.
64. The Institute also found that contraception, as a method of preventing unintended pregnancy, is highly cost-effective, citing, inter alia, savings in medical costs alone. It reported that “the direct medical cost of unintended pregnancy in the United States was estimated to be nearly $5 billion in 2002, with the cost savings due to contraceptive use estimated to be $19.3 billion.” Report at 107.
65. In addition to preventing unintended pregnancies, the Institute recognized that contraceptives have other significant health benefits unrelated to preventing unintended pregnancy. The Institute stated in its Report that these “non-contraceptive benefits of hormonal contraception include treatment of menstrual disorders, acne or hirsutism, and pelvic pain.” Report at 104. Long-term use of oral contraceptives has also been shown to “reduce a woman’s
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risk of endometrial cancer, as well as protect against pelvic inflammatory disease and some benign breast diseases.” Id.
66. Indeed, a leading research and policy organization committed to advancing sexual and reproductive health and rights in the United States and globally, found in a 2011 report that more than 1.5 million women rely on oral contraceptive “birth control” pills for medical reasons unrelated to preventing pregnancy and that that 58% of all users of birth control pills – more than half – use them, at least in part, for purposes other than pregnancy prevention. See Guttmacher Report.
67. As of 2008, there were still “approximately 36 million U.S. women of reproductive age (usually defined as ages 15 to 44 years)” who were “estimated to be in need of family planning services because they were sexually active, able to get pregnant, and not trying to get pregnant.” Report at 103.
68. Importantly, the Institute noted that cost is a meaningful barrier to contraceptive access, stating that “[d]espite increases in private health insurance coverage of contraception since the 1990s, many women do not have insurance coverage or are in health plans in which copayments for visits and for prescriptions have increased in recent years” and citing to a Kaiser Permanente study that found “when out-of-pocket costs for contraceptives were eliminated or reduced, women were more likely to rely on more effective long-acting contraceptive methods.” Report at 109.
The Health Resources and Services Administration Adopts the IOM Report and Promulgates Guidelines 69. The HRSA agreed with and adopted the Institute’s recommendation that contraceptive services be covered under the Women’s Health Amendment to the Affordable Care Act.
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70. In August 2011, pursuant to its responsibility under the ACA, the HRSA promulgated the Women’s Preventive Service Guidelines (the “Guidelines”). See HRSA, Women’s Preventive Service Guidelines (2011), available at https://www.hrsa.gov/womensguidelines/index.html#2.
71. These Guidelines required that, as part of their group health plans, employers must cover “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity,” without any cost-sharing or payment by the insureds. Id.
72. As recently as December 2016, HRSA updated the Guidelines, following yet another review of evidence-based facts, determining that full coverage for contraceptive care and services must continue to be required. See https://www.hrsa.gov/womens-guidelines-2016/ index.html. The Departments Grant Limited Exemptions and Accommodations to Religious Objectors
73. The Affordable Care Act does not contain a “conscience clause” that would allow employers to opt out of providing those preventive services required by the statute.
74. Nevertheless, in 2011, the Departments undertook regulatory action to accommodate religious objectors.
75. The Departments issued regulations in 2011 that exempt “churches, their integrated auxiliaries, and conventions or associations of churches” from the ACA’s requirement that employers cover contraceptive services, without cost-sharing requirements, under employee group health care plans – provided these conscientious objectors satisfied certain criteria (the “Original Religious Exemption”). See Group Health Plans and Health Insurance Issuers Relating
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to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46621 (Aug. 3, 2011).
76. To qualify, the purpose of the organization had to be “[t]he inculcation of religious values,” the organization had to primarily employ and serve, “persons who share the religious tenets of the organization,” and the organization had to be a certified non-profit. 76 Fed. Reg. 46621.
77. Following the issuance of the HRSA guidelines, several Senators proposed amending the Affordable Care Act to allow health plans to refuse to provide coverage for certain services if doing so was “contrary to the religious beliefs or moral convictions of the sponsor, issuer, or other entity offering the plan.” S. Amdt. 1520, 112th Congress (2011-2012).
78. The proposed amendment was necessary, as its signors specifically acknowledged, because the ACA “does not allow purchasers, plan sponsors, and other stakeholders with religious or moral objections to specific items or services to decline providing or obtaining coverage of such items or services, or allow health care providers with such objections to decline to provide them.” Id. (emphasis added).
79. That proposed amendment was rejected; it did not become law. 158 Cong. Rec. S1172-S1172 (Mar. 1, 2012).
80. The following year, the Departments issued regulations to accommodate additional religious nonprofit organizations that had not been exempted from the ACA’s Contraceptive Mandate under the Departments’ 2011 regulations but still wanted to avoid the ACA’s mandate of having to provide contraceptive services to their employees (the “Religious Non-Profit Accommodation”). See 80 FR 41318-01.
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81. Under the Religious Non-Profit Accommodation, an objecting employer could notify its health insurance provider of religious objections and the insurer – not the objecting employer – would then have to provide the necessary and required contraceptive services directly to women covered under the employer’s plan. See 80 FR 41318-01. In this way, women whose employers refused to pay for the legally mandated contraceptive coverage under the Religious Non-Profit Accommodation still had access to contraceptive care.
82. This was different from those women who were insured under coverage from “churches, their integrated auxiliaries, and conventions or associations of churches” that were wholly exempt from the ACA’s Contraceptive Mandate under the Original Religious Exemption.
83. At that time, the Defendant Departments declined to create any broader exceptions to the Contraceptive Mandate. Instead, they struck a balance by adhering to the evidence-based approach to women’s preventive health needs intended by Congress and allowing only the Original Religious Exemption and the Religious Non-Profit Accommodation, two reasonable exceptions under which religious organizations and nonprofit employers with religious objections, could opt out of the ACA’s Contraceptive Mandate.
84. Indeed, throughout this process, the government continued to focus on the evidence-based medical conclusion that guaranteeing women’s access to contraceptives is an essential healthcare component to allowing women to participate as full members of society.
85. For example, even while trying to accommodate the views of religious objectors, the Defendant Departments firmly articulated their evidence-based conclusion that barriers to contraceptive access “place[] women in the workforce at a disadvantage compared to their male co-workers” and observed that, “by reducing the number of unintended and potentially unhealthy pregnancies, [contraceptive coverage] furthers the goal of eliminating this disparity by allowing
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women to achieve equal status as healthy and productive members of the job force.” 77 Fed. Reg. 8725, 8728 (Feb. 15, 2012) (footnote omitted).
Litigation Challenging the ACA’s Contraceptive Mandate 86. Following enactment of the ACA and the relevant implementing regulations, several employers filed lawsuits to challenge the scope of the Contraceptive Mandate, the Original Religious Exemption and the Religious Non-Profit Accommodation. 87. In Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), the Supreme Court concluded that applying the ACA’s Contraceptive Mandate to closely held corporations that objected on the basis of sincerely held religious beliefs violated the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb–1. 88. That statute provides that the government may not “substantially burden a person’s exercise of religion” unless it did so “in furtherance of a compelling governmental interest” and adopted “the least restrictive means of furthering that compelling governmental interest.” Id. 89. As a result of the ruling in Hobby Lobby, the Defendant Departments began allowing such employers to take advantage of the Religious Non-Profit Accommodation process previously available only to nonprofit employers. 90. Two years later, in Zubik v. Burwell, 136 S. Ct. 1557 (2016), the Supreme Court considered several consolidated challenges to the accommodation process itself. Following oral argument, the Court sought clarification from the parties as to whether a modified accommodation process that did not require the employer to formally notify its insurance company of its objection – but would still ensure that the employer’s employees received
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contraceptive coverage – would accommodate both the government’s interests and the objections of certain religious employers.
91. After receiving clarification from the parties, the Supreme Court remanded to provide them with “an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’” Id. at 1560 (citation omitted).
92. On January 9, 2017, however, the Department of Labor announced that “no feasible approach has been identified … that would resolve the concerns of religious objectors, while still ensuring that the affected women receive full and equal health coverage, including contraceptive coverage.” FAQs about Affordable Care Act Implementation Part 36 (Jan. 9, 2017).
President Trump’s Executive Order “Promoting Free Speech and Religious Liberty” 93. On May 4, 2017, President Donald Trump issued an Executive Order entitled
“Promoting Free Speech and Religious Liberty.” President Donald Trump, “Presidential Executive Order Promoting Free Speech and Religious Liberty,” (May 4, 2017).
94. Among other provisions, this Executive Order directed the Defendant Departments to “consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under section 300gg13(a)(4) of Title 42, United States Code.” Id. § 3.
95. This Executive Order did not specifically mention the Contraceptive Mandate. Rather, the President directed the Defendant Departments to consider issuing amended
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regulations to address conscience-based objections to services provided under the Women’s Health Amendment to the Affordable Care Act only.
96. The President did not, for example, direct the Departments to consider regulations addressing objections to any other preventive services.
97. President Trump’s Executive Order did not identify any deficiencies with the existing regulations that addressed conscience-based objections (the Original Religious Exemption and the Religious Non-Profit Accommodation) or provide any guidance whatsoever as to the amended regulations that the President had directed the Departments to consider issuing.
98. The Executive Order stated only that any amended regulations issued must be “consistent with applicable law.” Id. § 6(b).
The Departments Issue New Exemption Rules Without Engaging in Required Notice-and-Comment Rulemaking 99. In May and June 2017, several news organizations obtained and published an otherwise unreleased draft regulation entitled “Coverage of Certain Preventive Services under the Affordable Care Act.” See, e.g., Vox.com, “Leaked regulation: Trump plans to roll back Obamacare birth control mandate” (May 31, 2017), available at https://www.vox.com/policyand-politics/2017/5/31/15716778/trump-birth-control-regulation.This draft regulation was dated May 23, 2017. 100. Last Friday on October 6, 2017, the Defendant Departments simultaneously issued both the Religious Exemption Rule and the Moral Exemption Rule. 101. These new Exemption Rules significantly expanded exemptions to the Contraceptive Mandate – they are the proverbial exceptions that swallowed the rule.
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102. Though more than four months had passed since the draft regulation had leaked, the Departments issued the Exemption Rules without any advance public notice and without inviting or providing opportunity for comment.
The Religious Exemption Rule 103. The Religious Exemption Rule significantly expands the scope of the existing Original Religious Exemption for certain religious employers. 104. Specifically, it allows all employers – including large, publicly traded corporations – to opt out of providing no-cost contraceptive coverage to their employees on the basis of “sincerely held religious beliefs.” Religious Exemption at 74. 105. In the context of publicly traded corporations, the Religious Exemption Rule suggests that, if owners of a majority of a company’s shares possess a religious objection to contraceptive coverage, the company can simply refuse to provide such coverage. 106. The Religious Exemption Rule states that “in a country as large as America comprised of a supermajority of religious persons … the majority of shares (or voting shares) of some publicly traded companies might be controlled by a small group of religiously devout persons so as to set forth such a religious character.” Religious Exemption at 68-69. 107. In other words, the rule is speculative, on its face, concerned with the possibility that a “religious publicly traded company might have objections to contraceptive coverage…” Religious Exemption at 69 (emphasis added). 108. The Religious Exemption Rule is not based on any identifiable injury to any group of people.
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The Moral Exemption Rule 109. The Moral Exemption Rule creates a brand new exemption allowing employers to refuse to provide their employees with contraceptive coverage solely “based on sincerely held moral convictions.” IFR 2017-21852. 110. This exemption applies to nonprofit entities and for-profit entities whose shares are not publicly traded. Unlike the Religious Exemption Rule, the Moral Exemption Rule does not allow publicly traded companies to opt out of the Mandate. 111. Taken together, however, the Exemption Rules eliminate the accommodation process entirely because objecting entities “do not need to file notices or certifications of their exemption.” See Moral Exemption 48-49; Religious Exemption 61. 112. Employees of companies that object under either Exemption Rule will lose access to the contraceptive coverage required under the ACA’s Contraceptive Mandate. The Defendant Departments’ Purported Justification for the New Exemption Rules 113. The Departments justify the Exemption Rules on the basis that some other federal statutes contain express provisions creating exemptions for individuals or organizations that object to certain conduct on religious or moral grounds. See Religious Exemption at 5 & n.1. 114. But the Affordable Care Act is not one of them – the ACA contains no exemption whatsoever for individuals or organizations that object to provisions of the law based on religious or moral grounds. 115. In fact, the Senate expressly rejected adding such an exemption to the ACA. See supra ¶¶ 74-76. 116. Despite Congress’s specific choice not to include such a provision in the ACA, the Defendant Departments claim that “Congress has consistently sought to protect religious
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beliefs in the context of health care and human services, including health insurance, even as it has sought to promote access to health services.” Religious Exemption at 5 (emphasis added).
117. The Departments further suggest that the Religious Exemption was necessary to comply with the Religious Freedom Restoration Act, id. at 32 – but state that, “even if exemptions are not required” under that Act, they will “exercise their discretion to address the substantial burden identified in Hobby Lobby by expanding the exemptions from the [Contraceptive] Mandate instead of revising accommodations previously offered,” id. at 53.
118. The Defendant Departments did not rely on the Religious Freedom Restoration Act in issuing the Moral Exemption; instead they claimed that the ACA granted them broad discretion to create exemptions from the Contraceptive Mandate. See IFR 2017-21852 at 9 (“The Departments have consistently interpreted section 2713(a)(4)’s of the PHS Act grant of authority to include broad discretion to decide the extent to which HRSA will provide for and support the coverage of additional women’s preventive care and screenings in the Guidelines. In turn, the Departments have interpreted that discretion to include the ability to exempt entities from coverage requirements announced in HRSA’s Guidelines.”).
119. The Exemption Rules did not say, however, that HRSA had determined that contraception was no longer preventive medical care; nor did they assert any valid medical reasons for exempting certain employers from the mandate.
120. Because both of the Exemption Rules were issued as Interim Final Rules (IFRs), they did not go through the ordinary notice-and-comment process—they became effective immediately.
121. The Departments argued that it was necessary to take this extraordinary step of issuing the Exemption Rules as IFRs because several lawsuits challenging varying aspects of the
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Contraceptive Mandate were ongoing and allowing the rules to go into effect immediately would “help settle or resolve cases, and … ensure, moving forward, that [the Departments’] regulations are consistent with any approach [they] have taken in resolving certain litigation matters.” Religious Exemption at 81.
122. Among the supposed burdens imposed by the ongoing litigation, the Departments identified the fact that “Courts of Appeals have been asking the parties in those cases to submit status reports every 30 through 90 days” and that “several courts have issued orders setting more pressing deadlines.” Religious Exemption at 80.
123. The Departments further asserted that they had been unable to comply with court orders directing them to set forth their position in specific lawsuits “because this interim final rule [the Religious Exemption] was not yet on public display.” Religious Exemption at 81.
124. The Departments do not explain why this litigation precluded them from following the notice-and-comment requirements of the APA, nor do they explain why their own inability to articulate their position in individual cases justifies imposing sweeping rules with immediate effect.
125. The Exemption Rules undermine the balance struck under the prior regulatory scheme and run counter to the Affordable Care Act’s mandate that evidence-based preventive services be provided.
126. As a result of these abuses, which replace evidence-based science and medical reasoning with political calculation, millions of women will be penalized and denied needed contraceptive care against the advice of science, public health and medical professionals.
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Specific Harm to the Commonwealth of Pennsylvania Caused by the New Exemption Rules 127. The States are generally preempted from regulating self-insured plans. Such plans
are, instead, governed by the Employee Retirement Income Security Act of 1974 (“ERISA”) (Pub. L. 93–406, 88 Stat. 829, enacted September 2, 1974, codified in part at 29 U.S.C. ch. 18), a federal law that establishes minimum standards for pension plans in private industry and provides for extensive rules on the federal income tax effects of transactions associated with employee benefit plans.
128. As of 2010, approximately 80% of “large employers” (with over 1000 employees), and 50% of “mid-sized employers” (with 200-1000 employees), offered self-insured plans. See Rand Corp., “Employer Self-Insurance Decisions,” at 17-18 (Mar. 2011) (prepared for United States Department of Labor and HHS).
129. As a result of the Defendants’ new Exemption Rules, it is estimated that many employers will claim newly expanded exemptions and will bar their own employees from receiving medical coverage that is otherwise required under the Contraceptive Mandate.
130. Upon information and belief, many of these newly-created Contraceptive Mandate-exempted employers are expected to be Pennsylvania companies.
131. This will result in numerous insureds – and their female dependents – losing medical coverage for contraceptive care under the Affordable Care Act.
132. Many of those losing this legally-mandated coverage will be Pennsylvania policy holders; all of the women affected will face an increased risk of medical harm or an increased economic burden if they choose to self-fund contraception
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133. This broad loss of formerly-mandated contraceptive care will result in significant, direct and proprietary harm to the Commonwealth, which will bear increased costs as a result of the Exemption Rules.
134. Some women who lose their employer-sponsored health coverage for contraceptive care will seek coverage through Pennsylvania’s subsidized family planning program, which provides preventive screenings and contraceptives for low-income women who are not eligible for Medicaid. This additional financial burden will be borne by the Commonwealth.
135. Other women will forgo contraceptive health services altogether, because the loss of their employer-sponsored coverage will make their formerly-mandated care unaffordable or inaccessible. But this will not help Pennsylvania’s coffers.
136. Rather, as a result of the affected women no longer receiving coverage, Pennsylvania will see an increase in unintended pregnancies and other negative health outcomes which, in addition to other personal, social and societal burdens, will impose direct costs on the Commonwealth.
137. Indeed, to date – before the Defendants issued their new Exemption Rules – the Contraceptive Mandate has resulted in extraordinary savings for women that are also enjoyed by the Commonwealth of Pennsylvania.
138. A recent study conducted by the University of Pennsylvania found, for example, that the ACA’s Contraceptive Mandate “is saving the average [contraceptive] pill user $255 per year” and “the average woman receiving an IUD is saving $248.”See University of Pennsylvania School of Medicine, “Affordable Care Act results in dramatic drop in out-of-pocket prices for
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prescription contraceptives,” Press Release (July 7, 2015), https://www.eurekalert.org/ pub_releases/2015-07/uops-aca070615.php.
139. Spread over an estimated 6.88 million privately insured oral contraceptive users in the United States, the University of Pennsylvania study estimates that, as a result of the ACA’s Contraceptive Mandate, “consumer annual contribution to spending on the pill could be reduced by almost $1.5 billion annually.” Id. It is believed that the Commonwealth has enjoyed increased tax revenue as a result of its female citizens enjoying increased savings borne from the contraceptive mandate.
140. In addition to the direct, proprietary harm set forth above, the new Exemption Rules impermissibly encroach on the Commonwealth’s sovereign interest in protecting the health, safety, and well-being of its residents, and in ensuring that they enjoy equal access to federal programs. As such, in addition to proprietary standing, the Commonwealth has parens patriae standing to vindicate these interests.
CAUSES OF ACTION COUNT I
Violation of Equal Protection of the Law 141. The Commonwealth incorporates by reference the foregoing paragraphs of this Complaint as if set forth at length. 142. Under the Due Process Clause of the Fifth Amendment to the U.S. Constitution, the federal government may not deny any person equal protection of the law. US CONST. amend. V. 143. Discrimination on the basis of sex violates this constitutional guarantee.
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144. The new Exemption Rules apply to one category of preventive medical care only – contraception.
145. And contraception is used solely by women. 146. Because the Exemption Rules allow employers to refuse previously-mandated preventive medical services for women only, they violate the Constitution’s guarantee of equal protection under the law.
COUNT II Violation of Title VII of the Civil Rights Act and the Pregnancy Discrimination Act
147. The Commonwealth incorporates by reference the foregoing paragraphs of this Complaint as if set forth at length.
148. The Exemption Rules violate Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, which prohibits discrimination based on sex. See 42 U.S.C. § 2000e et seq. (Title VII).
149. The Pregnancy Discrimination Act prohibits discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” See 42 U.S.C.A. § 2000e. That protects employees from discrimination based on their need for contraception.
150. Classifying employees on the basis of their childbearing capacity, regardless of whether they are, in fact, pregnant, is prohibited sex discrimination under Title VII.
151. Male and female employees have different health care needs, and only women can get pregnant, bear children, or use contraception.
152. The Exemption Rules violate Title VII because they discriminate against women on the basis of their capacity to get pregnant.
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COUNT III Violation of the Establishment Clause 153. The Commonwealth incorporates by reference the foregoing paragraphs of this Complaint as if set forth at length. 154. The IFRs violate the Establishment Clause of the First Amendment to the U.S. Constitution. 155. The Departments have used their rulemaking authority for the primary purpose, and with the actual effect, of advancing and endorsing religious interests. 156. The Departments have acted to promote employers’ religious beliefs over the selfdetermination of women who do not share those beliefs, and over the ACA’s mandate that preventive care be provided. 157. Through the IFRs, the government has endorsed employers’ religious beliefs, over science, to the detriment and discrimination of women. The expanded exemptions grant employers executive authority over whether employees receive contraceptive coverage, whether needed to prevent unintended pregnancy, and/or to treat a medical condition, with no accommodation process. 158. The IFRs elevate employers’ religious beliefs over the constitutional rights, and statutory guarantees, of women, in violation of the Establishment Clause to the United State Constitution.
COUNT IV Failure to Engage in Notice and Comment Rulemaking 159. The Commonwealth incorporates by reference the foregoing paragraphs of this Complaint as if set forth at length.
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160. Under the APA, a court shall “hold unlawful” and “set aside” any “agency action, findings, and conclusions found to be … without observance of procedure required by law.” 5 U.S.C. § 706(2)(D).
161. In issuing substantive rules, federal agencies are required to follow the notice and comment process set forth in the APA unless the agency “for good cause” finds that notice and public procedure are “impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. § 553(b)(3)(B) .Any such findings must be incorporated into the rules along with “a brief statement of reasons therefor.” Id.
162. Specifically, before issuing any rule, the agency must publish a “[g]eneral notice of proposed rule making” in the Federal Register. 5 U.S.C. § 553(b).
163. That notice must describe “either the terms or substance of the proposed rule or a description of the subjects and issues involved.” 5 U.S.C. § 553(b)(3).
164. The agency must further provide “interested persons” an “opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation.” 5 U.S.C. § 553(b)(c).
165. Here, in issuing the Exemption Rules, the Defendant Departments failed to follow these basic legal requirements of the APA.
166. Furthermore, the justifications offered by the Departments for their failure to engage in notice and comment rulemaking do not remotely satisfy the “good cause” standard required under section 553(b)(3)(B) of the APA; they are legally insufficient, contradictory, and inconsistent with the factual record.
167. Because the Departments failed to follow the procedural requirements of the APA, both Rules should be held unlawful and set aside pursuant to 5 U.S.C. § 706(2)(D).
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COUNT V Violation of the Substantive Requirements of the Administrative Procedure Act 168. The Commonwealth incorporates by reference the foregoing paragraphs of this Complaint as if set forth at length. 169. Under the APA, a 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.” 5 U.S.C. § 706(2)(A). 170. Both the Moral Exemption Rule and the Religious Exemption Rule are inconsistent with the Affordable Care Act’s requirement that group health plans and insurers provide women with preventive care as provided for in guidelines issued by the HRSA, without any cost-sharing requirements. 171. The Rules also violate the civil rights protections in the ACA prohibiting discrimination on the basis of sex and other protected categories in most health care programs and activities. These protections added to existing federal anti-discrimination provisions, including Title VII of the Civil Rights Act of 1964, which prohibits discrimination in the provision of employer sponsored health care plans. See 42 U.S.C.A. § 18116. 172. They are also in derogation of the provisions of the ACA that prohibit the promulgation of any regulation that “[c]reates any unreasonable barrier to the ability of individuals to obtain appropriate medical care,” “[i]mpedes timely access to health care services,” or “[l]imits the availability of health care treatment for the full duration of a patient’s medical needs.” 42 U.S.C. § 1811. 173. In addition, neither Rule is required by the Religious Freedom Restoration Act or any other relevant statute.
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Case 2:17-cv-04540-WB Document 1 Filed 10/11/17 Page 65 of 66 174. Indeed, when it passed the Affordable Care Act, Congress elected not to include a “conscientious objector” or other exemption for individuals or organizations who object to any portion of the ACA on religious or moral grounds. 175. The Departments further abused their discretion and acted in a manner that was arbitrary and capricious in issuing the Rules. 176. Both Rules should be held unlawful and set aside pursuant to 5 U.S.C. § 706(2)(A).
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PRAYER FOR RELIEF WHEREFORE, the Commonwealth of Pennsylvania requests that this Court enter judgment in its favor and grant the following relief: a. Declare the Moral Exemption Rule and the Religious Exemption Rule unlawful; b. Vacate the Moral Exemption Rule and the Religious Exemption Rule; c. Preliminarily and Permanently enjoin the application of the Moral Exemption Rule
and the Religious Exemption Rule; d. Award Plaintiff reasonable costs, including attorneys’ fees; and e. Grant such other and further relief as the Court deems just and proper.
Respectfully submitted, JOSH SHAPIRO Attorney General Commonwealth of Pennsylvania
/s Jonathan Scott Goldman JONATHAN SCOTT GOLDMAN MICHAEL J. FISCHER NICOLE J. BOLAND PA Atty. Nos. 93909, 322311, and 314061 Office of Attorney General Strawberry Square, 16th Floor Harrisburg, PA 17120 (717) 787-3391 jgoldman@attorneygeneral.gov
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 Case 2:17-cv-04540-WB Document 59 Filed 12/15/17 Page 1 of 44

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA ,
Plaintiff,

CIVIL ACTION

v.
DONALD J. TRUMP, DONALD J. WRIGHT, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, STEVEN T. MNUCHIN, UNITED STATES DEPARTMENT OF THE TREASURY, RENE ALEXANDER ACOSTA AND THE UNITED STATES DEPARTMENT OF LABOR,
Defendants.

NO. 17-4540

OPINION The interests at stake in this litigation are great, but the issues that must be decided here on Plaintiff’s Motion for a Preliminary Injunction are narrow. This case implicates access to healthcare, religious freedom, women’s rights, and executive power. However, the Court currently addresses only two precise questions: Did the Defendants here follow the proper procedure in issuing new rules that greatly expand exemptions to the law requiring health plans to cover women’s preventive services at no cost, and do the new rules contradict the text of the statute that they are meant to interpret? Plaintiff, the Commonwealth of Pennsylvania (“Commonwealth”), seeks to enjoin enforcement of two Interim Final Rules (“New IFRs”), referred to as the Moral Exemption Rule and the Religious Exemption Rule, modifying the Affordable Care Act. The New IFRs were issued by the Departments of Health and Human Services, the Department of Treasury, and the

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Department of Labor on October 6, 2017. They permit employers to opt out of providing no-cost contraceptive coverage on the basis of sincerely held religious beliefs or sincerely held moral convictions. The parties here have vastly different perspectives on the import of the New IFRs. The Defendants assert that they are meant to permit a small number of religious objectors to opt out of covering contraceptive services in their employer-sponsored health plans because the requirement to provide contraceptive coverage imposes a substantial burden on their exercise of religion. Quite to the contrary, the Commonwealth argues that the Rules allow almost any employer to withhold insurance coverage for contraceptive services from their female employees, thus impacting millions of women – all in contravention of the Affordable Care Act and the United States Constitution.
The Commonwealth has sued President Donald J. Trump, United States Secretary of Health and Human Services Donald J. Wright,1 United States Secretary of the Treasury Steven T. Mnuchin, and United States Secretary of Labor Rene Alexander Acosta in their official capacities, as well as each of their agencies (collectively, “Defendants”). It now seeks to enjoin the Defendants from enforcing the New IFRs for a variety of constitutional and statutory violations. For the reasons explained below, the Motion for a Preliminary Injunction shall be granted.
I. Background2 In March 2010, Congress enacted the Affordable Care Act. See Patient Protection and
Affordable Care Act (ACA), Pub. L. No. 111-148, 124 Stat. 119 (2010). The ACA included a provision called the Women’s Health Amendment, which mandated that group health plans and
1 Eric D. Hargan substitutes Donald J. Wright pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. 2 The factual statements found here and elsewhere in the opinion constitute this Court’s findings of fact, as required under Rule 52(a) of the Federal Rules of Civil Procedure, regardless of any heading or lack thereof.
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health insurance issuers offering group or individual health insurance provide coverage for preventive health services and screenings for women without cost-sharing responsibilities. The preventive services that must be covered include, “with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration (HRSA).” See 42 U.S.C. § 300gg-13(a)(4). Thus, Congress left the decision about which preventive care and screenings should be covered by the ACA up to the HRSA, which is an agency of the Department of Health and Human Services (HHS).
The HRSA commissioned the Institute of Medicine (“the Institute”) to issue recommendations identifying what specific preventive women’s health services should be covered under the ACA’s mandate. See 77 Fed. Reg. 8725-26. The Institute is an arm of the National Academy of Sciences, an organization that Congress established for the explicit purpose of furnishing advice to the federal government. See Pub. Citizen v. Dep’t of Justice, 491 U.S. 440, 460 n.11 (1989). The Institute, in turn, convened a committee of sixteen members (the “Committee”), including specialists in disease prevention, women’s health issues, adolescent health issues, and evidence-based guidelines, to formulate specific recommendations. The Committee defined preventive health services to include measures “shown to improve well-being and/or decrease the likelihood or delay the onset of a targeted disease or condition.” Institute, Clinical Prevention Services for Women: Closing the Gaps 23 (2011) (“Institute Report”).
On July 19, 2011, the Institute, through the Committee, issued a comprehensive report that identified health services that should be covered under the Women’s Health Amendment. Id. at 8-12. It recommended that the ACA cover “the full range of [FDA]-approved contraceptive methods, sterilization procedures, and patient education and counseling for women
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with reproductive capacity.” Id. at 109-10. The Committee considered: (1) the prevalence of unintended pregnancy in the United States; (2) potential health risks of pregnancy; (3) that decreased intervals between pregnancies lead to an “increased risk of adverse pregnancy outcomes”; (4) the effectiveness of contraceptives in preventing unintended pregnancy; (5) the health benefits of contraceptives for other diseases and conditions; and (6) the barrier to contraceptive access presented by its cost. See id. at 104-10. Original Religious Exemption
On August 1, 2011, HRSA adopted the Institute’s recommendations in guidelines, which required, among other things, that plans must cover all FDA-approved contraceptive methods (“Contraceptive Mandate”). 45 C.F.R. § 147.130(a)(1)(iv); 29 C.F.R. § 2590.7152713(a)(1)(iv); 26 C.F.R. § 54.9815-2713(a)(1)(iv). This requirement applied to all health insurers offering individual or group insurance, as well as all group health plans, with the exception of certain “grandfathered” plans. See 29 C.F.R. § 2590.715-1251. Simultaneously, the Departments of HHS, Labor, and the Treasury (“the Agencies” or “Defendant Agencies”) also promulgated an Interim Final Rule (“IFR”) exempting certain religious employers from providing contraceptive services (“Original Religious Exemption”). See 76 Fed. Reg. 46621. To take advantage of that exemption, an employer must: (1) have the inculcation of religious values as its purpose; (2) primarily employ people who share its religious tenets; (3) primarily provide services to persons who share its religious tenets; and, (4) be a church, its integrated auxiliary, or a convention or association of a church, all of which are exempt from taxation under 26 U.S.C. § 501(a). See id. at 46623. Second Religious Exemption and Accommodation Process
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Following several legal challenges to the Contraceptive Mandate, the Agencies began to consider changes to the religious exemptions. In March 2012, they issued an Advanced Notice of Proposed Rulemaking concerning a potential accommodation process for religious objectors to the Contraceptive Mandate. 77 Fed. Reg. 16501. After a comment period, they then issued a Notice of Proposed Rulemaking proposing changes to the definition of religious organizations in the exemption and creating an accommodation process for religious objectors to the Contraceptive Mandate. 78 Fed. Reg. 8456. The Agencies published final regulations on July 2, 2013 (“Second Religious Exemption”). See 78 Fed. Reg. 39870. These regulations redefined a religious employer to only refer to churches, their integrated auxiliaries, and conventions or associations of churches, eliminating the need to fulfill the first three requirements of the prior regulations of the exemption. Upon a covered entity claiming the exemption, the provider or administrator would then have to provide the legally required contraceptive services directly to women covered under the employer’s plan (“Accommodation Process”). Third Religious Exemption and Accommodation Process
Following enactment of the ACA and the Second Religious Exemption, the Supreme Court granted certiorari to decide whether the Contraceptive Mandate violated the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1 (RFRA). In Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), the Supreme Court concluded that applying the Contraceptive Mandate to closely held corporations violated RFRA. In Wheaton Coll. v. Burwell, 134 S. Ct. 2806 (2014), the Court identified an alternative process by which Wheaton College could comply with the Contraceptive Mandate without informing its health insurer or third-party administrator: The Court permitted Wheaton College to “inform[] the Secretary of Health and Human Service in writing that it . . . has religious objections to providing coverage for
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contraceptive services. Id. at 2807. In response to Hobby Lobby and Wheaton College, the Agencies issued a third set of IFRs to augment the Accommodation Process to comply with the Supreme Court’s orders. See 79 Fed. Reg. 51092, 51118 (expanding the Accommodation Process to include for-profit corporations and to adjust the Accommodation Process). The Agencies finalized the IFRs on July 14, 2015 (“Third Religious Exemption”). See 80 Fed. Reg. 41318, 41324.
One year later, the Supreme Court granted certiorari to decide whether the Accommodation Process violated RFRA. The question before the Supreme Court was whether the requirement to notify plaintiffs’ insurers of their religious objections substantially burdened their exercise of religion in violation of RFRA. The Supreme Court did not address the question head on. Rather, it vacated the judgments of the courts of appeals and remanded the cases to provide the parties “an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’” Zubik v. Burwell, 136 S. Ct. 1557, 1560 (2016). The Agencies then issued a Request for Information (“RFI”) seeking public comment on options for modifying the Accommodation Process in light of Zubik. See 81 Fed. Reg. 47741. On January 9, 2017, the Department of Labor announced that it was unable to develop an approach that could “resolve the concerns of religious objectors, while still ensuring that the affected women receive full and equal health coverage, including contraceptive coverage.” Department of Labor, FAQs about Affordable Care Act Implementation Part 36 (Jan. 9, 2017). Executive Order 13798: “Promoting Free Speech and Religious Liberty”
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On May 4, 2017, President Trump issued an Executive Order “Promoting Free Speech and Religious Liberty.” Exec. Order No. 13798, 82 Fed. Reg. 21675. The Order directed the Agencies to “consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under [the Women’s Health Amendment.]” Id. § 3. Fourth Religious Exemption and Accommodation Process
The Agencies issued the New IFRs on October 6, 2017, citing a goal of being “consistent with the President’s Executive Order and the Government’s desire to resolve the pending litigation and prevent future litigation from similar plaintiffs.” See 82 Fed. Reg. 47792 (“Religious Exemption Rule”); 82 Fed. Reg. 47838 (“Moral Exemption Rule”). The New IFRs embodied two exemptions to the Contraceptive Mandate. First, under the Religious Exemption Rule, any non-profit or for-profit entity, whether closely held or publicly traded, may claim the exemption based on sincerely held religious beliefs. Second, under the Moral Exemption Rule, any non-profit or for-profit entity, so long as it is closely held, may claim the exemption based on sincerely held moral convictions.
The Religious Exemption and Moral Exemption Rules make significant changes from prior exemptions. First, the new rules greatly expand the scope of who may opt out of the Contraceptive Mandate. Second, the rules render the Accommodation Process optional. Third, they eliminate requirements to provide notice of an intent to take advantage of either exemption. In other words, entities that stop providing contraceptive care “do not need to file notices or certifications of their exemption and [the Exemption Rules] do not impose any new notice requirements on them.”3 See 82 Fed. Reg. 47850, 47858. Fourth, the New IFRs permit
3 The Employee Retirement Income Security Act of 1974 (ERISA) still requires group health plans to notify plan participants of any change in coverage at least 30 or 60 days in advance. See 77 Fed. Reg. 8667.
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employers to opt out of coverage on the basis of “sincerely held” religious beliefs and moral convictions.
The Agencies issued the new rules as IFRs and requested post-issuance comments by December 5, 2017, 60 days after they were issued. The Commonwealth filed this suit in the interim seeking to enjoin enforcement of the New IFRs because: (1) they fail to comply with the notice-and-comment procedures required by the Administrative Procedure Act (“APA”), 5 U.S.C. § 551, et seq.; (2) they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” in violation of the substantive provisions of the APA, 5 U.S.C. § 706(2)(A); (3) they violate Title VII of the Civil Rights Act, 42 U.S.C. § 2000-2(a); (4) they violate the Equal Protection Guarantee of the Fifth Amendment, U.S. Const. amend. V; and, (5) they violate the Establishment Clause. U.S. Const. amend. I.
II. Standing A threshold question is whether the Commonwealth has standing. Standing is a litigant’s
ticket to federal court. It is a constitutional requirement, “limit[ing] the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016); U.S. Const. art. III, § 2, cl. 2. The Commonwealth contends that it is properly before the Court because the New IFRs are causing, or will imminently cause, direct harm to its sovereign, quasi-sovereign and proprietary interests. Additionally, it asserts that it has parens patriae standing to protect the health, safety and wellbeing of its residents in ensuring that they enjoy access to healthcare services. The Defendants, on the other hand, contend that the Commonwealth has not suffered any legal wrong that would allow it to step foot into federal court.
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“No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Raines v. Byrd, 521 U.S. 811, 818 (1997). The doctrine of standing ensures that federal judicial power is properly limited to these cases or controversies. See Finkleman v. Nat’l Football League, 810 F.3d 187, 203 (3d Cir. 2016). Thus, if a plaintiff lacks standing, the case must be dismissed. See id. at 195. And, as Plaintiff, the Commonwealth has the burden of establishing that it has standing. See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 411-12 (2013).
To do so, it must satisfy “the irreducible constitutional minimum of standing,” which “contains three elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). First, the Commonwealth must have suffered an “injury in fact,” defined as “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Id. (internal quotation marks and citations omitted). Second, the Commonwealth must show that there is a “causal connection between the injury and the conduct complained of.” Id. That is, the injury must be “fairly traceable” to the “challenged action of the defendant.” Id. Third, the Commonwealth must show that it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 561 (internal quotation marks omitted). “Each element [of standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Id. Thus, because the Commonwealth here seeks a preliminary injunction, it must adduce evidence demonstrating more than a mere possibility of injury in support of standing. Doe v. Nat’l Bd. of Med. Exam’rs, 199 F.3d 146, 152 (3d Cir. 1999).
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a. Special Solicitude This standing inquiry must be made in the context of a clear recognition that States, like the Commonwealth here, “are not normal litigants for the purposes of invoking federal jurisdiction.” Massachusetts v. EPA, 549 U.S. 497, 518 (2007). Accordingly, a State is “entitled to special solicitude in [the] standing analysis” if it has: (1) a procedural right that authorizes it to challenge the conduct at issue; and, (2) a “stake in protecting its quasi-sovereign interests.” Massachusetts, 549 U.S. at 520; see also Texas v. United States, 809 F.3d 134, 151 (5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016). In determining whether the Commonwealth has met these conditions, both Massachusetts v. EPA and Texas v. United States are instructive. In Massachusetts v. EPA, Massachusetts sued the Environmental Protection Agency (EPA), alleging that global warming was “the most pressing environmental challenge of our time,” and that the EPA had “abdicated its responsibility under the Clean Air Act” when it failed to issue rules regulating the emission of greenhouse gases coming from cars. 549 U.S. at 505. The EPA challenged Massachusetts’ standing to bring the suit because greenhouse gas emissions are a widespread and generalized harm not unique to any specific plaintiff. See id. at 517. The Supreme Court nonetheless held that Massachusetts had special solicitude in the standing inquiry to challenge the EPA’s inaction: First, Massachusetts had a procedural right under the relevant statute, the Clean Air Act, which allowed it to “challenge agency action unlawfully withheld.” Id. (citing 42 U.S.C. § 7607(b)(1)). Second, Massachusetts had a quasi-sovereign interest – a “well-founded desire to preserve its sovereign territory” from the effects of global warming. Id. at 519. Indeed, Massachusetts “own[ed] a great deal of the ‘territory alleged to be affected.’” Id.; see also id. at 522 (affidavits noting that “rising seas have already begun to swallow Massachusetts’ coastal land.”). After
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concluding that Massachusetts was entitled to special solicitude in the standing analysis, the Supreme Court ultimately held that it had Article III standing to sue the EPA based on an injury to its territory that stemmed from global warming. See id. at 526.
In Texas v. United States, the Fifth Circuit, relying on Massachusetts v. EPA, similarly concluded that Texas, as a State, was entitled to special solicitude in seeking to enjoin implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA). 809 F.3d at 154. In that case, non-citizens in Texas could apply for a driver’s license if they presented “documentation issued by the appropriate United States agency that authorizes the applicant to be in the United States.” See id. at 155 (quoting TEX. TRANSP. CODE § 521.142(a)). DAPA would have permitted at least 500,000 non-citizens to qualify for these driver’s licenses. Id. Because Texas subsidized its licenses, it would have lost money for each license issued to a DAPA beneficiary. Id. Texas therefore sought injunctive relief to prevent DAPA’s implementation. See id. at 149.
Applying the Massachusetts v. EPA framework, the Fifth Circuit first considered whether Texas had a procedural right to challenge DAPA. It concluded that Texas’ use of the APA to challenge an “affirmative decision” made by a federal agency was similar to Massachusetts’ use of the judicial review provision in the Clean Air Act to challenge the EPA’s inaction. Id. at 152. Second, as to Texas’ quasi-sovereign interest, the Fifth Circuit held that DAPA imposed “substantial pressure” on the State to change its laws to avoid bearing further costs from subsidizing additional driver’s licenses. See id. at 153. The Fifth Circuit thus concluded that Texas had special solicitude in suing the federal government under the APA for injunctive relief. Id. at 154-55.
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On writ of certiorari, the Supreme Court summarily affirmed the Fifth Circuit’s decision without opinion but with a notation that the affirmance was “by an equally divided Court.” United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam). Notably, one question certified by the Supreme Court included whether Texas had standing. See United States v. Texas, 136 S. Ct. 906 (2016) (granting petition for writ of certiorari for, among other things, whether Texas had standing). Affirmances by an equally divided Supreme Court typically do not constitute binding precedent. See Eaton v. Price, 364 U.S. 263, 264 (1960). However, when the Supreme Court is equally divided on an issue of subject matter jurisdiction, it has determined that the proper course is to remand the issue of jurisdiction to a lower court. See Silliman v. Hudson River Bridge Co., 66 U.S. 582, 584-85 (1861). In other words, if the Supreme Court were equally divided on whether Texas had standing to enjoin DAPA, it would have remanded that issue to the Fifth Circuit. The Supreme Court did not and instead affirmed the Fifth Circuit. It therefore follows logically that a majority of the Supreme Court decided that Texas had standing to pursue its APA claim.4
There is no daylight between the 2015 Texas suit against the federal government and the current Commonwealth suit against the federal government. Like Texas, the Commonwealth challenges agency action in issuing regulations – here, the New IFRs. See Texas, 809 F.3d at 152. It is all the more significant that the Commonwealth, like Texas before it, sues to halt affirmative conduct made by a federal agency. See id. Whereas Massachusetts v. EPA concerned regulatory inaction – the EPA’s order denying a rulemaking petition – the Commonwealth’s case here challenges regulatory action that, it contends, affects its legally cognizable interests. See 549 U.S. at 514. Thus, it is especially appropriate to accord the
4 Even if the affirmance by an equally divided Supreme Court as it relates to subject matter jurisdiction were not binding, the Court is persuaded by the reasoning of the Fifth Circuit in Texas v. United States as it pertains to state standing.
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Commonwealth “special solicitude.” Texas, 809 F.3d at 152-53. Furthermore, like Texas and Massachusetts, the Commonwealth seeks to protect a quasi-sovereign interest – the health of its women residents. See Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 600-01 (1982) (holding that a State has a “quasi-sovereign interest in the health and wellbeing – both physical and economic – of its residents in general.”). As the Commonwealth observes, contraceptives offer significant health benefits, including the prevention of unintended pregnancies, and the treatment of menstrual disorders, acne or hirsutism, and pelvic pain. This quasi-sovereign interest in safeguarding the health and wellbeing of its women residents is inextricably intertwined with the Commonwealth’s alleged future fiscal injury that, as will be discussed later, goes to the heart of its Article III standing. See Texas, 809 F.3d at 153 (concluding that DAPA affected quasi-sovereign interest by “imposing substantial pressure” on Texas to change its laws to avoid losing more money from driver license subsidies). According to the Commonwealth (and as addressed more fully below), the Agencies’ New IFRs will allow more employers to exempt themselves from the ACA’s Contraceptive Mandate. Consequently, the Commonwealth contends that Pennsylvanian women will seek state-funded sources of contraceptive care. Such a course of action will likely cause the Commonwealth to expend more funds to protect its quasisovereign interest in ensuring that women residents receive adequate contraceptive care. The Commonwealth, then, meets the two conditions outlined in Massachusetts v. EPA and shall be accorded special solicitude in the standing analysis.
b. Article III Standing As previously stated, the three pillars of standing are injury in fact, causation, and redressability. Lujan, 504 U.S. at 560. First, an agency rule that has “a major effect on the states’ fiscs” is sufficient to find injury in fact. Texas, 809 F.3d at 152; id. at 155 (Texas
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“satisfied the first standing requirement by demonstrating that it would incur significant costs in issuing driver’s licenses to DAPA beneficiaries.”); see also Wyoming v. Oklahoma, 502 U.S. 437, 448 (1992) (holding that Wyoming had Article III standing because it undisputedly suffered a “direct injury in the form of a loss of specific tax revenues”); Danvers Motor Co., Inc. v. Ford Motor Co., 432 F.3d 286, 291 (3d Cir. 2005) (“While it is difficult to reduce injury-in-fact to a simple formula, economic injury is one of its paradigmatic forms.”).
The New IFRs will likely inflict a direct injury upon the Commonwealth by imposing substantial financial burdens on State coffers. Specifically, the Commonwealth will have to increase its expenditures for State and local programs providing contraceptive services. This is not a speculative harm. As the Defendants themselves noted in issuing one of the New IFRs, “there are multiple Federal, State, and local programs that provide free or subsidized contraceptives for low-income women.” 82 Fed. Reg. 47803. As more women residents of the Commonwealth are deprived of contraceptive services through their insurance plans and turn to these State and local programs, the Commonwealth will likely make greater expenditures to ensure adequate contraceptive care. And although Defendants point out that the Commonwealth has not yet identified a woman resident of Pennsylvania who has lost contraceptive coverage as a result of the New IFRs, the Commonwealth need not sit idly by and wait for fiscal harm to befall it. See McNair v. Synapse Group Inc., 672 F.3d 213, 223 (3d Cir. 2012) (“When, as in this case, prospective relief is sought, the plaintiff must show that he is “likely to suffer future injury” from the defendant’s conduct.”) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983)). As the New IFRs themselves estimate, they will cause at least 31,700 women to lose contraceptive coverage. 82 Fed. Reg. 47821.
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Indeed, the Commonwealth’s affidavits confirm that its women residents will come to rely more on State-funded sources. The Acting Executive Deputy Secretary for the Commonwealth’s Department of Human Services concludes that it would not be unreasonable to expect women who do not receive contraceptive care from their insurers to rely on governmentfunded programs. See Decl. of Leesa Allen ¶ 23 (“Allen Decl.”). The Executive Deputy Insurance Commissioner for the Commonwealth echoes a similar view, expecting women who lose contraceptive coverage to seek coverage from State-funded programs (or pay for the contraceptives themselves). See Decl. of Seth A. Mendelsohn (“Medelsohn Decl.”) ¶ 15. The CEO of Planned Parenthood Southeastern Pennsylvania also expects that, as a result of the New IFRs, many low-income women will have to rely on government-funded programs to obtain contraceptive care. See Decl. of Dayle Steinberg (“Steinberg Decl.”) ¶¶ 24-25. The Commonwealth has furthermore provided evidence from a doctor who practices in Pennsylvania acknowledging that she directs uninsured, low-income women to State programs for contraceptive services. See Tr. 177-78. At bottom, just as Texas’ estimated loss due to DAPA supported injury in fact, so too does the Commonwealth’s estimated loss due to the New IFRs support injury in fact. See Texas, 809 F.3d at 155.
Second, the Commonwealth’s financial injury is “fairly traceable” to issuance of the New IFRs. By their terms, they expand the scope of the existing religious exemption rule as well as allow employers a new rationale for refusing to provide employees with contraceptive coverage if the refusal is “based on sincerely held moral convictions.” In short, the New IFRs allow more employers to stop providing contraceptive coverage. And as the Commonwealth’s various affidavits show, State officials expect that once employers take advantage of the New IFRs more women residents will seek contraceptive care through State-funded programs. The
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Commonwealth has thus shown a causal connection between the New IFRs and its financial injury.
Defendants, however, cite to Pennsylvania v. New Jersey, 426 U.S. 660, 664 (1976), and argue that the injury is not “fairly traceable” to the New IFRs because the Commonwealth’s fiscal injury is “self-inflicted.” According to Defendants, the Commonwealth cannot shoot itself in the foot and then hobble into federal court by premising injury in fact on costs that flow from elective State programs that offer contraceptive care services to residents.
Pennsylvania v. New Jersey is distinguishable. In that case, Pennsylvania voluntarily gave tax credits to Pennsylvania residents who paid taxes in New Jersey. Id. at 663. Pennsylvania proceeded to sue New Jersey, contending that the New Jersey tax injured Pennsylvania’s fiscs and was constitutionally impermissible. Id. at 662. The Supreme Court found that Pennsylvania lacked standing because the injuries to its fiscs were “self-inflicted,” resulting, as they did, from a decision of its state legislature. Id. at 664. Pennsylvania was not allowed to “complain about damage inflicted by its own hand” when it enacted a law that incorporated the legislative choices of New Jersey. Id. The harm could have been avoided if Pennsylvania simply changed the law so that it no longer extended credits for taxes paid to New Jersey. See id. Here, by contrast, funding for the Commonwealth’s programs does not explicitly incorporate the legislative choices of the federal government. Rather, the Commonwealth’s described injuries flow from the unilateral decision by the Agencies to issue the New IFRs, which will likely cause Pennsylvanian women to seek contraceptive care from other sources, particularly state-funded sources. Consequently, the injunction that the Commonwealth seeks – to enjoin that unilateral federal agency decision – is untethered to any state law that the Commonwealth itself has enacted. See Texas, 809 F.3d at 158 (“The fact that Texas sued in
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response to a significant change in the defendants’ policies shows that its injury is not selfinflicted.”).
Third, the Commonwealth has satisfied the redressability requirement. Because the Commonwealth is asserting a procedural right under the APA to protect its interests, it “can assert that right without meeting all the normal standards for redressability and immediacy.” See Massachusetts, 549 U.S. at 517-18. If, as here, the litigant is “vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injurycausing party to reconsider the decision that allegedly harmed the litigant.” Id. at 518. Enjoining the Agencies’ New IFRs based on APA claims should prompt them to reconsider the propriety of the Religious and Moral Exemptions Rules, “which is all a plaintiff must show when asserting a procedural right.” Texas, 809 F.3d at 161. In sum, the Commonwealth has shown that it has standing to pursue injunctive relief through its APA claims based on an injury to its fiscs.5
III. Legal Standard As the Commonwealth has standing to pursue a preliminary injunction, the next step is to
determine whether one is appropriate. A preliminary injunction is an extraordinary remedy; it “should be granted only in limited circumstances.” American Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1426-27 (3d Cir. 1994). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The “failure to establish any element . . . renders a preliminary injunction
5 Because the Commonwealth has identified an imminent, direct injury to its state coffers that result from the New IFRs, the Court does not need to address whether it has sovereign or parens patriae standing.
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inappropriate.” NutraSweet Co. v. Vit–Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir. 1999). The movant bears the burden of showing that these four factors weigh in favor of granting the injunction. See Opticians Ass’n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 192 (3d Cir. 1990).
While the movant must show that each of these factors weighs in favor of granting an injunction, an injunction might be appropriate where a movant makes a particularly strong case on some factors, but not others. Thus, “courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Reilly v. City of Harrisburg, 858 F.3d 173, 177-78 (3d Cir. 2017), as amended (June 26, 2017) (quoting Winter, 555 U.S. at 24). “[I]n a situation where factors of irreparable harm, interests of third parties and public considerations strongly favor the moving party, an injunction might be appropriate even though plaintiffs did not demonstrate as strong a likelihood of ultimate success as would be generally required.” Constructors Ass’n of W. Pa. v. Kreps, 573 F.2d 811, 815 (3d Cir. 1978). In addition, the court must weigh “[a]ll of [the four preliminary injunction] factors
. . . together in the final decision and the strength of the plaintiff’s showing with respect to one
may affect what will suffice with respect to another.” Marxe v. Jackson, 833 F.2d 1121, 1128 (3d Cir. 1987). The Third Circuit recently clarified in Reilly that a “movant for preliminary equitable relief must meet the threshold for the first two ‘most critical’ factors [– likelihood of success and irreparable harm]. If these gateway factors are met, a court then considers the remaining two factors and determines in its sound discretion if all four factors, taken together, balance in favor of granting the requested preliminary relief.” Reilly, 858 F.3d at 179. “How strong a claim on the merits is enough depends on the balance of the harms: the more net harm
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an injunction can prevent, the weaker the plaintiff’s claim on the merits can be while still supporting some preliminary relief.” Id.
a. Likelihood of Success on the Merits In demonstrating the likelihood of success on the merits, a plaintiff need not show that it is more likely than not that he will succeed. Singer Mgmt. Consultants, Inc. v. Milgram, 650 F.3d 223, 229 (3d Cir. 2011) (en banc). Instead, a plaintiff must “show[] a reasonable probability of success on the merits.” American Express Travel Related Svcs., Inc. v. Sidamon– Eristoff, 669 F.3d 359, 366 (3d Cir. 2012). This requires a showing “significantly better than negligible, but not necessarily more likely than not.” Reilly, 858 F.3d at 179. Because “courts should be extremely careful not to issue unnecessary constitutional rulings,” American Foreign Serv. Ass’n v. Garfinkel, 490 U.S. 153, 161 (1989) (per curiam), the Court addresses the statutory claims at issue – that Defendants violated the notice-and-comment procedures of the APA and that the New IFRs are “arbitrary, capricious, or not in accordance with law” – and finds it unnecessary, at this juncture, to proceed to the constitutional issues.
i. Administrative Procedure Act 1. Procedural Safeguards
The APA provides any interested party the right to participate in the rulemaking process by submitting data, views or arguments. See 5 U.S.C. § 553. “The APA provisions reflect a judgment by Congress that the public interest is served by a careful and open review of proposed administrative rules and regulations.” Phila. Citizens in Action v. Schweiker, 669 F.2d 877, 881 (3d Cir. 1982). “Section 553 was enacted to give the public an opportunity to participate in the rule-making process. It also enables the agency promulgating the rule to educate itself before
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establishing rules and procedures which have a substantial impact on those regulated.” Texaco, Inc. v. Fed. Power Comm’n, 412 F.2d 740, 744 (3d Cir. 1969).
Accordingly, prior to promulgating regulations, administrative agencies must follow a procedure called “notice and comment rulemaking.” See 5 U.S.C. § 553. First, an agency must issue a general notice of proposed rulemaking. See 5 U.S.C. §§ 552(b), 553(b). Then the agency must “give interested persons an opportunity to participate in the rule making through submission of written data, views or arguments. . . .” Id. § 553(c). Last, “[a]fter consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.” Id. Defendants bypassed each of these procedures when issuing the New IFRs.
The APA requires a court to set aside agency action “found to be . . . without observance of procedure required by law.” 5 U.S.C. § 706(2)(D). Thus, if Defendants did not comply with notice and comment provisions, the Court must preliminarily enjoin Defendants from enforcing the New IFRs unless there is a statutorily countenanced reason for their non-compliance. See Minard Run Oil Co. v. U.S. Forest Serv., 2009 WL 4937785, at *34 (W.D. Pa. 2009), aff’d, 670 F.3d 236 (3d Cir. 2011).
Although “[e]xemption from the terms of the Administrative Procedure Act are not lightly to be presumed. . . ,” Marcello v. Bonds, 349 U.S. 302, 310 (1955), there are limited exceptions to the requirement that all rules must be issued pursuant to notice-and-comment rulemaking. Defendants contend that two of those exceptions apply here. First, they argue that Congress expressly and impliedly authorized the Secretaries of HHS, Labor, and the Treasury to bypass notice and comment rulemaking with respect to the New IFRs. 5 U.S.C. § 559. Second, they argue that there is no need for notice-and-comment rulemaking because they have found
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“good cause” that the notice and comment procedure is, in this instance, “impracticable, unnecessary, or contrary to the public interest.” Id. § 553(b)(B).
i. Statutory Authorization to Bypass Notice and Comment At the outset, it should be noted that the ACA contains no provision expressly authorizing the Defendant Agencies or their respective Secretaries to bypass the APA’s notice and comment requirements, and indeed, Defendants cite none. Rather, in justifying their sidestep of the strictures of the notice and comment procedure, they find express and implied authorizations for their actions through various statutes besides the ACA. Defendants’ argument, matryoshkanesque in its construction, proceeds as follows: In 1996, Congress passed the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. No. 104-191 (1996), which regulates group health plans and some individual health insurance policies. HIPAA amended certain provisions of the United States Code to provide that “[t]he [respective] Secretary may promulgate any interim final rules as the Secretary determines are appropriate to carry out this [chapter.]” See 29 U.S.C. § 1191c; 26 U.S.C. § 9833; 42 U.S.C. § 300gg-92.6 In 2010, Congress passed the ACA, which also amended those same sections of the United States Code to require health plans to cover certain preventive women’s services. HHS interpreted the preventive service requirement to include contraceptive services. The requirement to provide contraceptive services was thus codified in the chapters of the United States Code as modified by HIPAA in 1996. Thus, according to Defendants, HIPAA’s amendments, which permit issuance of IFRs “appropriate to carry out this [chapter],” also encompass authorization to issue IFRs to carry out the ACA.
6 Specifically, HIPAA amended various portions of ERISA, which is administered by the Secretary of Labor, the Internal Revenue Code, which is administered by the Secretary of Treasury, and the Public Health Services Act, which is administered by the Secretary of Health and Human Services.
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The argument is creative, but not supported by law. As to express authorization, in order to authorize an agency to bypass notice and comment, a subsequent statute must be clear that it abrogates the APA. See 5 U.S.C. § 559; Coalition for Parity, Inc. v. Sebelius, 709 F. Supp. 2d 10, 18 (D.D.C. 2010). And as Coalition for Parity held, the provision of HIPAA that Defendants here rely on says nothing about overruling the APA, let alone notice and comment procedures. Id. HIPAA, then, does not provide express authorization to bypass the notice and comment requirements of the APA in this case. See id.
As to implied authorization, the relevant standard to determine if Congress sub silentio allowed an agency to avoid notice and comment is “whether Congress has established procedures so clearly different from those required by the APA that it must have intended to displace the norm.” Asiana Airlines v. FAA, 134 F.3d 393, 397 (D.C. Cir. 1998). Defendants rely on two cases, Asiana Airlines and Methodist Hospital of Sacramento v. Shalala, 38 F.3d 1225, 1237 (D.C. Cir. 1994), for the proposition that Congress has impliedly authorized the Agencies here to bypass notice and comment and issue IFRs.
In both Asiana Airlines and Methodist Hospital, the D.C. Circuit held that certain IFRs could be issued without complying with notice and comment, but both cases are inapposite. The statutory language from those cases, involving respectively the Federal Aviation Reauthorization Act and the Social Security Amendments of 1983, expressly abrogated APA notice and comment procedures because Congress, through its use of the mandatory word “shall” in both pieces of legislation, commanded the agencies to issue interim final rules. See Asiana Airlines, 134 F.3d at 395 (“the Administrator shall publish . . . interim final rule[s]”) (citing 49 U.S.C. § 45301(b)(2)) (emphasis added); Methodist Hosp., 38 F.3d at 1236 n.18 (“[t]he Secretary shall cause to be published . . . a notice of the interim final DRG prospective payment rates . . .
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without the necessity for consideration of comments. . . .”) (citing 97 Stat. 168-69) (emphasis added). By contrast, the HIPAA provision here states that a “Secretary may promulgate any interim final rules as the Secretary determines are appropriate. . . .” See 29 U.S.C. § 1191c; 26 U.S.C. § 9833; 42 U.S.C. § 300gg-92 (emphasis added). The use of the term “may” is permissive rather than mandatory. See Barlow v. Collins, 397 U.S. 159, 165-66 (1970) (statute authorizing Secretary of Agriculture to promulgate regulations “as he may deem proper” does not preclude judicial review).7 There is, accordingly, no support in HIPAA for the Agencies’ avoidance of the notice and comment procedure.
ii. Good Cause Exception to Bypass Notice and Comment The second exception to notice-and-comment rulemaking permits agencies to utilize IFRs “for good cause.” See 5 U.S.C. § 553. More specifically, the APA provides that notice and comment may be waived “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” Id. The “circumstances justifying reliance on the good cause exception are ‘indeed rare’ and will be accepted only after the court has examined closely proffered rationales justifying the elimination of public procedures.” Natural Res. Def. Council, Inc. v. EPA, 683 F.2d 752, 764 (3d Cir. 1982). The Third Circuit has cautioned that the good cause exception should be “narrowly construed.” United States v. Reynolds, 710 F.3d 498, 507 (3d Cir. 2013) (citations omitted). Since the APA requires agencies availing themselves of the good cause exception to state their “finding[s] and a brief statement of reasons” for good cause “in the rules issued,” the Court
7 Asiana Airlines and Methodist Hospital are further distinguishable still. In both cases, Congress imposed an expeditious timetable on the agencies in issuing the IFRs which justified bypassing notice and comment. See Methodist Hosp., 38 F.3d at 1237; Asiana Airlines, 124 F.3d at 398. By contrast, the supposed statutory authorization in HIPAA provides no timetable for the Agencies to issue IFRs.
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will examine the proffered “good cause” reasons as stated in the New IFRs. See 82 Fed. Reg. at 47813-15; 82 Fed. Reg. at 47855-59. First, the Agencies found that excessive delay caused by notice and comment rulemaking would be contrary to public interest. Id. Second, the Agencies determined that the New IFRs were important to resolve ongoing litigation and ease the burdens imposed by them in order to prevent “continued uncertainty, inconsistency, and cost.” Id. Third, the Agencies determined that they had already received significant comments in past rounds of rulemaking as well as from the 2016 RFI, and therefore there was no need to repeat the noticeand-comment process again. Id. These arguments are considered seriatim.
As to their “excessive delay” justification, the Agencies contend that, because the Accommodation Process (in their view) violated RFRA, it was a matter of urgency to issue the New IFRs without going through the APA’s time-consuming notice and comment process.8 See id. However, urgency is not sufficient in the absence of a deadline imposed by Congress, the executive, or courts. See Reynolds, 710 F.3d at 511 (“Our prior decisions have recognized urgency alone as sufficient only when a deadline imposed by Congress, the executive, or the judiciary requires agency action in a timespan that is too short to provide a notice and comment period.”). None of the three branches of government have imposed any urgent deadline that could support circumventing notice and comment rulemaking. First, Congress has not spoken on this issue. Second, far from compelling any immediate action, President Trump’s Executive
8 The Agencies also justify their use of IFRs rather than regulations promulgated through APA’s proscribed procedures by reference to their use of IFRs in three earlier updates to regulations concerning the Women’s Health Amendment. This fact does not, of course, warrant a conclusion that the New IFRs were appropriately issued – the facts of one case do not necessarily transfer wholesale to another. Defendants argue that as the D.C. Circuit upheld the Defendants’ use of IFRs in Priests for Life v. U.S. Dep’t of Health and Human Servs., 772 F.3d 229, 276 (D.C. Cir. 2014), vacated on other grounds, Zubik v. Burwell, 136 S. Ct. 1557 (2016), this Court should do so here. In that case, however, the D.C. Circuit reasoned that good cause existed to bypass notice and comment because “the regulations the interim final rule modifies were recently enacted pursuant to notice and comment rulemaking, [] present virtually identical issues, . . . the modifications made in the interim final rule are minor,” and the Supreme Court “obligat[ed] [HHS] to take action.” Id. By contrast, the issues presented in the New IFRs are not identical to prior regulations, they make significant changes in the law, and the Supreme Court did not require immediate action.
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Order 13798 merely asks the Secretaries to “consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive care mandate.” Executive Order 13798 § 3. Last, the Supreme Court has not imposed any deadline or called for urgent action either. In fact, the Supreme Court remanded the latest challenge to the Accommodation Process to give the parties “an opportunity to arrive at an approach going forward.” Zubik, 136 S. Ct. at 1560. Though Defendants cite many cases in which courts have pressured them to resolve uncertainty regarding the Contraceptive Mandate, none of those courts have imposed any actual deadlines for issuing regulations.
“The desire to eliminate uncertainty, by itself, cannot constitute good cause.” Reynolds, 710 F.3d at 510. Even if it could, the Agencies’ stated need to resolve uncertainty is undercut by the request, contained in the New IFRs, for post-issuance comments regarding “whether these regulations expanding the exemption should be made permanent or subject to modification.” See 82 Fed. Reg. at 47814-15; 82 Fed. Reg. at 47855-56. The request for comments particularly as to whether the New IFRs should be modified “implicitly suggests that the rule[s] will be reconsidered [and] means the level of uncertainty is, at best, unchanged. . . .” Reynolds, 710 F.3d at 511.
The Agencies stated in the New IFRs that the clarity offered by the expanded exemptions will decrease insurance costs; they hypothesize that groups with grandfathered health plans will wish to make changes to other components of their health plans in order to reduce costs, while still avoiding coverage for contraceptive services. See 82 Fed. Reg. 47815, 47856. Under the ACA, as long as grandfathered plans do not make any changes to their health coverage, they need not cover women’s preventive services. However, the New IFRs do not cite a single comment from an employer with a grandfathered plan which suggests that they will make
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changes to health plans in light of the new agency interpretation.9 This is merely speculation, unsupported by the record.
Last, the Agencies asserted in the New IFRs that notice and comment was unnecessary because the Agencies considered past comments and requested post-issuance comments. The Agencies received multiple rounds of comments on the first set of interim final regulations in 2010, on the interim final regulations in 2011, on the proposed changes to the religious employer exemption in 2012 and 2013, on the modifications to the Accommodation Process in 2015, and on the RFI issued in July 2016. And the Agencies received over 54,000 public comments in response to the July 2016 RFI which sought ways to expand the Accommodation Process.
Defendants cite no case, and research has not disclosed any, finding that notice and comment is unnecessary where an agency has received ample commentary on its prior interpretations of the same law. In fact, the significance of this issue and the outpouring of public comments reflect the opposite: the overwhelming public interest demonstrates that notice and comment is critical. “The unnecessary prong of the exception . . . ‘is confined to those situations in which the administrative rule is a routine determination, insignificant in nature and impact, and inconsequential to the industry and to the public.’” Utility Solid Waste Activities Grp. v. EPA, 236 F.3d 749, 755 (D.C. Cir. 2001) (quoting South Carolina v. Block, 558 F. Supp. 1004, 1016 (D.S.C. 1983)). The significance of this litigation and the stakes involved, including
9 Indeed, a search of “grandfather” in the hundreds of thousands of pages of the Administrative Record filed with the Court does not reveal a single comment from a policy holder with a grandfathered health plan who sought to change their health coverage without risking their grandfathered status. During Oral Argument, the Court asked Defendants to find comments in the Administrative Record demonstrating that group health plans with grandfathered status sought to change their health plans without forgoing their grandfathered status. Defendants admitted that they “have identified no particular comments.” Tr. 206. Instead, Defendants looked outside of the Administrative Record and cited just two cases from 2012 in which the litigating parties wanted to retain their grandfathered health plans without covering contraceptive services. See Roman Catholic Archdiocese of Atlanta v. Sebelius, No. 1:12-CV03489-WSD (N.D. Ga. 2014); Diocese of Fort Wayne-S. Bend, Inc. v. Sebelius, 988 F. Supp. 2d 958 (N.D. Ind. 2013). However, neither case shows that those entities sought to change their coverage in order to maintain their grandfathered status in 2017.
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hundreds of lawsuits, and several appeals to the Supreme Court, belies the Agencies’ purported reliance on the “unnecessary,” good cause exception for notice and comment.
The Agencies also assert that their provision for a post-issuance commentary period does away with the need for pre-issuance notice and comment. They solicited comments for 60 days following the issuance of the New IFRs. See 82 Fed. Reg. at 47792. None of the cases that Defendants cite support that position. Instead, each of them stand for the proposition that an agency may seek post-issuance commentary only if and only after having shown that it had good cause to avoid notice and comment rulemaking, a situation that is not present here.10
There are several reasons why post-issuance comments do not comply with the notice and comment provisions of the APA. First, there is nothing in the APA that provides for postissuance commentary. Second, participants are less likely to influence agency action in later stages of the agency decision-making process. This is especially the case where an agency has already issued interim rules which suggest that it has decided what federal policy should be. Post-issuance commentary does not ameliorate the need for notice and comment because by the time agencies issue interim rules, they are less likely to heed public input. See United States v. Johnson, 632 F.3d 912, 929 (5th Cir. 2011) (“[P]arties will have a greater opportunity for influencing agency decision making if they participate at an early stage.”). Last, permitting postissuance commentary carte blanche would write the notice and comment requirements out of the APA. See id.; United States v. Gould, 568 F.3d 459, 479 (4th Cir. 2009) (“[R]equesting postpromulgation comments makes a sham of the APA’s rulemaking procedures.”); Paulsen v.
10 In Petry v. Block, 737 F.2d 1193 (D.C. Cir. 1984), the D.C. Circuit held that the Department of Agriculture had good cause to avoid notice and comment rulemaking before it held that remand to the agency for further proceedings was unnecessary in light of a post-promulgation comment period. In Republic Steel Corp v. Costle, 621 F.2d 797 (6th Cir. 1980), another case cited by Defendants, the court countenanced post-promulgation comments after finding good cause for avoiding notice-and-comment. Prior to Petry, the D.C. Circuit has held that “[p]ermitting submission of views after the effective date is no substitute for the right of interested persons to make their views known to the agency.” State of N.J., Dep’t of Envtl. Prot. v. U.S. Envtl. Prot. Agency, 626 F.2d 1038, 1049 (D.C. Cir. 1980). Petry did not alter this rule.
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Daniels, 413 F.3d 999, 1005 (9th Cir. 2005) (“[I]t is antithetical to the structure and purpose of the APA for an agency to implement a rule first, and then seek comment later.”).
Grasping at straws, Defendants argue that even if a single justification “standing alone” does not constitute good cause, the “combined effect” of several factors justified the Agencies’ reliance on the good cause exception. An underlying assumption of this argument is that “[e]ach of the factors” provides at least some support for a finding that the Agencies had good cause to dispense with notice and comment. They do not. The three proffered factors to dispense with notice and comment offer no support. There was no deadline, much less an urgent one, to implement new rules. The New IFRs did not resolve any uncertainty and, as this case demonstrates, have not prevented ongoing litigation. And the blizzard of prior comments that the Agencies have received in past rounds of notice and comment rulemaking actually demonstrates that further comments are necessary given the public interest in this matter.
Certainly, an inquiry into whether an agency has “properly invoked ‘good cause’ proceeds case-by-case, sensitive to the totality of the factors at play.” Alcaraz v. Block, 746 F.2d 593, 612 (9th Cir. 1984). And a court may consider the “combined effect” of multiple factors, which standing alone might not suffice to demonstrate “good cause.” See Nat’l Women, Infants, & Children Grocers Ass’n v. Food & Nutrition Serv., 416 F. Supp. 2d 92, 107 (D.D.C. 2006). But Defendants’ arguments – even when viewed in their totality – provide no support for their proposition.11
11 Defendants’ failure to follow the APA’s notice and comment procedures was also not “harmless.” “[T]he ‘utter failure’ to comply with notice and comment cannot be considered harmless if there is any uncertainty at all as to the effect of that failure.” Reynolds, 710 F.3d at 516. Rather, failure to abide by notice and comment rulemaking will only be found harmless in instances such as “when the administrative record demonstrates that the conclusion reached in the administrative rule was the only possible conclusion.” Id. at 518. This is not the case here. In addition, the Defendant Agencies have never sought comments on whether publicly traded companies should be allowed to opt out of the Contraceptive Mandate for sincerely held religious reasons, whether a “moral exemption” should apply to the Mandate for all closely held corporations, or whether to exempt entities from additional notice requirements before opting out of providing contraceptive coverage for their employees.
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For the above reasons, it is likely that the Commonwealth will succeed on its claim that the Defendants did not follow proper procedures in issuing the New IFRs.
2. Substantive Provision Under the APA, an administrative rule has no legal effect if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Pursuant to this standard, it is likely that the Commonwealth will also succeed on its substantive challenge against the New IFRs because they contradict the text of the statute that they purport to interpret. While an agency’s interpretation of a statute is generally accorded great deference, an interpretation that conflicts with the statute’s plain language is not. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). Chevron and its progeny dictate the appropriate framework for analyzing whether an agency’s interpretation of a statute is permissible. First, a court must determine whether Chevron applies. Chevron deference is only appropriate in situations where Congress delegated rulemaking authority to a particular agency. See Swallows Holding, Ltd. v. C.I.R., 515 F.3d 162, 168 (3d Cir. 2008). Next, “if the statutory language is clear and unambiguous, our inquiry ends and the plain meaning of the statute governs the action.” Id. at 170. While review of an agency’s interpretation under the “arbitrary and capricious” standard is decidedly narrow, an agency may not exercise its authority in a manner “inconsistent with the administrative structure that Congress enacted into law.” Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 126 (2000). Last, “[i]f the statute is ambiguous on the point, we defer at step two to the agency’s interpretation so long as the construction is ‘a reasonable policy choice for the agency to make.’” National Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967, 986 (2005) (quoting Chevron, 467 U.S. at 845).
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i. Scope of HHS’ Statutory Authority The takeaway is that Chevron deference does not extend to all agency action. In United States v. Mead, the Supreme Court explained that Chevron deference is only appropriate in situations where “Congress would expect the agency to be able to speak with the force of law.” 553 U.S. 218, 229 (2001). Here, Congress delegated authority to the HRSA, a division of HHS, to interpret the scope of “preventive care” as defined by the ACA. The problem is that HHS, the Department of Labor, and the Department of Treasury have, through the New IFRs, interpreted the statute in a manner inconsistent with its text. It bears mentioning, at this time, the remarkable breadth of the New IFRs. They are the proverbial exception that swallows the rule. The New IFRs permit various entities, on the basis of sincerely held religious beliefs or moral convictions, to opt out of providing contraceptive coverage – coverage that, under the text of the ACA as interpreted by the HRSA in August 2011, is supposedly mandatory. The Religious Exemption Rule allows all non-profit and for-profit entities, whether closely held or publicly traded, to deny contraceptive coverage based on sincerely held religious beliefs. The Moral Exemption Rule allows any non-profit or for-profit organization that is not publicly traded to deny contraceptive coverage for its employees for any sincerely held moral conviction. This means that boards of closely held corporations can vote, or their executives can decide, to deny contraceptive coverage for the corporation’s women employees not just for religious reasons but also for any inchoate – albeit sincerely held – moral reason they can articulate. Who determines whether the expressed moral reason is sincere or not or, for that matter, whether it falls within the bounds of morality or is merely a preference choice, is not found within the terms of the Moral Exemption Rule. If one assumes that it is the Agency Defendants – or, indeed, any agency – then the Rule has conjured up a world where a
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government entity is empowered to impose its own version of morality on each one of us. That cannot be right. It “run[s] afoul of this country’s vast history of legislative protections that single out and safeguard religious freedom but not moral philosophy.” Real Alternatives, Inc. v. Sec’y Dep’t of Health & Human Servs., 867 F.3d 338, 350 (3d Cir. 2017) (emphasis added).
A simple hypothetical illustrates the insidious effect of the Moral Exemption Rule. It would allow an employer with a sincerely held moral conviction that women do not have a place in the workplace to simply stop providing contraceptive coverage. And, it may do so in an effort to impose its normative construct regarding a woman’s place in the world on its workforce, confident that it would find solid support for that decision in the Moral Exemption Rule. It is difficult to comprehend a rule that does more to undermine the Contraceptive Mandate or that intrudes more into the lives of women.
ii. The Text of the ACA Before analyzing whether the Agencies had authority to create the Moral and Religious Exemption Rules, a brief aside to RFRA is necessary. RFRA provides that government action cannot “substantially burden” the exercise of religion. It states that laws passed after 1993 are subject to RFRA “unless such law explicitly excludes such application. . . .” 42 U.S.C. § 2000bb3(b). The ACA was passed after 1993 and is thus subject to RFRA.12 In Hobby Lobby, the Supreme Court held that the ACA does not explicitly exclude application of RFRA. See Hobby Lobby, 134 S. Ct. at 2775 n.30. It follows that any exception to the ACA required by RFRA is permissible. Bearing that in mind – and putting the issue of RFRA’s application to the New
12 Congress enacted RFRA in 1993 in response to Employment Div., Dep’t of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), which held that “the Constitution does not require judges to engage in a case-by-case assessment of the religious burdens imposed by facially constitutional laws.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2000).
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IFRs on ice for now – the Court turns whether there is any language in the text of the ACA itself that would authorize the Agencies to issue the New IFRs – and concludes that there is not.
Congress created only a single exemption from the ACA’s statutory mandate to cover women’s preventive care and that is for “grandfathered health plans.” 42 U.S.C. § 18011(e). “When Congress provides exceptions in a statute . . . [t]he proper inference . . . is that Congress considered the issue of exceptions and, in the end, limited the statute to the ones set forth.” United States v. Johnson, 529 U.S. 53, 58 (2000). Given that there is no religious or moral exemption in the explicit text of the statute and there is one for grandfathered health plans, it cannot be assumed that Congress authorized the Agencies to create any additional exemptions.
The fact that the statute does not contain language specifically precluding the Agency Defendantsfrom developing exemptions does not change this result. Even absent the maxim that the inclusion of an exemption in a statute must be interpreted to mean that Congress intended no additional exemptions, “[n]ot every silence is pregnant.” Burns v. United States, 501 U.S. 129, 136 (1991). Here, the mandatory language “shall” – found in the ACA’s requirement that covered health plans “shall cover . . . with respect to women, such additional preventive care” as provided for in the HRSA guidelines – indicates quite the opposite: no exemptions created by HHS are permissible (unless they are required by RFRA). “An inference drawn from congressional silence certainly cannot be credited when it is contrary to all other textual and contextual evidence of congressional intent.” Id. That conclusion carries particular weight here, because, in 2012, Congress explicitly rejected an attempt to add to the ACA an exemption similar to the Moral and Religious Rules. See S. Amdt. 1520, 112th Cong. (2011-2012); see also Brown & Williamson, 529 U.S. at 147 (rejection of an agency’s interpretation by Congress is a factor courts consider when determining the meaning of a statute).
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Nevertheless, Defendants argue that the textual structure of the ACA permits HHS to proscribe the “manner or reach of the coverage.” They compare two subsections of the ACA, both of which provide for no-cost preventive care and screenings. The first concerns children, the second, women. Defendants then focus on the language in each subsection which authorizes the agency to issue guidelines regarding that subsection.13 The subsection concerning children refers to “preventive care and screenings provided for in the comprehensive guidelines” from the HRSA. 42 U.S.C. § 300gg-13(a)(3). In contrast, the subsection concerning women refers to “such additional preventive care and screenings . . . as provided for in the comprehensive guidelines” from the HRSA. 42 U.S.C. § 300gg-13(a)(4) (emphasis added). Defendants note that the word “as” precedes the words “provided for in the comprehensive guidelines” in the women’s subsection, but not the children’s subsection. Proceeding from the statutory maxim that statutes should be interpreted, if possible, to give each word operative effect, see Walters v. Metropolitan Educ. Enter., Inc., 519 U.S. 202, 209 (1997), Defendants conclude that the inclusion of the word “as” in the women’s subsection means that HRSA may determine not only the services covered by the ACA, but also the manner or reach of that coverage.
This extrapolation from the statutory inclusion of the word “as” must, pursuant to another principle of statutory interpretation, be analyzed by looking to the dictionary definition of the
13 The full text of the two subsections are as follows: A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for – [the following services] . . .
(3) with respect to infants, children, and adolescents, evidence-informed preventive care and screenings provided for in the comprehensive guidelines supported by the Health Resources and Services Administration; (4) with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph. 42 U.S.C. § 300gg-13(a)(3)–(4) (emphasis added).
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word. See Bonkowski v. Oberg Indus., Inc., 787 F.3d 190, 200 (3d Cir. 2015). The term “as” in this context is “[u]sed to indicate that something happens during the time when something else is taking place.” As, Oxford English Dictionary Online, June 2017. At the time Congress passed the ACA, the HRSA had already promulgated guidelines interpreting children’s preventive care. The HRSA had not promulgated such guidelines for women’s preventive care. Thus, the ACA requires coverage “provided for” in HRSA guidelines for children’s care and “as provided for” in HRSA guidelines for women’s care. Giving effect to the use of the word “as” leads to the conclusion that the “as” is used in anticipation of HRSA issuing such guidelines and not to the conclusion that the ACA implicitly provides the Agencies with the authority to create nonstatutory exemptions.
In sum, the ACA contains no statutory language allowing the Agencies to create such sweeping exemptions to the requirements to cover “preventive services,” which, as interpreted by those same agencies, include mandatory no-cost coverage of contraceptive services. Nor does any rule of statutory construction warrant these exemptions.
iii. Religious Freedom and Restoration Act The Agency Defendants also argue that they were compelled by RFRA to create the Religious Exemption Rule. It should be noted at the outset that they specifically do not propound this argument with respect to the Moral Exemption Rule. Thus, since the text of the statute is clear that non-statutory exemptions are not permitted, and Defendants admit that RFRA provides no support for it, the Moral Exemption Rule is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” under the APA. 5 U.S.C. § 706(2)(A). As set forth below, upon consideration of Defendants’ argument regarding RFRA, the Court reaches the same conclusion with respect to the Religious Exemption Rule.
a. RFRA Does Not Support the Agencies’ Interpretation 34

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Turning now – finally – to the RFRA issue. One of the reasons the Agencies gave for issuing the New IFRs is that the Accommodation Process imposes a substantial burden on the exercise of religion. The Accommodation Process, as discussed earlier, allows religious objectors to notify their healthcare administrator of their religious objection, and the administrator would then have to provide the legally required contraceptive services directly to women covered under the employer’s plan. The Agencies’ stated belief that the Accommodation Process now imposes a substantial burden on the exercise of religion led them to create the broader exemptions set forth in the New IFRs. See 82 Fed. Reg. 47800. But their view that the Accommodation Process imposes a substantial burden on the exercise of religion has been specifically rejected by the Third Circuit, which found exactly to the contrary in Geneva Coll. v. Sec’y U.S. Dep’t of Health & Human Servs., 778 F.3d 422, 442 (3d Cir. 2015), vacated and remanded on other grounds sub nom. Zubik v. Burwell, 136 S. Ct. 1557 (2016).14 There, the Third Circuit decisively and clearly held that the Accommodation Process does not impose a “substantial burden” under RFRA. And, in Real Alternatives, it reaffirmed that the Accommodation Process does not impose a substantial burden on religious exercise. See 867 F.3d at 356 n.18 (“[W]e continue to believe . . . that the regulation at issue . . . did not impose a substantial burden.”). Therefore, the Agency Defendants’ interpretation of RFRA – that issuance of the Religious Exemption Rule is proper because the “substantial burden” that the Accommodation Process places on a person’s exercise of religion – is erroneous as a matter of
14 While Zubik subsequently vacated Geneva College, it did so on other grounds. The Supreme Court expressly stated that “the Court does not decide whether petitioners’ religious exercise has been substantially burdened. . . .” Zubik, 136 S. Ct. at 1561.
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law. See Williams v. Meltzler, 132 F.3d 937, 946 (3d Cir. 1997) (on questions of law, administrative judgment is subject to plenary judicial review).15
Defendants make much of having issued exemptions under prior regulations. For example, the Original Religious Exemption allowed churches and their integrated auxiliaries to opt out of the Contraceptive Mandate. However, the Supreme Court has held that exemptions like the one for churches and their integrated auxiliaries are required under RFRA and the First Amendment’s free exercise protections. See Hobby Lobby, 134 S. Ct. at 2794 & n.14 (citing cases requiring exemptions for certain religious organizations). In Real Alternatives, the Third Circuit confirmed that the Original Religious Exemption was plainly required by federal and constitutional law in holding that exemptions and accommodations “may be extended to houses of worship and religious denominations without applying to all nonprofit entities in order to ‘alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions.’” 867 F.3d at 352 (quoting Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987). In contrast, the New IFRs are not required under RFRA because the Third Circuit – twice now – has foreclosed the Agencies’ legal conclusion that the Accommodation Process imposes a substantial burden.
15 Although the Agencies asserted in the New IFRs that “[t]he Departments believe that agencies charged with administering a statute or associated regulations or guidance that imposes a substantial burden on the exercise of religion under RFRA have discretion in determining how to avoid the imposition of such burden,” 82 Fed. Reg. 47800, Defendants now suggest otherwise. Defendants concede that the Agencies’ interpretations of RFRA are not entitled to deference under RFRA. See Tr. 45 (“We are not arguing that the Agencies are entitled to Chevron deference writ large.”). In any event, the Agencies’ opinion is foreclosed by Snoqualmie Indian Tribe v. F.E.R.C., 545 F.3d 1207 (9th Cir. 2008), in which the Ninth Circuit held that an agency’s interpretation of RFRA is not accorded deference. They do argue that deference is appropriate for the Agencies’ opinion that the Contraceptive Mandate does not serve a compelling interest as applied to religious objectors. However, this is beside the point because this question only becomes relevant if a court finds, first, that a government action imposes a substantial burden on the exercise of religion. As noted, the Accommodation Process does not impose a substantial burden on the exercise of religion so the Court need not conduct the compelling state interest analysis.
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For these reasons, the Commonwealth has shown a likelihood of success on the merits of its APA claim that the New IFRs are arbitrary, capricious, and contrary to established law.
b. Irreparable Harm As explained earlier, the second factor to consider in deciding the Commonwealth’s motion is whether it has demonstrated that it is likely to suffer irreparable harm in the absence of a preliminary injunction. “Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with the characterization of injunctive relief as ‘an extraordinary remedy’ that may be awarded only upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 21& 22 (“Our frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction.”). The Commonwealth asserts that it will suffer two harms in the absence of an injunction: First, significant damage to the Commonwealth’s fiscal integrity; and second, harm to the health, safety, and wellness of the Commonwealth’s female residents. The Commonwealth offered the testimony of Doctors Carol Weisman, Samantha Butts, and Cynthia Chuang, as well as several declarations and exhibits to support its allegation of irreparable harm. From this testimony and from other evidence and affidavits in the record, the Court finds that it is likely that the New IFRs will result in direct and irreparable harm to the Commonwealth’s fiscal integrity: The Commonwealth will become obligated to shoulder much of the burden of providing contraceptive services to those women who lose it because their health plans will opt out of coverage. See Steinberg Decl. ¶¶ 27-29; Medelsohn Decl. ¶ 15. Such women will seek contraceptive services elsewhere and, as Defendants noted in issuing the New IFRs, may turn to “multiple Federal, State, and local programs that provide free or
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subsidized contraceptives for low-income women” as alternative coverage. See 82 Fed. Reg. 47813, 47850. These programs in the Commonwealth include Medicaid, called “Medical Assistance,” which relies on funding from both the State and federal governments; Family Planning Services Program; and the Commonwealth’s network of clinics funded under the Title X grant program. See Allen Decl. ¶¶ 3-18; Steinberg Decl. ¶ 16. Indeed, Dr. Chuang testified that she counsels patients without coverage for contraceptive services to seek coverage from Medicaid. Tr. 177-78. As women in Pennsylvania lose contraceptive coverage through their health insurance plans and turn to State programs, it is likely that the Commonwealth will bear the added financial burden occasioned by the increase in women who need contraceptive care coverage. See Decl. of Seth A. Mendelsohn ¶ 15; Allen Decl. ¶ 23.
Of course, “loss of money” is generally insufficient to merit a preliminary injunction because “monetary damages . . . are capable of ascertainment and award at final judgment. . . .” Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989). Here, however, the Commonwealth will not be able to recover any economic damages traceable to the implementation of the New IFRs. This is because a party – including the Commonwealth – may not seek monetary damages from the federal government. See 5 U.S.C. § 702 (providing that the federal government is immune from a suit for money damages). Therefore, if the New IFRs are ultimately struck down, the Commonwealth will be unable to recoup the money it expends on contraceptive care in the interim. In such circumstances, a preliminary injunction is appropriate. See, e.g., N.J. Retail Merchants, 669 F.3d at 388 (holding that a preliminary injunction is appropriate where a movant could not recover damages from a State due to sovereign immunity).
The Commonwealth’s harm is not merely speculative; it is actual and imminent. See Adams v. Freedom Forge Corp., 204 F.3d 475, 488 (3d Cir. 2000). The New IFRs estimate that
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at least 31,700 women will lose contraceptive coverage under the New Rules – and, as Plaintiff and amici persuasively argue, there are reasons to believe the number is significantly higher. See 82 Fed. Reg. 47,821. Thus, the only serious disagreement is not whether the Commonwealth will be harmed, but how much the Commonwealth will be harmed. Though Defendants argue that the Commonwealth has not identified any individual who has lost coverage already, there is no need to wait for the axe to fall before an injunction is appropriate, particularly where Defendants have estimated that it is about to fall on tens of thousands of women.16 And the financial burden is impending. The Commonwealth anticipates that on January 1, 2018, when open enrollment begins for health plans regulated by ERISA, some health plans will remove nocost contraceptive services pursuant to the New IFRs, and it is likely that Pennsylvanian women will seek contraceptive services through services funded by the State fisc.
While the legal harm to the integrity of the State fisc is important to obtain a preliminary injunction, of parallel importance is the significant harm to the Commonwealth’s interest in protecting the health, safety, and well-being of its citizens. See In re Oxycontin Antitrust Litig., 821 F. Supp. 2d 591, 601 (S.D.N.Y. 2011) (citing Alfred L. Snapp, 458 U.S. at 601-02). The potential harm faced by Pennsylvanian women and across the nation is enormous and irreversible. As employers take advantage of the New IFRs, access to no-cost contraceptive services for many women will be severely curtailed.
The Commonwealth’s concern is that absent available cost-effective contraception, women will either forego contraception entirely or choose cheaper but less effective methods – individual choices which will result in an increase in unintended pregnancies. That, in turn, will inflict economic harm on the Commonwealth because unintended pregnancies are more likely to
16 Since the New IFRs eliminate requirements to notify HHS of any decision to opt out, it is nearly impossible to know whether employers have already availed themselves of the New IFRs.
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impose additional costs on Pennsylvania’s State-funded health programs. See Steinberg Decl., ¶ 30 (discussing study finding that 68% of unplanned births are paid for by public insurance programs, compared to only 38% of planned births).
The record evidence in support of this position is compelling. Contraceptives are, without question, effective at preventing unintended pregnancies. See Institute Report at 106. Eighty five percent of women who do not use any form of contraceptive services and who do not want to become pregnant, become pregnant in one year. See id. Those women who do use contraception are far less likely to have an unplanned pregnancy. Id. But, even for those who do use contraception, there is some chance of an unplanned pregnancy higher or lower depending upon the chosen contraceptive method. For example, a pamphlet issued by the Centers for Disease Control entitled “Effectiveness of Family Planning Methods” shows there are 6 to 12 pregnancies per 100 women who are on the contraceptive pill in any given year. See Exh. 17. Yet, for those who have an Intrauterine Device (“IUD”) implanted there is less than one pregnancy per 100 women per year. Id. Thus, it is clear that an IUD is more effective than the pill at preventing unintended pregnancy. A reasonable conclusion from that is women, all else being equal, would make the contraceptive choice of an IUD rather than the pill. But, three doctors testified that an IUD can be cost-prohibitive for many women because it has higher upfront costs than the contraceptive pill. Tr. 90; 132-33; 176-78. Dr. Butts testified that, prior to the implementation of the ACA’s Contraceptive Mandate, it was common for her patients not to have prescribed IUDs implanted, but since the Contraceptive Mandate, use of IUDs has increased dramatically. Tr. 132; 153. She testified that after the Mandate went into effect, making no-cost contraception services available to all women, the number of her patients who
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declined an IUD dropped significantly. Id. Meanwhile, she recorded a five-fold increase in the number of IUDs she inserted in the course of her medical practice. Tr. 153.
Dr. Chuang and Dr. Weisman also testified about a study (“MyNewOptions Study”) they and others conducted between 2014 and 2016 of more than 900 Pennsylvanian women who were actively avoiding pregnancy. Reviewing insurance claims data, they found that the number of women using IUDs and other implants – contraceptive methods that carry the highest up-front costs but are the most effective – doubled in two years after the Contraceptive Mandate took effect. Tr. 178-87. Meanwhile, the number of women who did not use contraceptive services decreased by roughly 50% in the two years following the Mandate’s effect.17 Id. Doctors Chuang, Weisman, and Butts all attributed these changes to the effect of the Contraceptive Mandate, Tr. 90; 134; 187, and concluded that with the reduction in no-cost contraceptive insurance that will result from employer utilization of the New IFRs, more women will lose nocost contraceptive coverage and the cost of their contraceptive services, to them, will rise. See Tr. 94. Thus, women will likely forgo contraceptive services or seek out less expensive and less effective types of contraceptive services in the absence of no-cost insurance coverage. See id.; Weisman Decl. ¶ 47; Chuang Decl. ¶¶ 36-39. Indeed, women cite cost as a significant factor in determining whether to purchase contraceptive services and which contraceptive services to use. See Adam Sonfield, What is at Stake with the Federal Contraceptive Coverage Guarantee? 20 Guttmacher Policy Review 8, 9 (2017).
17 Defendants cited a study from the Guttmacher Institute which found no changes in contraceptive use patterns among sexually active women. See Bearak, J.M. and Jones, R.K., “Did Contraceptive Use Patterns Change after the Affordable Care Act? A descriptive analysis,” 27 Women’s Health Issues 316 (Guttmacher Inst. May-June 2017). Unlike the MyNewOptions Study presented by Plaintiff, the Guttmacher study used survey data, which is less reliable than the claims data used in the MyNewOptions study. And, unlike the MyNewOptions study, the Guttmacher study did not focus on Pennsylvania where the rate of unintended pregnancy is significantly greater than the national average, and which is the focus of the preliminary injunction.
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The real life consequences, as amici point out, are significant: roughly 41% of unintended pregnancies in America are caused by inconsistent use of contraceptives.18 These problems are particularly acute in Pennsylvania, where the rate of unintended pregnancy is 53%, significantly higher than the national average. Tr. 152. The negative effects of even a short period of decreased access to no-cost contraceptive services are irreversible.
c. Balance of the Equities The third factor that the Commonwealth must show is that the balance of the equities tips in favor of granting a preliminary injunction. “Balancing the equities” is jurisprudential “jargon for choosing between conflicting public interests.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609 (1943) (Frankfurter, J., concurring). Here, Congress has already struck the balance: Its passage of the Women’s Health Amendment was to bridge the significant gender gap in healthcare costs between men and women. Senator Feinstein explained that “[w]omen of childbearing age spend 68 percent more in out-of-pocket health care costs than men.” 155 Cong. Rec. 29302. And part of this problem stems from unintended pregnancies – an issue faced only by women. Senator Durbin explained that the purpose of the Women’s Health Amendment was to “expand health insurance coverage to the vast majority of [the 17 million women of reproductive age in the United States who are uninsured and] . . . reduce unintended pregnancies.” Id. at 26768. Where, as here, “Congress itself has struck the balance, has defined
18 The Contraceptive Mandate also affects women’s health in other contexts as well. The Institute’s Report, which recommended no-cost contraceptive coverage under the ACA, explained that contraceptive services are used to treat menstrual disorders, acne, hirsutism, and pelvic pain, in addition to assisting family planning and birth spacing. See Institute Report at 107. Contraceptive services are essential for women who face high-risk pregnancies or those for whom pregnancy may lead to significant complications. Even a short period of interrupted coverage will lead to irreparable harm because, as the Institute Report notes, women face severe complications, including death, from high-risk pregnancy. Dr. Butts also testified that decreased access to contraceptives will “increase pain and suffering for women who have [disorders such as pelvic pain and other medical conditions] . . . and to the extent that some of those unintended pregnancies are in women with very serious medical disorders for whom pregnancy may be contraindicated [it] can increase risks in a life-threatening way.” Tr. 140.
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the weight to be given the competing interests, a court of equity is not justified in ignoring that pronouncement under the guise of exercising equitable discretion.” Youngstown Sheet, 343 U.S. at 609-10.
Here, given the Commonwealth’s clear interest in securing the health and well-being of its women residents and containing its costs for contraceptive services, the balance of the equities heavily weighs in its favor. Defendants’ assertion that there is “inherent harm to an agency in preventing it from implementing regulations that Congress found to be in the public interest to direct that agency to develop” does not change that balance. Defendants will not be prejudiced by a preliminary injunction. If the New IFRs were issued in violation of applicable law, they will have suffered no harm. If Defendants ultimately prevail, then a preliminary injunction will have merely delayed their preferred regulatory outcome.
d. Public Interest When considering the public interest, a court is limited to evaluating “how such interest and conveniences are affected by the selection of an injunction over other enforcement mechanisms.” United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483, 498 (2001). Here, a preliminary injunction is unquestionably in the public interest because it maintains the status quo pending the outcome of a trial on the merits. The New IFRs permit any entity to opt out of coverage within 30 to 60 days’ notice to plan members. A trial on the merits will not conclude in that short span. A preliminary injunction will maintain the status quo: those with exemptions or accommodations prior to October 6, 2017 will maintain their status, those with injunctions preventing enforcement of the Contraceptive Mandate will maintain their injunctions, but those with coverage will maintain their coverage as well.
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IV. Conclusion Plaintiff, the Commonwealth of Pennsylvania, has demonstrated that it has met all four
factors necessary to obtain a preliminary injunction. In this case, the Commonwealth is likely to succeed on the merits of its two APA claims; the Commonwealth is likely to suffer serious and irreparable harm in the absence of a preliminary injunction; the balance of the equities tips in favor of granting an injunction, and the public interest favors granting it as well. After weighing these four factors, as stated above, the Court concludes that a preliminary injunction is warranted. The Commonwealth’s Motion for Preliminary Injunction will be granted and Defendants shall be enjoined from enforcing the New IFRs.
An appropriate order follows.

December 15, 2017

BY THE COURT:
/s/Wendy Beetlestone, J. _______________________________ WENDY BEETLESTONE, J.

44

 
 Case 2:17-cv-04540-WB Document 60 Filed 12/15/17 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA ,
Plaintiff,

CIVIL ACTION

v.
DONALD J. TRUMP, DONALD J. WRIGHT, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, STEVEN T. MNUCHIN, UNITED STATES DEPARTMENT OF THE TREASURY, RENE ALEXANDER ACOSTA AND THE UNITED STATES DEPARTMENT OF LABOR,
Defendants.

NO. 17-4540

O R D E R

AND NOW, this 15th day of December, 2017, upon consideration of the Commonwealth

of Pennsylvania’s Motion for a Preliminary Injunction (ECF No. 9), Defendants’ Response

thereto (ECF No. 15), Plaintiff’s Reply in Support thereof (ECF No. 30), the Administrative

Record (ECF Nos. 23 & 47), Briefs of the Amici Curiae (ECF Nos. 34, 35 & 36), and following

a Hearing on Plaintiff’s Motion on December 14, 2017, IT IS HEREBY ORDERED that the

Motion is GRANTED.

It is FURTHER ORDERED that Defendants Eric D. Hargan, as Acting Secretary of the

United States Department of Health and Human Services (substituted pursuant to Rule 25(d) of

the Federal Rules of Civil Procedure); the United States Department of Health and Human

Services; Steven T. Mnuchin, as Secretary of the United States Department of Treasury; the

United States Department of Treasury, Rene Alexander Acosta, as Secretary of the United States

Case 2:17-cv-04540-WB Document 60 Filed 12/15/17 Page 2 of 2
Department of Labor; and the United States Department of Labor;1 and their officers, agents, servants, employees, attorneys, designees, and subordinates, as well as any person acting in concert or participation with them, are hereby ENJOINED from enforcing the following Interim Final Rules pending further order of this Court:
1. Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act described at 82 Fed. Reg. 47792; and
2. Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act described at 82 Fed. Reg. 47838. The Court has considered the issue of security pursuant to Rule 65(c) of the Federal
Rules of Civil Procedure and determines that Defendants will not suffer any financial loss that warrants the need for the Plaintiff to post security. After considering the facts and circumstances of this case, the Court finds that security is unnecessary and exercises its discretion not to require the posting of security in this situation.
BY THE COURT:
/s/Wendy Beetlestone, J. _______________________________ WENDY BEETLESTONE, J.
1 In light of the constitutional concerns associated with enjoining the President of the United States for a claim under the Administrative Procedure Act, this injunction does not apply to the President. See Franklin v. Massachusetts, 505 U.S. 788, 801 (1992).
2

 
 Case 2:17-cv-04540-WB Document 73 Filed 02/09/18 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA ,
Plaintiff,

CIVIL ACTION

v.
DONALD J. TRUMP, DONALD J. WRIGHT, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, STEVEN T. MNUCHIN, UNITED STATES DEPARTMENT OF THE TREASURY, RENE ALEXANDER ACOSTA AND THE UNITED STATES DEPARTMENT OF LABOR,
Defendants.

NO. 17-4540

O R D E R

AND NOW, this 8th day of February, 2018, upon consideration of Defendants’ Motion

to Stay (ECF No. 72), and in light of Plaintiff’s representation that the Motion is unopposed, IT

IS HEREBY ORDERED that the Motion is GRANTED. This civil action shall be marked

STAYED pending Defendant’s appeal of this Court’s Order on Pennsylvania’s Motion for

Preliminary Injunction (ECF No. 59 & 60) to the Third Circuit Court of Appeals.

IT IS FURTHER ORDERED that the Clerk of the Court shall mark this Action

CLOSED for statistical purposes and place the matter in the civil suspense file.

BY THE COURT:

/s/Wendy Beetlestone, J.
_______________________________ WENDY BEETLESTONE, J.

Case 2:17-cv-04540-WB Document 73 Filed 02/09/18 Page 2 of 2 2

 
 Case 2:17-cv-04540-WB Document 87 Filed 12/14/18 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA ,
Plaintiff,

CIVIL ACTION

v.
DONALD J. TRUMP, DONALD J. WRIGHT, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, STEVEN T. MNUCHIN, UNITED STATES DEPARTMENT OF THE TREASURY, RENE ALEXANDER ACOSTA AND THE UNITED STATES DEPARTMENT OF LABOR,
Defendants,

NO. 17-4540

LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME,
Intervenor-Defendant.

MEMORANDUM OPINION

Plaintiff, the Commonwealth of Pennsylvania, initially brought this suit to block two

Interim Final Rules (“IFRs”) issued by Defendants Donald J. Trump, et al. (“Federal

Defendants”), which permitted employers to opt out of providing no-cost contraceptive coverage

on the basis of sincerely held religious beliefs or sincerely held moral convictions. On December

15, 2017, the Court issued a preliminary injunction enjoining Federal Defendants from enforcing

the IFRs, ruling that the IFRs likely violated both procedural and substantive requirements of the

Administrative Procedure Act. Federal Defendants then appealed the preliminary injunction. On

February 8, 2018, Federal Defendants moved to stay District Court proceedings, arguing that the

appeal presented dispositive legal questions, which, if resolved in favor of Federal Defendants,

would obviate the need for further litigation. Plaintiff agreed to the stay. On the same day, the

Case 2:17-cv-04540-WB Document 87 Filed 12/14/18 Page 2 of 3
Court granted the motion and stayed proceedings.1 On November 7, 2018, Federal Defendants issued new Final Rules, which are scheduled
to take effect on January 14, 2019. See 83 Fed. Reg. 57,536 & 57,592. The Final Rules largely reiterate the provisions of the IFRs, though certain alterations have been made to the text, and different notice and comment procedures were employed. Plaintiff now moves to lift the stay in order to challenge the Final Rules. Federal Defendants do not oppose. Intervenor-Defendant, however, does oppose, arguing that the appeal of the preliminary injunction remains pending, and thus “[i]t would be premature . . . to lift the stay.”
Generally, the filing of a notice of appeal “is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58–59 (1982). However, “[a]n appeal from the grant or denial of a preliminary injunction does not divest the trial court of jurisdiction or prevent it from taking other steps in the litigation while the appeal is pending.” 11A Wright & Miller, Fed. Prac. & Pro. § 2962 (3d ed.); see also In re Merck & Co., Inc. Sec. Litig., 432 F.3d 261, 268 (3d Cir. 2005) (observing that the district court retains the power to “modify or grant injunctions” following an appeal). “The power to stay a proceeding pending appeal is derived from the inherent power of a court to efficiently manage its own docket.” Smith v. Manasquan Bank, 2018 WL 2958664, at *1 (D.N.J. June 13, 2018). “When circumstances have changed such that the court’s reasons for imposing the stay no longer exist or are inappropriate, the court may lift the stay.” Canady v. Erbe Elektromedizin GmbH, 271 F. Supp. 2d 64, 74 (D.D.C. 2002).
In light of the issuance of the Final Rules, a continued stay of District Court proceedings
1 Intervenor-Defendant Little Sisters of the Poor Saints Peter and Paul Home was permitted to intervene following the issuance of the stay.
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is no longer warranted. The IFRs are now set to expire on the date that the Final Rules will take effect—one month from today. By its terms, the preliminary injunction enjoins only the enforcement of the IFRs, and would have no effect on the enforcement of the Final Rules. Thus, in the absence of further proceedings, the preliminary injunction effectively will expire along with the IFRs in one month’s time.
Further, the issuance of the Final Rules raises new legal issues. Most obviously, Federal Defendants promulgated the Final Rules following a notice and comment procedure that appears to differ from the previous procedure employed for the IFRs. Accordingly, while portions of the analysis relevant to the IFRs may apply to the Final Rules, certain conclusions underlying the preliminary injunction may be inapt in this new context.
By the same token, the changes made to the Final Rules raise the prospect that the appeal of the preliminary injunction will not fully or expeditiously resolve this litigation. Prior to the issuance of the Final Rules, the appeal of the preliminary injunction had the effect of bringing dispositive legal questions before the Third Circuit. Now, however, the Final Rules raise new legal issues, which are not before the Court of Appeals. In any event, the parties have not yet fully briefed the appeal, and thus it does not appear that this Court will have the benefit of Third Circuit guidance prior to the date that the Final Rules are slated to take effect.
For the reasons given, the stay shall be lifted. An appropriate order follows.
BY THE COURT: /s/Wendy Beetlestone, J.
_______________________________ WENDY BEETLESTONE, J.
3

 
 Case 2:17-cv-04540-WB Document 88 Filed 12/14/18 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA ,
Plaintiff,

CIVIL ACTION

v.
DONALD J. TRUMP, DONALD J. WRIGHT, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, STEVEN T. MNUCHIN, UNITED STATES DEPARTMENT OF THE TREASURY, RENE ALEXANDER ACOSTA AND THE UNITED STATES DEPARTMENT OF LABOR,
Defendants,

NO. 17-4540

LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME,
Intervenor-Defendant.

O R D E R

AND NOW, this 14th day of December, 2018, upon consideration of Plaintiff’s Motion

to Lift Stay of District Court Proceedings (ECF No. 81), and Defendants’ responses thereto (ECF

Nos. 82 & 85), IT IS HEREBY ORDERED that the Motion is GRANTED and the Clerk of

Court shall transfer this case to the Court’s active docket.

IT IS FURTHER ORDERED that:

1. Plaintiff shall supplement or amend its complaint and file a Motion for Preliminary Injunction no later than December 17, 2018;

2. Defendants shall file briefing in response to Plaintiff’s Motion for Preliminary Injunction no later than January 3, 2019;

3. Plaintiff shall file any reply briefing in further support of their Motion for a Preliminary Injunction no later than January 7, 2019;

4. Any amicus curiae briefs shall be filed no later than January 7, 2019;

Case 2:17-cv-04540-WB Document 88 Filed 12/14/18 Page 2 of 2 5. A Hearing on Plaintiff’s Motion for Preliminary Injunction shall commence on
Thursday, January 10, 2019 at 9:00 a.m. before the Honorable Wendy Beetlestone, in Courtroom 3B, 601 Market Street, Philadelphia, Pennsylvania, 19106.
BY THE COURT: /s/Wendy Beetlestone, J. _______________________________ WENDY BEETLESTONE, J.
2

 
 Case 2:17-cv-04540-WB Document 89 Filed 12/14/18 Page 1 of 36

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA and STATE OF NEW JERSEY,

Plaintiffs,

v.

No. 2:17-cv-04540-WB

DONALD J. TRUMP, in his official capacity as President of the United States; ALEX M. AZAR II, in his official capacity as Secretary of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; STEVEN T. MNUCHIN, in his official capacity as Secretary of the Treasury; UNITED STATES DEPARTMENT OF THE TREASURY; RENE ALEXANDER ACOSTA, in his official capacity as Secretary of Labor; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES OF AMERICA,

Defendants.

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF The Commonwealth of Pennsylvania, by and through Attorney General Josh Shapiro, and
the State of New Jersey, by and through Attorney General Gurbir S. Grewal, hereby file this Amended Complaint against Defendants Donald J. Trump, in his official capacity as President of the United States; Alex M. Azar II, in his official capacity as Secretary of Health and Human Services; the United States Department of Health and Human Services (HHS); Steven T. Mnuchin, in his official capacity as Secretary of the Treasury; the United States Department of the Treasury; Rene Alexander Acosta, in his official capacity as Secretary of Labor; the United

Case 2:17-cv-04540-WB Document 89 Filed 12/14/18 Page 2 of 36
States Department of Labor; and the United States of America (collectively, “Defendants”) and, in support thereof, state the following:
1. This lawsuit challenges Defendants’ illegal and unjustified attempts to deny millions of women in Pennsylvania, New Jersey, and across the country access to necessary preventive healthcare. As set forth more fully below, Defendants’ actions violate, among other provisions of law, the Administrative Procedure Act, the Affordable Care Act, the guarantee of equal protection enshrined in the Due Process Clause of the Fifth Amendment to the United States Constitution, Title VII of the Civil Rights Act, the Pregnancy Discrimination Act, and the Establishment Clause of the First Amendment. If Defendants are not blocked from implementing their unlawful rules, direct harm will result to the Commonwealth of Pennsylvania, the State of New Jersey, and the medical and economic health of their residents. Because these rules will cause irreparable harm and were issued in violation of law, the Commonwealth of Pennsylvania and the State of New Jersey seek declaratory and injunctive relief holding the rules unlawful and preventing their implementation.
INTRODUCTION 2. The Patient Protection and Affordable Care Act (ACA), 42 U.S.C. § 18001 et seq. (2010), together with its implementing regulations, requires certain health plans to cover all FDA-approved methods of contraception without imposing cost-sharing requirements on the insured. This requirement is known as the Contraceptive Care Mandate. 3. Because of the Contraceptive Care Mandate, over 55 million women have access to birth control without paying out-of-pocket costs, including 2.5 million women in Pennsylvania and 1.7 million in New Jersey. See Women’s Preventive Services Initiative, Recommendations for Preventive Services for Women: Final Report to the U.S. Department of Health and Human Services, Health Resources & Services Administration 84 (2016) (the “WPSI Report”); HHS,
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The Affordable Care Act is improving access to preventive services for millions of Americans (2015).1 American women and their families covered by private insurance have saved an estimated 70 percent on contraceptive costs as a result. WPSI Report at 84.
4. Contraception approved by the U.S. Food and Drug Administration is medicine, and its use has been shown to reduce the rates of unintended pregnancies and abortions. See Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps 105 (2011) (the “IOM Report”) (ECF No. 9-4).
5. Doctors prescribe contraception to their patients for many reasons, some not having to do with birth control at all. For example, doctors frequently prescribe contraception for treatment of various menstrual disorders, acne, abnormal growth of bodily hair, and pelvic pain. According to a 2011 report, more than 1.5 million women rely on oral “birth control” pills for medical reasons unrelated to preventing pregnancy, and 58 percent of all users of birth control pills—more than half—use them, at least in part, for purposes other than pregnancy prevention. See Rachel K. Jones, Beyond Birth Control: The Overlooked Benefits of Oral Contraceptive Pills, Guttmacher Institute 3 (2011).2
6. For these and other reasons, “access to contraception improves the social and economic status of women.” Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725, 8728 (Feb. 15, 2012) (citations omitted).
1 https://aspe.hhs.gov/sites/default/files/pdf/139221/The%20Affordable%20Care%20Act %20is%20Improving%20Access%20to%20Preventive%20Services%20for%20Millions%20of% 20Americans.pdf.
2 https://www.guttmacher.org/sites/default/files/report_pdf/beyond-birth-control.pdf. 3

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7. As a result of the Affordable Care Act, millions of American women enjoy a greater degree of control over their own medical health and can more fully participate in the workforce.
8. Defendants, however, threaten to deny many of these women the contraceptive health coverage on which they have come to rely by making the Contraceptive Care Mandate effectively optional.
9. Defendants have issued regulations that create broad exemptions from the ACA’s Contraceptive Care Mandate, and they have done so in violation of the Administrative Procedure Act (APA), the ACA, the U.S. Constitution, and federal law.
10. These regulations will allow individual employers, educational institutions, or other plan sponsors to decide whether women insured have access to contraception without outof-pocket charges.
11. Defendants first issued these regulations as Interim Final Rules (IFRs). Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 82 Fed. Reg. 47,792 (Oct. 13, 2017) (the “Religious Exemption IFR”); Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 82 Fed. Reg. 47,838 (Oct. 13, 2017) (the “Moral Exemption IFR”) (together, “the IFRs”) (ECF Nos. 9-2 & 9-3).
12. The IFRs went into effect immediately but were subsequently enjoined by this Court for violating the APA and the ACA (ECF Nos. 59 & 60).
13. After accepting public comment, Defendants subsequently issued rules that “finalize” the religious and moral exemptions created in the IFRs. Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act,
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83 Fed. Reg. 57,536 (Nov. 15, 2018) (the “final Religious Exemption Rule”); Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 83 Fed. Reg. 57,592 (Nov. 15, 2018) (the “final Moral Exemption Rule”) (together, the “final Exemption Rules”). The final Exemption Rules are attached respectively as Exhibits A and B.
14. The final Exemption Rules are scheduled to go into effect on January 14, 2019. 15. The final Exemption Rules were issued in direct violation of the substantive and procedural requirements of the APA. 16. In issuing the IFRs, Defendants failed to engage in notice and comment rulemaking as required by the APA and failed to show good cause for not doing so. 17. Because the final Exemption Rules “finalize” the IFRs, Defendants’ subsequent acceptance of public comment does not cure the final rules of this procedural violation. 18. Defendants also failed to respond to significant comments and failed to provide adequate statements of the final rules’ bases and purposes, as required by the APA. 19. The final Exemption Rules are also arbitrary and capricious, and their promulgation constitutes an abuse of discretion. 20. In addition, the final Exemption Rules themselves violate the requirements of the Affordable Care Act. 21. Furthermore, the final Exemption Rules apply only to one category of health services: contraception. And the preventative health benefits of contraception apply only to women.
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22. By singling out women for such negative, differential treatment, Defendants have violated the equal protection guarantee of the Due Process Clause of the Fifth Amendment to the Constitution of the United States.
23. Pennsylvania and New Jersey will suffer direct, proprietary harm as a result of the final Exemption Rules. When employers refuse to allow their health insurance plans to cover access to contraception, women will be forced to turn to state-funded programs that provide contraceptive services. Pennsylvania and New Jersey will also be forced to bear additional healthcare costs due to an increase in unintended pregnancies.
24. In addition, Pennsylvania and New Jersey possess strong interests in protecting the medical and economic health of their residents, minimizing unintended pregnancies and abortions, and ensuring that all of their residents—both men and women—are free and able to fully participate in the workforce, maximize their social and economic status, and contribute to their economies without facing discrimination on the basis of sex.
25. These interested are enshrined in the Pennsylvania Constitution, which declares, “Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.” PA. CONST. art. I, § 28.
26. Likewise, Article I, Paragraph 1 of the New Jersey Constitution guarantees equal protection rights to New Jersey residents, and New Jersey’s Law Against Discrimination, N.J.S.A. 10:5-12, makes it unlawful to subject people to differential treatment based on sex.
27. Defendants’ actions directly undermine these vital state interests. 28. Because Defendants have engaged in illegal conduct that will harm Pennsylvania, New Jersey, and their citizens in these and other ways, this Court should hold that the final Exemption Rules, like the IFRs, are unlawful and set them aside. Pennsylvania and New Jersey
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also seek a preliminary injunction to maintain the status quo throughout all future proceedings in this matter.
JURISDICTION AND VENUE 29. This action arises under the Administrative Procedure Act, 5 U.S.C. §§ 553, 701– 06, and the United States Constitution. This Court has subject matter jurisdiction under 28 U.S.C. § 1331. 30. In addition, this Court has the authority to issue the declaratory relief sought pursuant to 28 U.S.C. § 2201. 31. Venue is proper in this Court because Plaintiff the Commonwealth of Pennsylvania resides in this district and because a substantial part of the events giving rise to this action occurred in this district. See 28 U.S.C. § 1391(e)(1).
THE PARTIES 32. Plaintiff, the Commonwealth of Pennsylvania, is a sovereign state of the United States of America. This action is brought on behalf of the Commonwealth by Attorney General Josh Shapiro, the “chief law officer of the Commonwealth.” Pa. Const. art. IV, § 4.1. 33. Plaintiff, the State of New Jersey, is a sovereign state of the United States of America. This action is being brought on behalf of the State by Attorney General Gurbir S. Grewal, the State’s chief legal officer. See N.J. Stat. Ann. § 52:17A-4(e), (g). 34. In filing this action, the Attorneys General seek to protect the citizens and agencies of Pennsylvania and New Jersey from harm caused by Defendants’ illegal conduct, prevent further harm, and seek redress for the injuries caused to Pennsylvania and New Jersey by Defendants’ actions. Those injuries include harm to Pennsylvania’s and New Jersey’s sovereign, quasi-sovereign, and proprietary interests.
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35. Defendant Donald J. Trump is the President of the United States of America and is sued in his official capacity. His principal address is 1600 Pennsylvania Avenue NW, Washington, D.C. 20201.
36. Defendant Alex M. Azar II is the Secretary of the United States Department of Health and Human Services and is sued in his official capacity. His principal address is 200 Independence Avenue, SW, Washington, D.C. 20201
37. Defendant the United States Department of Health and Humans Services is an executive agency of the United States of America. Its principal address is 200 Independence Avenue, SW, Washington, D.C. 20201
38. Defendant Steven T. Mnuchin is the Secretary of the United States Department of the Treasury and is sued in his official capacity. His principal address is 1500 Pennsylvania Avenue, NW, Washington, D.C. 20220.
39. Defendant the United States Department of the Treasury is an executive agency of the United States of America. Its principal address is 1500 Pennsylvania Avenue, NW, Washington, D.C. 20220.
40. Defendant Rene Alexander Acosta is the Secretary of the United States Department of Labor and is sued in his official capacity. His principal address is 200 Constitution Avenue, NW, Washington DC 20210.
41. Defendant the United States Department of Labor is an executive agency of the United States of America. Its principal address is 200 Constitution Avenue, NW, Washington DC 20210.
42. Defendants the Department of Health and Humans Services, the Department of the Treasury, and the Department of Labor (together, the “Departments”) are each responsible
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Case 2:17-cv-04540-WB Document 89 Filed 12/14/18 Page 9 of 36
for implementing various provisions of the ACA. The Departments jointly issued the IFRs and the final Exemption Rules, which gave rise to this action.
43. Defendant the United States of America encompasses the government agencies and departments responsible for the implementation of the Affordable Care Act under the Constitution of the United States.
44. Defendants Azar, Mnuchin, and Acosta are each responsible for carrying out the duties of their respective agencies under the Constitution of the United States of America and relevant statutes, including the Affordable Care Act.
45. Defendant Trump is responsible for faithfully enforcing the laws of the United States of America pursuant to and in accordance with the Constitution of the United States.
BACKGROUND Congress Passes the Affordable Care Act and Women’s Health Amendment 46. Access to preventive health services, including contraception, is essential for women to exercise control over their own healthcare and fully participate as members of society. 47. Access to contraception, in particular, allows women greater control over their reproductive health choices so they can better pursue educational, career, and personal goals. 48. Indeed, the expansion of preventive health services for women was a specific goal of the healthcare reform efforts that led to the passage of the Affordable Care Act. 49. Recognizing this need to expand women’s access to preventive health services and reduce gender disparities in out-of-pocket costs, the U.S. Senate passed the “Women’s Health Amendment” during debate over the ACA. See S. Amdt. 2791, 111th Congress (2009– 2010).
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50. This Amendment was included in the final version of the ACA, which was signed into law on March 23, 2010. See ACA § 1001; Public Health Service Act (as amended by the ACA) § 2713, 42 U.S.C. § 300gg-13(a)(4).
51. The Women’s Health Amendment mandated that group health plans and health insurance issuers offering group or individual health insurance cover preventive health services and screenings for women—and do so with no cost-sharing responsibilities. 42 U.S.C. § 300gg13(a)(4). Some employer-sponsored plans that were in existence prior to passage were exempt from this requirement and most of the other requirements imposed by the ACA. See 29 C.F.R. § 2590.715-1251 (2010).
52. During Senate debate on the Women’s Health Amendment, lead sponsor Senator Barbara Mikulski explained that the amendment “leaves the decision of which preventive services a patient will use between the doctor and the patient.” 155 Cong. Rec. S11988 (Nov. 30, 2009) (statement of Sen. Barbara Mikulski). She further emphasized that the “decision about what is medically appropriate and medically necessary is between a woman and her doctor.” Id.
53. Senator Benjamin Cardin, who co-sponsored the Amendment, explained that it “extends the preventive services covered by the bill to those evidence-based services for women that are recommended by the Health Resources and Services Administration.” 155 Cong. Rec. S12058–59 (Dec. 1, 2009) (statement of Sen. Benjamin Cardin) (emphasis added).
54. Congress did not dictate which specific preventive services were to be covered by the Amendment. Rather, they were to be determined by guidelines issued by experts at the Health Resources and Services Administration (HRSA), an agency of Defendant the United States Department of Health and Human Services (HHS). Id.
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The Institute of Medicine Report on Clinical Preventive Services for Women 55. Following passage of the Affordable Care Act, HRSA complied with its legal responsibility to determine coverage guidelines by commissioning the then-named Institute of Medicine (IOM3) to issue recommendations identifying what specific preventive women’s health services should be covered under the ACA’s mandate. A private, nonprofit, and nongovernmental institution, IOM is an “independent, evidence-based scientific advisor” operating under the 1863 congressional charter of the National Academy of Sciences. Nat’l Acad. Med., About the National Academy of Medicine.4 56. IOM, in turn, convened a committee of sixteen members, including specialists in disease prevention, women’s health issues, adolescent health issues, and evidence-based guidelines, to formulate specific recommendations. See IOM Report. 57. After conducting an extensive study, that committee issued a comprehensive report, which identified several evidence-based preventive health services, unique to women, that it recommended be included as part of the HRSA’s comprehensive guidelines under the ACA. See IOM Report. 58. As set forth in its Report, IOM found that contraceptives are a preventive service that should be covered under the ACA’s mandate. See IOM Report at 109–10. In making this finding, IOM cited evidence that “contraception and contraceptive counseling” are “effective at reducing unintended pregnancies” and observed that “[n]umerous health professional
3 IOM was renamed the National Academy of Medicine in 2015. Press Release, National Academies of Sciences, Engineering, and Medicine, Institute of Medicine to Become National Academy of Medicine (Apr. 28, 2015), http://www.nationalacademies.org/hmd/Global/ News%20Announcements/IOM-to-become-NAM-Press-Release.aspx. Because the Report was issued in the name of IOM, this Complaint refers to IOM throughout.
4 https://nam.edu/about-the-nam/. 11

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associations recommend” that such family planning services be included as part of mandated preventive care for women. See IOM Report at 109.
59. Relying, in part, on recommendations from the American Academy of Pediatrics, the Society of Adolescent Medicine, the American Medical Association, the American Public Health Association, and the Association of Women’s Health, Obstetric and Neonatal Nurses, IOM recommended that all employer sponsored health plans cover the “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” IOM Report at 109–10.
60. IOM based its recommendation on several important factors, including the prevalence of unintended pregnancy in the United States. As stated in its Report, in 2001, an estimated “49 percent of all pregnancies in the United States were unintended—defined as unwanted or mistimed at the time of conception.” IOM Report at 102 (internal citations omitted).
61. IOM found that these unintended pregnancies disproportionately impact the most vulnerable: Although one in every 20 American women has an unintended pregnancy each year, unintended pregnancy is “more likely among women who are aged 18 to 24 years and unmarried, who have a low income, who are not high school graduates, and who are members of a racial or ethnic minority group.” Id.
62. Unintended pregnancies are more likely to result in abortions: “In 2001, 42 percent of … unintended pregnancies [in the United States] ended in abortion.” Id.
63. Moreover, women carrying babies to term are less likely to follow best health practices where those pregnancies are unintended. According to the IOM Committee on Unintended Pregnancy, “women with unintended pregnancies are more likely than those with
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intended pregnancies to receive later or no prenatal care, to smoke and consume alcohol during pregnancy.” IOM Report at 103.
64. Women facing unintended pregnancies are also more likely to be “depressed during pregnancy, and to experience domestic violence during pregnancy.” Id.
65. IOM also found “significantly increased odds of preterm birth and low birth weight among unintended pregnancies ending in live births compared with pregnancies that were intended.” Id.
66. While all pregnancies carry inherent health risks, some women have serious medical conditions for which pregnancy is strictly contraindicated. IOM specifically found that “women with serious medical conditions such as pulmonary hypertension (etiologies can include idiopathic pulmonary arterial hypertension and others) and cyanotic heart disease, and . . . Marfan Syndrome,” are advised against becoming pregnant. Id. For these women, contraception can be necessary, lifesaving medical care.
67. Use of contraceptives also promotes medically recommended “spacing” between pregnancies. IOM found that such pregnancy spacing is important because of the “increased risk of adverse pregnancy outcomes for pregnancies that are too closely spaced (within 18 months of a prior pregnancy)” and that “[s]hort interpregnancy intervals in particular have been associated with low birth weight, prematurity, and small for gestational age births.” IOM Report at 103.
68. IOM also found that contraceptives are effective in preventing unintended pregnancies. As stated in the IOM Report, “greater use of contraception within the population produces lower unintended pregnancy and abortion rates nationally.” IOM Report at 105.
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69. IOM specifically highlighted a study showing that, as the rate of contraceptive use by unmarried women increased in the United States between 1982 and 2002, their rates of unintended pregnancy and abortion declined. Id.
70. IOM reported other studies that showed increased rates of contraceptive use by adolescents from the early 1990s to the early 2000s was associated with a “decline in teen pregnancies” and, conversely, that “periodic increases in the teen pregnancy rate are associated with lower rates of contraceptive use.” IOM Report at 105.
71. IOM also found that contraception, as a method of preventing unintended pregnancy, is highly cost-effective, citing, among other things, savings in medical costs. It reported that “the direct medical cost of unintended pregnancy in the United States was estimated to be nearly $5 billion in 2002, with the cost savings due to contraceptive use estimated to be $19.3 billion.” IOM Report at 107.
72. In addition to preventing unintended pregnancies, IOM recognized that contraceptives have other significant health benefits unrelated to preventing unintended pregnancy. IOM stated in its Report that these “non-contraceptive benefits of hormonal contraception include treatment of menstrual disorders, acne or hirsutism, and pelvic pain.” IOM Report at 104. Long-term use of oral contraceptives has also been shown to “reduce a woman’s risk of endometrial cancer, as well as protect against pelvic inflammatory disease and some benign breast diseases.” Id.
73. Indeed, a leading research and policy organization committed to advancing sexual and reproductive health and rights in the United States and globally found in a 2011 report that more than 1.5 million women rely on oral contraceptive “birth control” pills for medical reasons unrelated to preventing pregnancy and that that 58 percent of all users of birth control pills—
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more than half—use them, at least in part, for purposes other than pregnancy prevention. See Jones, Beyond Birth Control: The Overlooked Benefits of Oral Contraceptive Pills, at 3.
74. As of 2008, there were still “approximately 36 million U.S. women of reproductive age (usually defined as ages 15 to 44 years)” who were “estimated to be in need of family planning services because they were sexually active, able to get pregnant, and not trying to get pregnant.” IOM Report at 103.
75. Importantly, IOM noted that cost is a meaningful barrier to contraceptive access, stating that “[d]espite increases in private health insurance coverage of contraception since the 1990s, many women do not have insurance coverage or are in health plans in which copayments for visits and for prescriptions have increased in recent years” and citing to a Kaiser Permanente study that found “when out-of-pocket costs for contraceptives were eliminated or reduced, women were more likely to rely on more effective long-acting contraceptive methods.” IOM Report at 109.
The Health Resources and Services Administration Adopts the IOM Report and Promulgates Guidelines
76. HRSA agreed with and adopted IOM’s recommendation that contraceptive services be covered under the Women’s Health Amendment to the Affordable Care Act.
77. In August 2011, pursuant to its responsibility under the ACA, HRSA promulgated the Women’s Preventive Service Guidelines (the “Guidelines”). See HRSA, Women’s Preventive Services Guidelines (2011).5
78. These Guidelines required that, as part of their group health plans, plan sponsors must cover “[a]ll Food and Drug Administration approved contraceptive methods, sterilization
5 https://www.hrsa.gov/womens-guidelines/index.html#2. 15

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procedures, and patient education and counseling for all women with reproductive capacity,” without any cost-sharing or payment by the insureds. Id.
79. As recently as December 2016, HRSA updated the Guidelines, following yet another review of relevant evidence, and determined that contraceptive care and services should remain mandated preventive services. See HRSA, Women’s Preventative Services Guidelines (2016).6 The Departments Grant Limited Exemptions and Accommodations to Religious Objectors
80. The Affordable Care Act does not contain a “conscience clause” that would allow employers to opt out of providing those preventive services required by the statute.
81. Nevertheless, in 2011, the Departments undertook regulatory action to accommodate religious objectors.
82. The Departments first issued regulations in 2011 that exempted “churches, their integrated auxiliaries, and conventions or associations of churches” from the ACA’s requirement that employers cover contraceptive services, without cost-sharing requirements, under employee group healthcare plans—provided these conscientious objectors satisfied certain criteria.7
83. To qualify, the purpose of the organization had to be “[t]he inculcation of religious values”; the organization had to primarily employ and serve “persons who share the religious tenets of the organization”; and the organization had to operate as a non-profit. 76 Fed. Reg. at 46,623.
6 https://www.hrsa.gov/womens-guidelines-2016/index.html. 7 See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46,621 (Aug. 3, 2011); Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725 (Feb. 15, 2012).
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84. In addition, several Senators proposed amending the Affordable Care Act to allow health plans to refuse to provide coverage for certain services if doing so was “contrary to the religious beliefs or moral convictions of the sponsor, issuer, or other entity offering the plan.” S. Amdt. 1520, 112th Congress (2011–2012).
85. The proposed amendment was necessary, its sponsors argued, because the ACA “does not allow purchasers, plan sponsors, and other stakeholders with religious or moral objections to specific items or services to decline providing or obtaining coverage of such items or services, or allow health care providers with such objections to decline to provide them.” Id.
86. That proposed amendment was rejected and did not become law. 158 Cong. Rec. S1172-S1172 (Mar. 1, 2012).
87. The following year, the Departments amended the original religious exemption. Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 39,870 (July 2, 2013) (the “Second Religious Exemption”). To claim the Second Religious Exemption, an organization must simply operate as a non-profit and be a church, its integrated auxiliary, or a convention or association of churches. Id. at 39,874.
88. At the same time, the Departments established an “accommodation” for religious nonprofit organizations that did not qualify for the Second Religious Exemption but still wanted to avoid the ACA’s mandate of having to provide contraceptive services to their employees (the “Accommodation”). Id. at 39,874–82.
89. Under the Accommodation, an objecting employer could self-certify as an eligible organization. Once it self-certified, the health insurance issuer—not the objecting employer— would have to provide the necessary and required contraceptive services directly to women covered under the sponsor’s plan. Id. In this way, women whose employers refused to pay for the
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legally mandated contraceptive coverage under the Accommodation still had access to contraceptive care.
90. At that time, the Defendant Departments declined to create any broader exceptions to the Contraceptive Care Mandate. Instead, they struck a balance by adhering to the evidence-based approach to women’s preventive health needs intended by Congress and allowing only the Second Religious Exemption and the Accommodation, two reasonable exceptions under which religious organizations and nonprofit employers with religious objections, could opt out of the ACA’s Contraceptive Care Mandate.
91. Indeed, throughout this process, the government continued to recognize that guaranteeing women’s access to contraceptive services is an essential healthcare component to allowing women to participate as full members of society.
92. For example, even while trying to accommodate the views of religious objectors, the Defendant Departments firmly articulated that barriers to contraceptive access “place[] women in the workforce at a disadvantage compared to their male co-workers” and observed that, “by reducing the number of unintended and potentially unhealthy pregnancies, [contraceptive coverage] furthers the goal of eliminating this disparity by allowing women to achieve equal status as healthy and productive members of the job force.” 77 Fed. Reg. at 8728 (footnote omitted).
Litigation Challenging the ACA’s Contraceptive Care Mandate 93. Following passage of the ACA and promulgation of the relevant implementing regulations, several employers filed lawsuits to challenge the scope of the Contraceptive Care Mandate, the Second Religious Exemption, and the Accommodation. 94. In Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), the Supreme Court concluded that applying the ACA’s Contraceptive Care Mandate to closely held
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corporations that objected on the basis of sincerely held religious beliefs but that were not eligible for the Accommodation violated the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb-1.
95. That statute provides that the government may not “substantially burden a person’s exercise of religion” unless it did so “in furtherance of a compelling governmental interest” and adopted “the least restrictive means of furthering that compelling governmental interest.” Id.
96. As a result of the ruling in Hobby Lobby, the Defendant Departments began allowing closely held for-profit entities to take advantage of the Accommodation process previously available only to nonprofit employers. Coverage of Certain Preventive Services Under the Affordable Care Act, 80 Fed. Reg. 41,318 (July 14, 2015).
97. In Zubik v. Burwell, 136 S. Ct. 1557 (2016), the Supreme Court considered several consolidated challenges to the Accommodation itself. Following oral argument, the Court sought clarification from the parties as to whether a modified accommodation process that did not require the employer to formally notify its insurance company of its objection—but would still ensure that the employer’s employees received contraceptive coverage—would accommodate both the government’s interests and the objections of certain religious employers. Id. at 1559-60.
98. After receiving clarification from the parties, the Supreme Court remanded to provide them with “an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’” Id. at 1560 (citation omitted).
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99. On January 9, 2017, the Department of Labor announced that “no feasible approach has been identified . . . that would resolve the concerns of religious objectors, while still ensuring that the affected women receive full and equal health coverage, including contraceptive coverage.” Dep’t of Labor, FAQs about Affordable Care Act Implementation Part 36, at 4 (Jan. 9, 2017).
100. As such, the Department reaffirmed that the Accommodation “does not substantially burden [objecting employers’] exercise of religion.” Id. at 4–5. Even if it did, the Department also reaffirmed that “the accommodation is the least restrictive means of furthering the government’s compelling interest in ensuring that women receive full and equal health coverage, including contraceptive coverage.” Id.
President Trump’s Executive Order “Promoting Free Speech and Religious Liberty” 101. On May 4, 2017, President Donald Trump issued an Executive Order entitled
“Promoting Free Speech and Religious Liberty.” Exec. Order No. 13798, 82 Fed. Reg. 21,675 (May 4, 2017).
102. Among other provisions, this Executive Order directed the Defendant Departments to “consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under section 300gg13(a)(4) of Title 42, United States Code.” Id. § 3.
103. This Executive Order did not specifically mention the Contraceptive Care Mandate. Rather, the President directed the Defendant Departments to consider issuing amended regulations to address conscience-based objections to services provided under the Women’s Health Amendment to the Affordable Care Act only.
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104. The President did not, for example, direct the Departments to consider regulations addressing objections to similar requirements to provide other preventive services. See 42 U.S. Code § 300gg-13(a)(1)-(3).
105. President Trump’s Executive Order did not identify any deficiencies with the existing regulations that addressed conscience-based objections (the Second Religious Exemption and the Accommodation) or provide any guidance whatsoever as to the amended regulations that the President had directed the Departments to consider issuing.
106. The Executive Order did not direct the agencies to comply with Zubik’s command that any exemptions to the Contraceptive Care Mandate “ensur[e] that women covered by … health plans ‘receive full and equal health coverage, including contraceptive coverage.’” 136 S. Ct. at 1560. It stated only that any amended regulations issued must be “consistent with applicable law.” Id. § 3.
The Departments Issue the IFRs Without Engaging in Required Notice-and-Comment Rulemaking
107. On October 6, 2017, the Defendant Departments issued the Moral Exemption and Religious Exemption IFRs without any advance public notice and without inviting or providing opportunity for comment.
108. The Religious Exemption IFR significantly expanded the scope of the existing religious exemption. Specifically, it allowed all employers—including non-profits, closely held for-profits companies, and publicly traded corporations—to opt out of providing no-cost contraceptive coverage to their employees on the basis of the employer’s “sincerely held religious beliefs.” 82 Fed. Reg. at 47,808–12. It also extended the exemption to institutions of higher education, insurance issuers, and individuals. Id.
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109. The Religious Exemption IFR suggested that, if owners of a majority of a company’s shares possess a religious objection to contraceptive coverage, the company can simply refuse to provide such coverage. The Religious Exemption IFR stated that “in a country as large as America comprised of a supermajority of religious persons . . . the majority of shares (or voting shares) of some publicly traded companies might be controlled by a small group of religiously devout persons so as to set forth such a religious character.” Id. at 47,810.
110. The Moral Exemption IFR created a brand new exemption allowing employers to refuse to provide their employees with contraceptive coverage solely “based on sincerely held moral convictions” of the employer. 82 Fed. Reg. at 47,844.
111. The Moral Exemption IFR could be claimed by nonprofit entities, for-profit entities whose shares are not publicly traded, institutions of higher education, health insurance issuers, and individuals. 82 Fed. Reg. at 47,850. Unlike the Religious Exemption IFR, the Moral Exemption IFR did not allow publicly traded companies to opt out of the Mandate.
112. In the IFRs, the Departments admitted that employees of companies that objected under either IFR would lose access to the contraceptive coverage required under the ACA’s Contraceptive Care Mandate. See 82 Fed. Reg. at 47,818-22.
113. Both IFRs allowed objecting entities to utilize the Accommodation, but eliminated any requirement that they do so. 82 Fed. Reg. at 47,812–13; 82 Fed. Reg. at 47,854.
114. Under the IFRs, objecting entities did “not need to file notices or certifications of their exemption.” 82 Fed. Reg. at 47,808; 82 Fed. Reg. at 47,850.
115. The Departments estimated that between 31,700 and 120,000 women would lose access to federally mandated contraceptive services when their employers claimed the Religious Exemption. 82 Fed. Reg. at 47,816–24.
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This Court Enjoins the IFRs 116. On October 11, 2017, the Commonwealth filed its original Complaint in this matter, alleging that the IFRs were unlawfully issued in violation of the APA and other statutory and constitutional provisions (ECF No. 1). 117. The Commonwealth further alleged that many Pennsylvania women who were denied contraceptive coverage as a result of the IFRs would be forced to rely on governmentfunded programs, causing the Commonwealth irreparable harm. 118. The Commonwealth moved for a preliminary injunction of the IFRs (ECF Nos. 8 & 9). 119. On December 15, 2017, this Court granted the Commonwealth’s motion and enjoined the federal defendants (with the exception of the President) from enforcing the IFRs (ECF Nos. 59 & 60). 120. This Court found that Defendants had issued the IFRs without notice and comment in violation of the APA, and further found that the exemptions themselves were arbitrary, capricious, and contrary to the requirements of the ACA. 121. On December 21, 2017, the U.S. District Court for the Northern District of California also entered a preliminary injunction against the IFRs. California v. Health & Human Servs., 281 F. Supp. 3d 806 (N.D. Cal. 2017). This decision was recently affirmed. California v. Azar, No. 18-15155, Dkt. No. 136-1 (9th Cir. Dec. 13, 2018),
The Departments Issue the Final Exemption Rules 122. On November 15, 2018, the Departments issued the final Religious and Moral Exemption Rules. They are scheduled to go into effect on January 14, 2019. 83 Fed. Reg. at 57,536; 83 Fed. Reg. at 57,592.
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123. The final Exemption Rules “finalize, with changes based on public comments,” the broad exemptions originally created in the IFRs. 83 Fed. Reg. at 57,536; 83 Fed. Reg. at 57,592.
124. Like the Religious Exemption IFR, the final Religious Exemption Rule will allow all employers—including non-profits, closely held for-profits companies, and publicly traded corporations—to opt out of providing no-cost contraceptive coverage to their employees on the basis of the employer’s “sincerely held religious beliefs.” 83 Fed. Reg. at 57,537. It will also extend the exemption to institutions of higher education, insurance issuers, and individuals. Id.
125. Like the Moral Exemption IFR, the final Moral Exemption Rule will allow entities to avoid complying with the Contraceptive Care Mandate on the basis of the employer’s “sincerely held moral convictions.” 83 Fed. Reg. at 57,616. The final Moral Exemption can be claimed by nonprofit entities, for-profit entities whose shares are not publicly traded, institutions of higher education, health insurance issuers, and individuals.
126. Unlike the IFRs, however, the final Religious Exemption Rule will allow any employer—even one that does not have a sincerely held religious objection to contraception—to avoid complying with the Contraceptive Care Mandate if it adopts a group health plan “established or maintained” by an objecting organization. 83 Fed. Reg. at 57,560, 57,563–64.
127. The final Exemption Rules will also allow any covered entity to claim the exemption if they have a sincerely held religious or moral objection to “establishing, maintaining, providing, offering, or arranging for … a plan, issuer, or third party administrator that provides or arranges such coverage or payments [for some or all contraceptive services].” 83 Fed. Reg. at 57,537; 83 Fed. Reg. at 57,593.
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128. As with the IFRs, the Departments admit that employees of companies that object under either final Exemption Rule would lose access to the contraceptive coverage required under the ACA’s Contraceptive Care Mandate.
129. The Departments estimate that between 70,500 and 126,400 women will lose access to federally mandated contraceptive services when their employers claim the final Religious Exemption. 83 Fed. Reg. at 57,575–582.
130. To explain the more than doubled lower bound of impacted women, the Departments admit that the analysis they conducted in the IFR failed to properly account for the number of employees working for entities that had claimed the Accommodation. 83 Fed. Reg. at 57,576.
131. The final Exemption Rules undermine the balance struck under the prior regulatory scheme and run counter to the Affordable Care Act’s mandate that evidence-based preventive services be provided.
132. As a result, millions of women potentially will be subjected to increased financial hardship and the loss of necessary contraceptive care. Specific Harm to the Commonwealth of Pennsylvania and the State of New Jersey Caused
by the final Exemption Rules 133. As a result of Defendants’ final Exemption Rules, it is expected that many plan sponsors will claim the newly expanded exemptions and will deny their own employees and others medical coverage that is otherwise required under the Contraceptive Care Mandate. 134. As a result, numerous insureds—and their female dependents—will lose the medical coverage for contraceptive care required by the Affordable Care Act. 135. Upon information and belief, many of these employers operate in Pennsylvania and New Jersey.
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136. During the course of litigation against the IFRs, Defendants revealed that they calculated their estimates of impacted women based on the assumption that many litigating and accommodated entities would use the religious and moral exemptions. A number of these entities are based in Pennsylvania and New Jersey: Bingaman and Son Lumber Inc., Kreamer, PA (number of employees unknown); Conestoga Wood Specialties Corporation, East Earl, PA (950 employees); Cummins Allison, Philadelphia, PA and Elmwood Park, NJ (number of employees unknown); DAS Companies, Inc., Palmyra, PA (number of employees unknown); Earth Sun Moon Trading Company, Inc., Grove City, PA (number of employees unknown); Geneva College, Beaver Falls, PA (1,850 students, 350 employees); Hobby Lobby (13,240 total employees, at least 25 stores in Pennsylvania and New Jersey); and Holy Ghost Preparatory School, Bensalem, PA (number of employees unknown).
137. Therefore, many of those losing legally-mandated coverage for contraceptive services will be Pennsylvania and New Jersey residents. All of the women affected will face an increased risk of medical harm or an increased economic burden if they choose to self-fund contraception
138. This broad loss of formerly-mandated contraceptive care will result in significant, direct and proprietary harm to Pennsylvania and New Jersey, which will bear increased costs as a result of the final Exemption Rules.
139. States are generally preempted from regulating self-insured plans. Such plans are, instead, governed by the Employee Retirement Income Security Act of 1974 (ERISA), Pub. L. 93–406, 88 Stat. 829 (codified in part at 29 U.S.C. ch. 18), a federal law that establishes minimum standards for pension plans in private industry and provides for extensive rules on the federal income tax effects of transactions associated with employee benefit plans.
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140. As of 2010, approximately 80 percent of “large employers” (with over 1000 employees), and 50 percent of “mid-sized employers” (with 200-1000 employees), offered selfinsured plans. See Rand Corp., Employer Self-Insurance Decisions, at 17-18 (Mar. 2011) (prepared for United States Department of Labor and HHS).
141. New Jersey law requires employers who offer fully-insured plans to provide coverage for expenses incurred in the purchase of prescription female contraceptives to the same extent as any other outpatient prescription drug covered under the policy. E.g., N.J. Stat. Ann. §§ 17B:26-2.1y, 17B:27:46.1ee, 17B:27A-19.15 (West 2018).
142. Unlike the Women’s Health Amendment, New Jersey’s contraceptive mandate does not require insurers to offer women contraceptive services with zero out-of-pocket costs. In addition, New Jersey’s mandate only requires coverage for prescription female contraceptives, rather than all FDA-approved female contraceptive methods. As a result, female employees of objecting entities could lose coverage entirely for certain contraceptive methods and could be forced to pay significantly higher out-of-pocket costs for those methods that are covered.
143. These costs will impose an additional financial burden on women and will cause some women to forgo contraception entirely or to forgo their preferred method of contraception.
144. Approximately 3,434,000 New Jersey residents who have health insurance are covered by self-insured plans. Due to ERISA’s preemption provision, self-insured plans offered by private employers are exempt from New Jersey’s contraceptive mandate. As a result, New Jersey residents who are employed by organizations with self-insured plans that take advantage of the expanded exemption from the Contraceptive Care Mandate may lose all coverage for the medical costs associated with contraceptive care.
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145. The complete loss of coverage (or partial loss of coverage and increased copays and deductibles for employees in non-ERISA plans) will be particularly problematic for women seeking to access long-acting reversible contraceptives, which are among the safest and most effective contraceptive methods available, but have very high initial costs, often in the range of $400 to $1,000 per person.
146. Some women who lose their contraceptive benefits because of the expanded exemptions granted will turn to state-funded programs for their contraceptives, which will force Pennsylvania and New Jersey to absorb additional financial costs presently borne by privateinsurers.
147. In Pennsylvania, Medicaid (known as “Medical Assistance”) provides contraceptive services to women in Pennsylvania with incomes up to 138 percent of the federal poverty level. The Commonwealth’s Family Planning Services Program likewise provides contraceptive services to women with incomes up to 215 percent of the poverty level. The Commonwealth also funds Title X clinics, which have no income-based eligibility requirements. The additional financial burden from increased use of these programs will be borne by the Commonwealth.
148. New Jersey’s state- and federally-funded Medicaid and Children’s Health Insurance Programs (collectively, known as “NJ FamilyCare”) similarly provide contraceptive coverage to New Jersey women with incomes up to 138 percent of the federal poverty limit. In addition, New Jersey’s subsidized family planning clinics provide preventive screenings and contraceptives to all patients, regardless of income or insurance coverage, including financially vulnerable women who are not eligible for Medicaid. Increased use of these programs by women who lose coverage for contraceptive services under the final Exemption Rules will result in
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additional costs to New Jersey, including the cost of providing services to low-income women who are eligible for free or reduced cost services, as well as the cost of expanding facilities to meet increased demand from all women, even those who due to their income level are required to pay fully or in part for the services they receive.
149. Other women will forgo contraceptive health services altogether, because the loss of their employer-sponsored coverage will make their formerly-mandated care unaffordable or inaccessible. As a result of the affected women no longer receiving coverage, Pennsylvania and New Jersey will see an increase in unintended pregnancies and other negative health outcomes which, in addition to other personal, social and societal burdens, are associated with significant additional costs to state-funded programs that protect the health of women and infants.
150. Nationally, a publicly funded birth in 2010 cost an average of $12,770 for prenatal and postnatal care, labor and delivery, and for the first year of infant care. In 2010, according to one study, New Jersey spent an estimated $186.1 million and Pennsylvania an estimated $248.2 million on unintended pregnancies. See Sonfield & Kathryn Kost, Public Costs from Unintended Pregnancies and the Role of Public Insurance Programs in Paying for Pregnancy-Related Care National and State Estimates for 2010, at 13.
151. Indeed, to date—before Defendants issued the IFRs and the final Exemption Rules—the Contraceptive Care Mandate had resulted in extraordinary savings for women.
152. A recent study conducted by the University of Pennsylvania found, for example, that the ACA’s Contraceptive Care Mandate “is saving the average [contraceptive] pill user $255 per year” and “the average woman receiving an IUD is saving $248.” See Press Release, University of Pennsylvania School of Medicine, Affordable Care Act Results in Dramatic Drop
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in Out-of-Pocket Prices for Prescription Contraceptives, Penn Medicine Study Finds (July 7, 2015).8
153. Spread over an estimated 6.88 million privately insured oral contraceptive users in the United States, the University of Pennsylvania study estimates that, as a result of the ACA’s Contraceptive Care Mandate, “consumer annual contribution to spending on the pill could be reduced by almost $1.5 billion annually.” Id.
154. In addition to the direct, proprietary harm set forth above, the final Exemption Rules impermissibly encroach on Pennsylvania’s and New Jersey’s quasi-sovereign interests in protecting the health, safety, and well-being of their residents, and in ensuring that they enjoy equal access to federal programs. As such, in addition to proprietary standing, Pennsylvania and New Jersey have parens patriae standing to vindicate these interests.
155. By failing to follow the procedures set forth in the APA, Defendants further harmed Pennsylvania and New Jersey by denying them the right to participate meaningfully in the rulemaking process.
CAUSES OF ACTION COUNT I
Violation of Equal Protection of the Laws 156. Pennsylvania and New Jersey incorporate by reference the foregoing paragraphs of this Complaint as if set forth at length.
8 https://www.pennmedicine.org/news/news-releases/2015/july/affordable-care-actresults-in.
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157. Under the Due Process Clause of the Fifth Amendment to the U.S. Constitution, the federal government may not deny any person equal protection of the laws. U.S. Const. amend. V.
158. Discrimination on the basis of sex violates this constitutional guarantee. 159. The final Exemption Rules apply to only one category of preventive medical care, contraception, which is used predominantly by women. 160. Because the final Exemption Rules are targeted at women and deny them needed preventive medical services, the Rules violate the Constitution’s guarantee of equal protection under the laws.
COUNT II Violation of Title VII of the Civil Rights Act and the Pregnancy Discrimination Act
161. Pennsylvania and New Jersey incorporate by reference the foregoing paragraphs of this Complaint as if set forth at length.
162. The Exemption Rules violate Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, which prohibits discrimination based on sex. See 42 U.S.C. § 2000e et seq. (Title VII).
163. The Pregnancy Discrimination Act prohibits discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000e. It therefore prevents employees from discrimination based on need for contraception.
164. Classifying employees on the basis of their childbearing capacity, regardless of whether they are, in fact, pregnant, is prohibited sex discrimination under Title VII.
165. The Exemption Rules violate Title VII because they discriminate against women on the basis of their capacity to get pregnant.
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COUNT III Violation of the Procedural Requirements of the Administrative Procedure Act 166. Pennsylvania and New Jersey incorporate by reference the foregoing paragraphs of this Complaint as if set forth at length. 167. Under the APA, a court shall “hold unlawful” and “set aside” any “agency action, findings, and conclusions found to be . . . without observance of procedure required by law.” 5 U.S.C. § 706(2)(D). 168. In issuing substantive rules, federal agencies are required to follow the notice and comment process set forth in the APA unless the agency “for good cause” finds that notice and public procedure are “impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. § 553(b)(3)(B). Any such findings must be incorporated into the rules along with “a brief statement of reasons therefor.” Id. 169. Specifically, before issuing any rule, the agency must publish a “[g]eneral notice of proposed rule making” in the Federal Register. 5 U.S.C. § 553(b). 170. That notice must describe “either the terms or substance of the proposed rule or a description of the subjects and issues involved.” 5 U.S.C. § 553(b)(3). 171. The agency must further provide “interested persons” an “opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation.” 5 U.S.C. § 553(c). 172. In issuing the IFRs, the Defendant Departments failed to follow these basic requirements. 173. Furthermore, the justifications offered by the Departments for their failure to engage in notice and comment rulemaking did not satisfy the “good cause” standard required under section 553(b)(3)(B) of the APA.
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174. In issuing the final Exemption Rules, Defendants similarly did not follow the notice and comment procedures as set forth in the APA. Rather, Defendants accepted comments after the IFRs had already gone into effect, and purported to consider those comments in issuing the final Exemption Rules.
175. The final Exemption Rules “finalize” the IFRs, and adopt without change most of the language in the IFRs.
176. As a result, the final Exemption Rules are impermissibly tainted with the same procedural defects as the IFRs.
177. In addition, when an agency does accept comments, it must respond to all significant comments and provide a statement of the “basis and purpose” of each final rule. 5 U.S.C. § 553(c).
178. The responses to comments offered by Defendants in the final Exemption Rules are insufficient, and the statements of basis and purpose fail to satisfy APA requirements.
179. Because the Departments failed to follow the procedural requirements of the APA, the final Exemption Rules should be held unlawful and set aside pursuant to 5 U.S.C. § 706(2)(D).
COUNT IV Violation of the Substantive Requirements of the Administrative Procedure Act 180. Pennsylvania and New Jersey incorporate by reference the foregoing paragraphs of this Complaint as if set forth at length. 181. Under the APA, a 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.” 5 U.S.C. § 706(2)(A).
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182. Both the final Moral Exemption Rule and the final Religious Exemption Rule are inconsistent with the Affordable Care Act’s requirement that group health plans and insurers provide women with preventive care as provided for in guidelines issued by HRSA, without any cost-sharing requirements.
183. The Rules also violate the civil rights protections in the ACA prohibiting discrimination on the basis of sex and other protected categories in most healthcare programs and activities. See 42 U.S.C. § 18116.
184. They also violate the provisions of the ACA that prohibit the promulgation of any regulation that “[c]reates any unreasonable barrier to the ability of individuals to obtain appropriate medical care,” “[i]mpedes timely access to health care services,” or “[l]imits the availability of health care treatment for the full duration of a patient’s medical needs.” 42 U.S.C. § 18114.
185. In addition, the Departments abused their discretion and acted in a manner that was arbitrary and capricious in issuing the final Exemption Rules. 5 U.S.C. § 706(2)(A).
186. Specifically, the Departments fail to provide an adequate rationale for concluding that the Accommodation violates the Religious Freedom Restoration Act. They also fail to provide adequate reasons for why the final Religious Exemption is required or permissible under the Religious Freedom Restoration Act.
187. Indeed, when it passed the Affordable Care Act, Congress elected not to include a “conscientious objector” or other exemption for individuals or organizations who object to any portion of the ACA on religious or moral grounds.
188. The Departments further rely on arbitrary and capricious explanations to justify their decision to issue the Final Exemptions Rules.
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189. Because the final Exemption Rules are arbitrary, capricious, an abuse of discretion, and contrary to law, they should be held unlawful and set aside pursuant to 5 U.S.C. § 706(2)(A).
COUNT V Violation of the Establishment Clause 190. Pennsylvania and New Jersey incorporate by reference the foregoing paragraphs of this Complaint as if set forth at length. 191. The final Exemption Rules violate the Establishment Clause of the First Amendment to the U.S. Constitution. 192. The Departments have used their rulemaking authority for the primary purpose, and with the actual effect, of advancing and endorsing religious interests. 193. The Departments have acted to promote employers’ religious beliefs over the selfdetermination of women who may not share those beliefs and over the ACA’s mandate that preventive care be provided. 194. As a result, the final Exemption Rules violate the Establishment Clause.
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PRAYER FOR RELIEF WHEREFORE, the Commonwealth of Pennsylvania and the State of New Jersey request that this Court enter judgment in their favor and grant the following relief: a. Declare the final Moral Exemption Rule and the final Religious Exemption Rule
unlawful; b. Vacate the final Moral Exemption Rule and the final Religious Exemption Rule; c. Preliminarily and permanently enjoin the application of the final Moral
Exemption Rule and the final Religious Exemption Rule; d. Award Plaintiffs reasonable costs, including attorneys’ fees; and e. Grant such other and further relief as the Court deems just and proper.

December 14, 2018
GURBIR S. GREWAL Attorney General of New Jersey GLENN J. MORAMARCO Assistant Attorney General ELSEPTH FAIMAN HANS Deputy Attorney General KIMBERLY A. CAHALL Deputy Attorney General New Jersey Attorney General’s Office Richard J. Hughes Justice Complex 25 Market Street Trenton, NJ 08625 (609) 376-3235 Glenn.Moramarco@law.njoag.gov

Respectfully submitted,
JOSH SHAPIRO Attorney General Commonwealth of Pennsylvania
/s/ Michael J. Fischer MICHAEL J. FISCHER Chief Deputy Attorney General AIMEE D. THOMSON Deputy Attorney General Office of Attorney General 1600 Arch Street Suite 300 Philadelphia, PA 19103 (215) 560-2171 mfischer@attorneygeneral.gov

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 Case 2:17-cv-04540-WB Document 135 Filed 01/14/19 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA AND STATE OF NEW JERSEY,

CIVIL ACTION

Plaintiffs, v.

NO. 17-4540

DONALD J. TRUMP, ALEX M. AZAR II, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, STEVEN T. MNUCHIN, UNITED STATES DEPARTMENT OF THE TREASURY, RENE ALEXANDER ACOSTA, THE UNITED STATES DEPARTMENT OF LABOR, AND THE UNITED STATES OF AMERICA,

Defendants,

LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME,

Defendant-Intervenor.

O R D E R AND NOW, this 14th day of January, 2019, upon consideration of the Plaintiffs’ Second Motion for a Preliminary Injunction (ECF No. 90), Defendants’ and Defendant-Intervenor’s Responses thereto (ECF Nos. 107 & 108), the Plaintiffs’ Reply in Support thereof (ECF No. 118), the Administrative Record (ECF Nos. 23, 47 & 126), Briefs of the Amici Curiae (ECF Nos. 110, 112, 113, 115, 117 & 127), and following a Hearing on Plaintiffs’ Motion on January 10, 2019, IT IS HEREBY ORDERED that the Motion is GRANTED. It is FURTHER ORDERED that Defendants Alex M. Azar II, as Secretary of the United States Department of Health and Human Service; the United States Department of Health

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and Human Services; Steven T. Mnuchin, as Secretary of the United States Department of Treasury; the United States Department of Treasury; Rene Alexander Acosta, as Secretary of the United States Department of Labor; and the United States Department of Labor;1 and their officers, agents, servants, employees, attorneys, designees, and subordinates, as well as any person acting in concert or participation with them, are hereby ENJOINED from enforcing the following Final Rules across the Nation, pending further order of this Court:
1. Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 83 Fed. Reg. 57,536 (Nov. 15, 2018); and
2. Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 83 Fed. Reg. 57,592 (Nov. 15, 2018). The Court has considered the issue of security pursuant to Rule 65(c) of the Federal
Rules of Civil Procedure and determines that Defendants will not suffer any financial loss that warrants the need for the Plaintiffs to post security.
BY THE COURT:
/s/Wendy Beetlestone, J. _______________________________ WENDY BEETLESTONE, J.
1 In light of the constitutional concerns associated with enjoining the President of the United States for a claim under the Administrative Procedure Act, this injunction does not apply to the President. See Franklin v. Massachusetts, 505 U.S. 788, 801 (1992).
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA AND STATE OF NEW JERSEY,

CIVIL ACTION

Plaintiffs, v.

NO. 17-4540

DONALD J. TRUMP, ALEX M. AZAR II, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, STEVEN T. MNUCHIN, UNITED STATES DEPARTMENT OF THE TREASURY, RENE ALEXANDER ACOSTA, THE UNITED STATES DEPARTMENT OF LABOR, AND THE UNITED STATES OF AMERICA,

Defendants,

LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME,

Defendant-Intervenor.

Table of Contents

OPINION

I. Background ............................................................................................................................. 3 A. Contraceptive Mandate ....................................................................................................... 3 B. Regulatory Action to Accommodate Religious Objections................................................ 4 C. Hobby Lobby & Wheaton College ...................................................................................... 6 D. Regulatory Response to Hobby Lobby & Wheaton College ............................................... 7 E. Zubik Remand & Impasse ................................................................................................... 8 F. 2017 IFRs & First Preliminary Injunction .......................................................................... 9 G. 2018 Final Rules & Second Motion for Preliminary Injunction....................................... 12
II. Analysis................................................................................................................................. 13 A. Standing ............................................................................................................................ 13 1. Special Solicitude.......................................................................................................... 15

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2. Article III Standing ....................................................................................................... 18 B. Venue ................................................................................................................................ 20 C. Preliminary Injunction ...................................................................................................... 23
1. Legal Standard .............................................................................................................. 23 2. Likelihood of Success on the Merits............................................................................. 24
a. APA Procedural Claim ........................................................................................... 24 i. Inadequate Response to Comments ........................................................................ 25 ii. IFRs Taint the Final Rules .................................................................................. 27
b. APA Substantive Claim .......................................................................................... 34 i. The ACA ................................................................................................................. 35 ii. RFRA .................................................................................................................. 42
3. Irreparable Harm ........................................................................................................... 52 4. Balance of the Equities ................................................................................................. 55 5. Public Interest ............................................................................................................... 56 D. Remedy ............................................................................................................................. 57
Plaintiffs, the Commonwealth of Pennsylvania and the State of New Jersey (collectively “the States”), have sued the United States of America, President Donald J. Trump, the United States Secretary of Health and Human Services Alex M. Azar II, the United States Secretary of the Treasury Steven T. Mnuchin, and the United States Secretary of Labor Rene Alexander Acosta in their official capacities, as well as each of their agencies (collectively “Defendants”), seeking to enjoin enforcement of two Final Rules that grant exemptions to the Affordable Care Act’s requirement that health plans cover women’s preventive services. The Final Rules “finalize” two Interim Final Rules, which Defendants issued in October 2017 and which this Court enjoined soon thereafter, see Pennsylvania v. Trump, 281 F. Supp.3d 553, 585 (E.D. Pa. 2017). On November 15, 2018, while their appeal of that preliminary injunction was pending, Defendants promulgated the Final Rules currently before the Court. The States move to enjoin enforcement of the Final Rules arguing that, like the IFRs before them, the Final Rules violate a variety of constitutional and statutory provisions. For the reasons set forth below, Plaintiffs’
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Second Motion for a Preliminary Injunction shall be granted. I. Background1 Although the relevant factual and procedural history of this dispute has been laid out at
length before, see id. at 560-64, that background information is recounted here for the sake of clarity.
A. Contraceptive Mandate In March 2010, Congress enacted the Affordable Care Act. See Patient Protection and Affordable Care Act (“ACA”), Pub L. No. 111-148, 124 Stat. 119 (2010). A provision of the ACA, the Women’s Health Amendment, mandated that insurance providers cover preventive health services and screenings for women without cost-sharing responsibilities. Specifically, the Women’s Health Amendment requires that “[a] group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [“HRSA”] for purpose of this paragraph.” 42 U.S.C. § 300gg-13(a)(4). This requirement applies to all health insurers offering individual or group insurance, as well as all group health plans, with an exception for certain “grandfathered” plans. 42 U.S.C. § 18011 (exempting “grandfathered” plans); see also 29 C.F.R. § 2590.7151251 (2010). Rather than enumerate the preventive services to be covered by the mandate, Congress delegated that decision to HRSA, which is an agency of Defendant Department of Health and Human Services (“HHS”). HRSA, in turn, commissioned the then-named Institute of Medicine
1 The factual statements found here and elsewhere in the opinion constitute this Court’s findings of fact, as required under Rule 52(a) of the Federal Rules of Civil Procedure, regardless of any heading or lack thereof.
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(“the Institute”), to convene a panel of experts to provide recommendations.2 On July 19, 2011, the Institute issued its report, recommending that the ACA cover “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” Institute of Medicine, Clinical Prevention Services for Women: Closing the Gaps, at 109-10 (2011).
On August 1, 2011, HRSA issued its preventive care guidelines (“2011 Guidelines”), which adopted the Institute’s recommendations. See HRSA, Women’s Preventive Services Guidelines, available at https://www.hrsa.gov/womens-guidelines/index.html. 3 The 2011 Guidelines hewed to the Institute’s report, defining preventive care to include all FDA-approved “contraceptive methods, sterilization procedures, and patient education and counseling.” Id. Under the Women’s Health Amendment, “non-grandfathered group health plans and health insurance issuers are required to provide coverage consistent with the HRSA Guidelines, without cost sharing.” Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8,725, 8,725 (Feb. 15, 2012). Thus these interlocking statutory and regulatory requirements created the so-called “Contraceptive Mandate.”
B. Regulatory Action to Accommodate Religious Objections At the same time, and based on “considerable feedback,” HHS, the Department of Labor, and the Department of the Treasury (collectively “the Agencies”) found it was “appropriate that HRSA, in issuing [the 2011] Guidelines, take[] into account the effect on the religious beliefs of
2 The Institute, renamed the National Academy of Medicine in 2015, is an arm of the National Academy of Sciences, an organization that Congress established for the explicit purpose of furnishing advice to the federal government. See Pub. Citizen v. Dep’t of Justice, 491 U.S. 440, 460 n.11 (1989). 3 The Guidelines were updated in 2016 but continue to define “preventive services” to include contraceptive services and counseling. See Updating the HRSA-Supported Women’s Preventive Services Guidelines, 81 Fed. Reg. 95,148, 95,149 (Dec. 27, 2016).
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certain religious employers if coverage of contraceptive services were required.” Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011). The Agencies therefore provided HRSA with “additional discretion to exempt certain religious employers from the Guidelines where contraceptive services are concerned.” Id.
On August 1, 2011, the Agencies promulgated an interim final rule exempting certain religious employers from providing contraceptive services. Id. Under the exemption, a “religious employer” could be exempt from the Contraceptive Mandate only if it: (1) had the inculcation of religious values as its purpose; (2) primarily employed people who shared its religious tenets; (3) primarily served persons who shared its religious tenets; and (4) was a church, its integrated auxiliary, or a convention or association of a church exempt from taxation under the Internal Revenue Code. Id. On February 15, 2012, after considering more than 200,000 responses to this interim final rule, the Agencies issued a final rule adopting the “religious employer” definition. 77 Fed. Reg. at 8,725.
On March 21, 2012, the Agencies issued a notice of proposed rulemaking requesting comments on “alternative ways of providing contraceptive coverage without cost sharing in order to accommodate non-exempt, non-profit religious organizations with religious objections to such coverage.” Certain Preventive Services Under the Affordable Care Act, 77 Fed. Reg. 16,501, 16,503 (March 21, 2012). After receiving and considering over 400,000 comments, the Agencies issued their final rule on July 2, 2013. Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 39,870, 39,871 (July 2, 2013). The final rule had two noteworthy effects.
First, the rule “eliminate[ed] the first three prongs and clarif[ied] the fourth prong of the
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definition” of “religious employer” adopted in 2012. Id. at 39,874. Under the new definition, an entity qualified as a “religious employer” so long as it “is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii)” of the Internal Revenue Code, which applies to “churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious activities of any religious order.” Id.
Second, the rule established an accommodation for “eligible organizations” with religious objections to providing contraceptive coverage. Id. The rule defined an “eligible organization” as one that: “(1) [o]pposes providing coverage for some or all of the contraceptive services required to be covered . . . ; (2) is organized and operates as a nonprofit entity; (3) holds itself out as a religious organization; and (4) self-certifies that it satisfies the first three criteria.” Id. An eligible organization was required to provide a copy of the self-certification to its insurance provider, which then would provide contraceptive coverage to the organization’s employees. Id. at 39,876. Thus an eligible organization that self-certified as such was “not required to contract, arrange, pay, or refer for contraceptive coverage,” but its “plan participants and beneficiaries [would] still benefit from separate payments for contraceptive services without cost sharing or other charge,” consistent with the Contraceptive Mandate. Id. at 39,874.
C. Hobby Lobby & Wheaton College Meanwhile, a host of legal challenges to the Contraceptive Mandate progressed through the federal courts, several of which eventually reached the Supreme Court. On June 30, 2014, the Supreme Court issued its opinion in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). There, three closely-held corporations challenged the Contraceptive Mandate. Id. at 2765. The Supreme Court held that the application of the Contraceptive Mandate to the organizations violated the Religious Freedom Restoration Act, 42
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U.S.C. § 2000bb-1 (“RFRA”), because the Contraceptive Mandate imposed a substantial burden on the plaintiffs’ religious exercise and was not the “least restrictive means” of guaranteeing cost-free access to certain methods of contraception. 134 S. Ct. at 2780-82. The Supreme Court found the existence of the accommodation supported its conclusion that the Contraceptive Mandate was not the “least restrictive means”: “HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. . . . HHS has already established an accommodation for nonprofit organizations with religious objections.” Id. at 2782. Nevertheless, the Supreme Court refrained from deciding “whether an approach of this type”—meaning the accommodation—“complies with RFRA for purposes of all religious claims.” Id.
A few days later, the Supreme Court issued an order in a related case, Wheaton College v. Burwell, 134 S. Ct. 2806 (2014) (per curiam). There, Wheaton College, an organization eligible for the accommodation, sought an injunction “on the theory that its filing of a self-certification form [would] make it complicit in the provision of contraceptives by triggering the obligation for someone else to provide the services to which it objects.” Id. at 2808 (Sotomayor, J., dissenting). The Supreme Court granted the injunction, permitting Wheaton College to “inform[] the Secretary of Health and Human Services in writing that it . . . has religious objections to providing coverage for contraceptive services”—that is, the college did not have to “use the [self-certification] form prescribed by the [g]overnment.” Id. at 2807 (per curiam). The Supreme Court warned, however, that the “order should not be construed as an expression of the Court’s views on the merits.” Id.
D. Regulatory Response to Hobby Lobby & Wheaton College The Agencies responded to Hobby Lobby and Wheaton College by issuing a notice of
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proposed rulemaking “amend[ing] the definition of an eligible organization [for purposes of the accommodation] to include a closely held for-profit entity that has a religious objection to providing coverage for some or all of the contraceptive services otherwise required to be covered.” Coverage of Certain Preventive Services Under the Affordable Care Act, 79 Fed. Reg. 51,118, 51,121 (Aug. 27, 2014). Furthermore, the Agencies issued an interim final rule, effective immediately, that provided “an alternative process” for eligible organizations to selfcertify “consistent with the Wheaton order.” Coverage of Certain Preventive Services Under the Affordable Care Act, 79 Fed. Reg 51,092, 51,094-96 (Aug. 27, 2014). On July 14, 2015, the Agencies issued a rule that finalized the extended accommodation and alternative selfcertification process. Coverage of Certain Preventive Services Under the Affordable Care Act, 80 Fed. Reg. 41,318, 41,323-24 (July 14, 2015).
E. Zubik Remand & Impasse On May 16, 2016, the Supreme Court issued its third decision regarding the Contraceptive Mandate. In Zubik v. Burwell, 136 S. Ct. 1557 (2016) (per curiam), several organizations eligible for the accommodation challenged the self-certification process on the grounds that the requirement to submit a notice either to their insurer or the federal government violated RFRA. Id. at 1559. The Supreme Court declined to reach the merits of the dispute, requesting instead “supplemental briefing from the parties addressing ‘whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.’” Id. at 1559-60. After the parties agreed that “such an option [was] feasible,” the Supreme Court remanded to afford them “an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans receive full and equal health
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coverage, including contraceptive coverage.” Id. at 1560 (internal quotation marks omitted). Again, though, the Court “express[ed] no view on the merits of the cases,” and refrained from “decid[ing] whether petitioners’ religious exercise has been substantially burdened, whether the [g]overnment has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.” Id.
Following the remand the Agencies reached an impasse. After reviewing over 50,000 comments submitted in response to a request for information, the Agencies concluded that there was “no feasible approach . . . at this time that would resolve the concerns of religious objectors, while still ensuring that the affected women receive full and equal health coverage, including contraceptive coverage.” Dep’t of Labor, FAQs About Affordable Care Act Implementation Part 36, at 4 (2016), available at https://www.dol.gov/sites/default/files/ebsa/about-ebsa/ouractivities/resource-center/faqs/aca-part-36.pdf.
F. 2017 IFRs & First Preliminary Injunction On May 4, 2017, President Donald Trump issued an Executive Order entitled “Promoting Free Speech and Religious Liberty.” Exec. Order No. 13798, 82 Fed. Reg. 21,675 (May 4, 2017). The Order directed the Agencies to “consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under [the Women’s Health Amendment].” Id. at § 3. On October 6, 2017, aiming to be “[c]onsistent with the President’s Executive Order and the Government’s desire to resolve the pending litigation and prevent future litigation from similar plaintiffs,” Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 82 Fed. Reg. 47,792, 47,799 (Oct. 13, 2017), the Agencies issued two, new IFRs, referred to as the Religious Exemption IFR and the Moral
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Exemption IFR. See id. at 47,792 (“Religious Exemption IFR”); Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 82 Fed. Reg. 47,838, 47,838 (Oct. 13, 2017) (“Moral Exemption IFR”) (collectively, “the IFRs”).
The IFRs made several significant changes to the prior exemption and accommodation framework.4 For one, the Moral Exemption IFR made the exemption available to “additional entities”—including for-profit entities that are not publicly traded—that object based on “sincerely held moral convictions,” without any need for the objection to be grounded in a religious objection to contraception. 82 Fed. Reg. at 47,862 (emphasis added). Second, the Religious Exemption IFR significantly broadened the scope of the religious exemption to encompass any non-profit or for-profit entity, whether closely held or publicly traded. 82 Fed. Reg. at 47,810. Third, the IFRs “likewise” expanded eligibility for the accommodation, allowing entities with sincerely held religious or moral convictions to take advantage of the accommodation process. 82 Fed. Reg. at 47,813; 82 Fed. Reg. at 47,849. Fourth, the IFRs made “the accommodation process optional for eligible organizations,” such that entities taking advantage of the accommodation would “not be required to comply with a self-certification process.” 82 Fed. Reg at 47,808; 82 Fed. Reg. at 47,850. Finally, the IFRs eliminated the requirement to provide notice of an intent to take advantage of the exemption or accommodation—entities that stop providing contraceptive care “do not need to file notices or
4 The following is not an exhaustive list of the changes enacted by the IFRs, and subsequently the Final Rules. For example, the IFRs also changed the level at which exemptions are to be applied. So, whereas before the availability of an exemption was to be “‘determined on an employer by employer basis,’” the IFRs provide that an exemption “will be determined on a plan basis.” 82 Fed. Reg. at 47,810. The effect of this change, according to the States, is that an employer may disregard the Contraceptive Mandate by adopting a group health plan “established or maintained” by an objecting organization, id., even if the employer itself does not hold a sincere religious or moral objection to contraception.
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certifications of their exemption.” 82 Fed. Reg. at 47,808; 82 Fed. Reg. at 47,850. Thus the IFRs permit entities with religious or moral objections to forgo providing contraceptive coverage to employees without “fil[ing] notices or certifications of their exemption.” 82 Fed. Reg. at 47,838. 5
The IFRs became effectively immediately. 82 Fed. Reg. at 47,815; 82 Fed. Reg. at 47,855. Rather than engage in advance notice-and-comment procedures, the Agencies requested post-promulgation comments be submitted by December 5, 2017, 60 days after the IFRs went into effect. 82 Fed. Reg. at 47,792; 82 Fed. Reg. at 47,838. The Commonwealth filed suit in the interim seeking to enjoin enforcement of the IFRs, arguing: (1) they failed to comply with the notice-and-comment procedures required by the APA, 5 U.S.C. § 551, et seq.; (2) they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” in violation of the substantive provisions of the APA, 5 U.S.C. § 706(2)(A); (3) they violate Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2, et seq.; (4) they violate the Equal Protection Guarantee of the Fifth Amendment, U.S. Const. amend. V; and, (5) they violate the Establishment Clause, U.S. Const. amend. I.6 This Court granted the preliminary injunction, finding the Commonwealth was likely to succeed on its claims that the IFRs violated both the procedural and substantive strictures of the APA; it did not, however, reach the merits of the other statutory or constitutional claims. See Pennsylvania, 281 F. Supp.3d at 585.7
5 The IFRs note that ERISA requires certain disclosures: “[u]nder ERISA, the plan document provides what benefits are provided to participants and beneficiaries under the plan and, therefore, if an objecting employer would like to exclude all or a subset of contraceptive services, it must ensure that the exclusion is clear in the plan document.” 82 Fed. Reg. at 47,838. 6 The State of New Jersey was not party to the original Complaint, and thus, not a party to the first motion for a preliminary injunction either. 7 Following this Court’s issuance of a preliminary injunction, several other district courts issued decisions regarding the propriety of the IFRs. See California v. Health & Human Servs., 281 F. Supp.3d 806, 832 (N.D. Cal. 2017) (enjoining the IFRs for violating the procedural requirements of the APA only), aff’d in part, vacated in part,
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Defendants subsequently appealed the decision and moved to stay proceedings while the appeal was pending, which this Court granted.8
G. 2018 Final Rules & Second Motion for Preliminary Injunction On November 15, 2018, while their appeal of the preliminary injunction was pending before the Third Circuit, the Agencies promulgated two new rules that “finalize[d]” the IFRs. Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 83 Fed. Reg. 57,536, 57,536 (Nov. 15, 2018) (“Final Religious Exemption”); Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 83 Fed. Reg. 57,592, 57,592 (Nov. 15, 2018) (“Final Moral Exemption”). “In response to public comments,” the Agencies made “various changes” to the Final Rules “to clarify the intended scope of the language” in the IFRs. 83 Fed. Reg. at 57,537; 83 Fed. Reg. at 57,593. The changes, however, were largely “non-substantial technical revisions.” 83 Fed. Reg. at 57,567. Defendants assert such changes “do not alter the fundamental substance of the exemptions set forth in the IFRs.” The Final Rules were scheduled to take effect on January 14, 2019. 83 Fed. Reg. at 57,567; 83 Fed. Reg. at 57,592. The Commonwealth then sought to lift the stay to challenge the Final Rules. The Court granted the motion,9 and Pennsylvania—now joined by New Jersey—filed an Amended
remanded sub nom., California v. Azar, 911 F.3d 558, 566 (9th Cir. 2018) (upholding the lower court’s conclusion on the merits, but striking down the remedy as overbroad); Massachusetts v. Health & Human Servs., 301 F. Supp.3d 248, 266 (D. Mass. 2018) (finding State lacked standing to challenge the IFRs), app. docketed, No. 18-1514 (1st Cir. June 6, 2018). 8 Following the Commonwealth’s initial motion for a preliminary injunction, Defendant-Intervenor Little Sisters filed a motion to intervene. The Court denied that motion. See Pennsylvania v. Trump, 2017 WL 6206133, at *1 (E.D.Pa. Dec. 8, 2017). On appeal, however, the Third Circuit reversed, remanding the case to permit intervention. See Pennsylvania v. President United States of Am., 888 F.3d 52, 62 (3d Cir. 2018). The Court duly vacated its prior ruling and granted Defendant-Intervenor Little Sisters’ motion. 9 While the filing of a notice of appeal is generally “an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal,” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982),—“[a]n appeal from the grant or denial of a
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Complaint and a Second Motion for a Preliminary Injunction, seeking to enjoin enforcement of the Final Rules.10 The States argue the Final Rules: (1) failed to comply with the notice-andcomment procedures required by the APA; (2) are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” in violation of the substantive provisions of the APA; (3) violate Title VII of the Civil Rights Act; (4) violate the Equal Protection Guarantee of the Fifth Amendment; and, (5) violate the Establishment Clause. It is to the merits of these contentions that the Court now turns.
II. Analysis11 A. Standing A threshold question is whether the States have standing. Standing is a litigant’s ticket to
federal court—a constitutional requirement that “limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). The States contend that they are properly before the Court because the Final Rules will imminently cause direct harm to their sovereign, quasi-sovereign and proprietary interests. Additionally, they assert that they have parens patriae standing to protect the health, safety and well-being of their residents in ensuring that they enjoy access to healthcare services. Defendants, on the other hand, contend that the States have not suffered any legal wrong that would allow them to get through the turnstile into federal court.
preliminary injunction does not divest the trial court of jurisdiction or prevent it from taking other steps in the litigation while the appeal is pending,” 11A Wright & Miller, Fed. Prac. & Pro. § 2962 (3d ed.); see also In re Merck & Co., Inc. Sec. Litig., 432 F.3d 261, 268 (3d Cir. 2005) (observing that the district court retains the power to “modify or grant injunctions” following an appeal). 10 The Third Circuit stayed Defendants’ appeal pending the resolution of the Second Motion for a Preliminary Injunction. Pennsylvania v. President United States of Am., No. 17-3752 (3d Cir. Jan. 9, 2019). 11 This section and all others afterwards includes the Court’s legal conclusions as required under Rule 52(a) of the Federal Rules of Civil Procedure.
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“No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26, 37 (1976). The doctrine of standing “is part of this limitation.” Id.; see also Finkleman v. Nat’l Football League, 810 F.3d 187, 203 (3d Cir. 2016). “[T]he irreducible constitutional minimum of standing contains three elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). First, a plaintiff must have suffered an “injury in fact,” which is “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Id. (internal quotation marks and citations omitted). Second, a plaintiff must show that there is a “causal connection between the injury and the conduct complained of”—that is, the injury must be “fairly traceable” to the “challenged action of the defendant.” Id. (internal quotation marks omitted). Third, a plaintiff must show that it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 561 (internal quotation marks omitted).
As “[t]he party invoking federal jurisdiction,” the States “bear[] the burden of establishing these elements.” Id. And, “[s]ince they are not mere pleading requirements but rather an indispensable part of the plaintiff’s case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Id. “[A]t the preliminary injunction stage, allegations are”—without more—“not enough to support standing;” rather, the States must “adduce[] evidence demonstrating more than a mere possibility” that the elements of standing are met. Doe v. Nat’l Bd. of Med. Exam’rs, 199 F.3d 146, 152-53 (3d Cir. 1999).
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1. Special Solicitude This standing inquiry must be made with recognition that States, like Pennsylvania and New Jersey here, “are not normal litigants for the purposes of invoking federal jurisdiction.” Massachusetts v. EPA, 549 U.S. 497, 518 (2007). They are “entitled to special solicitude in [the] standing analysis” if they have: (1) a procedural right that authorizes them to challenge the conduct at issue; and, (2) a “stake in protecting [their] quasi-sovereign interests.” Id. at 520; see also Texas v. United States, 809 F.3d 134, 151 (5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016) (per curiam). In determining whether the States have met these conditions, both Massachusetts v. EPA and Texas v. United States are instructive. In Massachusetts v. EPA, Massachusetts sued the Environmental Protection Agency (“EPA”), alleging that the EPA had “abdicated its responsibility under the Clean Air Act” when it failed to issue regulations regarding the emission of certain greenhouse gases. 549 U.S. at 505. The EPA challenged Massachusetts’ standing to bring the suit, arguing greenhouse gas emissions are a widespread and generalized harm not unique to any specific plaintiff. Id. at 517. The Supreme Court nonetheless held that Massachusetts had special solicitude in the standing inquiry to challenge the EPA’s inaction: First, Massachusetts had a procedural right under the relevant statute, the Clean Air Act, which allowed it to “challenge agency action unlawfully withheld.” Id. (citing 42 U.S.C. § 7607(b)(1)). Second, Massachusetts had a quasi-sovereign interest—a “well-founded desire to preserve its sovereign territory” from the effects of global warming because Massachusetts “own[ed] a great deal of the territory alleged to be affected.” Id. at 519 (internal quotation marks omitted); see also id. at 522 (noting affidavits asserting that “rising seas have already begun to swallow Massachusetts’ coastal land.”). After concluding that Massachusetts was entitled to special
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solicitude in the standing analysis, the Supreme Court ultimately held that it had Article III standing to sue the EPA based on the injury to its territory stemming from global warming. Id. at 526.
In Texas v. United States, the Fifth Circuit, relying on Massachusetts v. EPA, similarly concluded that Texas and a multitude of other States were entitled to special solicitude in seeking to enjoin implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”). 809 F.3d at 154-55. There, non-citizens in Texas could apply for a driver’s license if they presented “documentation issued by the appropriate United States agency that authorizes the applicant to be in the United States.” Id. at 155 (internal quotation marks omitted). DAPA would have permitted at least 500,000 non-citizens to qualify for these driver’s licenses. Id. Because Texas subsidized its licenses, it would have lost money for each license issued to a DAPA beneficiary. Id. Texas therefore sought injunctive relief to prevent DAPA’s implementation. See id. at 149.
The Fifth Circuit applied the Massachusetts v. EPA framework and concluded that Texas was entitled to special solicitude. First, the Fifth Circuit considered whether the States’ challenge was similar in kind to the challenge brought by Massachusetts, and concluded that it was. Both suits turned on the construction of a federal statute that specifically provided for a procedural right to judicial review, and Texas’ use of the APA to challenge an “affirmative decision” made by a federal agency was comparable to Massachusetts’ use of the judicial review provision in the Clean Air Act to challenge the EPA’s inaction. Id. at 152. Second, as to the quasi-sovereign interest, the Fifth Circuit held that DAPA imposed “substantial pressure” on Texas to change its laws to avoid bearing further costs from subsidizing additional driver’s licenses. Id. at 153. The Fifth Circuit thus concluded that Texas, and its fellow plaintiff States,
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warranted special solicitude in their suit against the federal government under the APA. Id. at 154-55.12
The Fifth Circuit’s reasoning in Texas v. United States is persuasive here. Here as there, the States bring suit under the APA to challenge an affirmative action by the federal government. See Texas, 809 F.3d at 152. And, the Final Rules—like DAPA—“affect[] the [S]tates’ ‘quasi-sovereign’ interest by imposing substantial pressure on them to change their laws.” Id. Specifically, they put pressure on provisions of the States’ laws that provide statefunded contraceptive care to low-income citizens. As the States show, the Final Rules permit more employers to exempt themselves from the Contraceptive Mandate, which would result in more of the States’ women seeking state-funded sources of contraceptive care. The harm to the States’ fiscs are “intrusions . . . analogous to pressure to change the law,” id., implicating the States’ quasi-sovereign interests. See also Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 607 (1982) (holding that a State has a “quasi-sovereign interest in the health and wellbeing—both physical and economic—of its residents in general.”). The States, then, meet the two conditions outlined in Massachusetts v. EPA and shall be accorded special solicitude in the standing analysis.
12 Defendants here question the binding effect of Texas v. United States beyond the facts of that case, given that the Supreme Court summarily affirmed the Fifth Circuit’s decision “by an equally divided Court.” United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam). While an affirmance by an equally divided Supreme Court typically does not constitute binding precedent, see Eaton v. Price, 364 U.S. 263, 264 (1960), where the Supreme Court is equally divided on an issue of subject matter jurisdiction, it has determined that the proper course is to remand the issue of jurisdiction to a lower court. See Silliman v. Hudson River Bridge Co., 66 U.S. 582, 584-85 (1861). In other words, if the Supreme Court were equally divided on whether Texas had standing to challenge DAPA, it would have remanded that issue to the Fifth Circuit. The Supreme Court did not, and instead affirmed the Fifth Circuit, indicating that a majority of the Supreme Court decided that Texas had standing to pursue its APA claim. Certainly, if the Supreme Court had determined that Texas did not have standing, it would not have had jurisdiction to hear the case. Even if the affirmance by an equally divided Supreme Court as it relates to subject matter jurisdiction were not binding, the Court is persuaded by the reasoning of the Fifth Circuit in Texas v. United States as it pertains to State standing.
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2. Article III Standing While the States are entitled to special solicitude in the standing analysis, they must nevertheless meet the “irreducible constitutional minimum of standing”—namely, injury in fact, causation, and redressability. Lujan, 504 U.S. at 560. In its initial challenge to the IFRs, the Commonwealth satisfied this burden, see Pennsylvania, 281 F. Supp.3d at 569, and the same is true of the States’ challenge to the Final Rules. See also California, 911 F.3d at 571 (finding another group of States had standing to challenge the IFRs). First, the Final Rules inflict a direct injury upon the States by imposing substantial financial burdens on their coffers. An agency rule that has “a major effect on the states’ fiscs” is sufficient to find injury in fact. Texas, 809 F.3d at 152; id. at 155 (“[Texas] satisfied the first standing requirement by demonstrating that it would incur significant costs in issuing driver’s licenses to DAPA beneficiaries.”); see also Wyoming v. Oklahoma, 502 U.S. 437, 448 (1992) (holding that Wyoming had Article III standing because it undisputedly suffered a “direct injury in the form of a loss of specific tax revenues”); Danvers Motor Co., Inc. v. Ford Motor Co., 432 F.3d 286, 291 (3d Cir. 2005) (“While it is difficult to reduce injury-in-fact to a simple formula, economic injury is one of its paradigmatic forms.”). If the Final Rules go into effect, the States will have to increase their expenditures for State funded programs that provide contraceptive services. This is not a speculative harm. As Defendants themselves noted in issuing the IFRs, “there are multiple Federal, State, and local programs that provide free or subsidized contraceptives for low-income women.” 82 Fed. Reg. at 47,803. As more of the States’ women residents are deprived of contraceptive services through their insurance plans and turn to these State funded programs, the States will be pressed to make greater expenditures to ensure adequate contraceptive care. See Mendelsohn Decl. ¶ 15; Steinberg Decl. ¶¶ 24-25. And
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although Defendants point out that the States have not yet identified a woman resident who has lost contraceptive coverage due to the Final Rules, the States need not sit idly by and wait for fiscal harm to befall them. See McNair v. Synapse Group Inc., 672 F.3d 213, 223 (3d Cir. 2012) (“When, as in this case, prospective relief is sought, the plaintiff must show that he is ‘likely to suffer future injury’ from the defendant’s conduct.”) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983) (emphasis added)). At bottom, just as Texas’ estimated loss due to DAPA supported a finding that Texas suffered an injury in fact, so too does the States’ estimated loss due to the Final Rules support a finding that the States have suffered an injury in fact. See Texas, 809 F.3d at 155.
Second, the States’ financial injury is “fairly traceable” to the issuance of the Final Rules. By their terms, the Final Rules expand the scope of the existing religious exemption rule and allow entities a new rationale for refusing to provide employees with contraceptive coverage if the refusal is “based on sincerely held moral convictions,” 83 Fed. Reg. at 57,593. Thus, the Final Rules allow more entities to stop providing contraceptive coverage, which will result in more women residents seeking contraceptive care through State-funded programs. See Mendelsohn Decl. ¶ 15; Steinberg Decl. ¶¶ 24-25. The States have thus shown a causal connection between the Final Rules and their financial injury.
As the Court previously explained, Pennsylvania v. New Jersey, 426 U.S. 660 (1976), is not to the contrary. See also California, 911 F.3d at 574 (finding Pennsylvania did not bar States’ challenge to the IFRs on a similar theory of standing). In that case, Pennsylvania voluntarily gave tax credits to Pennsylvania residents who paid taxes in New Jersey, and then proceeded to sue New Jersey, contending that the New Jersey tax injured Pennsylvania’s fiscs and was constitutionally impermissible. Pennsylvania, 426 U.S. at 662-63. The Supreme Court
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found that Pennsylvania lacked standing because the injuries to its fiscs were “self-inflicted,” resulting, as they did, from a decision of its state legislature to enact a law that incorporated the legislative choices of New Jersey. Id. at 664. Here, by contrast, the States’ laws funding contraceptive care do not “directly and explicitly” tie the States’ finances to another sovereign’s law. California, 911 F.3d at 574. Rather, the States’ described injuries flow from the unilateral decision by the Agencies to issue the Final Rules. See id. (finding Pennsylvania did control in an analogous challenge); cf. Texas, 809 F.3d at 158 (“The fact that Texas sued in response to a significant change in the [federal government’s] policies shows that its injury is not selfinflicted.”). The States have therefore met the traceability requirement.
Finally, the States have satisfied the redressability requirement. As to the States’ procedural claims, enjoining the Final Rules could prompt the Agencies “to reconsider the program, which is all a plaintiff must show when asserting a procedural right.” Texas, 809 F.3d at 161; see also Massachusetts, 549 U.S. at 518 (noting that where, as here, a litigant is “vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant”). And, as for the States’ substantive claims, enjoining the Final Rules “would prevent [the States’] injury altogether.” Texas, 809 F.3d at 161.
In sum, the States have established the irreducible constitutional minimum of standing to challenges the Final Rules in federal court.13
B. Venue The next question to address is whether the States’ choice of venue—the Eastern District of Pennsylvania—is proper. Notwithstanding Defendants’ argument to the contrary, it is.
13 Because the States have identified an imminent, direct injury to its state coffers that would result from the Final Rules, there is no need to address whether they have parens patriae standing.
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Defendants’ argument is grounded in the structure of the venue statute, Section 1391(e)(1) of which provides that in a civil action against an officer of the United States, venue lies “in any judicial district in which . . . the plaintiff resides if no real property is involved in the action.” 28 U.S.C. § 1391(e)(1). Section 1391(c) defines a party’s residence “[f]or all venue purposes,” and distinguishes between three, and only three, categories of litigants: “a natural person,” “an entity with the capacity to sue and be sued in its common name under applicable law, whether or not incorporated,” and “a defendant not resident in the United States.” Id. at § 1391(c). Because Pennsylvania is neither a natural person nor a non-resident, Defendants argue it must be treated as an entity for purposes of determining residency. Section 1391(c)(2) provides that “if a plaintiff,” an entity “shall be deemed to reside . . . only in the judicial district in which it maintains its principal place of business.” Id. Thus, according to Defendants, Pennsylvania resides only in the Middle District—the district that encompasses Harrisburg, the state capital—because that is where Pennsylvania maintains its principal place of business.
While inventive, Defendants’ interpretation of Section 1391(c) is ultimately unpersuasive. See California, 911 F.3d at 570 (rejecting the argument); Alabama v. U.S. Army Corps of Eng’rs, 382 F. Supp.2d 1301, 1328 (N.D. Ala. 2005) (rejecting a similar argument for an earlier version of the venue statute). Defendants’ argument hinges on the assumption that, because Section 1391(c) refers to only three categories of litigants and because a state is neither a natural person nor a non-resident, a state must necessarily be “an entity” for purposes of the venue statute. There are, however, several issues with that assumption.
First, the statute explicitly refers to an entity’s incorporation status, indicating “that the term [entity] refers to some organization, not a state.” California, 911 F.3d at 570. The legislative history confirms that Congress was contemplating “unincorporated associations, such
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as partnerships and labor unions, and other entities with capacity to sue in their common name,” when it defined the residency of unincorporated entities in Section 1391(c). H.R. Rep. No. 11210, at 21 (2011). There is no indication, however, that Congress intended for that provision to dictate the residency of sovereign States by equating a State with an “unincorporated association[]” like a labor union.
Second, Congress explicitly distinguishes between States and entities within Section 1391. Compare 28 U.S.C. § 1391(c) (defining the residency of an “entity”), with id. at § 1391(d) (“Residency of corporations in States with multiple districts”). “Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983) (internal quotation marks and citations omitted). Thus, courts typically “refrain from concluding . . . that the differing language in [] two subsections [of a statute] has the same meaning in each.” Id. Here, Congress’s differentiation between “an entity” and “States” within Section 1391 indicates that Congress did not intend to include the latter within the definition of the former.
Finally, reading Section 1391 as Defendants suggest would yield an absurd result. As several courts have observed, an interpretation that “limit[s] residency to a single district in the state would defy common sense,” because “[a] state is ubiquitous throughout its sovereign borders.” California, 911 F.3d at 570; Alabama, 382 F. Supp.2d at 1329 (“[C]ommon sense dictates that a state resides throughout its sovereign borders”).14
Thus, the Court will follow the lead of the Ninth Circuit in concluding that “the statute . .
14 The unreported district court cases that Defendants rely upon are not to the contrary. See Gaskin v. Pennsylvania, 1995 WL 154801, at *1 (E.D. Pa. Mar. 30, 1995); Bentley v. Ellam, 1990 WL 63734, at *1 (E.D. Pa. May 8, 1990). Both Gaskin and Bentley discuss the residency of state agencies or officials, which is different in kind from the residency of a sovereign State itself.
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. dictates that a state with multiple judicial districts ‘resides’ in every district within its borders.” California, 911 F.3d at 570. Venue is therefore proper in the Eastern District of Pennsylvania.15
C. Preliminary Injunction Because the States have established standing to bring their claims into federal court and that this is a proper venue to hear those claims, the Court now turns to the merits of the preliminary injunction motion.
1. Legal Standard A preliminary injunction is an extraordinary remedy; it “should be granted only in limited circumstances.” American Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1426-27 (3d Cir. 1994). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. NRDC, 555 U.S. 7, 20 (2008). The first two are the “most critical factors: [a movant] must demonstrate that it can win on the merits (which requires a showing significantly better than negligible but not necessarily more likely than not) and that it is more likely than not to suffer irreparable harm in the absence of preliminary relief.” Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017), as amended (June 26, 2017) (internal quotation marks omitted). “If these gateway factors are met, a court then considers the remaining two factors and determines in its sound discretion if all four factors, taken together, balance in favor
15 Section 1391(e) also provides that venue is proper in a civil action against an officer of the United States, where “a substantial part of the events or omissions giving rise to the claim occurred.” 28 U.S.C. § 1391(e). Because the Court finds Pennsylvania resides throughout the State, it need not address the States’ alternative argument that venue is proper because “a substantial part of the events” giving rise to their claim occurred here. Relatedly, New Jersey’s residency does not bear on the question of because “in an action against the federal government or an agent thereof [t]here is no requirement that all plaintiffs reside in the forum district.” Exxon Corp. v. FTC, 588 F.2d 895, 899-90 (3d Cir. 1978); Superior Oil Co. v. Andrus, 656 F.2d 33, 37 n.7 (3d Cir. 1981) (“[O]nly one plaintiff need satisfy the residency requirement of [Section 1391(e)].”).
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of granting the requested preliminary relief.” Id. 2. Likelihood of Success on the Merits
In demonstrating the likelihood of success on the merits, a plaintiff need not show that it is more likely than not that it will succeed. Singer Mgmt. Consultants, Inc. v. Milgram, 650 F.3d 223, 229 (3d Cir. 2011) (en banc). Instead, all a plaintiff must show is “a likelihood of success on the merits (that is, a reasonable chance, or probability, of winning) to be granted relief.” Id. (emphasis in original).
a. APA Procedural Claim The States argue that the Final Rules should be enjoined because Defendants failed to comply with the procedural requirements of the APA. The APA generally requires that, when promulgating regulations, administrative agencies meet a set of procedural requirements, called notice-and-comment rulemaking. See 5 U.S.C. § 553. Agencies must: issue a general notice of proposed rulemaking, see id. at § 553(b); “give interested persons an opportunity to participate in the rule making through submission of written data, views or arguments . . .” id. at § 553(c); and, “[a]fter consideration of the relevant matter presented, . . . incorporate in the rules adopted a concise general statement of their basis and purpose,” id. Notice-and-comment rulemaking serves two distinct purposes—it both “give[s] the public an opportunity to participate in the rule-making process,” and “enables the agency promulgating the rule to educate itself before establishing rules and procedures which have a substantial impact on those regulated.” Texaco, Inc. v. Fed. Power Comm’n, 412 F.2d 740, 744 (3d Cir. 1969). Nevertheless, there are limited exceptions to the requirement that all rules be issued pursuant to notice-and-comment rulemaking, such as when an agency has “good cause” to
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forgo the strictures of notice-and-comment rulemaking, 5 U.S.C. § 553(b), or when a subsequent act of Congress abrogates the APA’s procedural requirements, id. at § 559.
In issuing the IFRs, the Agencies failed to meet the various requirements of notice-andcomment rulemaking. See Pennsylvania, 281 F. Supp.3d at 570. Defendants argued, however, that the IFRs were not procedurally invalid because they fell under one (or more) of the limited exceptions to notice-and-comment rulemaking. Id. at 571. The Court found otherwise and enjoined the IFRs for violating the procedural strictures of Section 553. Id. at 576; see also California, 281 F. Supp.3d at 829 (enjoining the IFRs for violating the procedural requirements of the APA), aff’d in part, vacated in part, California, 911 F.3d at 575 (upholding the conclusion that the IFRs violated the APA).
While Defendants continue to maintain that the IFRs were procedurally valid,16 they now argue that, even assuming the IFRs were procedurally improper, the subsequent action taken by the Agencies in promulgating the Final Rules satisfied notice-and-comment requirements, and thus the Final Rules comply with the APA. The States’ response is two-fold. First, they argue that the Agencies notice-and-comment procedures fell short of the APA’s requirements because the Agencies did not adequately respond to significant comments in their statement of the basis and purpose of the Final Rules. Second, the States contend that, no matter the Agencies’ subsequent actions, the procedural defects that characterized the issuance of the IFRs fatally taint the Final Rules. These arguments are considered seriatim.
i. Inadequate Response to Comments The States argue that the Agencies’ issuance of the Final Rules failed to meet the
16 The Court, for the reasons stated in its prior opinion, again finds the Agencies’ position unpersuasive, see Pennsylvania, 281 F. Supp.3d at 570, and therefore declines Defendants’ invitation to revisit its prior holding. See Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 165 (3d Cir. 1982) (“Under the law of the case doctrine, once an issue is decided, it will not be relitigated in the same case, except in unusual circumstances.”).
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requirements of notice-and-comment rulemaking by not responding to all “vital questions[] raised by comments which are of cogent materiality.” United States v. Nova Scotia Food Prod. Corp., 568 F.2d 240, 252 (2d Cir. 1977). The APA requires federal agencies to “consider and respond to significant comments received during the period for public comment.” Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1203 (2015). The requirement, however, is not “particularly demanding.” Nazareth Hosp. v. Sec’y U.S. Dep’t of Health & Human Servs., 747 F.3d 172, 185 (3d Cir. 2014) (quoting Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993)). All that is required is a response that “‘demonstrates that the [agency] considered and rejected’ the arguments.” Id. (quoting Covad Commc’ns Co. v. FCC, 450 F.3d 528, 550 (D.C. Cir. 2006)).
The States contend that the Agencies failed to clear this relatively low bar, pointing to several examples of comments that purportedly received an inadequate response: comments that discuss the scientific evidence of the harm to the health and economic security of women that would result from the Final Rules, 83 Fed. Reg. at 57,555-56; comments that assert the broad religious and moral exemptions will cause women to lose contraceptive coverage, id. at 57,54849; comments that argue the exemptions violate the ACA prohibition on regulations that create barriers to medical care, id. at 57,551-52; and, specifically, a comment submitted by various States—including Pennsylvania and New Jersey—regarding the medical risks associated with pregnancy, id. at 57,555.
For each example, however, a review of the Final Rules demonstrates that the Agencies acknowledged the comments and provided an explanation as to why the Agencies did (or did not) amend the Final Rules based on the comment. See 83 Fed. Reg. at 57,548, 57,551, 57,555. While the Agencies’ explanations are not always the picture of clarity, they meet the not
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“particularly demanding” requirement, Nazareth Hosp., 747 F.3d at 185, that the Agencies “consider and respond to significant comments received during the period for public comment,” Perez, 135 S. Ct. at 1203. Put differently, the Final Rules “demonstrate [to a commenter] that the [the Agencies] considered and rejected, the arguments” put forth by a commenter, which is “all that the [APA] requires.” Nazareth Hosp., 747 F.3d at 185 (internal quotation marks omitted).
Thus, the States are unlikely to succeed on the merits of their argument that, in promulgating the Final Rules, the Agencies’ actions failed to meet the requirements of noticeand-comment rulemaking.17
ii. IFRs Taint the Final Rules The States maintain that, even if the Agencies complied with the requirements of noticeand-comment rulemaking in promulgating the Final Rules, the failure to do so in promulgating the IFRs fatally infected the process such that the Final Rules should also be held invalid. Generally, “the period for comments after promulgation cannot substitute for the prior notice and comment required by the APA.” Sharon Steel. Corp. v. EPA, 597 F.2d 377, 381 (3d Cir. 1979). The Circuit courts however, diverge on the procedural validity of a final rule that follows an IFR promulgated in a procedurally flawed manner—that is, the question of whether a “procedural defect that taints the original, interim-final rule carr[ies] over to the succeeding final rule.” Kristin E. Hickman & Mark Thomson, Open Minds and Harmless Errors: Judicial Review of Postpromulgation Notice and Comment, 101 Cornell L. Rev. 261, 267 (2016) (discussing various approaches taken by the Circuit courts); compare Salman Ranch, Ltd. v. Comm’r, 647 F.3d 929, 940 (10th Cir. 2011) (“While the . . . temporary regulations were issued
17 The States’ argument is limited to the claim that the Agencies failed to adequately respond to significant comments. The States do not argue, for example, that the notice provided was inadequate. See 5 U.S.C. § 552(b).
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without notice and comment, now that the regulations have issued in final form [after notice and comment], these arguments are moot . . .”) (internal quotation marks omitted), rev’d on other grounds, Salman Ranch, Ltd. v. Comm’r, 566 U.S. 971 (2012), with Air Transp. Ass’n of Am. v. Dep’t of Transp., 900 F.2d 369, 379 (D.C. Cir. 1990) (“Although we have suggested that there might be circumstances in which ‘defects in an original notice [could] be cured by an adequate later notice’ and opportunity to comment, we have emphasized that we could reach such a conclusion only upon a compelling showing that ‘the agency’s mind remain[ed] open enough at the later stage.’ . . . . The FAA has not come close to overcoming the presumption of closedmindedness in this case.”) (quoting McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317, 1323 (D.C. Cir. 1988)), vacated on other grounds, 498 U.S. 1077 (1991). For its part, the Third Circuit has evidenced a deep skepticism towards the curative powers of post-promulgation notice-and-comment procedures, see NRDC v. EPA, 683 F.2d 752, 767-68 (3d Cir. 1982); United States v. Reynolds, 710 F.3d 498, 519 (3d Cir. 2013); accord Sharon Steel. Corp., 597 F.2d at 381, which warrants a conclusion that the States are likely to succeed on the claim that the procedural faults that characterized the issuance of the IFRs fatally tainted the Final Rules such that the issuance of the Final Rules violated the APA.
The Third Circuits’ decision most directly on point is NRDC v. EPA. There, the NRDC challenged EPA action that indefinitely postponed the effective date of certain Clean Water Act amendments. NRDC, 683 F.2d at 757. The EPA did not engage in notice-and-comment procedures before acting to postpone the implementation of the amendments.18 Id. at 756. After NRDC initiated litigation challenging the agency’s action, the EPA issued a notice of proposed
18 The EPA argued that the initial action to postpone was not a “rule” under the APA, and thus did not require notice-and-comment procedures. NRDC, 683 F.2d at 761. The Third Circuit rejected that argument, holding the EPA’s action postponing the effective date qualified as a rule, requiring notice-and-comment procedures. Id.
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rulemaking, seeking comments on whether the agency should issue a rule further postponing the effective date. Id. at 757. After going through notice-and-comment procedures, the EPA then issued a final rule implementing some of the amendments, while further postponing the most controversial bits. Id. Nevertheless, NRDC maintained its challenge to the EPA’s initial action to postpone the effective date. The Third Circuit rejected the EPA’s argument that its noticeand-comment procedures after the initial action to postpone “cured” any failure to engage in such procedures before the initial action, and held the initial action postponing the effective date was procedurally invalid. Id. at 767.
Critical to this dispute, however, the Third Circuit further held that, even though the NRDC did not challenge the final rule—that is, the rule promulgated following notice-andcomment procedures—the final rule “was likewise invalid.” Id. at 768. The court of appeals explained that the appropriate remedy for the EPA’s failure to engage in notice-and-comment rulemaking before taking its initial action required holding both the initial action and the subsequent, final rule “ineffective.” Id. at 767. EPA’s notice-and-comment procedures “could not serve as the procedural mechanism” for the final rule because “that rulemaking [could not] replace one on the question of whether the amendments should be postponed in the first place.” Id. That is, if the EPA had engaged in notice-and-comment procedures before initially acting to postpone the effective date, then “the question to be decided in the [subsequent] rulemaking”— the rulemaking that complied with notice-and-comment procedures—“would have been whether the amendments . . . should be suspended, and not whether they should be further postponed.” Id. The Third Circuit warned that:
To allow the APA procedures in connection with the further postponement to substitute for APA procedures in connection with an initial postponement would allow EPA to substitute post-promulgation notice and comment procedures for pre-promulgation notice and comment procedures at any time by taking an action
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without complying with the APA, and then establishing a notice and comment procedure on the question of whether that action should be continued. . . . We cannot countenance such a result. Id. That reasoning applies with equal force here. The Agencies issued the IFRs without engaging in notice-and-comment rulemaking. As in NRDC, the issuance of the procedurally defective IFRs fundamentally changed the “question to be decided in the [subsequent] rulemaking”—instead of asking whether substantial expansions to the exemption and accommodation should be made at all, the Agencies solicited comments on whether those changes should be finalized. Thus, the subsequent “rulemaking on [finalizing the IFRs] could not serve as the procedural mechanism,” for the Final Rules because “that rulemaking [could not] replace one on the question of whether” the Agencies should broaden the existing exemption and accommodation “in the first place.” Id. The Agencies are, in essence, engaging in precisely the behavior that the Third Circuit warned against in NRDC: “substitute[ing] post-promulgation notice and comment procedures for pre-promulgation notice and comment procedures . . . by taking an action without complying with the APA, and then establishing a notice and comment procedure on the question of whether that action should be continued.” Id. The Court, like the Third Circuit, “cannot countenance such a result.” Id. Defendants and Defendant-Intervenor advance several arguments to the contrary, none of which are ultimately persuasive. For one, Defendants argue that NRDC is not on all fours with this case and so “provides no support for the Plaintiffs’ procedural challenge.” Defendants are correct that NRDC differs factually from the case at hand: there the NRDC challenged only the initial action, here the States challenged both the IFRs and the Final Rules. But, even though the plaintiff did not challenge the final rule in NRDC, the Third Circuit held both the initial action to
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postpone and the subsequent rule procedurally invalid. In reaching that determination, the Third Circuit rejected the notion—advanced by the Agencies here—that subsequent notice-andcomment rulemaking procedures “cured” the failure to engage in such procedures “in the first place.” Id. at 767-78. Both the holding and the reasoning given for that holding are binding on this Court. See Tate v. Showboat Marina Casino P’ship, 431 F.3d 580, 582 (7th Cir. 2005) (Posner, J.) (“[T]he holding of a case includes, besides the fact and the outcome, the reasoning essential to that outcome.”); see also IFC Interconsult, AG v. Safeguard Int’l Partners, LLC, 438 F.3d 298, 311 (3d Cir. 2006) (quoting Judge Posner’s definition approvingly). Because the Third Circuit’s reasoning invalidating the subsequent rule was essential to the holding, and because that reasoning applies with equal force to the promulgation of the Final Rules, that reasoning controls here.
Next, Defendants argue that the States suffered no procedural injury because they had an opportunity to submit a comment in response to the IFRs, an opportunity that the States “admit” to taking advantage of. The problem for Defendants is that the EPA made the exact argument to the Third Circuit in NRDC, which the court of appeals flatly rejected. NRDC, 683 F.2d at 768. As the Third Circuit explained, it did not matter that “notice and comment were provided in connection with the proposal that the amendments be further postponed, and NRDC was able to make all of the arguments in connection with the further postponement that NRDC would have made in connection with the initial postponement.” Id. The problem was that the initial, procedurally defective action fundamentally changed the question to be presented in the subsequent rulemaking, prejudicing NRDC, which “‘must come hat-in-hand and run the risk that the decisionmaker is likely to resist change.’” Id. at 768 (quoting Sharon Steel, 597 F.2d at 381). Here, the procedurally invalid IFRs similarly changed the question to be presented in the
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subsequent rulemaking, prejudicing the States’ ability to have their comments heard by an impartial decisionmaker. Cf. Wagner Elec. Corp. v. Volpe, 466 F.2d 1013, 1020 (3d Cir. 1972) (“Section [553(b)] of the [APA] requires notice before rulemaking, not after. The right of interested persons to petition for the issuance, amendment or repeal of a rule, granted in [5 U.S.C. § 553(e)], is neither a substitute for nor an alternative to compliance with the mandatory notice requirements of [5 U.S.C. § 553(b)].”) (emphasis in original).
Defendant-Intervenor’s attempt to distinguish away the reasoning of NRDC fares no better. It argues the court of appeals’ reasoning does not control because, while “unique circumstances” existed in NRDC “to establish prejudice,” no such circumstances are present here. Specifically, Defendant-Intervenor argues that the Third Circuit invalidated the final rule in NRDC because of the “asymmetry between using an interim rule to repeal a rule promulgated with prior notice and comment,” whereas, here, the Final Rules are not “an abrupt change in federal policy” because the Final Rules do not rescind the Contraceptive Mandate. According to Defendant-Intervenor, that makes this case “readily distinguishable from NRDC.”
The argument is premised on a misreading of NRDC. The Third Circuit did not invalidate the EPA action because of the degree of change affected by the procedurally invalid action. Rather, it held that the subsequent notice-and-comment rulemaking “[could not] replace [a rulemaking] on the question of whether the amendments should be postponed in the first place.” NRDC, 683 F.2d at 768. More fundamentally, the court of appeals did not rest its decision on the existence of any “unique circumstances,” as Defendant-Intervenor suggests. Instead, the Third Circuit voiced a general admonition against the practice of using postpromulgation procedures to cure pre-promulgation procedural flaws. Id. As discussed, the reasoning underpinning that warning informs the result here.
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Defendant-Intervenor also advances an altogether different argument. It points out that the Agencies “created the [Contraceptive] Mandate via a series of IFRs without notice and comment,” suggesting that the Final Rules are procedurally valid because the Agencies followed similar procedures in the past. The Court rejected a version of this argument last go around. See Pennsylvania, 281 F. Supp.3d at 573 n.8. Whether a party could have brought a successful challenge to the procedures followed in the past is not before the Court—what is at issue here is whether the procedures the Agencies followed in issuing the Final Rules violated the APA. Id. (explaining that the IFRs were “not identical to prior regulations” because “they make significant changes in the law, and the Supreme Court did not require immediate action”). The same flawed reasoning characterizes Defendant-Intervenor’s related argument that invalidating the Final Rules would “cast a pall on thousands of regulations,” because, according to the Government Accountability Office, 35% of all major rules were finalized with post-IFR notice-and-comment procedures. Obviously, those regulations are not currently before this Court, and, accordingly, the Court is not asked—and thus, cannot decide—whether the specific procedures employed in promulgating those regulations were defective.
The States are likely to prevail on their claim that the issuance of the Final Rules violated the procedural requirements of the APA in that the procedural defect that characterized the IFRs fatally tainted the issuance of the Final Rules. That is so, regardless of whether the procedure followed by the Agencies in the Final Rules may otherwise meet the requirements of notice-andcomment rulemaking.19
19 As noted, other courts of appeals employ other approaches when evaluating whether a procedural defect in an interim-rule fatally infects a final rule issued after notice-and-comment procedures are followed—one example being the “open mind” approach. See, e.g., Air Transp. Ass’n of Am., 900 F.2d at 379 (employing the “open mind standard”). While it has never adopted this approach, the Third Circuit in Reynolds indicated that whether a promulgating agency “maintained a flexible and open-minded attitude towards” an interim rule is a relevant consideration in determining whether an APA violation occurred generally. 710 F.3d at 519.
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b. APA Substantive Claim
The States also contend that the Final Rules violate the substantive requirements of the
APA. As the Court has previously noted, the breadth of the exemptions set out in the IFRs, and
now the Final Rules, is remarkable. The Final Religious Exemption allows all non-profit and
for-profit entities, whether closely held or publicly traded, to deny contraceptive coverage based
on sincerely held religious beliefs. The Final Moral Exemption allows any non-profit or for-
profit organization that is not publicly traded to deny contraceptive coverage for its employees
for any sincerely held moral conviction.
The APA’s substantive requirements command that an administrative rule must be set
aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law,” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.”
5 U.S.C. § 706(2)(A), (C). “It is well settled that an agency may only act within the authority
granted to it by statute.” NRDC v. Nat’l Highway Traffic Safety Admin., 894 F.3d 95, 108 (2d
Cir. 2018). Because “administrative agencies may act only pursuant to authority delegated to
them by Congress,” an agency must “point to something” in a statute that “gives it the authority”
Even under the more flexible “open mind standard,” however, the States would likely succeed on the merits of their procedural claim. As the D.C. Circuit has explained, while “defects in an original notice could be cured by an adequate later notice and opportunity to comment,” the remedial measures cure the earlier lapses only if the promulgating agency makes “a compelling showing that the agency’s mind remained open enough at the later stage.” Air Transp. Ass’n of Am., 900 F.2d at 379 (internal quotation marks omitted). That is, “it is the agency’s burden to persuade the court that it has accorded the comments a full and fair hearing.” Advocates for Highway & Auto Safety v. Fed. Highway Admin., 28 F.3d 1288, 1292 (D.C. Cir. 1994). Courts that use this approach have established that an agency can demonstrate open-mindedness by making changes to a final rule in response to public comments, or giving careful consideration to comments submitted in response to a proposed rule. Air Transp. Ass’n of Am., 900 F.2d at 380; see also Advocates for Highway & Auto Safety, 28 F.3d at 1292. Here, the Agencies have not made a “compelling showing” that they kept an open mind at the later stages of the rulemaking process. Most notably, while the Agencies made some changes to the Final Rules based on public comments, those rules were largely “non-substantial technical revisions,” 83 Fed. Reg. at 57,567, that Defendants concede “do not alter the fundamental substance of the exemptions set forth in the IFRs.” Indeed, the Final Rules and the preambles that accompany them “demonstrate[] a single-minded commitment to the substantive result reached,” Reynolds, 710 F.3d at 519—to wit, expanding the exemption and accommodation. Because the Agencies’ actions indicate closed-mindedness on “the very subject matter about which [they] w[ere] to keep an ‘open mind,’” id., the States would likely prevail on their procedural claim even under the more lenient open mind standard.
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to take the specific action at issue. Clean Air Council v. Pruitt, 862 F.3d 1, 9 (D.C. Cir. 2017) (internal quotation marks omitted).
Defendants cite two potential fonts of statutory authority to issue the Final Rules. First, they assert that the ACA includes a broad delegation of authority to the Agencies, permitting them to issue the Final Rules. Second, with specific regard to the Religious Exemption, Defendants assert that RFRA not only authorizes the Agencies to create a religious exemption to the Contraceptive Mandate, but in fact requires that the Agencies issue the broad exemption contained within the Final Religious Exemption.
As explained below, both arguments fail. The Final Rules—just as the IFRs before them—exceed the scope of the Agencies’ authority under the ACA, and, further, cannot be justified under RFRA. As a result, the Final Rules must be set aside.20
i. The ACA To reiterate for purposes of clarity, the ACA requires that group health plans and insurance issuers “shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for-- . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by [HRSA].” 42 U.S.C. § 300gg-13(a). It is uncontroverted here that, pursuant to this provision, HRSA has—and by extension the Agencies have—the delegated authority to define what “preventive care” is; that in 2011, HRSA issued guidelines defining “preventive care” to include contraceptives; and that the Final Rules do not purport to remove contraceptives from the coverage mandate. 83 Fed Reg. at 57,537. In light of these provisions, what must be provided under the ACA’s “preventive care”
20 Defendants argue that any finding that they lack statutory authority to enact the Final Rules necessarily calls into doubt their ability to enact the 2011 religious exemption, which extended to religious entities such as churches and their auxiliaries. Whatever the merits of that argument, the 2011 religious exemption is not before this Court.
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requirement is clear—all FDA-approved “contraceptive methods, sterilization procedures, and patient education and counseling,” 77 Fed. Reg. at 8,725—as is who must provide it—any “group health plan” or “health insurance issuer offering group or individual health insurance coverage,” 42 U.S.C. § 300gg-13(a).
The Agencies, however, contend that the authority to define what preventive care will be covered includes a congressional delegation of authority to carve out exceptions to who must provide preventive coverage. More specifically, Defendants argue that the Women’s Health Amendment necessarily grants them the authority to exempt employers and healthcare plan sponsors from the coverage requirement, based on religious or moral objections to the Mandate. Thus, the precise question at issue is whether the ACA permits the Agencies to develop the exemptions set forth in the Final Rules.
When the scope of the authority delegated to an agency is challenged, that challenge is generally addressed under the analytical framework prescribed by Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). That is because, “[n]o 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 v. FCC, 569 U.S. 290, 297 (2013) (emphasis removed); see also Am. Farm Bureau Fed’n v. EPA, 792 F.3d 281, 295 (3d Cir. 2015) (applying Chevron framework to resolve “[w]hether an [agency] interpretation falls within the scope of authority that Congress has delegated”) (internal punctuation omitted).
There are two steps to the Chevron analysis. Step One asks “whether Congress has directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842. “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give
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effect to the unambiguously expressed intent of Congress.” Id. at 842-43. But, “[i]f the statute is ambiguous on the point,” Step Two requires “defer[ence] . . . to the agency’s interpretation so long as the construction is ‘a reasonable policy choice for the agency to make.’” National Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 986 (2005) (quoting Chevron, 467 U.S. at 845).
Here, as noted, the ACA provides that any “group health plan” or “health insurance issuer offering group or individual insurance coverage shall, at a minimum provide coverage for” “preventive care and screenings . . . as provided for in comprehensive guidelines supported by [HRSA].” 42 U.S.C. § 300gg-13(a) (emphasis added). On its face, the Women’s Health Amendment does not contemplate exceptions or exemptions to the “preventive care” coverage mandate—much less delegate authority to the Agencies to create such exemptions.21 Rather, the statute directs that all specified health plans and insurance issuers “shall” cover “preventive care,” however defined. “Shall” is a mandatory term that “normally creates an obligation impervious to judicial [or agency] discretion.” Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998). Thus, by stating that the specified plans “shall” provide coverage for “preventive care,” the statute sets forth who is bound by the coverage mandate (any “group health plan” or “health insurance issuer offering group or individual insurance coverage”), while delegating to the Agencies the task of defining what counts as “preventive care.” The statute further underscores the importance of the Contraceptive Mandate, by stipulating that the specified health plans must provide preventive care coverage “at a minimum” and without “any cost sharing requirements.”
21 As discussed further infra, the ACA, in sections outside the Women’s Health Amendment, does provide one very specific exception to its broader coverage mandate, for grandfathered health plans. See 42 U.S.C. § 18011. The ACA insurance requirements also do not apply to employers with fewer than 50 employees. See 26 U.S.C. § 4980H(c)(2).
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Nonetheless, the Agencies assert that they hold the authority to issue the far-reaching exemptions to the Contraceptive Mandate set out in the Final Rules. They argue that the statement “as provided for in comprehensive guidelines supported by [HRSA]” contemplates a broad delegation of authority, that permits the Agencies not only to define preventive care, but also the manner and reach of “preventive care” coverage. 42 U.S.C. § 300gg-13(a). Effectively, the Agencies’ argument is that the statute authorizes them to carve out, contrary to the express remits of the statute, categories of entities who need not provide preventive care coverage. But such a grant of authority is inconsistent with the statute’s text. Congress has already answered who must provide preventive care coverage: any “group health plan” or “health insurance issuer offering group or individual insurance coverage.” To permit the Agencies to disrupt this mandate contradicts the plain command of the text.
There are further textual reasons to doubt that the phrase “as provided for in comprehensive guidelines supported by [HRSA]” permits such an extensive delegation. True enough, the statute speaks to “comprehensive guidelines,” which suggests a broad scope. But the delicate term support undermines this contention: it strains credulity to say that by granting HRSA the authority to “support” guidelines on “preventive care,” Congress necessarily delegated to HRSA the authority to subvert the “preventive care” coverage mandate through the blanket exemptions set out in the Final Rules.
MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U.S. 218 (1994), is instructive. In that case, the Supreme Court rejected an agency’s assertion of authority—similar to the assertion here—to create exceptions to statutory requirements. Id. at 234. There, the statutory scheme at issue required that “[e]very common carrier . . . shall . . . file” tariffs, and also granted the Federal Communications Commission (“FCC”) the authority to
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“modify any requirement made by or under the authority of this section.” Id. at 224 (quoting 47 U.S.C. § 203). The FCC asserted that the grant of authority to “modify” the statutory requirements permitted it to eliminate the filing requirement for certain entities altogether. The Supreme Court firmly rejected this view, finding that the FCC’s authority to “modify” statutory requirements did not allow the FCC to make “basic and fundamental changes” to the command of the statute. Id. at 225. In a passage particularly on point here, the Supreme Court reasoned that “[i]t is highly unlikely that Congress would leave the determination of whether an industry will be entirely, or even substantially, rate-regulated to agency discretion—and even more unlikely that it would achieve that through such a subtle device as permission to ‘modify’ ratefiling requirements.” Id. at 231.
The logic of M.C.I. compels the conclusion that Congress’s limited delegation to the Agencies does not include authority to create broad exemptions to the Contraceptive Mandate. In M.C.I., the Court held that the agency could not create exceptions for statutorily mandated filing requirements—despite the fact that, there, the text explicitly authorized the agency to “modify” statutory requirements. Here, the statute presents no authority at all to “modify” or waive statutory requirements. As in M.C.I., if Congress intended to grant the Agency such broad authority, it has the means available to it to do so. See Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 468 (2001) (“Congress . . . does not . . . hide elephants in mouseholes.”).
Defendants argue to the contrary that the text and structure of the ACA permit the Agencies to issue the Final Rules, primarily thanks to the use of the word “as” in the Women’s Health Amendment. They note that the Women’s Health Amendment follows immediately after—and differs slightly from—another subsection of the ACA that speaks to preventive care coverage, for children. Specifically, the Women’s Health Amendment mandates coverage for
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“preventive care and screenings . . . as provided for in comprehensive guidelines supported by [HRSA],” while the subsection pertaining to children mandates coverage for “preventive care and screenings provided for in the comprehensive guidelines supported by [HRSA].” 42 U.S.C. § 300gg-13(a)(3)–(4) (emphasis added). Proceeding from the statutory maxim that statutes “must be interpreted, if possible, to give each word some operative effect,” Walters v. Metro. Educ. Enter., Inc., 519 U.S. 202, 209 (1997), Defendants conclude that the inclusion of the word “as” in the women’s subsection means that HRSA may determine not only the services covered by the ACA, but also the manner or reach of that coverage.
The impact of the word “as” in this instance can be determined by “look[ing] to dictionary definitions to determine the ordinary meaning of a word,” while bearing in mind that “statutory language must be read with reference to its statutory context.” Bonkowski v. Oberg Indus., Inc., 787 F.3d 190, 200 (3d Cir. 2015) (internal quotation marks omitted). The term “as” in this context could mean “[u]sed in comparisons to refer to the extent or degree of something,” “[u]sed to indicate that something happens during the time when something else is taking place,” or “[u]sed to indicate by comparison the way that something happens or is done.” As, Oxford English Dictionary Online (January 2018), https://en.oxforddictionaries.com/definition/as.
Defendants argue for either the first or third of these definitions, asserting that the “as” here means something like “as you like it.” However, the statutory context indicates that the second definition is the most appropriate. When Congress passed the ACA, HRSA had already promulgated guidelines defining children’s preventive care. HRSA had not yet promulgated such guidelines for women’s preventive care. Thus, the ACA requires coverage “provided for in the” preexisting HRSA guidelines for children’s care. The use of the article “the” demonstrates that Congress referred to particular, extant guidelines governing children’s preventive care.
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Giving effect to the use of the word “as” with regard to the Women’s Health Amendment leads to the conclusion that Congress used “as” here to indicate that the HRSA guidelines would be forthcoming, i.e. in anticipation of HRSA issuing guidelines—not to the conclusion that the ACA implicitly provides the Agencies with the authority to create exemptions.
Further, even if the word “as” is read to “indicate by comparison” the “extent,” “degree” or “way” the Agencies may promulgate guidelines, that definition does not help Defendants, for the following reason. The most natural comparison available in the statute—as Defendants recognize—would be to the pre-ACA children’s health preventive services guidelines. And comparing the children’s guidelines to the women’s guidelines ultimately undermines Defendants’ reading of the statute. That is because the children’s guidelines simply define a list of “preventive care” services—that is, what must be covered. See HHS, Preventive Care Benefits for Children, available at https://www.healthcare.gov/preventive-care-children. They do not include any exemptions to that coverage; indeed, the children’s guidelines do not speak at all to who must provide that coverage. And that makes sense because Congress already defined the who: any “group health plan” or “health insurance issuer offering group or individual insurance coverage”—the same plans that “shall” cover women’s preventive services without cost sharing. Thus if Congress employed “as” here to create a comparison to the children’s care guidelines, then Congress assuredly did not intend to permit HRSA to craft exemptions to the types of preventive care that would be required. Rather, Congress intended that HRSA would create a parallel set of guidelines, setting forth the types of “preventive care” to be covered, without exception.
The conclusion that the Women’s Health Amendment does not grant HRSA the power to create exemptions is bolstered by other provisions of the ACA. Congress created only a single
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exemption from the ACA’s statutory mandate to cover women’s preventive care, for “grandfathered health plans.” 42 U.S.C. § 18011(e)(3). In accordance with the expressio unius est exclusio alterius principle, “[w]hen Congress provides exceptions in a statute . . . [t]he proper inference . . . is that Congress considered the issue of exceptions and, in the end, limited the statute to the ones set forth.” United States v. Johnson, 529 U.S. 53, 58 (2000). The fact that there is no religious or moral exemption in the explicit text of the statute, while there is an exemption for grandfathered health plans, militates against finding that Congress authorized the Agencies to create any additional exemptions. Indeed, that interpretation is supported by the legislative history, given that, in 2012, Congress explicitly rejected an attempt to add to the ACA an exemption similar to that contained in the Final Rules. See 158 Cong. Rec. S1165 (Mar. 1, 2012); see also Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 147 (2000) (rejection of an agency’s interpretation by Congress is a factor courts consider when determining the meaning of a statute).
For these reasons, the ACA prohibits HRSA from exempting entities from providing such coverage as set forth in the Final Rules. Accordingly, the Final Rules violate the APA and fail at Chevron’s Step One.
ii. RFRA Defendants argue that, even if the ACA does not grant the Agencies authority to issue the Final Rules, RFRA independently enables the Agencies to issue the Final Religious Exemption.22 They assert that the Contraceptive Mandate cannot be brought into accord with RFRA by anything less that the provisions contained in the Final Religious Exemption, and that, as such,
22 It should be noted at the outset that Defendants specifically do not propound this argument with respect to the Final Moral Exemption. Nor could they. RFRA protects a person’s “exercise of religion,” and does not speak to broader moral convictions. 42 U.S.C. § 2000bb-1(a). Thus, because neither the ACA nor RFRA grant the Agencies the authority for it, the Final Moral Exemption must be invalidated.
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RFRA “required” the promulgation of the rule. But it is the courts, not the Agencies, that determine RFRA’s reach. And the Final Religious Exemption goes far beyond RFRA’s command.
Congress enacted RFRA in 1993 following the Supreme Court’s decision in Employment Div., Dep’t of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990). In Smith, the Supreme Court held that “the Constitution does not require judges to engage in a case-by-case assessment of the religious burdens imposed by facially constitutional laws,” and thus strict scrutiny did not apply to Free Exercise challenges to laws of general applicability. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2000). Prior to Smith, in decisions such as Sherbert v. Verner, 374 U.S. 398 (1963), courts employed “a balancing test that took into account whether the challenged action imposed a substantial burden on the practice of religion, and if it did, whether it was needed to serve a compelling government interest,” Hobby Lobby, 134 S. Ct. at 2760. With RFRA, Congress sought to restore the pre-Smith judicial standard. See 42 U.S.C. § 2000bb(b)(1) (stating that a purpose of the statute is “to restore 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) and to guarantee its application in all cases where free exercise of religion is substantially burdened”); see also Gonzales, 546 at 424, 430-31.
In accordance with this goal, RFRA provides that the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” unless “it demonstrates that application of the burden to the person--(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(a)-(b). Accordingly, RFRA has two components. First, the government is prohibited from placing a substantial
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burden on religious exercise. If government action does not impose a substantial burden on religion, then RFRA is not implicated. However, if it does, the government action must be struck down unless it is the least restrictive means of furthering a compelling interest.
Despite Defendants’ contention that the Agencies may determine what RFRA demands with respect to the ACA, RFRA provides, to the contrary, that it is the courts that are charged with determining RFRA’s application. RFRA “explicitly provides a private cause of action,” Mack v. Warden Loretto FCI, 839 F.3d 286, 301 (3d Cir. 2016), which permits an aggrieved individual to obtain “Judicial Relief,” and contemplates them doing so in a “judicial proceeding,” 42 U.S.C. § 2000bb-1(c). More specifically, RFRA states that, “[a] person whose religious exercise has been burdened . . . may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” Id. RFRA thus commits to the courts the task of determining whether generally applicable laws violate a person’s religious exercise: “RFRA . . . plainly contemplates that courts would recognize exceptions—that is how the law works. . . . RFRA makes clear that it is the obligation of the courts to consider whether exceptions are required under the test set forth by Congress.” Gonzales, 546 U.S. at 434 (emphasis in original).
Nevertheless, the Agencies contend that they are independently required to assess how RFRA bears on the Contraceptive Mandate and that their authority to promulgate the Final Religious Exemption flows from that obligation. In years past, the Agencies asserted that the accommodation did not impose a substantial burden on any entity’s religious exercise and that guaranteeing cost-free contraceptive coverage did serve several compelling government interests. The Agencies now take the obverse positions: that the accommodation constitutes a substantial burden on the religious exercise of objecting employers and that the contraceptive mandate does
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not serve “any compelling interest.” Indeed, they go further—arguing that this new set of views “in itself, is dispositive,” as a matter of law. In essence, they have taken on the quintessentially judicial tasks of determining whether the application of the Contraceptive Mandate to objecting entities constitutes a substantial burden, whether any burden was in furtherance of a compelling government interest, and whether the accommodation was the least restrictive means of accomplishing contraceptive coverage. Having taken on those tasks, the Agencies—based on their independent assessments of these legal questions—now claim that RFRA “requires” the Final Religious Exemption.
Their position is unsustainable for a number of reasons, the foremost being that administrative agencies may not simply formulate a view of a law outside their particular area of expertise, issue regulations pursuant to that view, claim that the law requires those regulations, then seek to insulate their legal determination from judicial scrutiny. It is axiomatic that under our constitutional system, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). Nothing about RFRA warrants departure from this general maxim. To the contrary, RFRA specifically provides only for “Judicial Relief,” 42 U.S.C.A. § 2000bb-1(c), thereby committing interpretative authority to the courts—not to agencies. See Gonzales, 546 U.S. at 434; see also Real Alternatives, Inc. v. Sec’y Dep’t of Health & Human Servs., 867 F.3d 338, 356 (3d Cir. 2017) (“[I]t is for the reviewing court to determine whether a burden is ‘substantial.’”). Indeed, in the Hobby Lobby decision, the Supreme Court found that agency action violated RFRA, without ever suggesting that the agency’s interpretation was entitled to deference. See Hobby Lobby, 134 S. Ct. at 2775-85 (analyzing whether the Contraceptive Mandate violated RFRA, without discussion of deference to agency view); see also Thomas W. Merrill, Step Zero After
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City of Arlington, 83 Fordham L. Rev. 753, 759 (2014) (“[T]he [Supreme] Court has never suggested that trans-substantive statutes like the Administrative Procedure Act (APA) or the Religious Freedom Restoration Act (RFRA) should be interpreted by giving deference to agency interpretations.”).
Nevertheless, Defendants cast their new legal contentions as reasonable policy decisions within their ambit of expertise. Of course, where a statute leaves gaps for an agency to fill, the agency may change its interpretation so long as it provides a “reasoned explanation for the change.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016). However, what Defendants attempt to do here is not a change of interpretation regarding an ambiguous statute they are tasked with administering. Rather, Defendants are baldly asserting—with respect to a statute that does not explicitly delegate them any authority—what RFRA “requires.” Defendants have no expertise in administering RFRA. See Gonzales, 546 U.S. at 434; see also Real Alternatives, 867 F.3d at 356; Iglesia Pentecostal Casa De Dios Para Las Naciones, Inc. v. Duke, 718 F. App’x 646, 653 (10th Cir. 2017) (holding that the question of whether a RFRA violation exists is “a legal determination that Congress has not exclusively entrusted to” agencies) (internal quotation marks omitted). While Defendants may change course in their legal assessment of what RFRA commands, this is not the final word. Ultimately, it is up to the courts to decide.
It is true, as Defendants point out, that there is a great deal of “legal uncertainty” about RFRA’s precise application to the Contraceptive Mandate. But on the specific question presented here—whether RFRA “requires” the Final Religious Exemption—the law is clear.
To set out Defendants’ position in greater detail, yet another review of Hobby Lobby is in order. There, the Supreme Court held that “[t]he contraceptive mandate, as applied to closely
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held corporations, violates RFRA.” 134 S. Ct. at 2785. The Supreme Court reasoned that the Contraceptive Mandate imposed a substantial burden on the religious exercise of the plaintiffs— closely held corporations—and that the burden was not the least restrictive means of providing contraceptive coverage to women. With specific regard to the least restrictive means element, the Supreme Court explained that the Agencies had already created a less restrictive means to both ensure women had contraceptive coverage and reduce the burden on religious objectors: the accommodation. Id. at 2781-82. As noted, the accommodation allowed eligible religious objectors to notify their healthcare administrator of their religious objection, and the administrator would then have to provide the legally required contraceptive services directly to women covered under the employer’s plan. Because the accommodation “[did] not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion,” and still accomplished the government’s goal of providing contraceptive coverage, the Supreme Court found that the Contraceptive Mandate, as applied to the plaintiffs, was not the least restrictive means, and thus violated RFRA. Id. at 2782. Importantly, the Supreme Court reserved on the question of “whether an approach of this type complies with RFRA for purposes of all religious claims.” Id. Following Hobby Lobby, in Zubik, the Supreme Court declined to decide the question of whether the accommodation itself imposed a substantial burden on plaintiff nonprofits’ religious exercise; instead, it remanded so that the parties might come to a resolution on their own, whereby the plaintiffs’ employees could receive contraceptive coverage without the plaintiffs’ having to submit the form required by the accommodation. 136 S. Ct. at 1559-60.
Based on these rulings, Defendants assert that RFRA “requires” the Religious Exemption, because their previous attempts to satisfy RFRA with the accommodation failed.
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This theory rests on three legal conclusions: (1) a blanket exemption from the Contraceptive Mandate for religious objectors strays no further than RFRA demands; (2) the accommodation did not relieve the substantial burden identified by the Supreme Court in Hobby Lobby; and, (3) the contraceptive mandate imposes a substantial burden on publicly traded corporations. But each of these views is either incorrect under the law—as previously determined by precedential rulings—or a significant extension of existing doctrine. Accordingly, Defendants have stepped beyond the demands of RFRA, and the Final Religious Exemption cannot be justified as a “requirement” of RFRA.
As to the first conclusion—that a blanket exemption for religious objectors goes no further than RFRA demands—a close read of Hobby Lobby demonstrates that the Agencies’ conclusion is incorrect. There, the Supreme Court explained that an exemption akin to the Final Religious Exemption goes beyond RFRA’s requirements. 134 S. Ct. at 2775 n.30. More specifically, prior to enacting the ACA, Congress had considered but ultimately voted down a ‘conscience amendment,’ which, like the Final Religious Exemption, enabled an employer or insurance provider to deny coverage based on its asserted religious beliefs. Id. The Hobby Lobby majority concluded it was “reasonable to believe that” Congress rejected the amendment because such a “blanket exemption” for religious objectors “extended more broadly than the . . . protections of RFRA.” Id. That is because “it would not have subjected religious-based objections to the judicial scrutiny called for by RFRA, in which a court must consider not only the burden of a requirement on religious adherents, but also the government’s interest and how narrowly tailored the requirement is.” Id. Thus, as the Hobby Lobby Court recognized, the blanket exemption the Agencies have set forth “extend[s] more broadly than the . . . protections of RFRA.” Plainly then, RFRA cannot “require” such a rule, which creates precisely this blanket
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exemption. As to the second conclusion—that the accommodation imposes a substantial burden on
the religious exercise of objecting entities—Defendants are incorrect under the law of this circuit. While the Supreme Court has not resolved this precise issue, Third Circuit authority demonstrates that, contrary to the Agencies’ view, the accommodation does not impose a substantial burden. See Geneva Coll. v. Sec’y U.S. Dep’t of Health & Human Servs., 778 F.3d 422, 442 (3d Cir. 2015), vacated and remanded sub nom. Zubik v. Burwell, 136 S. Ct. 1557 (2016) (per curiam); see also Real Alternatives, 867 F.3d at 356 n.18. The accommodation has been specifically upheld against a RFRA challenge by the Third Circuit, first, and directly, in Geneva Coll., 778 F.3d at 442, and second, by implication, in Real Alternatives, 867 F.3d at 356 n.18. Defendants argue that Geneva is no longer good law because it was vacated by the Supreme Court in Zubik. But the Supreme Court in Zubik specifically declined to decide the merits of the RFRA challenge to the accommodation, by explicitly refraining from “decid[ing] whether petitioners’ religious exercise has been substantially burdened.” 136 S. Ct. at 1560. Instead, the Supreme Court vacated Geneva (and related decisions from other Circuit courts) and remanded for the express purpose of allowing the parties “an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans receive full and equal health coverage, including contraceptive coverage.” Id.
Following Zubik, the Third Circuit reiterated in Real Alternatives that it “continue[s] to believe . . . that the regulation at issue”—the accommodation—“did not impose a substantial burden.” Real Alternatives, 867 F.3d at 356 n.18. Defendants characterize this statement as dicta, and indeed, the issues in the two cases were slightly distinct. In Geneva, nonprofits
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eligible for the accommodation asserted that filling out the accommodation form “facilitated” or “triggered” the provision of contraceptives, thereby substantially burdening their religious exercise. 778 F.3d at 427. In Real Alternatives, employees of a secular employer similarly asserted that the Contraceptive Mandate violated RFRA because their purchase of insurance enabled the provision of contraceptives. 867 F.3d at 359. What Defendants overlook is that in Real Alternatives the Third Circuit reaffirmed and reapplied the reasoning of Geneva. In both cases, the Third Circuit found that there was no substantial burden on the plaintiffs’ religious exercise because their actions were insufficiently related to the provision of contraceptives and “an independent obligation on a third party can[not] impose a substantial burden on the exercise of religion in violation of RFRA.” Id. at 364 (quoting Geneva, 778 F.3d at 440-41). Accordingly, applying the law of this circuit as announced in Real Alternatives, the accommodation does not impose a substantial burden on religious exercise.
The third conclusion—that the Contraceptive Mandate imposes a substantial burden on the religious exercise of publicly traded corporations—goes considerably beyond existing jurisprudence. In Hobby Lobby, the Supreme Court found that the Contraceptive Mandate imposed a substantial burden on the specific plaintiffs in that case: “closely held corporations, each owned and controlled by members of a single family.” 134 S. Ct. at 2774. It explicitly declined to extend its holding to publicly traded corporations, suggesting that publicly traded corporations would be unlikely to hold a singular, sincere religious belief:
These cases, however, do not involve publicly traded corporations, and it seems unlikely that the sort of corporate giants to which HHS refers will often assert RFRA claims. HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring. For example, the idea that unrelated shareholders— including institutional investors with their own set of stakeholders—would agree to run a corporation under the same religious beliefs seems improbable. In any event, we have no occasion in these cases to consider RFRA’s applicability to
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such companies.
Id. Defendants assert that it is reasonable to include publicly traded corporations in the Religious
Exemption. But, as Hobby Lobby makes clear, RFRA does not “require” this expansion.
Thus, even if the Agencies are correct that the accommodation imposes a substantial
burden on religious employers, and that they must act, through regulation, to relieve that
burden,23 the Final Religious Exemption sweeps further than RFRA would require. The
Agencies’ willingness to exceed the bounds of existing case law demonstrates that the Agencies
have cast aside RFRA’s mandate for “judicial scrutiny . . . in which a court must consider not
only the burden of a requirement on religious adherents, but also the government’s interest and
how narrowly tailored the requirement is.” Id. at 2775 n.30 (emphasis added). Accordingly, the
23 Defendants contend that the Final Rules—like earlier rules that created the exemption and accommodation framework—are merely the Agencies’ attempts to respond to the Supreme Court’s decisions in Hobby Lobby, Wheaton College, and Zubik. After each of those decisions, the Agencies promulgated generally applicable regulations that expanded or modified the exemption and accommodation framework in an attempt to bring the Agencies’ actions in line with what the Supreme Court said RFRA commands. According to Defendants, that is all that is happening here, the only difference being the States have now challenged the Agencies’ authority to do so.
Fair enough. Nonetheless, this challenge raises a fundamental question: whether RFRA grants agencies independent authority to issue regulations of general applicability, like the Final Religious Exemption. It is worth noting that the scope of affirmative authority, if any, that RFRA grants to agencies to issue regulations of general applicability— whether in response to judicial interpretations of RFRA or based on their own assessments of RFRA’s application— is distinctly undetermined. Neither Hobby Lobby, nor Wheaton College, nor Zubik resolved this question—nor, does it appear, has any other court. The statutory language does not provide a clear answer. On the one hand, RFRA “applies to all Federal law, and the implementation of that law, whether statutory or otherwise,” which could possibly be read to grant agencies some authority to promulgate regulations on a generalized basis. 42 U.S.C. § 2000bb-3(a) (emphasis added). However, RFRA is fundamentally a remedial measure, that by its terms “provide[s] a claim or defense to persons whose religious exercise is substantially burdened by government,” id. at § 2000bb(b)(2), in a “judicial proceeding” in order to “obtain appropriate relief against a government,” id. at § 2000bb-1(c) (emphasis added). See also Hobby Lobby, 134 S. Ct. at 2775 n.30; Gonzales, 546 U.S. at 430-31, 434. Indeed, quite recently, the federal government suggested that RFRA does not permit an agency to create exemptions to regulations absent a judicial determination, albeit in a case that did not focus on this issue in great depth. See Iglesia Pentecostal, 718 F. App’x at 653 (recounting federal government’s position that “[a]bsent a judicial finding that the regulation violates RFRA, neither the director of USCIS nor the AAO has any discretion to set aside any provision of those regulations.”) (brackets omitted).
Put simply, it is not clear what, if any, affirmative authority RFRA grants to agencies to issue regulations of general applicability. The parties do not point to any authority that resolves this question. Nor has independent research yielded definitive answers. While this large question looms in the background, the Court need not decide it here. Whatever the extent of an agency’s authority under RFRA, the Agencies here have exceeded it in promulgating the Final Religious Exemption.
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Religious Exemption cannot be justified under RFRA. Because neither the ACA nor RFRA confer authority on the Agencies to promulgate the
Religious Exemption, the rule is invalid.24 * * *
In light of these conclusions, the States have demonstrated an adequate likelihood of success on the merits in support of their motion for preliminary relief.
3. Irreparable Harm The second factor to consider in deciding the States’ motion is whether they have demonstrated that they are likely to suffer irreparable harm in the absence of a preliminary injunction. The Supreme Court’s “frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22 (emphasis in original); see id. (“Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with the characterization of injunctive relief as an extraordinary remedy that may be awarded only upon a clear showing that the plaintiff is entitled to such relief.”). The States assert that they will suffer two forms of irreparable harm in the absence of an injunction: (1) significant damage to the States’ fiscal integrity; and (2) harm to the health, safety, and wellness of the women of Pennsylvania and New Jersey. The Court finds both sufficient to justify preliminary relief. As to the harm to the States’ fiscal integrity, the States’ evidence demonstrates that it is likely that the Final Rules will cause direct and irreparable harm. The States will become
24 Given its holding that Defendants violated the procedural and substantive provisions of the APA in issuing the Final Rules, and in view of the admonition that “courts should be extremely careful not to issue unnecessary constitutional rulings,” American Foreign Serv. Ass’n v. Garfinkel, 490 U.S. 153, 161 (1989) (per curiam), it is unnecessary to proceed to the constitutional issues. Similarly, because the Final Rules violate the substantive provisions of the APA for the reasons given, there is no need to reach the States’ other statutory challenges to the Final Rules.
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obligated to shoulder much of the burden of providing contraceptive services to women who lose contraceptive care because their health plans take advantage of the expanded exemptions contained in the Final Rules. See Steinberg Decl. ¶¶ 27-29 (discussing Pennsylvania); Geenace Decl. ¶¶ 15-17 (discussing New Jersey). Such women will seek contraceptive services elsewhere and, as Defendants noted in issuing the IFRs, may turn to “multiple . . . State[] and local programs that provide free or subsidized contraceptives for low-income women” for alternative coverage. See 82 Fed. Reg. at 47,803. In Pennsylvania, these state funded programs include: Medicaid, called “Medical Assistance;” the Family Planning Service Program; and the Commonwealth’s network of clinics funded under the Title X grant program. See Allen Decl. ¶¶ 3-18; Steinberg Decl. ¶ 16. New Jersey funds similar programs through Medicaid, known as “NJ Family Care,” and the State’s Plan First Program. Adelman Dec. ¶¶ 9-14. As women in the States lose contraceptive coverage through their health insurance plans and turn to state-funded programs, it is likely that the States will bear the added financial burden occasioned by the increase in women who need contraceptive care coverage. See Mendelsohn Decl. ¶¶ 15-18; Allen Decl. ¶ 23; Geenace Decl. ¶¶ 15-18.
The States’ harm is not merely speculative; it is actual and imminent. The Final Rules estimate that at least 70,500 women will lose coverage. See 83 Fed. Reg. at 57,578.25 Thus, the only serious disagreement is not whether the States will be harmed, but how much. Though Defendants argue that the States have not identified any individual who has lost coverage already, there is no need to wait for the axe to fall before an injunction is appropriate, particularly where Defendants have estimated that it is about to fall on thousands of women— and, as a corollary, on the States. See Texas, 809 F.3d at 186 (granting relief based on predicted
25 The States argue that there is reason to believe the number is significantly higher because organizations taking advantage of the exemption need not inform the Agencies of their plan to do so.
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harm to States’ fiscs). While “loss of money” is generally insufficient to merit a preliminary injunction, see
Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989), here, the harm to the States’ fiscs is irreparable because they will not be able to recover any economic damages that result from the Final Rules. That is because a party—like the States here—which alleges an APA violation may not recover monetary damages from the federal government on that claim. See 5 U.S.C. § 702 (permitting relief “other than money damages”); California, 911 F.3d at 581 (finding irreparable harm in APA case on similar grounds). Therefore, if the Final Rules are ultimately struck down as violative of the APA, the States will not be able to recoup any money they expend on contraceptive care in the interim. In such circumstances, a preliminary injunction is appropriate. See, e.g., N.J. Retail Merchants Ass’n v. Sidamon-Eristoff, 669 F.3d 374, 388 (3d Cir. 2012) (holding that a preliminary injunction is appropriate where a movant could not recover damages from a State due to sovereign immunity).
In addition to pecuniary harm, the States also stand to suffer injury to their interest in protecting the safety and well-being of their citizens. See Alfred L. Snapp, 458 U.S. at 607 (observing that a State has a “quasi-sovereign interest in the health and wellbeing—both physical and economic—of its residents in general”). The States’ witnesses explained that employers taking advantage of the Final Rules will result in more women losing no-cost contraceptive coverage. Mendelsohn Decl. ¶¶ 14-15; Adelman Decl. ¶ 20. As a result, women will likely forgo contraceptive services or seek out less expensive and less effective types of contraceptive services in the absence of no-cost insurance coverage. Weisman Decl. ¶¶ 45-48; Chuang Decl. ¶¶ 36-39; see also Adam Sonfield, What is at Stake with the Federal Contraceptive Coverage Guarantee?, 20 Guttmacher Policy Review 8, 9 (2017) (reporting that women cite cost as a
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significant factor in determining whether to purchase contraceptive services and which contraceptive services to use). Disruptions in contraceptive coverage will lead to women suffering unintended pregnancies and other medical consequences. Butts Decl. ¶¶ 57-59; Institute of Medicine, Clinical Prevention Services at 107 (explaining that contraceptive services are used to treat menstrual disorders, acne, hirsutism, and pelvic pain, in addition to assisting family planning and birth spacing).26 The negative effects of even a short period of decreased access to no-cost contraceptive services are irreversible.
The States have therefore showed that they are likely to suffer irreparable harm as a result of the Rules’ impact on both the States’ fiscs and the welfare of the States’ citizens.
4. Balance of the Equities The third factor is that the balance of the equities tips in favor of granting a preliminary injunction. “Balancing the equities” is jurisprudential “jargon for choosing between conflicting public interests.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609 (1943) (Frankfurter, J., concurring). Here, Congress has already struck the balance: the Women’s Health Amendment was intended to ensure women received no-cost coverage for preventive services, which includes contraceptives. As lead sponsor of the Women’s Health Amendment, Senator Barbara Mikulski, explained: the amendment “leaves the decision of which preventive services a patient will use between the doctor and the patient.” 155 Cong. Rec. S11988 (Nov. 30, 2009) (statement of Sen. Barbara Mikulski). Congress enacted the Women’s Health Amendment to guarantee that “the decision about what is medically appropriate and medically necessary is between a woman and her doctor.” Id. Where “Congress itself has struck the balance, [and] has
26 Increased unplanned pregnancies will also inflict additional pecuniary harm on the States. See Steinberg Decl., ¶ 30 (discussing study finding that 68% of unplanned births are paid for by public insurance programs, compared to only 38% of planned births).
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defined the weight to be given the competing interests, a court of equity is not justified in ignoring that pronouncement under the guise of exercising equitable discretion.” Youngstown Sheet, 343 U.S. at 609-10.
Here, given the States’ clear interest in securing the health and well-being of women residents and limiting their costs for contraceptive services, the balance of the equities weighs in their favor. Defendants will not be substantially prejudiced by a preliminary injunction. If the Final Rules were issued in violation of applicable law, they will have suffered no harm. If Defendants ultimately prevail, then a preliminary injunction will have merely delayed their preferred regulatory outcome.
5. Public Interest “If a plaintiff proves both a likelihood of success on the merits and irreparable injury, it almost always will be the case that the public interests favors preliminary relief.” Issa v. Sch. Dist. of Lancaster, 847 F.3d 121, 143 (3d Cir. 2017) (internal quotation marks omitted). So it proves here. A preliminary injunction is unquestionably in the public interest because it maintains the status quo pending the outcome of this litigation. The Final Rules permit any entity to opt out of coverage after 30 to 60 days’ notice to plan members. This litigation will not conclude in that short span. A preliminary injunction will maintain the status quo: those eligible for exemptions or accommodations prior to October 6, 2017 will maintain their status; those with injunctions preventing enforcement of the Contraceptive Mandate will maintain their injunctions;27 those alleging RFRA violations may pursue “Judicial Relief;” and those with coverage will maintain their coverage as well.
27 For example, Defendant-Intervenor has secured a permanent injunction, preventing enforcement of the Contraceptive Mandate against it. See Little Sisters of the Poor v. Azar, No. 1:13-cv-02611, Dkt. 82 (D. Colo. May 29, 2018). Nothing in this Court’s ruling will disturb that order.
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D. Remedy Before concluding, an additional word is required on the scope of the preliminary injunction to be issued. When the IFRs were initially before this Court, they were enjoined generally, without any specific geographic or temporal limitation. See Pennsylvania, 281 F. Supp.3d at 585. Since then, however, much has been made about the propriety (or impropriety) of socalled nation-wide injunctions. See, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2425 (2018) (Thomas, J., concurring); Zayn Siddique, Nationwide Injunctions, 117 Colum. L. Rev. 2095 (2017); Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417 (2017). In light of this increased focus on the proper exercise of district courts’ remedial powers, it is prudent to explain in some detail why a nation-wide injunction is appropriate here. First, it is well established that a district court sitting in equity has the authority to enter a nation-wide injunction. See Leman v. Krentler-Arnold Hinge Last Co., 284 U.S. 448, 451 (1932) (holding district court’s order “binding upon the respondent, not simply within the District of Massachusetts, but throughout the United States”); Texas, 809 F.3d at 188 (“[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.”) (quoting U.S. Const. art. III, § 1); McLendon v. Cont’l Can Co., 908 F.2d 1171, 1182 (3d Cir. 1990) (holding “[f]ull relief required a nationwide injunction”). The issue, then, is whether a nation-wide injunction is appropriate here, given the facts of this specific case. “In shaping equity decrees, the trial court is vested with broad discretionary power.” Lemon v. Kurtzman, 411 U.S. 192, 200 (1973) (plurality opinion). That is because crafting
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equitable remedies is an inexact science; instead, “equitable remedies are a special blend of what is necessary, what is fair, and what is workable.” Id.; see also Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (“Crafting a preliminary injunction is an exercise of discretion and judgment, often dependent as much on the equities of a given case as the substance of the legal issues it presents.”). As Justice Douglas succinctly put it seventy-five years ago: “[t]he essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it.” Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944).
The Supreme Court articulated the relevant standard for determining the proper scope of a preliminary injunction in Califano v. Yamasaki, 442 U.S. 682 (1979), stating that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Id. at 702 (emphasis added). Subsequent Supreme Court and lower court decisions have treated the “no more burdensome than necessary” rubric as the “general rule” for determining whether an injunction is overbroad. Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 765 (1994); see also Trump, 137 S. Ct. at 2090 (Thomas, J., concurring in part and dissenting in part); see also McLendon, 908 F.2d at 1182 (“In granting injunctive relief, the court’s remedy should be no broader than necessary to provide full relief to the aggrieved plaintiff.”).28
The Califano standard requires district courts to balance the competing principles of providing complete relief to meritorious plaintiffs against a defendant’s right to be free from overly burdensome injunctions. The complete relief requirement reflects the “well-settled principle that the nature and scope of the remedy are to be determined by the violation.”
28 In Califano, the Court indicated that the “no more burdensome than necessary” standard is a general rule of injunctions, regardless of whether a nation-wide class-action is certified. See 442 U.S. at 702.
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Milliken v. Bradley, 433 U.S. 267, 281-82 (1977). Where a violation has been found, “the remedy does not ‘exceed’ the violation if the remedy is tailored to cure the ‘condition that offends [the law.]’” Id. at 282 (quoting Milliken v. Bradley, 418 U.S. 717, 738 (1974)).
The complete relief principle explains why, in APA cases, “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.” Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (internal quotation marks omitted and emphasis added). Where “agency action . . . consist[s] of a rule of broad applicability” that violates the strictures of the APA, Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 913 (Blackmun, J., dissenting),29 a remedy “tailored to cure the condition that offends [the law]” may be correspondingly broad, Milliken, 433 U.S at 282 (internal quotation marks omitted). Thus, when an individual challenges agency action and prevails, “the result is that the rule is invalidated, not simply that the court forbids its application to a particular individual.” Lujan, 497 U.S. at 913 (Blackmun, J., dissenting).30 Put differently, the national character of an APA violation “ordinar[ily]” demands a national remedy. Nat’l Min. Ass’n, 145 F.3d at 1409.
At the same time, the Supreme Court has warned that injunctions should be “no more burdensome to the defendants than necessary.” Califano, 442 U.S. at 702. Over fifty years ago, Justice Fortas cautioned:
[A]rming each of the federal district judges in this Nation with power to enjoin enforcement of regulations and actions under the federal law designed to protect the people of this Nation. . . is a general hunting license; and I respectfully submit, a license for mischief because it authorizes aggression
29 In Nat’l Min. Ass’n, the D.C. Circuit explained that, while Justice Blackmun’s observations came in a dissent, they “apparently express[ed] the view of all nine Justices on this question.” 145 F.3d at 1409. 30 Indeed, at least one scholar has argued that the language of the APA—providing that a reviewing court “shall . . . hold unlawful and set aside” agency action that is arbitrary or capricious, 5 U.S.C. § 706—requires courts to vacate all unlawful agency actions. See Brian S. Prestes, Remanding Without Vacating Agency Action, 32 Seton Hall L. Rev. 108, 110 (2001).
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which is richly rewarded by delay in the subjection of private interests to programs which Congress believes to be required in the public interest. Toilet Goods Ass’n v. Gardner, 387 U.S. 167, 183 (1967) (Fortas, J., dissenting). More recently, the Supreme Court has warned that overbroad injunctions “have detrimental effect[s] by foreclosing adjudication by a number of different courts and judges,” which “often will be preferable in order to gain the benefit of adjudication by different courts in different factual contexts.” Califano, 442 U.S. at 701-02; California, 911 F.3d at 583 (raising same concern). In addition, courts worry that overly broad injunctions invite “forum shopping, which hinders the equitable administration of laws.” California, 911 F.3d at 583 (citing Bray, Multiple Chancellors, 131 Harv. L. Rev. at 458-59). The concerns about overbroad injunctions carry into APA cases. Courts have, at times, resisted granting nation-wide relief, even where “agency action . . . consist[s] of a rule of broad applicability.” Lujan, 497 U.S. at 913 (Blackmun, J., dissenting); see, e.g., California, 911 F.3d at 584 (finding an APA violation, but concluding “the scope of the preliminary injunction is overbroad”); Baeder v. Heckler, 768 F.2d 547, 553 (3d Cir. 1985) (holding regulation invalid, but determining district court did not have “the authority to issue an injunction aimed at controlling [Agency’s] behavior in every . . . case in the country”). Thus, while an APA violation may “ordinar[ily]” result in a nation-wide remedy, the potential dangers of an overbroad injunction must still be weighed when crafting a remedy for an APA violation. The upshot is that striking the appropriate balance between providing complete relief to meritorious plaintiffs, on the one hand, and protecting defendants from overly burdensome injunctions, on the other, is necessarily a difficult line-drawing exercise, even in APA cases. To see why, recall the injury the States stand to suffer from enforcement of the Final Rules: both Pennsylvania and New Jersey complain that, because enforcement of the Final Rules
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will result in “numerous insureds—and their female dependents—[losing] the medical coverage for contraceptive care required by the Affordable Care Act,” the States will suffer “significant, direct and proprietary harm” in the form of increased use of state-funded contraceptive services as well as increased costs associated with unintended pregnancies. Affording complete relief to the States would require the Court to enjoin enforcement of the Final Rules as to all entities that “offer[] and arrange[]” health insurance to insureds residing in Pennsylvania or New Jersey.31
But drafting—much less enforcing—a preliminary injunction that runs only to those entities is nigh impossible. Neither the Court nor the parties can readily ascertain what those entities are or whether they intend to take advantage of the exemption, given that providing notice to the Agencies is only optional under the Final Rules. At the same time, the Court cannot, consistent with Rule 65 of the Federal Rules of Civil Procedure simply and broadly enjoin “all entities that offer and arrange health insurance to insureds residing in Pennsylvania or New Jersey.” That is because “[e]very order granting an injunction . . . must . . . state its terms specifically and describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained.” Fed. R. Civ. P. 65 (internal punctuation omitted).
Given the challenges associated with crafting a “perfect” injunction, district courts tend to rely on geographic proxies when tailoring a remedy. For example, the Ninth Circuit—hearing an appeal from a district court decision that also enjoined the enforcement of the IFRs nationwide—held that “an injunction that applies only to the plaintiff states would provide complete relief to them.” California, 911 F.3d at 584; see also California v. Health & Human Servs., ---
31 Even that may not provide complete relief because a non-resident that lost contraceptive coverage may try to take advantage of the States’ programs. Cf. Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2304 (2016) (explaining that, following the enactment of a Texas regulation that would force the closure of abortion clinics in west Texas, “the Court of Appeals said that women in El Paso wishing to have an abortion could use abortion providers in nearby New Mexico”).
61

Case 2:17-cv-04540-WB Document 136 Filed 01/14/19 Page 62 of 65
F. Supp. ---, No. 17-cv-5783, ECF No. 234 (N.D. Cal. 2019) (enjoining enforcement of Final Rules within plaintiff States only). Defendants similarly argue that, if the Final Rules are to be enjoined, then the injunction should be limited to Pennsylvania and New Jersey.
The problem with the Ninth Circuit’s approach, however, is that it simply does not afford the meritorious plaintiffs—the States—complete relief. Hundreds of thousands of the States’ citizens travel across state lines—to New York, Ohio, Delaware, Maryland, West Virginia and even further afield—to work for out-of-state entities. See Amici Curiae Brief of Massachusetts, et al. in Support of Plaintiffs’ Motion for a Preliminary Injunction, at 13-14 (2019) (noting that “548,040 New Jersey residents, or 14% of the workforce, and 299,970 Pennsylvania residents, or 5.4% of the workforce” travel to jobs in other states) (citing U.S. Census Bureau, Out-of-State and Long Commutes: 2011, American Community Survey Reports, at 10 (Feb. 2013), available at https://www2.census.gov/library/publications/2013/acs/acs-20.pdf). Furthermore, with their many universities and educational institutes, the States take in tens of thousands of out-of-state students each year. Id. at 14 (noting that Pennsylvania takes in 32,000 out-of-state students alone) (citing Nat’l Ctr. for Education Statistics, Residence and Migration of All First-Time Degree/Certificate-Seeking Undergraduates (2017), available at https://nces.ed.gov/programs/digest/d17/tables/dt17_309.20.asp?current=ye).
An injunction limited to Pennsylvania and New Jersey would, by its terms, not reach Pennsylvania and New Jersey citizens who work for out-of-state employers. Despite residing in the States, those out-of-state workers could lose contraceptive coverage if the out-of-state employers took advantage of the exemptions included in the Final Rules, resulting in proprietary harm to the States. Nor would an injunction limited to the States cover out-of-state students attending school in Pennsylvania and New Jersey, who may not be considered “residents” of the
62

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States. Such students, by remaining on their parents’ out-of-state employer-based health plans or other health insurance through their State of “residency,” could lose contraceptive coverage but still turn to in-state publicly-funded clinics for contraceptive coverage. Put differently, “an injunction that applies only to the plaintiff states” would not “provide complete relief to them” because it would not “prevent the economic harm extensively detailed in the record.” California, 911 F.3d at 584.
Injunctions that are intermediate in geographic scope—that is, applicable beyond the States but not nation-wide—encounter the same problems in ensuring “complete relief to the plaintiffs.” Madsen, 512 U.S. at 765. An injunction limited to the Third Circuit, for example, would fail to account for the thousands of Pennsylvania and New Jersey citizens that commute to neighboring or nearby states outside the Third Circuit for work. Similarly, an injunction covering the surrounding states would not account for the fact that the States draw out-of-state students from across the nation.
At the same time, the Court recognizes that, on the record before it, a nation-wide injunction may prove “broader than necessary to provide full relief” to the States. McLendon, 908 F.2d at 1182. The States concede, for example, that there is no evidence that any citizen of the States physically commutes to New Mexico, so an injunction that covers the Land of Enchantment appears “broader than unnecessary.” Nor have the States presented evidence of a New Mexican that currently attends a Pennsylvania or New Jersey institute of higher learning, who may lose her contraceptive coverage through her out-of-state insurance. The same can be said for a host of other states.
Ultimately, crafting a remedy that provides “complete relief to the plaintiffs,” while being “no more burdensome to the defendant than necessary” would require empirical data—the
63

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working conditions of each and every citizen of the States—that is simply not ascertainable.32 In the absence of such information, the Court must exercise “discretion and judgment,” Trump, 137 S. Ct. at 2087, in balancing the competing risks and uncertainties associated with either a potentially under- or over-inclusive remedy, bearing in mind the maxim that “[w]e should not allow the infeasible perfect to oust the feasible good.” Resorts Int’l Hotel Casino v. NLRB, 996 F.2d 1553, 1558 (3d Cir. 1993) (internal quotation marks and alternations omitted).
On balance, the Court finds that, in this case, potential over-inclusiveness is the more prudent route. For one, anything short of a nation-wide injunction would likely fail to provide the States “complete relief.” Cf. Texas, 809 F.3d at 188 (“[T]here is a substantial likelihood that a geographically-limited injunction would be ineffective because DAPA beneficiaries would be free to move among states,” which would leave Texas open to potential injury); see also Siddique, Nationwide Injunctions, 117 Colum. L. Rev. at 2146-47 (“If one agrees with the district court that Texas suffers some injury from having deferred action beneficiaries within its territorial boundaries, the only way to afford complete relief to Texas and prevent any deferred action beneficiaries from making their way to Texas is by enjoining the grant of deferred action nationwide.”). While a nation-wide injunction may prove overbroad, there is no more geographically limited injunction that protects the States from potential harm.
Second, it is far from clear how burdensome a nation-wide injunction would be on Defendants, given that when “agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.” Nat’l Min. Ass’n, 145 F.3d at 1409.
32 This is neither an explicit or implicit critique of the parties. Rather, it is the frank observation that crafting a perfect remedy would require information that would be insurmountable to gather and maintain.
64

Case 2:17-cv-04540-WB Document 136 Filed 01/14/19 Page 65 of 65

Third, one of the risks associated with a nation-wide injunction—namely, “foreclosing adjudication by a number of different courts,” Califano, 442 U.S. at 701-02—is not necessarily present here, as the parallel litigation in the Ninth Circuit evidences. See also Spencer E. Amdur & David Hausman, Nationwide Injunctions and Nationwide Harm, 131 Harv. L. Rev. F. 49, 53 n.27 (2017) (noting that “in practice, nationwide injunctions do not always foreclose percolation,” and giving several recent examples).
Fundamentally, given the harm to the States should the Final Rules be enforced— numerous citizens losing contraceptive coverage, resulting in “significant, direct and proprietary harm” to the States in the form of increased use of state-funded contraceptive services, as well as increased costs associated with unintended pregnancies—a nation-wide injunction is required to ensure complete relief to the States.
An appropriate order follows.

January 14, 2019

BY THE COURT:

/s/Wendy Beetlestone, J.
_______________________________ WENDY BEETLESTONE, J.

65

 
 Case 2:17-cv-04540-WB Document 232 Filed 07/31/19 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA AND STATE OF NEW JERSEY,

CIVIL ACTION

Plaintiffs,
v.

NO. 17-4540

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ALEX M. AZAR II, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, STEVEN T. MNUCHIN, UNITED STATES DEPARTMENT OF THE TREASURY, PATRICK PIZZELLA, THE UNITED STATES DEPARTMENT OF LABOR, AND THE UNITED STATES OF AMERICA,

Defendants,

LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME,

Defendant-Intervenor.

ORDER AND NOW, this 30th day of July, 2019, WHEREAS on October 6, 2017, Defendants promulgated two Interim Final Rules, referred to as the Religious Exemption IFR, see Religious Exemptions and Accommodations for Coverage ofCertain Preventive Services Under the Affordable Care Act, 82 Fed. Reg. 47,792
I
(Oct. 13, 2017), and the Moral Exemption IFR, see Moral Exemptions and Accommodations for Coverage ofCertain Preventive Services Under the Affordable Care Act, 82 Fed. Reg. 47,838 (Oct. 13, 12.017) ("Moral Exemption IFR") (collectively, "the IFRs");

Case 2:17-cv-04540-WB Document 232 Filed 07/31/19 Page 2 of 5
WHEREAS on October, 11, 2017, the Commonwealth of Pennsylvania initiated this suit seeking to enjoin enforcement of the IFRs, arguing the IFRs: (1) failed to comply with the notice-and-comment procedures required by the Administrative Procedure Act ("APA"), 5 U.S.C. § 551, et seq.; (2) were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" in violation of the substantive provisions of the APA, 5 U.S.C. § 706(2)(A); (3) violated Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2, et seq.; (4) violated the Equal Protection Guarantee of the Fifth Amendment, U.S. Const. amend. V; and, (5) violated the Establishment Clause, U.S. Const. amend. I;
WHEREAS on December 15, 2017, this Court granted the motion for a preliminary injunction, finding the Commonwealth was likely to succeed on its claims that the IFRs violated both the procedural and substantive strictures of the APA; it did not, however, reach the merits of the other statutory or constitutional claims, see Pennsylvania v. Trump, 281 F. Supp.3d 553 (E.D. Pa. 201 7) (hereinafter "Trump I");
WHEREAS on November 15, 2018, while their appeal of the preliminary injunction was pending before the Third Circuit, the Agencies promulgated two new rules that "finalize[d]" the IFRs, see Religious Exemptions and Accommodations for Coverage ofCertain Preventive Services Under the Affordable Care Act, 83 Fed. Reg. 57,536 (Nov. 15, 2018) ("Final Religious Exemption"); Moral Exemptions and Accommodations for Coverage ofCertain Preventive Services Under the Affordable Care Act, 83 Fed. Reg. 57,592 (Nov. 15, 2018) ("Final Moral Exemption") (collectively "the Final Rules");
WHEREAS on December 14, 2019, the Commonwealth-now joined by New Jersey (collectively "the States")-filed an Amended Complaint and a Second Motion for a Preliminary Injunctiop, seeking to enjoin enforcement of the Final Rules, arguing the Final Rules: (1) failed
2

Case 2:17-cv-04540-WB Document 232 Filed 07/31/19 Page 3 of 5
to comply with the notice-and-comment procedures required by the APA; (2) were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" in violation of the substantive provisions of the APA; (3) violated Title VII of the Civil Rights Act; (4) violated the Equal Protection Guarantee of the Fifth Amendment; and, (5) violated the Establishment Clause;
WHEREAS on January 14, 2019, this Court granted the second motion for a nationwide preliminary injunction, finding the States were likely to succeed on their claims that the Final Rules violated both the procedural and substantive strictures of the APA; again, however, the Court did not reach the merits of the other statutory or constitutional claims, see Pennsylvania v. Trump, 351 F. Supp.3d 791 (E.D. Pa. 2017) (hereinafter "Trump 11");
WHEREAS on March 28, 2019, Defendants filed a Motion to Dismiss the Amended Complaint (ECF No. 157), and, on March 29, 2019, Defendant-Intervenor filed a Motion to Dismiss the Amended Complaint (ECF No. 159);
WHEREAS on May 15, 2019, the States filed a Motion for Summary Judgment (ECF No. 170), asking the Court to vacate the Final Rules on the grounds that they: (1) failed to comply with the notice-and-comment procedures required by the APA; (2) were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" in violation of the substantive provisions of the APA; (3) violated Title VII of the Civil Rights Act; (4) violated the Equal Protection Guarantee of the Fifth Amendment; and, (5) violated the Establishment Clause;
WHEREAS on June 14, 2019, Defendants and Defendant-Intervenor filed cross-motions for summary judgment (ECF Nos. 205 & 206);
WHEREAS on July 12, 2019, the Third Circuit issued an opinion affirming the nationwide injunction issued by the Court in Trump II on the grounds that the States were likely to succeed on their claims that the Final Rules violated both the procedural and substantive
3

Case 2:17-cv-04540-WB Document 232 Filed 07/31/19 Page 4 of 5
requirements of the APA, see Pennsylvania v. President United States, 2019 WL 3057657 (3d Cir. July 12, 2019) (hereinafter "Trump III");
WHEREAS on July 23, 2019, the Court held a conference call with the parties regarding case management in light of the Third Circuit's decision in Trump III, during which Defendants and Defendant-Intervenor represented that they intend to seek further appellate review of the Third Circuit's decision;
WHEREAS on July 25, 2019, the parties submitted letters to the Court regarding case management, in which:
I• Defendants sought entry of final judgment as to the procedural and substantive
APA claims pursuant to Fed. R. Civ. P. 54, and dismissal of the remaining
statutory and constitutional claims as moot; or, in the alternative a stay of further proceedings (ECF No. 230); • The States sought resolution of all outstanding statutory and constitutional claims, as well as alternative arguments made in support of the procedural and substantive APA claims, which were not explicitly addressed in Trump II or Trump III (ECF No. 231); WHEREAS enforcement of the Final Rules has been enjoined nationwide for violations of the procedural and substantive requirements of the APA, rendering it unnecessary to reach the States' alternative claims and arguments at this juncture; WHEREAS further appellate review may impact the posture and resolution of the outstanding claims and issues raised by the parties in the pending motions to dismiss and motions for summary judgment, making resolution of those motions at present an inefficient use ofjudicial resources, see Dietz v. Bouldin, 136 S. Ct. 1885, 1892 (2016) ("[D]istrict courts have the inherent authority to manage their dockets and courtrooms with a view toward the efficient and expedient resolution of cases."); see also Smith v. Manasquan Bank, 2018 WL 2958664, at
4

Case 2:17-cv-04540-WB Document 232 Filed 07/31/19 Page 5 of 5 *1 (D.N.J. June 13, 2018) ("The power to stay a proceeding pending appeal is derived from the inherent power of a court to efficiently manage its own docket.");
IT IS HEREBY ORDERED that further proceedings in this matter are STAYED, and the parties' pending motions to dismiss and motions for summary judgment (ECF Nos. 157, 159, 205, 206) are HELD IN ABEYANCE, pending resolution of any appeal of the Third Circuit's decision in Trump III by Defendants and Defendant-Intervenor. The stay does not affect the nationwide injunction issued in Trump II, and affirmed in Trump III, which remains in effect.
IT IS FURTHER ORDERED that the parties shall submit a joint status report to the Court on OCTOBER 25, 2019, and every NINETY DAYS thereafter.
WENDY BEETLESTONE, J.
·£NT'D JUL 31 2019
5

 
 Pennsylvania v. President United States, 930 F.3d 543 (2019)

930 F.3d 543 United States Court of Appeals, Third Circuit.
Commonwealth of PENNSYLVANIA; State of New Jersey v.
PRESIDENT UNITED STATES of America; Secretary United States Department of Health and
Human Services; United States Department of Health and Human Services; Secretary United States Department of Treasury; United States Department of Treasury; Secretary United States Department of Labor; United States Department
of Labor; United States of America Little Sisters of the Poor Saints Peter and Paul Home (Intervenor in D.C.), Appellant in 17-3752,
19-1129 President United States of America, Secretary
United States of Department of Health and Human Services, United States Department of Health and Human Services, Secretary United States Department of Treasury, United States Department of Treasury, Secretary United States Department of Labor, United States Department of Labor, Appellants in 18-1253, 19-1189 (Except
President United States of America)
Nos. 17-3752, 18-1253, 19-1129, 19-1189 |
Argued May 21, 2019 |
(Filed July 12, 2019) |
As Amended July 18, 2019
Synopsis Background: Commonwealth of Pennsylvania brought action against the President, the Secretaries of Health and Human Services, the Treasury, and Labor, in their official capacities, and the Secretaries’ associated agencies, challenging the agencies’ issuance of new interim final rules (IFR) allowing employers to opt out of providing no-cost contraceptive coverage under the Patient Protection and Affordable Care Act (ACA) on basis of sincerely held religious beliefs or moral convictions. The United States District Court for the Eastern District of Pennsylvania, Wendy Beetlestone, J., 281 F.Supp.3d 553, granted Commonwealth’s motion for preliminary
1

injunctive relief. While defendants’ appeal from that decision was pending, the agency defendants promulgated two Final Rules that “finalized” the IFRs. Commonwealth, joined by State of New Jersey, filed amended complaint seeking declaratory and injunctive relief against the Final Rules. The District Court, 351 F.Supp.3d 791, granted the requested preliminary injunction. Government appealed.
Holdings: The Court of Appeals, Shwartz, Circuit Judge, held that:
States had standing to challenge issuance of rules;
provisions in Health Insurance Portability and Accountability Act of 1996 (HIPAA) did not eliminate need for notice and comment rulemaking;
agencies lacked good cause for dispensing with notice-and-comment rulemaking;
States demonstrated likelihood of success in showing that the final rules were procedurally defective;
Final Rules were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; and
balance of the equities and the public interest both favored issuing preliminary injunction.
Affirmed.
Procedural Posture(s): On Appeal; Review of Administrative Decision.
West Codenotes
Validity Called into Doubt 45 C.F.R. §§ 147.131, 147.132, 147.133 *553 ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (E.D. Pa. No. 2:17-cv-04540), District Judge: Hon. Wendy Beetlestone
Attorneys and Law Firms
Michael J. Fischer [ARGUED], Aimee D. Thomson, Office of Attorney General of Pennsylvania, 1600 Arch Street, Suite 300, Philadelphia, PA 19103, Glenn J.

Pennsylvania v. President United States, 930 F.3d 543 (2019)

Moramarco, Office of Attorney General of New Jersey, Department of Law & Public Safety, Division of Law, Richard J. Hughes Justice Complex, 25 Market Street, P.O. Box 112, Trenton, NJ 08625, Counsel for Appellees Commonwealth of Pennsylvania and State of New Jersey
Lowell V. Sturgill, Jr., United States Department of Justice, Civil Division, 950 Pennsylvania Avenue, N.W., Room 7241, Washington, DC 20530, Hashim M. Moopan [ARGUED], United States Department of Justice, Civil Division, Appellate Staff, 950 Pennsylvania Avenue, N.W., Washington, DC 20530, Karen Schoen, United States Department of Justice, Civil Division, Appellate Section, 950 Pennsylvania Avenue, N.W. Room 7533, Washington, DC 20530, Counsel for Appellants President United States of America, Secretary United States Department of Health & Human Services, United States Department of Health & Human Services, United States Department of Treasury, Secretary United States Department of Treasury, United States Department of Labor, Secretary United States Department of Labor, and United States of America
Mark L. Rienzi [ARGUED], Lori H. Windham, Becket Fund for Religious Liberty, 1200 New Hampshire Avenue, N.W., Suite 700, Washington, DC 20036, Nicholas M. Centrella, Conrad O’Brien, 1500 Market Street, West Tower, Suite 3900, Philadelphia, PA 19102, Counsel for Appellee-Intervenor Little Sisters of the Poor Saints Peter and Paul Home
Jason R. LaFond, Office of Attorney General of Texas, 209 West 14th Street, 7th Floor, Austin, TX 78711, Counsel for Amici Curiae in Support of Appellants States of Texas, Alabama, Arkansas, Georgia, Idaho, Louisiana, Missouri, Nebraska, Oklahoma, South Carolina, and West Virginia
Elizabeth N. Dewar, Office of Attorney General of Massachusetts, 20th Floor, One Ashburton Place, McCormack Building, Boston, MA 02108, Counsel for Amici Curiae States of Massachusetts, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Michigan, Minnesota, Nevada, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington and the District of Columbia
Dariely Rodriguez, Lawyers’ Committee for Civil Rights Under Law, 1500 K Street, N.W., Suite 900, Washington, DC 20005, Counsel for Amici Curiae Center for Reproductive Rights, Lawyers Committee for Civil Rights Under Law, California Womens Law Center,
2

GLBTQ Legal Advocates and Defenders, LatinoJustice PRLDEF, Lawyers for Civil Rights, Legal Momentum, Legal Voice, Mississippi Center for Justice, National Center for Lesbian Rights, and Women’s Law Project
Sara J. Rose, American Civil Liberties Union, 313 Atwood Street, Pittsburgh, PA 15213, Counsel for Amici Curiae American Civil Liberties Union, Anti Defamation League, Leadership Conference on Civil and Human Rights, and National Urban League
Thomas W. Hazlett, Stephen J. Kastenberg, Ballard Spahr, 1735 Market Street, 51st Floor, Philadelphia, PA 19103, Counsel for Amici Curiae Public Interest Law Center of Philadelphia, Washington Lawyers Committee for Civil Rights and Urban Affairs, Chicago Lawyers Committee for Civil Rights, Lawyers Committee for Civil Rights of the San Francisco Bay Area, and Public Counsel
Jeffrey Blumenfeld, Lowenstein Sandler, 2200 Pennsylvania Avenue, N.W., Suite 5, Washington, DC 20037, Counsel for Amici Curiae National Womens Law Center, National Latina Institute for Reproductive Health, Sisterlove Inc., and National Asian Pacific American Women Forum
Robert Dunn, Gibson Dunn & Crutcher, 1881 Page Mill Road, Palo Alto, CA 94304, Counsel for Amicus Curiae Religious Sisters of Mercy
Miles Coleman, Nelson Mullins Riley & Scarborough, 104 South Main Street, Suite 900, Greenville, SC 29601, Counsel for Amici Curiae Ronald J. Colombo, Richard Epstein, Carl H. Esbeck, David F. Forte, Richard W. Garnett, Esq., Professor Robert P. George, Mary Ann Glendon, Michael P. Moreland, Stacy Scaldo, and Michael Uhlmann
Bruce H. Schneider, Stroock Stroock & Lavan, 180 Maiden Lane, 38th Floor, New York, NY 10038, Counsel for Amici Curiae American Nurses Association, American College of Obstetricians and Gynecologists, American Academy of Nursing, American Academy of Pediatrics, and Physicians for Reproductive Choice and Health
Allan J. Arffa, Melina M. Meneguin-Layerenza, Sierra Robart, Paul Weiss Rifkind Wharton & Garrison, 1285 Avenue of the Americas, New York, NY 10019, Counsel for Amici Curiae Planned Parenthood Federation of America, National Health Law Program, and National Family Planning & Reproductive Health Association

Pennsylvania v. President United States, 930 F.3d 543 (2019)

Priscilla J. Smith, Yale Law School RRJP Clinic, 319 Sterling Place, Brooklyn, NY 11328, Counsel for Amicus Curiae Program for the Study of Reproductive Justice
Leah Bruno, Dentons US, 233 South Wacker Drive, Suite 5900, Chicago, IL 60606, Jeffrey S. Feldman, The Feldman Firm, 600 West Germantown Pike, Suite 400, Plymouth Meeting, PA 19462, Counsel for Amici Curiae United States Women’s Chamber of Commerce and National Association for Female Executives
Joshua A. Matz, Kaplan Hecker & Fink, 350 Fifth Avenue, Suite 7110, New York, NY 10118, Counsel for Amicus Curiae Church State Scholars
Rhiannon N. Batchelder, Jamie A. Levitt, Morrison & Foerster, 250 West 55th Street, New York, NY 10019, Counsel for Amici Curiae American Association of University Women and Service Employees International Union
Richard B. Katskee, Americans United for Separation of Church & State, 1310 L Street, N.W., Suite 200, Washington, DC 20005, Counsel for Amicus Curiae Americans United for Separation of Church and State
Before: McKEE, SHWARTZ, and FUENTES, Circuit Judges.
OPINION OF THE COURT
SHWARTZ, Circuit Judge.
*555 The Women’s Health Amendment to the Affordable Care Act (“ACA”) mandated that women’s health insurance include coverage for preventive health care. Through the Amendment, Congress directed the Health Resources and Services Administration (“HRSA”), a component of the Department of Health and Human Services (“HHS”), to issue guidelines setting forth the preventive health care services that women should be provided. Among the services HRSA identified was contraceptive care. Nowhere in the enabling statute did Congress grant the agency the authority to exempt entities from providing insurance coverage for such services nor
3

did Congress allow federal agencies to issue regulations concerning this coverage without complying with the Administrative Procedure Act.
*556 Notwithstanding Congress’s directives, in 2017, HHS and the Departments of Labor and Treasury (collectively, “the Agencies”) promulgated regulations that expanded the entities that could invoke an exemption to the requirement that group health insurance plans cover contraceptive services as a form of women’s preventive health care. Because the state plaintiffs are likely to succeed in proving that the Agencies did not follow the APA and that the regulations are not authorized under the ACA or required by the Religious Freedom Restoration Act (“RFRA”), we will affirm the District Court’s order preliminarily enjoining the rules’ enforcement nationwide.
I
A
Enacted as a part of the ACA, Pub. L. No. 111-148, 124 Stat. 119 (2010), the Women’s Health Amendment mandates that “[a] group health plan1 and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for ... preventive care and screenings [for women] ... as provided for in comprehensive guidelines supported by the [HRSA].”2 42 U.S.C. § 300gg-13(a), (a)(4). HRSA commissioned an expert panel from the Institute of Medicine to recommend covered services. In 2011, HRSA adopted the Institute’s recommendations and issued guidelines defining preventive care to include all “Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity,” “as prescribed” by a woman’s health care provider. HRSA, Women’s Preventive Services Guidelines, https://www.hrsa.gov/womens-guidelines/index.html (last visited May 8, 2019). This statutory and regulatory scheme was deemed the “Contraceptive Mandate.”

Pennsylvania v. President United States, 930 F.3d 543 (2019)

Several regulations and litigation followed.
1
The same day that the Guidelines were issued, the Agencies promulgated an interim final rule (“IFR”), followed by a final rule in 2013, to exempt certain religious employers—namely, churches and similar entities—from the Contraceptive Mandate. Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection Affordable Care Act, 77 Fed. Reg. 8,725 (Feb. 15, 2012) (the “Church Exemption”); Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46,621 (Aug. 3, 2011).3 As the Agencies *557 later explained, the “exemption for churches and houses of worship is consistent with their special status under longstanding tradition in our society and under federal law.” Coverage of Certain Preventive Services Under the Affordable Care Act, 80 Fed. Reg. 41,318, 41,325 (July 14, 2015).
The 2013 final rule also separately provided that a nonprofit religious employer who “(1) [o]pposes providing coverage for some or all of the contraceptive services required to be covered ... on account of religious objections; (2) is organized and operates as a nonprofit entity; (3) holds itself out as a religious organization; and (4) self-certifies that it satisfies the first three criteria,” 78 Fed. Reg. at 39,874, is entitled to an accommodation to avoid “contracting, arranging, paying, or referring for contraceptive coverage,” id. at 39,875. This accommodation process (the “Accommodation”) permits an employer to send a self-certification form to its insurance issuer, which then excludes contraceptive coverage, either in full or in part, from the group health plan and in turn “provide[s] payments for contraceptive services for plan participants and beneficiaries, separate from the group health plan, without the imposition of cost sharing, premium, fee, or other charge on plan participants or beneficiaries or on the eligible organization or its plan.” Id. at 39,876. A third party administrator (“TPA”) may also be used as a claims or plan administrator “solely for the purpose of providing payments for contraceptive services for participants and beneficiaries in a self-insured plan of an eligible
4

organization at no cost to plan participants or beneficiaries or to the eligible organization.” Id. at 39,879. By invoking the Accommodation, the employer was no longer responsible for providing coverage for contraceptive care.
2
Various legal challenges followed. First, in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014), the Supreme Court held that the Accommodation must be extended to closely-held for-profit corporations with sincere religious objections to the provision of contraceptive coverage so that their religious beliefs were not substantially burdened under RFRA, 42 U.S.C. § 2000bb-1. Id. at 724-26, 134 S.Ct. 2751. The Court observed that use of the Accommodation process was a less restrictive means to ensure access to cost-free contraceptives. Id. at 730-31, 134 S.Ct. 2751. Days later, in Wheaton College v. Burwell, 573 U.S. 958, 134 S.Ct. 2806, 189 L.Ed.2d 856 (2014), the Court concluded that Wheaton College, who also lodged a religious objection to providing insurance for services covered by the Contraceptive Mandate, did not have to use the Accommodation self-certification form, known as the ESBA Form 700, but could instead rely on its notification to HHS to satisfy the Accommodation’s prerequisites. Id. at 959, 134 S.Ct. 2806.
To ensure compliance with these rulings, the Agencies promulgated another IFR and final rule.4 *558 Coverage of Certain Preventive Services Under the Affordable Care Act, 80 Fed. Reg. 41,318 (July 14, 2015). The rule “extend[ed] the [A]ccommodation to a for-profit entity that is not publicly traded, is majority-owned by a relatively small number of individuals, and objects to providing contraceptive coverage based on its owners’ religious beliefs.” Id. at 41,324. The rule also “allow[ed] eligible organizations to choose between using [the] ESBA Form 700 or the alternative process [of notifying HHS in writing of a religious objection to covering contraceptive services] consistent with the Wheaton interim order.” Id. at 41,323.
In Zubik v. Burwell, ––– U.S. ––––, 136 S. Ct. 1557, 194 L.Ed.2d 696 (2016) (per curiam), the Supreme Court addressed the petitioners’ assertions that “submitting [the

Pennsylvania v. President United States, 930 F.3d 543 (2019)

Accommodation] notice substantially burden[ed] the exercise of their religion, in violation of [RFRA].” Id. at 1559. The Court did not reach the merits of this claim but rather remanded to afford the parties “an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans receive full ... contraceptive coverage.” Id. at 1560 (internal quotation marks and citation omitted).
In response to the Court’s direction in Zubik, the Agencies solicited comments regarding the current procedure and possible alternatives to the Accommodation. Coverage for Contraceptive Services, 81 Fed. Reg. 47,741 (July 22, 2016). The Agencies reviewed the comments and found that “no feasible approach has been identified at this time that would resolve the concerns of religious objectors while still ensuring that the affected women receive full and equal health coverage, including contraceptive coverage.” Dep’t of Labor, FAQs About Affordable Care Act Implementation Part 36, at 4 (Jan. 9, 2017), available at https://www.dol.gov/sites/default/files/ebsa/about-ebsa/ou r-activities/resource-center/faqs/aca-part-36.pdf. As a result, the Accommodation remained unchanged.
3
In May 2017, President Donald Trump issued an executive order directing the Agencies to “consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under [42 U.S.C. § 300gg-13(a)(4)].” Exec. Order No. 13,798 § 3, 82 Fed. Reg. 21,675 (May 9, 2017). In response, and without issuing a notice of proposed rulemaking or soliciting public comment, the Agencies issued two new IFRs: the Religious IFR and the Moral IFR. These IFRs expanded the existing exemption and Accommodation framework, made the Accommodation process voluntary, and offered similar protections to organizations with moral objections to contraceptives. See Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 82 Fed. Reg. 47,792 (Oct. 13, 2017); Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 82 Fed. Reg.
5

47,838 (Oct. 13, 2017). This litigation followed.
B
1
The Commonwealth of Pennsylvania filed suit against various governmental entities5 and sought to enjoin the enforcement of the IFRs. Little Sisters of the Poor Saints Peter and Paul Home (“Little *559 Sisters”) intervened.6 The District Court granted Pennsylvania’s request to preliminarily enjoin the IFRs. See generally Pennsylvania v. Trump, 281 F. Supp. 3d 553 (E.D. Pa. 2017). The Court held that Pennsylvania was likely to succeed on its procedural and substantive challenges under the APA. Id. at 576, 581. The Government appealed, and the District Court granted a stay pending appeal.
While the appeal of the order preliminarily enjoining the IFRs was pending, the Agencies promulgated two Final Rules, which are virtually identical to the Religious and Moral IFRs. See Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 83 Fed. Reg. 57,536 (Nov. 15, 2018); 45 C.F.R. § 147.132 (“Religious Rule” or “Religious Exemption”); Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 83 Fed. Reg. 57,592 (Nov. 15, 2018); 45 C.F.R. § 147.133 (“Moral Rule” or “Moral Exemption”) (collectively, “the Rules” or “the Exemptions”). Like the Religious IFR, the Final Rule creating the Religious Exemption expanded the categories of employers who are permitted to invoke the exemption from the Contraceptive Mandate to include all nonprofit, for-profit, and publicly-held companies. The Religious Exemption also made participation in the Accommodation process completely voluntarily, relieving employers from the need to “file notices or certifications of their exemption.”7 83 Fed. Reg. at 57,558; see also id. at 57,537, 57,562. The Final Rule creating the Moral Exemption offered the same exemption and voluntary accommodation process to nonprofit organizations and non-publicly traded organizations “with sincerely held moral convictions opposed to coverage of some or all

Pennsylvania v. President United States, 930 F.3d 543 (2019)

contraceptive or sterilization methods.” Id. at 57,593.
At Pennsylvania’s request, the District Court lifted the stay, and Pennsylvania filed an amended complaint, joined New *560 Jersey as a plaintiff,8 added challenges to the Final Rules and moved to enjoin them.9
2
The District Court held hearings and received evidence regarding the Rules. Specifically, the States submitted evidence from health care professionals and state insurance regulators about the Rules’ impact. The evidence addressed the relationship between costs and contraceptive use and the impact the Rules would have on state-funded healthcare services.
Cost is a significant barrier to contraceptive use and access. The most effective forms of contraceptives are the most expensive. After the ACA removed cost barriers, women switched to the more effective and expensive methods of contraception.10 Because the Rules allow employers to opt out of providing coverage for contraceptive services, some women may no longer have insurance to help offset the cost for these and other contraceptives.
Pennsylvania and New Jersey have state-funded programs that provide family planning and contraceptive services for eligible individuals. For example, Pennsylvania Medicaid and New Jersey’s FamilyCare11 cover all health care for childless adults, pregnant women, and parents with incomes up to 138% and up to 215% of the federal poverty level, respectively. Pennsylvania’s Family Planning Services Program also covers all family planning-related services, including contraceptives, for individuals with incomes up to 215% of the federal poverty level even if they have private insurance, and New Jersey’s Plan First program offers the same for individuals with incomes up to 205% of the federal poverty level.
Women who lack contraceptive coverage and who meet certain income levels may also turn to Title X family planning clinics which “provide access to contraceptive services, supplies, and information to all who want and need them” with priority to low-income persons. Office of
6

Population Affairs, Funding History, HHS, https://www.hhs.gov/opa/title-xfamily-planning/about-titl e-x-grants/funding-history/index.html (last visited May 12, 2019). State and federal governments fund Title X clinics, but recently, federal funding has decreased.
The States expect that when women lose contraceptive insurance coverage from their employers, they will seek out these state-funded programs and services. The States further assert that women who do not seek or qualify for state-funded contraceptives may have unintended pregnancies. Public funds are used to cover the costs of many unintended pregnancies.12 Accordingly, *561 the States expect to spend more money due to the Rules.
In addition to this evidence, the Agencies presented spread sheets that listed the organizations and companies that were previously involved in ACA Contraceptive Mandate litigation. The Agencies offered this evidence to demonstrate the likely universe of employers whom they contend may seek to invoke the Rules and opt out of covering contraceptive care.
3
The day the Final Rules were set to go into effect, January 14, 2019, the District Court issued a nationwide injunction enjoining their enforcement. Pennsylvania v. Trump, 351 F. Supp. 3d 791 (E.D. Pa. 2019). The Court found that the States had standing to challenge the Final Rules and established a likelihood of success on the merits of their APA claims. First, the Court held that the States are likely to succeed on their procedural APA claims because the Agencies failed to comply with the notice-and-comment requirement and this defect tainted the Final Rules. Id. at 813. Second, the Court held that the States were likely to succeed on their substantive APA challenges because neither the ACA nor RFRA authorized the Agencies to create exemptions. Specifically, the unambiguous language of the ACA’s Women’s Health Amendment only authorized the Agencies to decide what services would be covered, not who provides them, id. at 821, and RFRA did not require or authorize such broad exemptions, particularly given RFRA’s remedial function that places the responsibility for adjudicating religious burdens on the courts, not the Agencies, id. at 822-23. The Court concluded that the

Pennsylvania v. President United States, 930 F.3d 543 (2019)

balance of equities and public interest favored an injunction, id. at 829-30, and that a nationwide injunction was appropriate to ensure complete relief for the States, id. at 834-35. The Government appeals.

reasonable likelihood” standard to assess injury).

II13
We first address whether the States have standing.14 Article III limits the scope of federal judicial review to “cases” or “controversies.” U.S. Const. art. III § 2. A fundamental safeguard of this limitation is the doctrine of standing. Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). Put simply, only parties with standing “can invoke the jurisdiction of the federal courts.” Constitution Party of Pa. v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014). To have standing to sue, “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, 136 S. Ct. at 1547 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). We will examine each element in turn.
A
To establish injury in fact, the alleged injury must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Id. at 1548 (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130). An injury is concrete if it “actually exist[s]” and is not abstract. Id. “For an *562 injury to be particularized, it must affect the plaintiff in a personal and individualized way.” Id. (internal quotation marks and citations omitted). Plaintiffs need not “demonstrate that it is literally certain that the harms they identify will come about.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 n.5, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013). Instead, “[a]n allegation of future injury may suffice if ... there is a substantial risk that the harm will occur.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) (internal quotation marks and citation omitted); see also Clapper, 568 U.S. at 410, 133 S.Ct. 1138 (rejecting lower court’s use of an “objectively
7

1
The States have established that they will suffer a concrete and particularized injury. The States describe that (1) employers will take advantage of the exemptions and women covered by their plans will lose contraceptive coverage; and (2) financially- eligible women will turn to state-funded services for their contraceptive needs and for the unintended pregnancies that may result from the loss of coverage. As a result, the States will suffer a concrete financial injury from the increased use of state-funded services. See Cottrell v. Alcon Labs., 874 F.3d 154, 163 (3d Cir. 2017) (“Typically, a plaintiff’s allegations of financial harm will easily satisfy each of these components, as financial harm is a classic and paradigmatic form[ ] of injury in fact.” (alteration in original) (internal quotation marks and citations omitted)). The States will suffer this injury in a particularized manner, as each State’s coffers will be depleted by the expenditure of funds to meet the increased demand for state services. Having concluded that the States have identified a concrete and particular injury, we next examine whether the injury at issue is not conjectural and is actual or imminent.
The record shows that the injury the States expect to sustain is not conjectural. First, the Agencies’ regulatory impact analysis acknowledges that between 70,500 and 126,400 women nationwide will lose contraceptive coverage as a result of their employers’ invocation of the Religious Exemption, 83 Fed. Reg. at 57,578, 57,581, and fifteen women will lose coverage as a result of their employers’ use of the Moral Exemption, 83 Fed. Reg. at 57,627. See California v. Azar (“California II”), 911 F.3d 558, 572 (9th Cir. 2018) (noting that the Agencies’ own regulatory impact analysis estimates loss of coverage, and therefore “it is reasonably probable that women in the plaintiff states will lose some or all employer-sponsored contraceptive coverage due to the IFRs”), cert. denied Little Sisters of the Poor v. California, No. 18-1192, ––– U.S. ––––, 139 S.Ct. 2716, ––– L.Ed.2d ––––, 2019 WL 1207008 (June 17, 2019) (Mem.). Second, based on the Agencies’ list of entities who challenged the Contraceptive Mandate, eight employers, not including Little Sisters, between New Jersey and Pennsylvania

Pennsylvania v. President United States, 930 F.3d 543 (2019)

would likely take advantage of the Exemptions. Massachusetts v. U.S. Dep’t of Health & Human Servs., 923 F.3d 209, 224 (1st Cir. 2019) (relying on spreadsheet of litigating entities to find “it is highly likely that at least three employers in the Commonwealth with self-insured health plans ... will use the expanded exemptions”). Accordingly, it is not conjecture to conclude that employers in Pennsylvania and New Jersey will take advantage of the Exemptions and, as a result, women will lose coverage. Id. at 224 n.12 (stating that “it is improbable based on the evidence that no women in the [States] would lose contraceptive coverage” (emphasis omitted)).
*563 2
The record also supports the District Court’s conclusion that the injury is imminent. The States have provided evidence showing that the Exemption will result in the expenditure of state funds because some women who lose coverage will inevitably seek out state-sponsored programs providing contraceptive services; and some women will forego contraceptive use, causing the States to shoulder the costs of unintended pregnancies.
With the ACA, many patients “switch[ed] from a cheaper, less effective [contraceptive] method to a more effective, expensive method that was better for their medical health and personal needs.” App. 272. Contraceptives are not only used for pregnancy prevention. They are the “standard first-line of care for a number of hormonal, and other, disorders, including poly-cystic ovarian syndrome, primary ovarian insufficiency/premature ovarian failure, amenorrhea, dysmenorrhea/chronic pelvic pain, and abnormal uterine bleeding.” App. 292. A “vast majority” of women use inter-uterine devices (“IUDs”)—a treatment religious objectors are particularly focused on, App. 350-83—“for purposes other than birth control.” App. 293 (describing 90-95% of patients using IUDs for non-birth control purposes). Contraceptive use “carries long-term health benefits for women[,]” including reducing the risk of ovarian and uterine cancer. App. 294. “Contraception also helps protect the health of those women for whom pregnancy can be hazardous, or even life-threatening.” Amici Curiae Health Prof’l Orgs. Br. at 16. Thus, removing cost free contraceptive coverage can have ramifications on women’s health beyond birth
8

control and unplanned pregnancies.
Without insurance to defray or eliminate the cost for the more-effective contraceptive methods, women will use “less expensive and less effective methods,” App. 245, and both Pennsylvania and New Jersey “anticipate[ ] that women who lose contraceptive coverage through employer plans—whether the plan of their own employer or that of another family member—may seek contraception from other sources, including state-funded programs.”15 App. 299; App. 317. Thus, the State-funded programs will be tapped to provide coverage for financially eligible women whose employers invoke the Exemptions.
Furthermore, some women who lose contraceptive coverage may either fail to qualify for state services or elect to forego the use of contraceptives altogether. “Women who stop using contraception are more likely to have unplanned pregnancies and to require additional medical attention.” App. 312. The costs of such unintended pregnancies are often shouldered by states, costing hundreds of millions of dollars. Therefore, the evidence supports the conclusion that the loss of contraceptive coverage may also result in unintended pregnancies for which the States will bear associated health care costs.
For these reasons, “[t]he expanded exemptions are expected to result in greater financial expenditures” by the States on contraceptive services. App. 318. This anticipated substantial impact on state finances presents an imminent injury. Thus, the District Court properly found that the States showed an imminent injury in fact.
*564 The Government faults the States for failing to identify a specific woman who will be affected by the Final Rules, but the States need not define injury with such a demanding level of particularity to establish standing. Massachusetts v. EPA, 549 U.S. 497, 523 n.21, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007); see Massachusetts, 923 F.3d at 225; California II, 911 F.3d at 572. The likelihood that employers will invoke the Exemptions and leave women without contraceptive coverage, and that women will turn to the States for coverage, is sufficient to demonstrate imminent injury. This likelihood “has nothing to do with whether petitioners have determined [a] precise” woman who will seek such funding. Massachusetts, 549 U.S. at 523 n.21, 127 S.Ct. 1438.16

Pennsylvania v. President United States, 930 F.3d 543 (2019)

B
The States’ imminent injury is causally connected and fairly traceable to the Exemptions. The States will suffer financial injury when employers in Pennsylvania and New Jersey take advantage of the Exemptions, leaving female employees without contraceptive coverage and prompting financially eligible women to turn to state-funded services. See Texas v. United States, 809 F.3d 134, 159 (5th Cir. 2015) (“For Texas to incur injury, DAPA beneficiaries would have to apply for driver’s licenses as a consequence of DHS’s action, and it is apparent that many would do so.”), aff’d by an equally divided court, United States v. Texas, ––– U.S. ––––, 136 S. Ct. 2271, 195 L.Ed.2d 638 (2016) (Mem.) (per curiam). In other words, the States will not experience an increased demand for services and the resulting financial burden unless the new Exemptions, which create a void in contraceptive coverage, go into effect. See id. at 160 (“Far from playing an insignificant role, DAPA would be the primary cause and likely the only one. Without the program, there would be little risk of a dramatic increase in the costs of the driver’s-license program.”). Thus, there is a link between the Exemptions and the impact on the States’ fiscs.
C
The District Court also correctly concluded that an injunction would redress the financial injury the States face from the Rules. Enjoining the Final Rules until their legality is adjudicated on the merits will avoid the imminent financial burden the States face if they are not enjoined. Massachusetts, 923 F.3d at 228 (“[A]n injunction preventing the application of these exemptions would stop the alleged fiscal injury from occurring, making it not only ‘likely,’ Spokeo, 136 S. Ct. at 1547, but certain that this injury would not occur for as long as the exemptions are enjoined.”); see Massachusetts, 549 U.S. at 526, 127 S.Ct. 1438 (“The risk of catastrophic harm, though remote, is nevertheless real. That *565 risk would be reduced to some extent if petitioners received the relief they seek.”).
9

For these reasons, the States have standing to bring this suit.17
III
Having determined that the States have standing, we now address whether they are entitled to a preliminary injunction. The decision to grant or deny a preliminary injunction is within the sound discretion of the district court.18 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24, 33, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). To obtain a preliminary injunction, the movants must:
demonstrate (1) that they are reasonably likely to prevail eventually in the litigation and (2) that they are likely to suffer irreparable injury without relief. If these two threshold showings are made the District Court then considers, to the extent relevant, (3) whether an injunction would harm the [defendants] more than denying relief would harm the plaintiffs and (4) whether granting relief would serve the public interest.
K.A. ex rel. Ayers v. Pocono Mountain Sch. Dist., 710 F.3d 99, 105 (3d Cir. 2013) (alteration in original) (quoting Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144, 157 (3d Cir. 2002)); accord Fed. R. Civ. P. 65. To establish a likelihood of success, “a sufficient degree of success for a strong showing exists if there is ‘a reasonable chance, or probability, of winning.’ ” In re Revel AC, Inc., 802 F.3d 558, 568 (3d Cir. 2015) (quoting Singer Mgmt. Consultants, Inc. v. Milgram, 650 F.3d 223, 229 (3d Cir. 2011) (en banc)).
Here, we must decide whether the District Court correctly concluded that the States have a reasonable probability of showing that the Final Rules violate the APA, and if so, whether the equitable factors warrant a nationwide injunction.

Pennsylvania v. President United States, 930 F.3d 543 (2019)

A19
To promulgate binding regulations, agencies engage in what is known as notice-and-comment rulemaking. 5 U.S.C. § 553. This requires an agency to publish notice of the proposed rule in the Federal Register, collect and consider public comments, and issue a concise statement of purpose upon finalizing the new rule. Id. § 553(b)-(c). Deviation from these procedures is only permitted where expressly authorized by statute, id. § 559, or when the agency has “good cause” to dispense with them, id. § 553(b)(3)(B). The Agencies assert that both grounds justify their decision to forego notice-and-comment procedures here. They are mistaken.
1
The Government first argues that provisions within the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) grant the Agencies discretion *566 to proceed by IFR in lieu of notice-and-comment rulemaking. The provisions upon which the Government relies provide:
The Secretary, consistent with section 104 of [HIPAA], may promulgate such regulations as may be necessary or appropriate to carry out the provisions of this [subchapter]. The Secretary may promulgate any interim final rules as the Secretary determines are appropriate to carry out this [subchapter].
26 U.S.C. § 9833; 29 U.S.C. § 1191c; 42 U.S.C. § 300gg-92 [hereinafter “Regulation Provision”]. This language does not eliminate the need for notice and comment.
First, the APA only allows a subsequent statute to modify 10

or supersede its procedural requirements “to the extent [the statute] does so expressly.” 5 U.S.C. § 559. The Regulation Provision contains no express language supplanting APA procedures, and the sole reference to “interim final rules” does not confer a license to ignore APA requirements. Indeed, in contrast to statutory authorizations to forego APA procedures, the Regulation Provision is “permissive (‘The Secretary may promulgate any interim final rules as the Secretary determines are appropriate ...’), wide-ranging (applying to any regulatory proceeding relating to group health insurance plans), and do[es] not contain any specific deadlines for agency action.” Coal. for Parity, Inc. v. Sebelius, 709 F. Supp. 2d 10, 18-19 (D.D.C. 2010) (omissions in original and emphasis omitted); see also California II, 911 F.3d at 578-80. In short, because the Regulation Provision “neither contain[s] express language exempting agencies from the APA nor provide[s] alternative procedures that could reasonably be understood as departing from the APA,” it does not authorize the Agencies to disregard the notice-and-comment requirements. California II, 911 F.3d at 579.
Second, the statutory reference within the Regulation Provision sheds light on the scope and purpose of its IFR sentence. As the Court of Appeals for the Ninth Circuit points out, § 104 of HIPAA aims to assure regulatory coordination between the Agencies’ Secretaries for matters over which they share responsibility. See California II, 911 F.3d at 579-80 (citing Pub. L. No. 104-191, 110 Stat. 1936 (1996) (codified at 42 U.S.C. § 300gg-92)). The first sentence of the Regulation Provision authorizes each Secretary to promulgate regulations “consistent with” the HIPAA section on coordination. The second sentence is identical but for two differences: it discusses IFRs instead of final regulations, and it omits any mention of HIPAA’s coordination section. Read in light of the first sentence, the second ensures that each Agency can proceed by IFR where a Secretary “need[s] to regulate within his or her own domain temporarily while sorting out ... inter-agency conflict.” Id. at 579. Thus, “we need not give the second sentence the [A]gencies’ expansive interpretation in order for the second sentence to retain independent effect.” Id. at 579-80. In sum, the Regulation Provision does not expressly excuse the Agencies from complying with APA procedures and therefore does not provide a basis for issuing the IFRs without notice and comment.20

Pennsylvania v. President United States, 930 F.3d 543 (2019)

*567 2
The Agencies also lacked good cause for dispensing with notice of and comment to the IFRs. An agency has “good cause” to forego APA procedures where following them would be “impracticable, unnecessary, or contrary to the public interest.”21 5 U.S.C. § 553(b)(3)(B). “[C]ircumstances justifying reliance on [the good cause] exception are indeed rare and will be accepted only after the court has examine[d] closely proffered rationales justifying the elimination of public procedures.” Nat. Res. Def. Council, Inc. v. EPA (“NRDC”), 683 F.2d 752, 764 (3d Cir. 1982) (alterations in original) (internal quotation marks and citation omitted). Thus, we construe the “good cause” exception to the notice-and-comment requirement narrowly.22 Id.
When they issued the IFRs, the Agencies claimed good cause to waive notice and comment based on (1) the urgent need to alleviate harm to those with religious objections to the current regulations; (2) the need to address “continued uncertainty, inconsistency, and cost” arising from “litigation challenging the previous rules”; and (3) the fact that the Agencies had already collected comments on prior Mandate-related regulations. 82 Fed. Reg. at 47,813-15; see also 82 Fed. Reg. at 47,855-59. None of these assertions meet the standard for good cause.
First, the Agencies’ desire to address the purported harm to religious objections does not ameliorate the need to follow appropriate procedures. All regulations are directed toward reducing harm in some manner.23 See United States v. Reynolds, 710 F.3d 498, 512-13 (3d Cir. 2013). Thus, “[a] need to regulate affected parties does not create the urgency necessary to establish good cause.” Id. at 511. “As with any other administrative agency conclusion, we require some statement of facts or circumstances that justifies the existence of good cause (e.g., an imminent, externally imposed deadline or the existence of an emergency).” Id. at 512. The Agencies fail to cite any facts or impending deadlines sufficient to raise “good cause” here.
Second, the need to address uncertainty is likewise insufficient to establish good cause. Uncertainty precedes every *568 regulation, and to allow uncertainty to excuse compliance with notice-and-comment procedures “would have the effect of writing [those] requirements out of the statute.” Id. at 510. Furthermore, our precedent forecloses the acceptance of uncertainty as a basis for good cause. Id. (“An agency’s intention to provide clarity, without
11

more, cannot amount to good cause.”).
Third, the Agencies’ previous solicitation and collection of comments regarding other rules concerning the Contraceptive Mandate cannot substitute for notice and comment here. If the APA permitted agencies to forego notice-and-comment concerning a proposed regulation simply because they already regulated similar matters, then the good cause exception could largely obviate the notice-and-comment requirement. Furthermore, the IFRs did not make a minor change. The IFRs create exemptions from the Contraceptive Mandate with unprecedented scope and make the Accommodation wholly voluntary. Such a dramatic overhaul of the Contraceptive Mandate regulations required notice-and-comment under the APA.
For these reasons, the Agencies did not have good cause to ignore the APA’s notice and comment requirement.
B
The Government also contends that, even if the IFRs were procedurally deficient, the Agencies’ subsequent use of notice-and-comment rulemaking to finalize the Rules cured any procedural defects. Under our precedent, however, “postpromulgation notice and comment procedures cannot cure the failure to provide such procedures prior to the promulgation of the rule at issue.” NRDC, 683 F.2d at 768; see Reynolds, 710 F.3d at 519 (“Any suggestion that the postpromulgation comments to the Interim Rule can satisfy [the purposes of notice-and-comment rulemaking] misses the point.” (internal citation omitted)); Sharon Steel Corp. v. EPA, 597 F.2d 377, 381 (3d Cir. 1979) (“We hold that the period for comments after promulgation cannot substitute for the prior notice and comment required by the APA.”).
APA notice-and-comment procedures serve several goals, including “(1) to ensure that agency regulations are tested via exposure to diverse public comment, (2) to ensure fairness to affected parties, and (3) to give affected parties an opportunity to develop evidence in the record to support their objections to the rule and thereby enhance the quality of judicial review.” Prometheus Radio Project v. FCC, 652 F.3d 431, 449 (3d Cir. 2011) (quoting Int’l Union, United Mine Workers of Am. v. Mine Safety & Health Admin., 407 F.3d 1250, 1259 (D.C. Cir. 2005)).

Pennsylvania v. President United States, 930 F.3d 543 (2019)

The comment process also allows each agency to “maintain[ ] a flexible and open-minded attitude towards its own rules,” Reynolds, 710 F.3d at 511 (alteration in original and citation omitted) (quoting Prometheus Radio, 652 F.3d at 449); see also Azar v. Allina Health Servs., ––– U.S. ––––, 139 S. Ct. 1804, 1816, ––– L.Ed.2d –––– (2019) (“Notice and comment ...affords the agency a chance to avoid errors and make a more informed decision.” (internal citation omitted)). To preserve the integrity of this process, “[t]he opportunity for comment must be a meaningful opportunity,” Prometheus Radio, 652 F.3d at 450 (alteration in original), to have interested parties share their views, and to have the agency consider them with an “open mind,” Reynolds, 710 F.3d at 517-19.
The notice and comment exercise surrounding the Final Rules does not reflect any real open-mindedness toward the *569 position set forth in the IFRs.24 First, as the Government admits, the minor changes to the Final Rules do not “alter the fundamental substance of the exemptions set forth in the IFRs.” Dkt. 107-1 at 8. Second, the reasons the Agencies supplied for promulgating the Final Rules simply echoed those provided for issuing the IFRs. See 83 Fed. Reg. at 57,552, 57,609. These rationales do not show the “flexible and open-minded attitude” the notice-and-comment process requires. Reynolds, 710 F.3d at 511. Together, the Agencies’ justifications for avoiding notice and comment to the IFRs, and the fact that the IFRs and the Final Rules are virtually identical, suggest that the opportunity for comment was not a “meaningful” one in the way the APA requires. Prometheus Radio, 652 F.3d at 450.
Lastly, even setting aside the Agencies’ lack of open-mindedness, the IFRs also impaired the rulemaking process by altering the Agencies’ starting point in considering the Final Rules. In NRDC, our Court rejected the EPA’s argument that the opportunity for post-promulgation comment remedied the EPA’s initial failure to promulgate a rule through notice-and-comment rulemaking:
[t]o allow the APA procedures in connection with the [new rule] to substitute for APA procedures in connection with [the initial, procedurally defective rule] would allow [the] EPA to substitute post-promulgation notice and comment procedures for
12

pre-promulgation notice and comment procedures at any time by taking an action without complying with the APA, and then establishing a notice and comment procedure on the question of whether that action should be continued. This would allow agencies to circumvent [our case law] and the APA. We cannot countenance such a result.
683 F.2d at 768 (citation omitted). This reasoning applies with equal force here. By first promulgating the IFRs that granted the expanded exemptions without notice and comment, the Agencies changed the question presented concerning the Final Rules from whether they should create the exemptions to whether they should depart from them. This starting position is impermissible under the APA. Id.; see also Sharon Steel, 597 F.2d at 381 (“Provision of prior notice and comment allows effective participation in the rulemaking process while the decisionmaker is still receptive to information and argument. After the final rule is issued, the petitioner must come hat-in-hand and run the risk that the decisionmaker is likely to resist change.” (citation omitted)).
In sum, because deficits in the promulgation of the IFRs compromised the procedural integrity of the Final Rules, the States have demonstrated a likelihood of success in showing that the Final Rules are procedurally defective, and in turn, violate the APA.
C
There are also serious substantive problems with the Final Rules. More specifically, neither of the statutes upon which the Agencies rely, the ACA and RFRA, authorize or require the Final Rules. Thus, they were enacted “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” making them “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A), (C).

Pennsylvania v. President United States, 930 F.3d 543 (2019)

*570 1
The Agencies argue that their authority under the ACA to issue preventive care guidelines includes the power to promulgate the Exemptions. This assertion is without textual support. The Women’s Health Amendment to the ACA, 42 U.S.C. § 300gg-13(a)(4), provides:
A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for— ...
(3) with respect to infants, children, and adolescents, evidence-informed preventive care and screenings provided for in the comprehensive guidelines supported by the [HRSA]. (4) with respect to women, such additional preventive care and screenings not described in paragraph (1)[25
] as provided for in comprehensive guidelines supported by the [HRSA] for purposes of this paragraph.
42 U.S.C. § 300gg-13(a). The authority to issue “comprehensive guidelines” concerns the type of services that are to be provided and does not provide authority to undermine Congress’s directive concerning who must provide coverage for these services. Section 300gg-13(a) unambiguously dictates that group health plans and health insurance issuers “shall provide” the preventive care services set forth in the HRSA-supported comprehensive guidelines, and “shall” not impose cost sharing. The term “shall” denotes a requirement, Prometheus Radio Proj. v. FCC, 824 F.3d 33, 50 (3d Cir. 2016) (“Th[e] repeated use of ‘shall’ creates ‘an obligation impervious to ... discretion.’ ” (omission in original) (quoting Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998))), and HRSA’s authority to issue the guidelines does not empower it to ignore that requirement. Nothing from § 300gg-13(a) gives HRSA the discretion to wholly exempt actors of its choosing from providing the guidelines services. On the contrary, the mandate articulated in § 300gg-13(a) forecloses such exemptions.26
The Agencies’ reliance on the language that directed HRSA to create the guidelines concerning women’s preventive health care and the use of the phrase “as provided for in” such guidelines does not advance their
13

position. The Agencies contrast § 300gg-13(a)(4)’s use of the phrase “as provided for in” comprehensive guidelines with a neighboring sub-section’s provision addressing preventive care for infants, *571 children, and adolescents, which is “provided for in the” comprehensive guidelines for those services. Compare 42 U.S.C. § 300gg-13(a)(3) (describing “preventive care and screenings provided for in the comprehensive guidelines”), with id. § 300gg-13(a)(4) (describing “preventive care and screenings as provided for in comprehensive guidelines”). They assert that the use of the word “as” in § 300gg-13(a)(4) gives HRSA authority to dictate the preventive services to be provided and who must provide them. This argument overlooks the clear explanation for the different language. When the ACA was passed, the comprehensive guidelines for children’s preventive care already existed, but guidelines for women’s preventive care were not yet written. Congress used the definite article “the” in § 300gg-13(a)(3) to refer to those existing children’s preventive care guidelines. In § 300gg-13(a)(4), Congress addressed the women’s preventive care guidelines that were yet to be promulgated by stating “as provided for in comprehensive guidelines.”

The Agencies’ interpretation of “comprehensive” as

authorizing them to issue guidelines that exempt entities

from complying with the Mandate likewise fails. Put

simply, the discretion the statute grants HRSA to issue

comprehensive guidelines concerning services to be

provided does not include the power to exempt actors

from the statute itself. This is borne out by the fact that

the word “comprehensive” is also used to describe the

children’s preventive care guidelines, and those

guidelines do not exempt any statutorily required party

from providing services. See HHS, Preventive Care

Benefits

for

Children,

https://www.healthcare.gov/preventive-care-children (last

visited May 8, 2019). Congress was obviously aware of

the existing children’s guidelines when it drafted the

Women’s Health Amendment, and Congress’s use of

“comprehensive” to describe both sets of guidelines

conveys that it intended them to cover the same type of

subject matter, namely health care services for the

identified groups. See F.A.A. v. Cooper, 566 U.S. 284,

292, 132 S.Ct. 1441, 182 L.Ed.2d 497 (2012) (“[W]hen

Congress employs a term of art, it presumably knows and

adopts the cluster of ideas that were attached to each

borrowed word in the body of learning from which it was

taken.” (internal quotation marks and citation omitted)).

Other portions of the ACA also show that Congress

Pennsylvania v. President United States, 930 F.3d 543 (2019)

retained the authority to exempt certain employers from providing contraceptive coverage. In passing the ACA, Congress explicitly exempted grandfathered plans from the Contraceptive Mandate and other ACA requirements. 42 U.S.C. § 18011(a), (e). Congress also considered and rejected a statutory conscience amendment that would have operated similarly to the challenged Exemptions. 158 Cong. Rec. S1162, 1173-74 (2012). Between the substantially analogous exemption Congress rejected, and the one it decided to keep, Congress demonstrated that exempting specific actors from the ACA’s mandatory requirements is its job, not the Agencies. See United States v. Johnson, 529 U.S. 53, 58, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000) (“When Congress provides exceptions in a statute,” we may infer “that Congress considered the issue of exceptions and, in the end, limited the statute to the ones set forth.”). Relatedly, by promulgating the Moral Exemption, which sought to do what Congress refused to do with the conscience amendment, the Agencies contravened Congress’s intent. See Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 147, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (considering Congress’s prior refusal to pass laws as material to whether an agency’s *572 interpretation of its statute is entitled to deference).
Because § 300gg-13(a) does not authorize the Agencies to exempt plans from providing the required coverage, the Agencies’ authority under the ACA to enact the Final Rules is without merit.

governmental interest,” id. § 2000bb-1(b). “[A] person whose religious exercise has been burdened in violation of this section” may seek relief in a judicial proceeding. Id. § 2000bb-1(c). Thus, RFRA authorizes a cause of action for government actions that impose a substantial burden on a person’s sincerely-held religious beliefs, and provides a judicial remedy via individualized adjudication. See 42 U.S.C. § 2000bb-3(a); City of Boerne v. Flores, 521 U.S. 507, 529, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (“[RFRA] prevents and remedies laws which are enacted with the unconstitutional object of targeting religious beliefs and practices.”). Because Congress has deemed the courts the adjudicator of private rights of actions under RFRA, Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 434, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006) (holding RFRA “plainly contemplates that courts would ... consider whether exceptions are required under the test set forth by Congress” (emphasis omitted)), we owe the Agencies no deference when reviewing determinations based upon RFRA, see Adams Fruit Co., Inc. v. Barrett, 494 U.S. 638, 649, 110 S.Ct. 1384, 108 L.Ed.2d 585 (1990) (declining to defer to an agency’s statutory interpretation where Congress “expressly established the Judiciary and not the [agency] as the adjudicator of private rights of action arising under the statute”).
A prima facie RFRA case requires a plaintiff to prove that the government imposed a substantial burden on religious exercise. Mack v. Warden Loretto FCI, 839 F.3d 286, 304 (3d Cir. 2016). A substantial burden exists if

227
The Agencies’ effort to cast RFRA as requiring the Religious Exemption is also incorrect. Even assuming that RFRA provides statutory authority for the Agencies to issue regulations to address religious burdens the Contraceptive Mandate may impose on certain individuals, RFRA does not require the enactment of the Religious Exemption to address this burden.
RFRA provides that the federal government “[s]hall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” 42 U.S.C. § 2000bb-1(a), unless “that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling
14

(1) a follower is forced to choose between following the precepts of his religion and forfeiting benefits otherwise generally available to other [persons] versus abandoning one of the precepts of his religion in order to receive a benefit; or (2) the government puts substantial pressure on an adherent to substantially modify his behavior and to violate his beliefs.
[
28
]
*573 Real Alternatives, Inc. v. Sec’y Dep’t of Health & Human Servs., 867 F.3d 338, 371 (3d Cir. 2017)

Pennsylvania v. President United States, 930 F.3d 543 (2019)

(alteration in original) (internal quotation marks and citation omitted). The Supreme Court has directed that, when considering a requested accommodation to address the burden, “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” Cutter v. Wilkinson, 544 U.S. 709, 720, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005) (referring to third parties who may face collateral consequences from accommodating an observer’s burden).29 The Accommodation fulfills this directive as it provides a means for an observer to adhere to religious precepts and simultaneously allows women to receive statutorily-mandated health care coverage.
RFRA does not require the broad exemption embodied in the Final Rule nor to make voluntary a notice of the employer’s decision not to provide such coverage to avoid burdening those beliefs. As our Court has explained,
the self-certification form does not trigger or facilitate the provision of contraceptive coverage because coverage is mandated to be otherwise provided by federal law. Federal law, rather than any involvement by the [employers] in filling out or submitting the self-certification form, creates the obligation of the insurance issuers and third-party administrators to provide coverage for contraceptive services. ...
[And] the submission of the self-certification form does not make the [employers] “complicit” in the provision of contraceptive coverage.
Geneva Coll. v. Sec’y of U.S. Dep’t of Health & Human Servs., 778 F.3d 422, 437-38 (3d Cir. 2015) (emphasis omitted), vacated and remanded sub nom. Zubik, 136 S. Ct. 1557.30
The religious objectors who oppose the Accommodation mechanism disapprove of “what follows from” filing the self-certification form, but under Free Exercise jurisprudence, we examine the conduct of the objector, not third parties. Id. at 439-40. Here, through the Accommodation process, “the actual provision of contraceptive coverage is by a third party,” so any possible burden from the notification procedure is not substantial. Id. at 442. For these reasons, RFRA does not require that the Agencies permit religious objectors to decline to provide contraceptive coverage without notifying their insurance issuer, TPA, HHS, or the employees.
Contrary to the Agencies’ assertions in the Rule, the
15

Supreme Court has not held that the Accommodation imposes substantial burdens on religious rights. Hobby Lobby ruled that closely-held corporations are entitled to take advantage of the Accommodation process rather than facing fines for non-compliance with the contraceptive mandate, observing that the Accommodation was a less restrictive alternative to forcing objectors to choose between *574 adhering to the mandate or violating their sincerely-held beliefs. 573 U.S. at 730-31, 134 S.Ct. 2751. While the Court “did not decide” whether the Accommodation “complies with RFRA,” it found that “[a]t a minimum ... it does not impinge on that plaintiffs’ religious belief that providing insurance coverage for [certain contraceptives] violates their religion, and it serves HHS’s stated interests equally well.” Id. at 731, 134 S.Ct. 2751; see also Zubik, 136 S. Ct. at 1561 (Sotomayor, J., concurring) (“The opinion does not ... endorse the petitioners’ position that the existing regulations substantially burden their religious exercise or that contraceptive coverage must be provided through a separate policy, with a separate enrollment process.” (internal quotation marks and citations omitted)); Wheaton, 573 U.S. at 960, 134 S.Ct. 2806 (noting that Hobby Lobby “expressly rel[ied] on the availability of the religious-nonprofit accommodation” to reach its holding).
Furthermore, the Religious Exemption and the new optional Accommodation would impose an undue burden on nonbeneficiaries—the female employees who will lose coverage for contraceptive care. The Agencies downplayed this burden on women, contradicting Congress’s mandate that women be provided contraceptive coverage. “No tradition, and no prior decision under RFRA, allows a religion-based exemption when the [A]ccommodation would be harmful to others—here, the very persons the contraceptive coverage requirement was designed to protect.” Hobby Lobby, 573 U.S. at 764, 134 S.Ct. 2751 (Ginsburg, J., dissenting). As the Agencies recognize, the record shows that thousands of women may lose contraceptive coverage if the Rule is enforced and frustrate their right to obtain contraceptives. Id. at 727, 134 S.Ct. 2751 (citation omitted); 42 U.S.C. § 300gg-13(a)(4) (directing the enactment of the Women’s Preventive Services Guidelines, which include contraceptives).
In short, the status quo prior to the new Rule, with the Accommodation, did not infringe on the religious exercise of covered employers, nor is there a basis to conclude the Accommodation process infringes on the religious exercise of any employer. For these reasons, RFRA does not demand the Religious Exemption.

Pennsylvania v. President United States, 930 F.3d 543 (2019)

D
Because the States demonstrated a likelihood of success on the merits as to their APA claim, we next turn to the remaining equitable factors. To obtain a preliminary injunction, a plaintiff must “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22, 129 S.Ct. 365 (emphasis omitted). Because the States cannot collect money damages under the APA,31 5 U.S.C. § 702 (enabling claimants to obtain “relief other than money damages”); see also California II, 911 F.3d at 581, the States will suffer irreparable harm if the Rules are enforced. The States will face unredressable financial consequences from subsidizing contraceptive services, providing funds for medical care associated with unintended pregnancies, and absorbing medical expenses that arise from decreased use of contraceptive medications for other health conditions. Therefore, the District Court did not abuse its discretion in holding that the States demonstrated a likelihood of irreparable harm.
*575 Furthermore, because the current Accommodation does not substantially burden employers’ religious exercise and the Exemption is not necessary to protect a legally-cognizable interest, the States’ financial injury outweighs any purported injury to religious exercise. Moreover, the public interest favors minimizing harm to third-parties by ensuring that women who may lose ACA guaranteed contraceptive coverage are able to maintain access to the preventive care to which they are entitled under the ACA and HRSA’s comprehensive guidelines while final adjudication of the Rules is pending. Therefore, the District Court did not abuse its discretion in concluding that the balance of the equities and the public interest both favor issuing an injunction.
E
Having determined that a preliminary injunction is warranted, the final question we address is whether the District Court abused its discretion by enjoining the Final
16

Rules nationwide. “Crafting a preliminary injunction is an exercise of discretion and judgment, often dependent as much on the equities of a given case as the substance of the legal issues it presents.” Trump v. Int’l Refugee Assistance Project, ––– U.S. ––––, 137 S. Ct. 2080, 2087, 198 L.Ed.2d 643 (2017) (per curiam). While courts are vested with the power to issue equitable relief with a nationwide reach, see Texas, 809 F.3d at 188 (quoting U.S. Const. art. III, § 1), they must ensure that “injunctive relief [is] no more burdensome to the defendant than necessary to provide complete relief to plaintiffs,” Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharm. Co., 290 F.3d 578, 598 (3d Cir. 2002) (internal quotation marks and citation omitted). We must also bear in mind that the purpose of injunctions is “not to conclusively determine the rights of the parties, but to balance the equities as the litigation moves forward.” Trump, 137 S. Ct. at 2087 (internal citation omitted).
Mindful of these considerations, the District Court did not abuse its discretion in concluding that a nationwide injunction is necessary to afford complete relief to the States and that it is not “more burdensome to the defendant than necessary” to provide such relief.32 Groupe SEB USA, Inc. v. Euro-Pro Operating LLC, 774 F.3d 192, 206 (3d Cir. 2014) (internal quotation marks and citations omitted). First, our APA case law suggests that, at the merits stage, courts invalidate—without qualification—unlawful administrative rules as a matter of course, leaving their predecessors in place until the agencies can take further action. See, e.g., Prometheus Radio, 652 F.3d at 453-54 & n.25 (vacating procedurally defective rule and leaving the prior rule in effect); Council Tree Commc’ns, Inc. v. FCC, 619 F.3d 235, 258 (3d Cir. 2010) (same). Congress determined that rule-vacatur was not unnecessarily burdensome on agencies when it provided vacatur as a standard remedy for APA violations. See 5 U.S.C. § 706(2) (“The reviewing court shall ... hold unlawful and set aside agency action” that is outside an agency’s authority, or “without observance of procedure required by law,” among other things). While vacatur is the ultimate remedy the States seek, and that is not the relief being granted here, by enjoining enforcement of the Rules we provide a basis to ensure that a regulation *576 that the States have shown likely to be proven to be unlawful is not effective until its validity is finally adjudicated.
Second, a nationwide injunction is necessary to provide the States complete relief. Many individuals work in a state that is different from the one in which they reside.

Pennsylvania v. President United States, 930 F.3d 543 (2019)

See Amici Curiae Massachusetts, et al., Br. at 24 (“Mass. Amici Br.”) (stating that 14% of the workforce in New Jersey and 5.4% in Pennsylvania work out of state, comprising more than 800,000 workers in total). An injunction geographically limited to the States alone will not protect them from financial harm, as some share of their residents who work out-of-state will lose contraceptive coverage originally provided through employers in non-enjoined states who will exempt themselves. Women covered by these plans who live in the States will seek state-funded services, and a state specific injunction will not be sufficient to prevent the resulting financial harm.

Undergraduates, Digest of Education Statistics (2017)). In the absence of a nationwide injunction, students attending school in the States may lose contraceptive coverage from their parents’ out-of-state plans, again leaving programs within the States to pick up the bill.33 In light of the impact of these interstate activities, the District Court did not abuse its discretion in concluding that a nationwide injunction was necessary to afford the States complete relief.34

Out-of-state college attendance further exacerbates the

States’ injury. As the Moral Exemption points out, “[o]nly

IV

a minority of students in higher education receive health insurance coverage from plans arranged by their colleges or universities.” 83 Fed. Reg. at 57,564; 83 Fed. Reg. at 57,619. Instead, most of these students remain on their

For the foregoing reasons, we will affirm the District Court’s order granting the nationwide preliminary injunction.

parents’ employer-based plans. Mass. Amici Br. at 26.

The States host many such students at their colleges. “Each year, for example, Pennsylvania takes in more than

All Citations

32,000 first-time out-of-state students alone—the second most of any state in the country.” Mass. Amici Br. at 25

930 F.3d 543

(citing Nat’l Ctr. For Educ. Statistics, Residence and

Migration of All First-Time Degree/Certificate-Seeking

Footnotes

1

Pursuant to 42 U.S.C. § 300bb-8(1), the term “group health plan” has the meaning set forth in 26 U.S.C. § 5000(b)(1),

which defines a “group health plan” as “a plan (including a self-insured plan) of, or contributed to by, an employer ...

to provide health care (directly or otherwise) to the employees.”

2

Congress expressly exempted two sets of actors from various ACA requirements, including the Women’s Health

Amendment: grandfathered health plans, 42 U.S.C. § 18011, and employers with fewer than 50 employees, 26

U.S.C. § 4980H(c)(2).

3

After a notice-and-comment rulemaking process, which included consideration of comments concerning whether

coverage may conflict with the religious beliefs of some employers, Group Health Plans and Health Insurance Issuers

Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg.

46,621, 46,623 (August 3, 2011), the Agencies defined “religious employer[s]” in the Church Exemption as entities

“that [are] organized and operate[ ] as ... nonprofit entit[ies] and [are] referred to” as such in the internal revenue

code provision applying to “churches, their integrated auxiliaries, and conventions or associations of churches, as

well as to the exclusively religious activities of any religious order,” Coverage of Certain Preventive Services Under

the Affordable Care Act, 78 Fed. Reg. 39,870, 39,871, 39,889 (July 2, 2013); see 45 C.F.R. § 147.132.

4

The final rule implementing Hobby Lobby was preceded by notice of proposed rulemaking. Coverage of Certain

Preventive Services Under the Affordable Care Act, 79 Fed. Reg. 51,118 (Aug. 27, 2014).

17

Pennsylvania v. President United States, 930 F.3d 543 (2019)

5

These entities include the President, the Agencies and their Secretaries, and the United States of America

(collectively, “the Government”).

6

Little Sisters, a religious nonprofit operating a home in Pittsburgh, moved to intervene, the District Court denied its

motion, and our Court reversed, concluding, at that time, intervention was appropriate because the litigation posed

a threat to Little Sisters’ interest in an exemption, and that its interests are not adequately represented by the

Government. See generally Pennsylvania v. President of the United States of Am., 888 F.3d 52 (3d Cir. 2018). Since

then, however, the United States District Court for the District of Colorado permanently enjoined enforcement of

the Contraceptive Mandate for benefit plans in which Little Sisters participates. Pennsylvania v. Trump, 351 F. Supp.

3d 791, 829 n.27 (E.D. Pa. 2019) (“Defendant-Intervenor has secured a permanent injunction, preventing

enforcement of the Contraceptive Mandate against it.”); Little Sisters of the Poor v. Azar, No. 1:13-cv-02611, Dkt.

No. 82 at 2-3 (D. Colo. May 29, 2018); Accordingly, Little Sisters is no longer aggrieved by the District Court’s ruling,

its need for relief is moot, and thus they lack appellate standing. See Ass’n of Banks in Ins. v. Duryee, 270 F.3d 397,

403 (6th Cir. 2001) (“[T]he intervenor-defendants face the threat of economic injury should the Ohio statutory

provisions not be enforced. Such threatened injury is sufficient to confer appellate standing on the

intervenor-defendants and allows them to challenge the merits of the district court’s decision.”); cf. In re Grand

Jury, 111 F.3d 1066, 1071 (3d Cir. 1997) (“Since both intervenors remain aggrieved after the district court’s

disposition, the constitutional requirements for standing to appeal as well as standing to sue are satisfied.”).

7

The Agencies assert that under ERISA, employees will at least receive notice that their plans no longer cover certain

contraceptives because, “with respect to plans subject to ERISA, a plan document must include a comprehensive

summary of the benefits covered by the plan,” which will “serve to help provide notice to participants and

beneficiaries” of what services are covered. 83 Fed. Reg. at 57,558. Even if this is true, this would apply only to

certain employers.

8

Pennsylvania and New Jersey are referred to herein collectively as the “the States.”

9

The States’ amended complaint for declaratory and injunctive relief pleads five counts: (I) violation of Equal

Protection of the laws under the Fifth Amendment; (II) violation of Title VII of the Civil Rights Act and the Pregnancy

Discrimination Act; (III) violation of the procedural requirements of the APA; (IV) violation of the substantive

requirements of the APA; and (V) violation of the Establishment Clause of the First Amendment.

10 Before the ACA, women spent between 30 and 40% of their total out-of-pocket health costs on contraceptives, and 55% of women experienced a time where they could not afford contraceptives. Amicus Curiae Women’s Law Ctr. Br. at 15-17; id. _at 17 (describing that the ACA dropped out-of-pocket contraceptive expenditures by 70%).

11 NJ FamilyCare is New Jersey’s state and federally-funded Medicaid.

12 Nationally, a publicly-funded birth in 2010 cost $12,770, and that year, New Jersey spent an estimated $186.1 million on unintended pregnancies and Pennsylvania an estimated $248.2 million.

13 The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1292(a)(1).

14 “We review the legal conclusions related to standing de novo, but review for clear error the factual elements underlying the District Court’s determination of standing.” Edmonson v. Lincoln Nat’l Life Ins. Co., 725 F.3d 406, 414 (3d Cir. 2013) (internal quotation marks and citation omitted).

15 The Agencies “theorize” that some women may be able to pay out of pocket or obtain coverage through a spouse or family member’s plan. Massachusetts, 923 F.3d at 227. While “[s]uch a hypothetical woman may exist, ... the
18

Pennsylvania v. President United States, 930 F.3d 543 (2019)
number of women with incomes that make them eligible for state-assisted contraceptive coverage but who still fit in that category would, logically, be very small.” Id.
16 In the context of an environmental case and a claim that the plaintiff-state Massachusetts lacked standing because it failed to identify land that would be impacted by federal regulators’ inaction, the Supreme Court observed that the likelihood that Massachusetts’ coastline will recede has nothing to do with whether petitioners have determined the precise metes and bounds of their soon-to-be-flooded land. Petitioners maintain that the seas are rising and will continue to rise, and have alleged that such a rise will lead to the loss of Massachusetts’ sovereign territory. ... Our cases require nothing more. Massachusetts, 549 U.S. at 523 n.21, 127 S.Ct. 1438. Just as it was unnecessary for Massachusetts to identify specific coastline that would be flooded by the agencies’ inaction, it is unnecessary for the States to identify a specific woman who would be impacted by the Government’s action where in both instances, the record provided a basis to infer specific imminent injury.
17 Based upon of the foregoing discussion, we need not decide whether the States also have standing under the special solicitude or parens patriae doctrines.
18 “We employ a tripartite standard of review for ... preliminary injunctions. We review the District Court’s findings of fact for clear error. Legal conclusions are assessed de novo. The ultimate decision to grant or deny the injunction is reviewed for abuse of discretion.” K.A. ex rel. Ayers v. Pocono Mountain Sch. Dist., 710 F.3d 99, 105 (3d Cir. 2013) (omission in original) (internal quotation marks and citations omitted).
19 Quite appropriately, the Agencies do not challenge the States’ statutory standing to sue under the APA. 5 U.S.C. § 702; Massachusetts, 549 U.S. at 520, 127 S.Ct. 1438 (recognizing states’ “procedural right to challenge the rejection of its rulemaking petition as arbitrary and capricious” under the EPA).
20 Congress knows how to excuse an agency from complying with the APA. For example, one HIPAA provision expressly permits the Agencies to promulgate a rule prior to notice and comment. 42 U.S.C. § 1320a-7b note. That provision requires the Secretary of Health and Human Services to publish a rule prescribing penalties for kickbacks by January 1, 1997, then less than four months away. It provides that “[s]uch rule shall be effective and final immediately on an interim basis, but is subject to change and revision after public notice and opportunity for ... public comment.” Unlike the Regulation Provision, § 1320a-7b expressly provides for notice and comment after the promulgation of an IFR. Congress’s omission of that procedure from the Regulation Provision demonstrates that it did not provide the Agencies authority to promulgate IFRs without notice and comment.
21 5 U.S.C. § 553(b)(3) provides [e]xcept when notice or hearing is required by statute, this subsection does not apply— ... (B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.
22 Though the review standard for agency assertions of good cause remains an open question in our circuit, see United States v. Reynolds, 710 F.3d 498, 509 (3d Cir. 2013), we need not answer that question here. Even applying the most deferential of the potential standards—reviewing the agency’s good cause determination to see if it is arbitrary and capricious—the IFRs cannot stand.
23 As we observed in Reynolds, [m]ost, if not all, laws passed by Congress requiring agencies to promulgate new rules are designed to eliminate
19

Pennsylvania v. President United States, 930 F.3d 543 (2019)
some real or perceived harm. If the mere assertion that such harm will continue while an agency gives notice and receives comments were enough to establish good cause, then notice and comment would always have to give way. An agency will invariably be able to point to some continuing harm during the notice and comment period antecedent to the promulgation of a rule. 710 F.3d at 512-13.
24 We express no opinion on whether the Agencies appropriately responded to comments collected during this process, see Trump, 351 F. Supp. 3d at 811-12, as this issue is not before us.
25 Paragraph (1) refers to “evidence-based items or services that have in effect a rating of ‘A’ or ‘B’ in the current recommendations of the United States Preventive Services Task Force.” 42 U.S.C. § 300gg-13(a)(1).
26 The Government argues that if the ACA does not grant the authority to issue the Exemptions, then HRSA was equally without authority to issue the Church Exemption and the Accommodation. This argument fails. Though the Church Exemption may seem facially at odds with § 300gg-13(a), Supreme Court precedent dictates a narrow form of exemption for houses of worship. See 80 Fed. Reg. at 41,325 (describing the exemption for churches and houses of worship as “consistent with their special status under longstanding tradition in our society and under federal law”); see, e.g., Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 132 S.Ct. 694, 181 L.Ed.2d 650 (2012) (discussing the existence of a ministerial exception precluding application of employment legislation to a religious institution to respect churches’ internal autonomy). The Accommodation likewise does not plainly run afoul of the ACA. Instead, it provides a process through which a statutorily identified actor “shall provide” the mandated coverage. In any event, the Agencies’ authority to issue the Church Exemption and Accommodation is not before us.
27 No party argues that RFRA authorizes or requires the Moral Exemption.
28 Although we “defer to the reasonableness” of an objector’s religious beliefs, “this does not bar our objective evaluation of the nature of the claimed burden and the substantiality of that burden on [the objector’s] religious exercise.” Real Alternatives, Inc. v. Sec’y Dep’t of Health & Human Servs., 867 F.3d 338, 356 (3d Cir. 2017) (emphasis omitted) (citation omitted).
29 Although Cutter v. Wilkinson, 544 U.S. 709, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005), dealt with an application of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), we have said that RLUIPA and RFRA “are analogous for the purpose of the substantial burden test,” and we may therefore may apply RLUIPA law. Mack, 839 F.3d at 304 n.103; see Holt v. Hobbs, ––– U.S. ––––, 135 S. Ct. 853, 860, 190 L.Ed.2d 747 (2015).
30 While Zubik vacated our opinion in Geneva College, it did not reach the merits of the Accommodation nor did it “attack our reasoning.” Real Alternatives, 867 F.3d at 356 n.18. After Zubik, we repeated that the Accommodation does “not impose a substantial burden.” Id.
31 Monetary injuries ordinarily do not constitute irreparable harm because they are compensable. See Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989).
32 Our sister circuit declined to uphold a nationwide injunction concerning the IFRs, but the record before us is substantially more developed than the record before that court. California II, 911 F.3d at 584 (“On the present record, an injunction that applies only to the plaintiff states would provide complete relief to them.”).
33 It is also likely that residents of the States will attend out-of-state schools that invoke the Exemptions, and that such students will seek contraceptive services through programs in their home states, also giving rise to fiscal injuries to
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Pennsylvania v. President United States, 930 F.3d 543 (2019) the States that only a nationwide injunction can remedy.
34 The Government also argues that a nationwide injunction takes a toll on the court system, foreclosing “adjudication by a number of different courts and judges,” Califano v. Yamasaki, 442 U.S. 682, 702, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979), thereby preventing legal questions from “percolating” throughout the court system, Gov’t Br. at 79-80. The argument has little force in this case. First, other federal courts have examined substantially the same legal issues as we confront here. See generally Massachusetts, 923 F.3d 209; California II, 911 F.3d 558. Second, the extensive litigation surrounding the Exemption and Accommodation have allowed for an airing of the legal issues. See Petition for Writ of Certiorari at 27, The Little Sisters of the Poor Jeanne Jugan Residence v. California (No. 18-1192) (“Further percolation is unnecessary. ... [T]his issue was adjudicated by ten courts of appeals and dozens of district courts. ... The arguments have all been aired.”). Thus, there is no “percolation” problem here.
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