U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:19-cv-02916-WHA

County of Santa Clara et al v. U.S. Department of Health and Human Services et al Assigned to: Judge William Alsup Relate Case Cases: 3:19-cv-02405-WHA
3:19-cv-02769-WHA Case in other court: 9th Circuit, 20-15399 Cause: 05:702 Administrative Procedure Act

Date Filed: 05/28/2019 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff County of Santa Clara

represented by Andrew E. Tauber Mayer Brown LLP 1999 K Street NW Washington, DC 20006 202-263-3324 Email: atauber@mayerbrown.com PRO HAC VICE ATTORNEY TO BE NOTICED

Camilla B Taylor Lambda Legal Midwest Regional Office 105 W. Adams Suite 2600 Chicago, IL 60603 (312) 663-4413 Email: ctaylor@lambdalegal.org PRO HAC VICE ATTORNEY TO BE NOTICED

Christine Marie Parker Center for Reproductive Rights U.S. Litigation Program 199 Water Street 22nd Floor New York, NY 10038 917-637-3761 Fax: 917-637-3666 Email: cparker@reprorights.org PRO HAC VICE

ATTORNEY TO BE NOTICED
Genevieve Scott Center for Reproductive Rights U.S. Litigation Program 199 Water Street 22nd Floor New York, NY 10038 917-637-3605 Fax: 917-637-3666 Email: gscott@reprorights.org PRO HAC VICE ATTORNEY TO BE NOTICED
Hannah Luke Edwards Santa Clara County Office of the County Counsel 70 West Hedding Street East Wing, 9th Floor San Jose, CA 95110 United Sta 408-299-5900 Fax: 408-292-7240 Email: luke.edwards@cco.sccgov.org ATTORNEY TO BE NOTICED
Jamie Avra Gliksberg Lambda Legal Midwest Regional Office 105 W. Adams Suite 2600 Chicago, IL 60603 (312) 663-4413 Email: JGliksberg@lambdalegal.org PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth Dale Upton , Jr. Americans United for Separation of Church and State 1310 L Street NW, Suite 200 Washington, DC 20005 United Sta (202) 466-3234 Fax: (202) 898-0958

Email: upton@au.org PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Elizabeth Hanna-Weir Santa Clara County Office of the County Counsel 70 West Hedding Street East Wing, Ninth Floor San Jose, Ca 95110 United Sta (408) 299-5900 Fax: (408) 292-7240 Email: mary.hannaweir@cco.sccgov.org ATTORNEY TO BE NOTICED
Miriam R Nemetz Mayer Brown LLP 1999 K Street NW Mayer Brown LLP, DC 20006 202-263-3253 Email: mnemetz@mayerbrown.com PRO HAC VICE ATTORNEY TO BE NOTICED
Nicole A Saharsky Mayer Brown LLP 1999 K Street NW Washington, DC 20006 202-263-3052 Email: nsaharsky@mayerbrown.com PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Gonzalez-Pagan Lambda Legal 120 Wall Street 19th Floor New York, NY 10005 212-809-8585 Fax: 212-809-0055 Email: ogonzalezpagan@lambdalegal.org PRO HAC VICE

ATTORNEY TO BE NOTICED
Puneet Cheema Lambda Legal DCO 1875 I Street, N.W. Suite 500 Washington, DC 20006 202-740-0914 Email: pcheema@lambdalegal.org PRO HAC VICE ATTORNEY TO BE NOTICED
Rabia Muqaddam Center for Reproductive Rights U.S. Litigation Program 199 Water Street 22nd Floor New York, NY 10038 917-637-3645 Fax: 917-637-3666 Email: rmuqaddam@reprorights.org PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Brian Katskee Americans United for Separation of Church and State Legal Department 1310 L Street NW Suite 200 Washington, DC 20005 United Sta 202-466-7304 Fax: 202-898-0958 Email: katskee@au.org PRO HAC VICE ATTORNEY TO BE NOTICED
Susan Pearl Greenberg Office of the County Counsel 70 W. Hedding Street, 9th Floor San Jose, CA 95110 408-299-5992 Fax: 408-292-7240 Email:

Plaintiff Trust Women Seattle

susan.greenberg@cco.sccgov.org ATTORNEY TO BE NOTICED
Lee H. Rubin Mayer Brown LLP Two Palo Alto Square Suite 300 Palo Alto, CA 94306-2112 (650-331-2000 Fax: (650) 331-2060 Email: lrubin@mayerbrown.com ATTORNEY TO BE NOTICED
represented by Andrew E. Tauber (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Camilla B Taylor (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Marie Parker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Genevieve Scott (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jamie Avra Gliksberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth Dale Upton , Jr. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Miriam R Nemetz (See above for address)

Plaintiff Los Angeles LGBT Center

PRO HAC VICE ATTORNEY TO BE NOTICED
Nicole A Saharsky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Gonzalez-Pagan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Puneet Cheema (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rabia Muqaddam (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Brian Katskee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lee H. Rubin (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew E. Tauber (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Camilla B Taylor (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Marie Parker (See above for address) PRO HAC VICE

ATTORNEY TO BE NOTICED
Genevieve Scott (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jamie Avra Gliksberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth Dale Upton , Jr. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Miriam R Nemetz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nicole A Saharsky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Gonzalez-Pagan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Puneet Cheema (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rabia Muqaddam (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Brian Katskee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Whitman-Walker Clinic, Inc. doing business as Whitman-Walker Health

Lee H. Rubin (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew E. Tauber (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Camilla B Taylor (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Marie Parker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Genevieve Scott (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jamie Avra Gliksberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth Dale Upton , Jr. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Miriam R Nemetz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nicole A Saharsky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Bradbury-Sullivan LGBT Community Center

Omar Gonzalez-Pagan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Puneet Cheema (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rabia Muqaddam (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Brian Katskee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lee H. Rubin (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew E. Tauber (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Camilla B Taylor (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Marie Parker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Genevieve Scott (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jamie Avra Gliksberg

Plaintiff Center On Halsted

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth Dale Upton , Jr. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Miriam R Nemetz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nicole A Saharsky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Gonzalez-Pagan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Puneet Cheema (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rabia Muqaddam (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Brian Katskee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lee H. Rubin (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew E. Tauber (See above for address)

PRO HAC VICE ATTORNEY TO BE NOTICED
Camilla B Taylor (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Marie Parker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Genevieve Scott (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jamie Avra Gliksberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth Dale Upton , Jr. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Miriam R Nemetz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nicole A Saharsky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Gonzalez-Pagan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Puneet Cheema (See above for address) PRO HAC VICE

Plaintiff Hartford Gyn Center

ATTORNEY TO BE NOTICED
Rabia Muqaddam (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Brian Katskee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lee H. Rubin (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew E. Tauber (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Camilla B Taylor (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Marie Parker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Genevieve Scott (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jamie Avra Gliksberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth Dale Upton , Jr. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Mazzoni Center

Miriam R Nemetz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nicole A Saharsky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Gonzalez-Pagan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Puneet Cheema (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rabia Muqaddam (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Brian Katskee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lee H. Rubin (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew E. Tauber (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Camilla B Taylor (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christine Marie Parker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Genevieve Scott (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jamie Avra Gliksberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth Dale Upton , Jr. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Miriam R Nemetz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nicole A Saharsky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Gonzalez-Pagan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Puneet Cheema (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rabia Muqaddam (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Brian Katskee

Plaintiff Medical Students For Choice

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lee H. Rubin (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew E. Tauber (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Camilla B Taylor (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Marie Parker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Genevieve Scott (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jamie Avra Gliksberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth Dale Upton , Jr. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Miriam R Nemetz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nicole A Saharsky (See above for address)

Plaintiff
AGLP: The Association Of LGBTQ+ Psychiatrists

PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Gonzalez-Pagan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Puneet Cheema (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rabia Muqaddam (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Brian Katskee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lee H. Rubin (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew E. Tauber (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Camilla B Taylor (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Marie Parker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Genevieve Scott (See above for address) PRO HAC VICE

ATTORNEY TO BE NOTICED
Jamie Avra Gliksberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth Dale Upton , Jr. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Miriam R Nemetz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nicole A Saharsky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Gonzalez-Pagan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Puneet Cheema (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rabia Muqaddam (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Brian Katskee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lee H. Rubin (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
American Association Of Physicians For Human Rights doing business as GLMA: Health Professionals Advancing LGBTQ Equality

represented by Andrew E. Tauber (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Camilla B Taylor (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Marie Parker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Genevieve Scott (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jamie Avra Gliksberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth Dale Upton , Jr. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Miriam R Nemetz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nicole A Saharsky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Gonzalez-Pagan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Colleen McNicholas

Puneet Cheema (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rabia Muqaddam (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Brian Katskee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lee H. Rubin (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew E. Tauber (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Camilla B Taylor (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Marie Parker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Genevieve Scott (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jamie Avra Gliksberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth Dale Upton , Jr.

Plaintiff Robert Bolan

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Miriam R Nemetz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nicole A Saharsky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Gonzalez-Pagan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Puneet Cheema (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rabia Muqaddam (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Brian Katskee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lee H. Rubin (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew E. Tauber (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Camilla B Taylor (See above for address)

PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Marie Parker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Genevieve Scott (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jamie Avra Gliksberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth Dale Upton , Jr. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Miriam R Nemetz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nicole A Saharsky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Gonzalez-Pagan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Puneet Cheema (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rabia Muqaddam (See above for address) PRO HAC VICE

Plaintiff Ward Carpenter

ATTORNEY TO BE NOTICED
Richard Brian Katskee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lee H. Rubin (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew E. Tauber (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Camilla B Taylor (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Marie Parker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Genevieve Scott (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jamie Avra Gliksberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth Dale Upton , Jr. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Miriam R Nemetz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Sarah Henn

Nicole A Saharsky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Gonzalez-Pagan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Puneet Cheema (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rabia Muqaddam (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Brian Katskee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lee H. Rubin (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew E. Tauber (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Camilla B Taylor (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Marie Parker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Genevieve Scott (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jamie Avra Gliksberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth Dale Upton , Jr. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Miriam R Nemetz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nicole A Saharsky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Gonzalez-Pagan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Puneet Cheema (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rabia Muqaddam (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Brian Katskee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lee H. Rubin

Plaintiff Randy Pumphrey

(See above for address) ATTORNEY TO BE NOTICED
represented by Andrew E. Tauber (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Camilla B Taylor (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Marie Parker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Genevieve Scott (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jamie Avra Gliksberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth Dale Upton , Jr. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Miriam R Nemetz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nicole A Saharsky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Gonzalez-Pagan (See above for address)

V.
Defendant
U.S. Department of Health and Human Services

PRO HAC VICE ATTORNEY TO BE NOTICED
Puneet Cheema (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rabia Muqaddam (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Brian Katskee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lee H. Rubin (See above for address) ATTORNEY TO BE NOTICED
represented by Benjamin Thomas Takemoto U.S. Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Ben Franklin Station Washington, DC 20044 (202) 532-4252 Fax: (202) 616-8460 Email: benjamin.takemoto@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca M. Kopplin United States Department of Justice Civil Division 1100 L Street NW Washington, DC 20005 202-514-3953

Defendant Alex M. Azar, II in his official capacity as Secretary of Health and Human Services
Amicus Institute for Policy Integrity New York University School of Law 139 MacDougal Street, 3rd Floor New York, NY 10012 212-992-8932

Email: rebecca.m.kopplin@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin Thomas Takemoto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca M. Kopplin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Denise Antonia Grab 1111 Broadway Third Floor Oakland, CA 94607 (415) 841-2332 Email: denise.grab@aya.yale.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shannon Rose Selden Debevoise and Plimpton LLP 919 Third Avenue New York, NY 10022 212-909-6000 Email: srselden@debevoise.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Augusta Moody Debevoise and Plimpton LLP 801 Pennsylvania Avenue NW Suite 500 Washington, DC 20004 202-383-8000 Fax: 202- 383-8118 Email: amoody@debevoise.com ATTORNEY TO BE NOTICED

Amicus American College of Obstetricians and Gynecologists
Amicus National LGBT Cancer Network

represented by Shannon Rose Selden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Augusta Moody (See above for address) ATTORNEY TO BE NOTICED
represented by Geraldine E Edens Morgan, Lewis and Bockius LLP 1111 Pennsylvania Ave., NW Washington, DC 20004 (202) 739-3000 Email: geri.edens@morganlewis.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Susan Feigin Harris Morgan, Lewis and Bockius LLP 1000 Louisiana Street Suite 4000 Houston, TX 77002 (713) 890-5000 Email: susan.harris@morganlewis.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Susan Baker Manning Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 202-739-3000 Fax: 202-739-3001 Email: susan.manning@morganlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Callen Lorde Community Health Center
Amicus Care Resource Community Health Centers, Inc.
Amicus Howard Brown Health

represented by Geraldine E Edens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Feigin Harris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Baker Manning (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Geraldine E Edens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Feigin Harris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Baker Manning (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Geraldine E Edens (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Susan Feigin Harris (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Legacy Community Health Services, Inc.
Amicus National LGBTQ Task Force

Susan Baker Manning (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Geraldine E Edens (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Susan Feigin Harris (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Susan Baker Manning (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Geraldine E Edens (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Susan Feigin Harris (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Susan Baker Manning (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

05/28/2019
05/28/2019 05/28/2019 05/28/2019 05/28/2019

1 COMPLAINT for Declaratory and Injunctive Relief against Alex M. Azar, II, U.S. Department of Health and Human Services ( Filing fee $ 400, receipt number 0971-13382887.). Filed byAGLP: The Association Of LGBTQ Psychiatrists, Center On Halsted, Trust Women Seattle, Sarah Henn, County of Santa Clara, Randy Pumphrey, Ward Carpenter, Bradbury-Sullivan LGBT Community Center, Los Angeles LGBT Center, Mazzoni Center, American Association Of Physicians For Human Rights, Robert Bolan, Colleen McNicholas, Hartford Gyn Center, Whitman-Walker Clinic, Inc., Medical Students For Choice. (Attachments: # 1 Exhibit 1, # 2 Civil Cover Sheet)(Rubin, Lee) (Filed on 5/28/2019) (Entered: 05/28/2019)
2 MOTION for leave to appear in Pro Hac Vice Jamie A. Gliksberg ( Filing fee $ 310, receipt number 0971-13383206.) filed by AGLP: The Association Of LGBTQ Psychiatrists, American Association Of Physicians For Human Rights, Robert Bolan, Bradbury-Sullivan LGBT Community Center, Ward Carpenter, Center On Halsted, County of Santa Clara, Hartford Gyn Center, Sarah Henn, Los Angeles LGBT Center, Mazzoni Center, Colleen McNicholas, Medical Students For Choice, Randy Pumphrey, Trust Women Seattle, Whitman-Walker Clinic, Inc.. (Gliksberg, Jamie) (Filed on 5/28/2019) (Entered: 05/28/2019)
3 MOTION for leave to appear in Pro Hac Vice Camilla B. Taylor ( Filing fee $ 310, receipt number 0971-13383260.) filed by AGLP: The Association Of LGBTQ Psychiatrists, American Association Of Physicians For Human Rights, Robert Bolan, Bradbury-Sullivan LGBT Community Center, Ward Carpenter, Center On Halsted, County of Santa Clara, Hartford Gyn Center, Sarah Henn, Los Angeles LGBT Center, Mazzoni Center, Colleen McNicholas, Medical Students For Choice, Randy Pumphrey, Trust Women Seattle, Whitman-Walker Clinic, Inc.. (Taylor, Camilla) (Filed on 5/28/2019) (Entered: 05/28/2019)
4 Proposed Summons. (Rubin, Lee) (Filed on 5/28/2019) (Entered: 05/28/2019)
5 MOTION for leave to appear in Pro Hac Vice Omar GonzalezPagan ( Filing fee $ 310, receipt number 0971-13383275.) filed by AGLP: The Association Of LGBTQ Psychiatrists, American Association Of Physicians For Human Rights, Robert Bolan, Bradbury-Sullivan LGBT Community Center, Ward Carpenter, Center On Halsted, County of Santa Clara, Hartford Gyn Center, Sarah Henn, Los Angeles LGBT Center, Mazzoni Center, Colleen McNicholas, Medical Students For Choice, Randy Pumphrey, Trust

05/28/2019 05/28/2019 05/28/2019 05/28/2019

Women Seattle, Whitman-Walker Clinic, Inc.. (Gonzalez-Pagan, Omar) (Filed on 5/28/2019) (Entered: 05/28/2019)
6 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-13383886.) filed by AGLP: The Association Of LGBTQ Psychiatrists, American Association Of Physicians For Human Rights, Robert Bolan, Bradbury-Sullivan LGBT Community Center, Ward Carpenter, Center On Halsted, County of Santa Clara, Hartford Gyn Center, Sarah Henn, Los Angeles LGBT Center, Mazzoni Center, Colleen McNicholas, Medical Students For Choice, Randy Pumphrey, Trust Women Seattle, WhitmanWalker Clinic, Inc.. (Attachments: # 1 Certificate of Good Standing)(Nemetz, Miriam) (Filed on 5/28/2019) (Entered: 05/28/2019)
7 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-13383962.) filed by AGLP: The Association Of LGBTQ Psychiatrists, American Association Of Physicians For Human Rights, Robert Bolan, Bradbury-Sullivan LGBT Community Center, Ward Carpenter, Center On Halsted, County of Santa Clara, Hartford Gyn Center, Sarah Henn, Los Angeles LGBT Center, Mazzoni Center, Colleen McNicholas, Medical Students For Choice, Randy Pumphrey, Trust Women Seattle, WhitmanWalker Clinic, Inc.. (Attachments: # 1 Certificate of Good Standing)(Saharsky, Nicole) (Filed on 5/28/2019) (Entered: 05/28/2019)
8 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-13384036.) filed by AGLP: The Association Of LGBTQ Psychiatrists, American Association Of Physicians For Human Rights, Robert Bolan, Bradbury-Sullivan LGBT Community Center, Ward Carpenter, Center On Halsted, County of Santa Clara, Hartford Gyn Center, Sarah Henn, Los Angeles LGBT Center, Mazzoni Center, Colleen McNicholas, Medical Students For Choice, Randy Pumphrey, Trust Women Seattle, WhitmanWalker Clinic, Inc.. (Attachments: # 1 Certificate of Good Standing)(Scott, Genevieve) (Filed on 5/28/2019) (Entered: 05/28/2019)
9 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-13384077.) filed by AGLP: The Association Of LGBTQ Psychiatrists, American Association Of Physicians For Human Rights, Robert Bolan, Bradbury-Sullivan LGBT Community Center, Ward Carpenter, Center On Halsted, County of Santa Clara, Hartford Gyn Center, Sarah Henn, Los Angeles LGBT Center, Mazzoni Center, Colleen McNicholas, Medical Students

05/28/2019 05/28/2019 05/28/2019 05/29/2019

For Choice, Randy Pumphrey, Trust Women Seattle, WhitmanWalker Clinic, Inc.. (Attachments: # 1 Certificate of Good Standing)(Muqaddam, Rabia) (Filed on 5/28/2019) (Entered: 05/28/2019)
10 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-13384102.) filed by AGLP: The Association Of LGBTQ Psychiatrists, American Association Of Physicians For Human Rights, Robert Bolan, Bradbury-Sullivan LGBT Community Center, Ward Carpenter, Center On Halsted, County of Santa Clara, Hartford Gyn Center, Sarah Henn, Los Angeles LGBT Center, Mazzoni Center, Colleen McNicholas, Medical Students For Choice, Randy Pumphrey, Trust Women Seattle, WhitmanWalker Clinic, Inc.. (Attachments: # 1 Certificate of Good Standing)(Parker, Christine) (Filed on 5/28/2019) (Entered: 05/28/2019)
11 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-13384485.) filed by AGLP: The Association Of LGBTQ Psychiatrists, American Association Of Physicians For Human Rights, Robert Bolan, Bradbury-Sullivan LGBT Community Center, Ward Carpenter, Center On Halsted, County of Santa Clara, Hartford Gyn Center, Sarah Henn, Los Angeles LGBT Center, Mazzoni Center, Colleen McNicholas, Medical Students For Choice, Randy Pumphrey, Trust Women Seattle, WhitmanWalker Clinic, Inc.. (Attachments: # 1 Certificate of Good Standing)(Katskee, Richard) (Filed on 5/28/2019) (Entered: 05/28/2019)
12 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-13384520.) filed by AGLP: The Association Of LGBTQ Psychiatrists, American Association Of Physicians For Human Rights, Robert Bolan, Bradbury-Sullivan LGBT Community Center, Ward Carpenter, Center On Halsted, County of Santa Clara, Hartford Gyn Center, Sarah Henn, Los Angeles LGBT Center, Mazzoni Center, Colleen McNicholas, Medical Students For Choice, Randy Pumphrey, Trust Women Seattle, WhitmanWalker Clinic, Inc.. (Attachments: # 1 Certificate of Good Standing)(Upton, Kenneth) (Filed on 5/28/2019) (Entered: 05/28/2019)
13 Case assigned to Judge Nathanael M. Cousins.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents

05/29/2019 05/29/2019 05/30/2019
05/30/2019 05/30/2019 05/30/2019

upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 51(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 6/12/2019. (as, COURT STAFF) (Filed on 5/29/2019) (Entered: 05/29/2019)
14 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 8/21/2019. Initial Case Management Conference set for 8/28/2019 10:00 AM in San Jose, Courtroom 5, 4th Floor. (sfbS, COURT STAFF) (Filed on 5/29/2019) (Entered: 05/29/2019)
15 Summons Issued as to Alex M. Azar, II, U.S. Department of Health and Human Services, U.S. Attorney and U.S. Attorney General (sfbS, COURT STAFF) (Filed on 5/29/2019) (Entered: 05/29/2019)
16 CLERK'S NOTICE REGARDING Consent or Declination: All parties shall file a consent or declination to proceed before a magistrate judge by 6/13/2019. Note that any party is free to withhold consent to proceed before a magistrate judge without adverse substantive consequences. The forms are available at: http://cand.uscourts.gov/civilforms. (This is a text-only entry generated by the court. There is no document associated with this entry.) (lmh, COURT STAFF) (Filed on 5/30/2019) (Entered: 05/30/2019)
17 ORDER GRANTING APPLICATION for Admission of Attorney Jamie A. Gliksberg Pro Hac Vice representing Plaintiffs 2 . Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 5/30/2019) (Entered: 05/30/2019)
18 ORDER GRANTING APPLICATION for Admission of Attorney Camilla B. Taylor Pro Hac Vice representing Plaintiffs 3 . Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 5/30/2019) (Entered: 05/30/2019)
19 ORDER GRANTING APPLICATION for Admission of Attorney Omar Gonzalez-Pagan Pro Hac Vice representing Plaintiffs 5 . Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 5/30/2019) (Entered: 05/30/2019)

05/30/2019 05/30/2019 05/30/2019 05/30/2019 05/30/2019 05/30/2019 05/30/2019 05/31/2019

20 ORDER GRANTING APPLICATION for Admission of Attorney Miriam Nemetz Pro Hac Vice representing Plaintiffs 6 . Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 5/30/2019) (Entered: 05/30/2019)
21 ORDER GRANTING APPLICATION for Admission of Attorney Nicole Saharski Pro Hac Vice representing Plaintiffs 7 . Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 5/30/2019) (Entered: 05/30/2019)
22 ORDER GRANTING APPLICATION for Admission of Attorney Genevieve Scott Pro Hac Vice representing Plaintiffs 8 . Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 5/30/2019) (Entered: 05/30/2019)
23 ORDER GRANTING APPLICATION for Admission of Attorney Rabia Muqaddam Pro Hac Vice representing Plaintiffs 9 . Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 5/30/2019) (Entered: 05/30/2019)
24 ORDER GRANTING APPLICATION for Admission of Attorney Christine Parker Pro Hac Vice representing Plaintiffs 10 . Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 5/30/2019) (Entered: 05/30/2019)
25 ORDER GRANTING APPLICATION for Admission of Attorney Richard Katskee Pro Hac Vice representing Plaintiffs 11 . Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 5/30/2019) (Entered: 05/30/2019)
26 ORDER GRANTING APPLICATION for Admission of Attorney Kenneth Upton Pro Hac Vice representing Plaintiffs 12 . Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 5/30/2019) (Entered: 05/30/2019)
27 MOTION for leave to appear in Pro Hac Vice Puneet Cheema ( Filing fee $ 310, receipt number 0971-13397086.) filed by AGLP: The Association Of LGBTQ Psychiatrists, American Association Of Physicians For Human Rights, Robert Bolan, Bradbury-Sullivan LGBT Community Center, Ward Carpenter, Center On Halsted, County of Santa Clara, Hartford Gyn Center, Sarah Henn, Los Angeles LGBT Center, Mazzoni Center, Colleen McNicholas, Medical Students For Choice, Randy Pumphrey, Trust Women Seattle, Whitman-Walker Clinic, Inc.. (Cheema, Puneet) (Filed on 5/31/2019) (Entered: 05/31/2019)

05/31/2019

28 ORDER GRANTING APPLICATION for Admission of Attorney Puneet Cheema Pro Hac Vice representing Plaintiffs 27 . Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 5/31/2019) (Entered: 05/31/2019)

06/03/2019

29 NOTICE of Appearance by Mary Elizabeth Hanna-Weir (HannaWeir, Mary) (Filed on 6/3/2019) (Entered: 06/03/2019)

06/03/2019

30 NOTICE of Appearance by Hannah Luke Edwards (Edwards, Hannah) (Filed on 6/3/2019) (Entered: 06/03/2019)

06/04/2019

31 NOTICE of Appearance by Rebecca M. Kopplin (Kopplin, Rebecca) (Filed on 6/4/2019) (Entered: 06/04/2019)

06/05/2019

32 NOTICE of Appearance by Susan Pearl Greenberg (Greenberg, Susan) (Filed on 6/5/2019) (Entered: 06/05/2019)

06/05/2019

33 MOTION for Leave to File Excess Pages filed by AGLP: The Association Of LGBTQ Psychiatrists, American Association Of Physicians For Human Rights, Robert Bolan, Bradbury-Sullivan LGBT Community Center, Ward Carpenter, Center On Halsted, County of Santa Clara, Hartford Gyn Center, Sarah Henn, Los Angeles LGBT Center, Mazzoni Center, Colleen McNicholas, Medical Students For Choice, Randy Pumphrey, Trust Women Seattle, Whitman-Walker Clinic, Inc.. (Attachments: # 1 Stipulation on Motion to Exceed Page Limitation, # 2 Proposed Order)(Rubin, Lee) (Filed on 6/5/2019) (Entered: 06/05/2019)

06/05/2019

34 Order granting 33 Motion for Leave to File Excess Pages entered by Judge Nathanael M. Cousins. (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 06/05/2019)

06/06/2019

35 NOTICE of Appearance by Benjamin Thomas Takemoto (Takemoto, Benjamin) (Filed on 6/6/2019) (Entered: 06/06/2019)

06/11/2019 36

MOTION for Preliminary Injunction filed by AGLP: The Association Of LGBTQ Psychiatrists, American Association Of Physicians For Human Rights, Robert Bolan, Bradbury-Sullivan LGBT Community Center, Ward Carpenter, Center On Halsted, County of Santa Clara, Hartford Gyn Center, Sarah Henn, Los Angeles LGBT Center, Mazzoni Center, Colleen McNicholas, Medical Students For Choice, Randy Pumphrey, Trust Women Seattle, Whitman-Walker Clinic, Inc.. Motion Hearing set for 7/17/2019 01:00 PM before Judge Nathanael M. Cousins. Responses due by 6/25/2019. Replies due by 7/2/2019.

06/13/2019 06/13/2019 06/13/2019 06/14/2019

(Attachments: # 1 Declaration - Backus, Lois, # 2 Declaration Barnes, Elizabeth, # 3 Declaration - Bolan, Robert, # 4 Declaration - Burkhart, Julie, # 5 Declaration - Butler, Bruce, # 6 Declaration Carpenter, Ward, # 7 Declaration - Cody, Sara, # 8 Declaration Cummings, Darrell, # 9 Declaration - Ettner, Randi, # 10 Declaration - Harker, Roy, # 11 Declaration - Henn, Sarah, # 12 Declaration - Lorenz, Paul, # 13 Declaration - Manley, Alecia, # 14 Declaration - McNicholas, Colleen, # 15 Declaration - Miller, Ken, # 16 Declaration - Nguyen, Phuong, # 17 Declaration - Phelps, Rachael, # 18 Declaration - Pumphrey, Randy, # 19 Declaration Shafi, Naseema, # 20 Declaration - Shanker, Adrian, # 21 Declaration - Singh, Narinder, # 22 Declaration - Sproul, Jill, # 23 Declaration - Tullys, Toni, # 24 Declaration - Valle, Modesto, # 25 Declaration - Vargas, Hector, # 26 Declaration - Rubin, Lee, # 27 Proposed Order)(Rubin, Lee) (Filed on 6/11/2019) (Entered: 06/11/2019)
37 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by AGLP: The Association Of LGBTQ Psychiatrists, American Association Of Physicians For Human Rights, Robert Bolan, Bradbury-Sullivan LGBT Community Center, Ward Carpenter, Center On Halsted, County of Santa Clara, Hartford Gyn Center, Sarah Henn, Los Angeles LGBT Center, Mazzoni Center, Colleen McNicholas, Medical Students For Choice, Randy Pumphrey, Trust Women Seattle, Whitman-Walker Clinic, Inc... (Rubin, Lee) (Filed on 6/13/2019) (Entered: 06/13/2019)
38 Order relating Case Numbers C-19-2405 JCS, C-19-02769 HSG and C-19-2916 NC. All three cases shall be randomly assigned to a district judge. Signed by Judge Joseph C. Spero on June 13, 2019. (jcslc1S, COURT STAFF) (Filed on 6/13/2019) (Entered: 06/13/2019)
39 ORDER REASSIGNING CASE. Case reassigned using a proportionate, random, and blind system pursuant to General Order No. 44 to Judge William Alsup for all further proceedings. Judge Nathanael M. Cousins no longer assigned to case, Notice: The assigned judge participates in the Cameras in the Courtroom Pilot Project. See General Order No. 65 and http://cand.uscourts.gov/cameras.. Signed by Clerk on 6/13/19. (Attachments: # 1 Notice of Eligibility for Video Recording)(as, COURT STAFF) (Filed on 6/13/2019) (Entered: 06/13/2019)
40 ORDER SETTING BRIEFING SCHEDULE ON MOTIONS FOR PROVISIONAL RELIEF AND SETTING HEARING FOR 7/17/2019 08:00 AM. Signed by Judge Alsup on 6/14/2019.

(whalc1, COURT STAFF) (Filed on 6/14/2019) (Entered: 06/14/2019)

06/14/2019

41 CLERK'S NOTICE SCHEDULING CMC ON REASSIGNMENT: Case Management Statement due by 7/10/2019. Initial Case Management Conference set for 7/17/2019 08:00 AM in San Francisco, Courtroom 12, 19th Floor. Standing orders can be downloaded from the Court's web page at www.cand.uscourts.gov/whaorders. (This is a text-only entry generated by the court. There is no document associated with this entry.) (tlhS, COURT STAFF) (Filed on 6/14/2019) (Entered: 06/14/2019)

06/21/2019

42 Consent MOTION to File Amicus Curiae Brief filed by Institute for Policy Integrity. Responses due by 7/5/2019. Replies due by 7/12/2019. (Attachments: # 1 Exhibit Proposed Amicus Brief, # 2 Proposed Order)(Grab, Denise) (Filed on 6/21/2019) (Entered: 06/21/2019)

06/21/2019

43 NOTICE of Appearance by Denise Antonia Grab (Grab, Denise) (Filed on 6/21/2019) (Entered: 06/21/2019)

06/24/2019 44

ORDER GRANTING MOTION TO FILE AMICUS CURIAE by Judge William Alsup (granting (41) in case 3:19-cv-02405WHA, granting (31) in case 3:19-cv-02769-WHA, and granting (42) in case 3:19-cv-02405-WHA). (whalc1, COURT STAFF) (Filed on 6/24/2019) (Entered: 06/24/2019)

06/25/2019

45 ADMINISTRATIVE MOTION to Establish a Summary Judgment Briefing Schedule or, in the Alternative, to Enlarge Time to File Preliminary Injunction Opposition filed by Alex M. Azar, II, U.S. Department of Health and Human Services. Responses due by 7/1/2019. (Attachments: # 1 Declaration Takemoto, # 2 Proposed Order)(Takemoto, Benjamin) (Filed on 6/25/2019) (Entered: 06/25/2019)

06/27/2019 46

ORDER RE ADMINISTRATIVE MOTION TO ADJUST SCHEDULE (denying (50) in case 3:19-cv-02405-WHA; denying (34) in case 3:19-cv-02769-WHA; denying (45) in case 3:19-cv-02916-WHA) by Judge Alsup. (whalc1, COURT STAFF) (Filed on 6/27/2019) (Entered: 06/27/2019)

06/27/2019

47 ADR Clerks Notice re: Non-Compliance with Court Order. The parties have failed to file an ADR Certification as required by the Initial Case Management Scheduling Order. Counsel shall comply promptly with the requirements of ADR L.R. 3-5(b) and shall file the ADR Certification. (This is a text-only entry generated by the

court. There is no document associated with this entry.)(cmfS, COURT STAFF) (Filed on 6/27/2019) (Entered: 06/27/2019)

06/27/2019

48 Joint ADMINISTRATIVE MOTION for Relief from Automatic Referral to the ADR Multi-Option Program filed by AGLP: The Association Of LGBTQ Psychiatrists, American Association Of Physicians For Human Rights, Robert Bolan, Bradbury-Sullivan LGBT Community Center, Ward Carpenter, Center On Halsted, County of Santa Clara, Hartford Gyn Center, Sarah Henn, Los Angeles LGBT Center, Mazzoni Center, Colleen McNicholas, Medical Students For Choice, Randy Pumphrey, Trust Women Seattle, Whitman-Walker Clinic, Inc.. Responses due by 7/1/2019. (Attachments: # 1 Proposed Order)(Rubin, Lee) (Filed on 6/27/2019) (Entered: 06/27/2019)

06/28/2019

49 ORDER GRANTING (57) ADMINISTRATIVE MOTION TO ENLARGE PAGE LIMIT by Judge William Alsup in case 3:19cv-02405-WHA. Associated Cases: 3:19-cv-02769-WHA, 3:19cv-02916-WHA (whalc1, COURT STAFF) (Filed on 6/28/2019) (Entered: 06/28/2019)

06/29/2019

50 ORDER RE (64) STIPULATED REQUEST by Judge William Alsup in case 3:19-cv-02405-WHA. Associated Cases: 3:19-cv02769-WHA, 3:19-cv-02916-WHA (whalc1, COURT STAFF) (Filed on 6/29/2019) (Entered: 06/29/2019)

07/01/2019 51

ORDER RE STIPULATED REQUEST AND BRIEFING SCHEDULE. Signed by Judge Alsup on 7/1/2019. (whalc1, COURT STAFF) (Filed on 7/1/2019) (Entered: 07/01/2019)

07/01/2019

Set/Reset Hearing re (51 in 3:19-cv-02916-WHA) Order: Preliminary Injunction Hearing and Initial Case Management Conference VACATED (tlhS, COURT STAFF) (Filed on 7/1/2019) (Entered: 07/01/2019)

07/02/2019

52 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-13485619.) filed by AGLP: The Association Of LGBTQ Psychiatrists, American Association Of Physicians For Human Rights, Bradbury-Sullivan LGBT Community Center, Ward Carpenter, Center On Halsted, County of Santa Clara, Hartford Gyn Center, Sarah Henn, Los Angeles LGBT Center, Mazzoni Center, Medical Students For Choice, Randy Pumphrey, Trust Women Seattle, Whitman-Walker Clinic, Inc.. (Attachments: # 1 Certificate of Good Standing)(Tauber, Andrew) (Filed on 7/2/2019) (Entered: 07/02/2019)

07/05/2019 07/08/2019 07/08/2019
07/09/2019 07/22/2019 07/22/2019 07/23/2019 07/24/2019

53 ORDER by Judge William Alsup denying 52 Motion for Pro Hac Vice as to attorney Andrew Tauber. (tlhS, COURT STAFF) (Filed on 7/5/2019) (Entered: 07/05/2019)
54 ORDER GRANTING 48 JOINT ADMINISTRATIVE MOTION FOR RELIEF FROM AUTOMATIC REFERRAL TO THE ADR MULTI-OPTION PROGRAM by Judge William Alsup. (whalc1, COURT STAFF) (Filed on 7/8/2019) (Entered: 07/08/2019)
55 MOTION & [PROPOSED] ORDER for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-13485619.) Filing fee previously paid on 7/2/2019 filed by AGLP: The Association Of LGBTQ Psychiatrists, American Association Of Physicians For Human Rights, Bradbury-Sullivan LGBT Community Center, Ward Carpenter, Center On Halsted, County of Santa Clara, Hartford Gyn Center, Sarah Henn, Los Angeles LGBT Center, Mazzoni Center, Medical Students For Choice, Randy Pumphrey, Trust Women Seattle, Whitman-Walker Clinic, Inc.. (Attachments: # 1 Certificate of Good Standing)(Tauber, Andrew) (Filed on 7/8/2019) Modified on 7/9/2019 (aaaS, COURT STAFF). (Entered: 07/08/2019)
56 ORDER by Judge William Alsup granting 55 Motion for Pro Hac Vice as to attorney Andrew Tauber. (tlhS, COURT STAFF) (Filed on 7/9/2019) (Entered: 07/09/2019)
59 ORDER AS MODIFIED RE (70) PRIVACY ACT MOTION. Associated Cases: 3:19-cv-02405-WHA, 3:19-cv-02769-WHA, 3:19-cv-02916-WHA (whalc1, COURT STAFF) (Filed on 7/22/2019) (Entered: 07/22/2019)
60 ORDER AS MODIFIED RE (69) ADMINISTRATIVE MOTION TO ENLARGE TIME by Judge William Alsup.Associated Cases: 3:19-cv-02405-WHA, 3:19-cv-02769WHA, 3:19-cv-02916-WHA (whalc1, COURT STAFF) (Filed on 7/22/2019) (Entered: 07/22/2019)
61 Received Document Administrative record re (73 in 3:19-cv-02405WHA) Notice (Other),. (amgS, COURT STAFF) (Filed on 7/23/2019) (Entered: 07/23/2019)
62 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-13547690.) filed by American College of Obstetricians and Gynecologists. (Attachments: # 1 Certificate of Good Standing)(Moody, Anna) (Filed on 7/24/2019) (Entered: 07/24/2019)

07/24/2019

63 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-13547720.) filed by American College of Obstetricians and Gynecologists. (Attachments: # 1 Certificate of Good Standing)(Selden, Shannon) (Filed on 7/24/2019) (Entered: 07/24/2019)

08/21/2019 64

MOTION to Dismiss or, in the alternative, MOTION for Summary Judgment filed by Alex M. Azar, II, U.S. Department of Health and Human Services. Motion Hearing set for 10/30/2019 08:00 AM in San Francisco, Courtroom 12, 19th Floor before Judge William Alsup. Responses due by 9/12/2019. Replies due by 9/26/2019. (Takemoto, Benjamin) (Filed on 8/21/2019) (Entered: 08/21/2019)

08/21/2019 65

ORDER RE BRIEFING. Signed by Judge Alsup on 8/21/2019. (whalc1, COURT STAFF) (Filed on 8/21/2019) (Entered: 08/21/2019)

09/12/2019

66 NOTICE of Appearance by Susan Baker Manning (Manning, Susan) (Filed on 9/12/2019) (Entered: 09/12/2019)

09/12/2019

67 MOTION for Leave to File Brief as Amici Curiae filed by Callen Lorde Community Health Center, Care Resource Community Health Centers, Inc., Howard Brown Health, Legacy Community Health Services, Inc., National LGBT Cancer Network, National LGBTQ Task Force. (Attachments: # 1 Brief in Support of Plaintiff's Motion For Summary Judgment, # 2 Proposed Order)(Manning, Susan) (Filed on 9/12/2019) (Entered: 09/12/2019)

09/12/2019

68 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-13698362.) filed by Callen Lorde Community Health Center, Care Resource Community Health Centers, Inc., Howard Brown Health, Legacy Community Health Services, Inc., National LGBT Cancer Network, National LGBTQ Task Force. (Attachments: # 1 Certificate of Good Standing)(Edens, Geraldine) (Filed on 9/12/2019) (Entered: 09/12/2019)

09/12/2019

69 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-13698415.) filed by Callen Lorde Community Health Center, Care Resource Community Health Centers, Inc., Howard Brown Health, Legacy Community Health Services, Inc., National LGBT Cancer Network, National LGBTQ Task Force. (Attachments: # 1 Certificate of Good Standing)(Harris, Susan) (Filed on 9/12/2019) (Entered: 09/12/2019)

09/12/2019

70 NOTICE by AGLP: The Association Of LGBTQ Psychiatrists, American Association Of Physicians For Human Rights, Robert

Bolan, Bradbury-Sullivan LGBT Community Center, Ward Carpenter, Center On Halsted, County of Santa Clara, Hartford Gyn Center, Sarah Henn, Los Angeles LGBT Center, Mazzoni Center, Colleen McNicholas, Medical Students For Choice, Randy Pumphrey, Trust Women Seattle, Whitman-Walker Clinic, Inc. Plaintiffs' Notice of Filing In State Of California V. Azar, ET AL., NO. 3:19-CV-02769 (N.D. CAL.) (Rubin, Lee) (Filed on 9/12/2019) (Entered: 09/12/2019)

09/19/2019

71 ORDER by Judge William Alsup denying 62 Motion for Pro Hac Vice as to attorney Anna A. Moody. (tlhS, COURT STAFF) (Filed on 9/19/2019) (Entered: 09/19/2019)

09/19/2019

72 ORDER by Judge William Alsup denying 63 Motion for Pro Hac Vice as to attorney Shannon R. Selden. (tlhS, COURT STAFF) (Filed on 9/19/2019) (Entered: 09/19/2019)

09/19/2019 73

ORDER GRANTING 67 Motion for Leave to File Amicus Brief BY CALLEN LORDE COMMUNITY HEALTH CENTER, CARE RESOURCE COMMUNITY HEALTH CENTERS, INC., HOWARD BROWN HEALTH, LEGACY COMMUNITY HEALTH SERVICES, INC., NATIONAL LGBT CANCER NETWORK, AND NATIONAL LGBTQ TASK FORCE by Judge William Alsup. (tlhS, COURT STAFF) (Filed on 9/19/2019) (Entered: 09/19/2019)

09/19/2019

74 ORDER by Judge William Alsup denying 68 Motion for Pro Hac Vice as to attorney Geraldine E. Edens. (tlhS, COURT STAFF) (Filed on 9/19/2019) (Entered: 09/19/2019)

09/19/2019

75 ORDER by Judge William Alsup denying 69 Motion for Pro Hac Vice as to attorney Susan Feigin Harris. (tlhS, COURT STAFF) (Filed on 9/19/2019) (Entered: 09/19/2019)

09/20/2019

76 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-13698362.) Filing fee previously paid on 9/12/2019 filed by Callen Lorde Community Health Center, Care Resource Community Health Centers, Inc., Howard Brown Health, Legacy Community Health Services, Inc., National LGBT Cancer Network, National LGBTQ Task Force. (Attachments: # 1 Certificate of Good Standing)(Edens, Geraldine) (Filed on 9/20/2019) (Entered: 09/20/2019)

09/20/2019

77 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-13698415.) Filing fee previously paid on 9/12/2019 filed by Callen Lorde Community Health Center, Care Resource Community Health Centers, Inc., Howard Brown Health,

Legacy Community Health Services, Inc., National LGBT Cancer Network, National LGBTQ Task Force. (Attachments: # 1 Certificate of Good Standing)(Harris, Susan) (Filed on 9/20/2019) (Entered: 09/20/2019)

09/20/2019

78 ORDER by Judge William Alsup granting 76 Motion for Pro Hac Vice as to attorney Geraldine E. Edens. (tlhS, COURT STAFF) (Filed on 9/20/2019) (Entered: 09/20/2019)

09/20/2019

79 ORDER by Judge William Alsup granting 77 Motion for Pro Hac Vice as to attorney Susan Feigin Harris. (tlhS, COURT STAFF) (Filed on 9/20/2019) (Entered: 09/20/2019)

09/24/2019 80

NOTICE RE BRIEFING. Signed by Judge Alsup on 9/24/2019. (whalc1, COURT STAFF) (Filed on 9/24/2019) (Entered: 09/24/2019)

10/10/2019

81 NOTICE by AGLP: The Association Of LGBTQ Psychiatrists, American Association Of Physicians For Human Rights, Robert Bolan, Bradbury-Sullivan LGBT Community Center, Ward Carpenter, Center On Halsted, County of Santa Clara, Hartford Gyn Center, Sarah Henn, Los Angeles LGBT Center, Mazzoni Center, Colleen McNicholas, Medical Students For Choice, Randy Pumphrey, Trust Women Seattle, Whitman-Walker Clinic, Inc. Plaintiffs' Notice of Filing in State of California V. Azar, Et Al., NO. 3:19-CV-02769 (N.D. Cal.) (Rubin, Lee) (Filed on 10/10/2019) (Entered: 10/10/2019)

10/29/2019 82

NOTICE RE ORAL ARGUMENT. Signed by Judge Alsup on 10/29/2019. (whalc1, COURT STAFF) (Filed on 10/29/2019) (Entered: 10/29/2019)

10/30/2019

83 Minute Entry for proceedings held before Judge William Alsup: Motion Hearing re (89 in 3:19-cv-02405-WHA) MOTION to Dismiss or, in the alternative MOTION for Summary Judgment, (54 in 3:19-cv-02769-WHA) MOTION to Dismiss or, in the alternative MOTION for Summary Judgment, (113 in 3:19-cv-02769-WHA) MOTION for Summary Judgment, (64 in 3:19-cv-02916-WHA) MOTION to Dismiss or, in the alternative MOTION for Summary Judgment. Matter taken under submission. Court to issue written order. (Total Time in Court: 3 hours 52 minutes.)

Court Reporter: Debra Pas. Plaintiff Attorney: Jaime Delaye, Sara Eisenberg (C19-2405 City and County of San Francisco v. Azar II et al); Neli Palma, Stephanie Yu (C19-2769 State of CA v. Azar et al); Miriam

Nemetz, Mary Hanna-Weir, Richard Katskee, Laura Trice, Camilla Taylor, Jamie Gliksberg, Genevieve Scott, Susan Greenberg (C19-2916 County of Santa Clara et al v. USDHHS et al). Defendant Attorney: Benjamin Takemoto, Vinita Andrapalliyal.

(This is a text-only entry generated by the court. There is no document associated with this entry.) (tlhS, COURT STAFF) (Date Filed: 10/30/2019) (Entered: 10/30/2019)

11/06/2019

84 Transcript of Proceedings held on 10-30-2018, before Judge WIlliam H. Alsup. Court Reporter/Transcriber Debra L. Pas, CRR, telephone number (415) 431-1477/Email: Debra_Pas@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (136 in 3:19-cv-02769-WHA) Transcript Order, (141 in 3:19-cv-02405WHA) Transcript Order ) Release of Transcript Restriction set for 2/4/2020. (pasdl50S, COURT STAFF) (Filed on 11/6/2019) (Entered: 11/06/2019)

11/08/2019 85

ORDER RE USE OF TERM "ENTITY". Signed by Judge Alsup on 11/8/2019. (whalc1, COURT STAFF) (Filed on 11/8/2019) (Entered: 11/08/2019)

11/12/2019 86

RESPONSE re 85 Order Plaintiffs' Response to Order Re Use of Term "Entity" by AGLP: The Association Of LGBTQ Psychiatrists, American Association Of Physicians For Human Rights, Robert Bolan, Bradbury-Sullivan LGBT Community Center, Ward Carpenter, Center On Halsted, County of Santa Clara, Hartford Gyn Center, Sarah Henn, Los Angeles LGBT Center, Mazzoni Center, Colleen McNicholas, Medical Students For Choice, Randy Pumphrey, Trust Women Seattle, Whitman-Walker Clinic, Inc. (Rubin, Lee) (Filed on 11/12/2019) Modified on 11/12/2019 (amgS, COURT STAFF). (Entered: 11/12/2019)

11/19/2019 87

ORDER RE MOTIONS TO DISMISS AND FOR SUMMARY JUDGMENT AND REQUESTS FOR JUDICIAL NOTICE by Judge William Alsup.

(Related documents(s): (14) (89) MOTION in case 3:19-cv02405-WHA; (11) (12) (54) (113) (133) MOTION in case 3:19-

cv-02769-WHA; 36 64 MOTION in case 3:19-cv02916-WHA)

01/07/2020

(tlhS, COURT STAFF) (Filed on 11/19/2019) Modified on 11/19/2019 (tlhS, COURT STAFF). (Entered: 11/19/2019)
88 NOTICE by AGLP: The Association Of LGBTQ Psychiatrists, American Association Of Physicians For Human Rights, Robert Bolan, Bradbury-Sullivan LGBT Community Center, Ward Carpenter, Center On Halsted, County of Santa Clara, Hartford Gyn Center, Sarah Henn, Los Angeles LGBT Center, Mazzoni Center, Colleen McNicholas, Medical Students For Choice, Randy Pumphrey, Trust Women Seattle, Whitman-Walker Clinic, Inc.

re 87 Order on Motion to Dismiss,, Order on Motion for Summary Judgment, (Joint Letter Re: Proposed Final Judgment) (Attachments: # 1 Proposed Final Judgment)(Nemetz, Miriam) (Filed on 1/7/2020) (Entered: 01/07/2020)

01/08/2020 89

JUDGMENT. Signed by Judge Alsup on 1/8/2020. (whalc1, COURT STAFF) (Filed on 1/8/2020) (Entered: 01/08/2020)

01/14/2020

90 STIPULATION WITH PROPOSED ORDER Joint Stipulation and Proposed Order to Extend Time for Filing Application for Fees and Costs filed by AGLP: The Association Of LGBTQ Psychiatrists, American Association Of Physicians For Human Rights, Robert Bolan, Bradbury-Sullivan LGBT Community Center, Ward Carpenter, Center On Halsted, County of Santa Clara, Hartford Gyn Center, Sarah Henn, Los Angeles LGBT Center, Mazzoni Center, Colleen McNicholas, Medical Students For Choice, Randy Pumphrey, Trust Women Seattle, Whitman-Walker Clinic, Inc.. (Attachments: # 1 Declaration)(Rubin, Lee) (Filed on 1/14/2020) (Entered: 01/14/2020)

01/15/2020

91 ORDER GRANTING 90 STIPULATED REQUEST TO EXTEND TIME FOR FILING APPLICATIONFOR FEES AND COSTS by Judge William Alsup. (whalc1, COURT STAFF) (Filed on 1/15/2020) (Entered: 01/15/2020)

03/06/2020 92

NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Alex M. Azar, II, U.S. Department of Health and Human Services.

Appeal of Judgment 89 (Appeal fee FEE

03/09/2020 03/31/2020 06/02/2020

WAIVED.) (Takemoto, Benjamin) (Filed on 3/6/2020) (Entered: 03/06/2020)
93 USCA Case Number 20-15399 9th Circuit for 92 Notice of Appeal filed by Alex M. Azar, II, U.S. Department of Health and Human Services. (fabS, COURT STAFF) (Filed on 3/9/2020) (Entered: 03/09/2020)
94 Transcript Designation Form for proceedings held on October 30,
2019 before Judge Alsup, re 92 Notice of Appeal Transcript due by 4/6/2020. (Takemoto, Benjamin) (Filed on 3/31/2020) (Entered: 03/31/2020)
95 ORDER of USCA as to 92 Notice of Appeal 20-15399 filed by Alex M. Azar, II, U.S. Department of Health and Human Services. Appellee Trust Women Seattles motion to dismiss it from this appeal is granted. (wsnS, COURT STAFF) (Filed on 6/2/2020) (Entered: 06/02/2020)

 
 Case 5:19-cv-02916 Document 1 Filed 05/28/19 Page 1 of 74

1 RICHARD B. KATSKEE*

JAMES R. WILLIAMS (SBN 271253)

AMERICANS UNITED FOR SEPARATION GRETA S. HANSEN (SBN 251471)

2 OF CHURCH AND STATE

LAURA S. TRICE (SBN 284837)

1310 L Street NW, Suite 200

MARY E. HANNA-WEIR (SBN 320011)

3 Washington, DC 20005

SUSAN P. GREENBERG (SBN 318055)

Tel: (202) 466-3234; Fax: (202) 466-3234

H. LUKE EDWARDS (SBN 313756)

4 katskee@au.org

OFFICE OF THE COUNTY COUNSEL,

5

GENEVIEVE SCOTT* CENTER FOR REPRODUCTIVE RIGHTS

6

199 Water Street, 22nd Floor New York, NY 10038

7

Tel: (917) 637-3605; Fax: (917) 637-3666 gscott@reprorights.org

COUNTY OF SANTA CLARA 70 West Hedding Street, East Wing, 9th Fl. San José, CA 95110-1770 Tel: (408) 299-5900; Fax: (408) 292-7240 mary.hanna-weir@cco.sccgov.org LEE H. RUBIN (SBN 141331)

8 JAMIE A. GLIKSBERG* LAMBDA LEGAL DEFENSE AND
9 EDUCATION FUND, INC. 105 West Adams, 26th Floor
10 Chicago, IL 60603-6208 Tel: (312) 663-4413; Fax: (312) 663-4307

MAYER BROWN LLP Two Palo Alto Square, Suite 300 3000 El Camino Real Palo Alto, CA 94306-2112 Tel: (650) 331-2000; Fax: (650) 331-2060 lrubin@mayerbrown.com

11 jgliksberg@lambdalegal.org

Counsel for Plaintiffs County of Santa Clara

et al.

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14 COUNTY OF SANTA CLARA, TRUST

15

WOMEN SEATTLE, LOS ANGELES LGBT CENTER, WHITMAN-WALKER CLINIC,

16 INC. d/b/a WHITMAN-WALKER HEALTH,

BRADBURY-SULLIVAN LGBT 17 COMMUNITY CENTER, CENTER ON

18

HALSTED, HARTFORD GYN CENTER, MAZZONI CENTER, MEDICAL STUDENTS

19 FOR CHOICE, AGLP: THE ASSOCIATION OF LGBTQ+ PSYCHIATRISTS, AMERICAN

20 ASSOCIATION OF PHYSICIANS FOR

HUMAN RIGHTS d/b/a GLMA: HEALTH 21 PROFESSIONALS ADVANCING LGBTQ

22

EQUALITY, COLLEEN MCNICHOLAS, ROBERT BOLAN, WARD CARPENTER,

23 SARAH HENN, and RANDY PUMPHREY,

24

Plaintiffs,

vs.

25 U.S. DEPARTMENT OF HEALTH AND

26 HUMAN SERVICES and ALEX M. AZAR, II, in his official capacity as SECRETARY OF

27 HEALTH AND HUMAN SERVICES,

Case No. 5:19-cv-2916
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

28

Defendants.

Case 5:19-cv-02916 Document 1 Filed 05/28/19 Page 2 of 74

1

INTRODUCTION

2

1. When people go to an emergency room, clinic, or public health program seeking

3 treatment for illness or injury, they expect and trust that they will receive care appropriate to meet

4 their health needs, without regard to their sex, gender identity, sexual orientation, disability status,

5 or religion, or the type of healthcare they seek. Healthcare providers have adopted nuanced policies

6 that respect healthcare workers’ religious and moral beliefs; protect patients’ access to information

7 and timely, high-quality care; and satisfy healthcare providers’ legal and professional duties of care

8 to all patients.

9

2. Now, however, the U.S. Department of Health and Human Services has issued a

10 new regulation (the “Denial-of-Care Rule”) that upsets this thoughtful approach. Although

11 purporting to implement long-standing healthcare statutes with specific provisions affording

12 protections for the religious or moral beliefs of certain individuals and entities (“religious

13 objections”), the Rule instead creates a wholly new regime that elevates religious objections over

14 all other interests and values. The Rule invites a much larger universe of healthcare workers to

15 decline to serve patients based on religious objections, defines with unprecedented breadth the types

16 of activities to which they may object, and fails to reconcile objections with the needs and rights of

17 patients—even though doing so is critical in any regulatory scheme administering these laws. And

18 the Rule does not include emergency exceptions. As a result, the Rule endangers patients’ health

19 in the name of advancing the religious beliefs of those who are entrusted with caring for them—a

20 result sharply at odds with the stated mission of the Department of Health and Human Services

21 (“HHS”), which is to “enhance and protect the health and well-being of all Americans” and to

22 “provid[e] for effective health and human services.”

23

3. The Rule applies to hospitals, medical schools, public- and community-health

24 programs, and state and local governments throughout the Nation that are recipients or

25 subrecipients of certain federal funds. These healthcare providers must comply with the Rule or

26 risk incurring draconian penalties, including the withdrawal or clawback of all federal funding. Yet

27 the Rule offers scant guidance on how healthcare providers might satisfy the Rule’s extreme

28 obligations while still reliably delivering patient care. And the Rule places vague and unworkable

- 1 -
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, CASE NO. 5:19-CV-2916

Case 5:19-cv-02916 Document 1 Filed 05/28/19 Page 3 of 74

1 limits on the reasonable measures that are necessary to protect patients (and comply with the

2 applicable standards of care and medical ethics) when accommodating objections. By failing to

3 provide for emergency exceptions or to address an array of other issues about the Rule’s

4 requirements, the agency’s action leaves healthcare providers utterly in the dark about what they

5 may or may not do to protect patients consistent with the Rule. If they guess wrong, they could lose

6 federal funding, which would frustrate their ability to provide adequate care to their most needy

7 patients.

8

4. The Rule specifically invites refusals to provide care to women seeking reproductive

9 healthcare and transgender and gender-nonconforming patients seeking gender-affirming care,

10 adversely affecting the healthcare entities that provide reproductive healthcare services and that

11 serve the lesbian, gay, bisexual, and transgender (“LGBT”) community. The Rule stigmatizes and

12 shames these patients, depriving them of their constitutionally protected rights of access to

13 healthcare and their dignity and autonomy in seeking medically necessary healthcare central to their

14 self-determination. The Rule will delay and deny the provision of care and information to many

15 patients. It also will deter patients from disclosing their medical histories, gender identities, or

16 transgender status as they seek care; chill patients from expressing themselves in a manner

17 consistent with their gender identities; and render them less likely to seek healthcare services at all,

18 detrimentally affecting not only individual patients’ mental and physical health, but public health

19 generally.

20

5. In adopting the Rule, HHS acted arbitrarily and capriciously, in excess of its

21 statutory authority, and in conflict with other laws. Among other problems, HHS failed adequately

22 to consider significant factors, including the Rule’s lack of workability and its impact on patients,

23 despite numerous comments raising these concerns; it defined key statutory terms in a manner that

24 is contrary to the underlying statutes; and it ignored limitations contained in other federal laws on

25 HHS’s authority to limit patient access to information and care, including emergency care.

26

6. The Rule infringes the constitutional rights of patients by impermissibly advancing

27 the religious beliefs of individual employees over the constitutional rights of patients, including

28 patients’ rights to liberty and privacy guaranteed by the Fifth Amendment; their right to equal

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, CASE NO. 5:19-CV-2916

Case 5:19-cv-02916 Document 1 Filed 05/28/19 Page 4 of 74

1 protection of the laws; and their rights to free speech and expression. The Rule also infringes the

2 constitutional rights of healthcare providers and their patients not to be compelled by the

3 government to live and act in accordance with religious beliefs to which they do not subscribe.

4

7. The Rule is ill-considered and dangerous, and it puts us all at risk. It should be

5 declared unlawful and enjoined.

6

JURISDICTION AND VENUE

7

8. This Court has jurisdiction under 28 U.S.C. § 1331, as this case arises under the

8 United States Constitution and the Administrative Procedure Act, 5 U.S.C. § 701 et seq., and

9 challenges final agency action for which there is no other adequate remedy, 5 U.S.C. § 704.

10

9. The Court has the authority to issue declaratory and injunctive relief under the

11 Declaratory Judgment Act, 28 U.S.C. § 2201 et seq., and the Administrative Procedure Act,

12 5 U.S.C. § 701 et seq.

13

10. Defendants are subject to suit in any federal jurisdiction in challenges to federal

14 regulations, and no real property is involved in this action. 42 U.S.C. §1391(e)(1).

15

11. Venue is proper in the Northern District of California under 28 U.S.C. § 1391(b)

16 and (e)(1) because at least one Plaintiff resides in this district and each defendant is an agency of

17 the United States or an officer of the United States sued in his or her official capacity.

18

12. The challenged Rule is final and subject to judicial review under 5 U.S.C. §§ 702,

19 704, and 706.

20

PARTIES

21

A. Plaintiffs 

22

13. Plaintiffs include a governmental entity that owns healthcare facilities (the County

23 of Santa Clara); five private healthcare facilities that provide reproductive-health services and

24 healthcare services for LGBT individuals (Trust Women Seattle, the Los Angeles LGBT Center,

25 Whitman-Walker Clinic, Inc. d/b/a Whitman-Walker Health, Hartford Gyn Center, and Mazzoni

26 Center) (“private-healthcare-provider Plaintiffs”); four individual physicians and a licensed

27 counselor who work for these entities (“individual-provider Plaintiffs”); three national associations

28 of medical professionals (Medical Students for Choice, AGLP: Association of LGBTQ

- 3 -
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, CASE NO. 5:19-CV-2916

Case 5:19-cv-02916 Document 1 Filed 05/28/19 Page 5 of 74

1 Psychiatrists, and American Association of Physicians for Human Rights d/b/a GLMA: Health

2 Professionals Advancing LGBTQ Equality) (“medical-association Plaintiffs”); and two

3 organizations that provide a wide range of services to the LGBT community (Bradbury-Sullivan

4 LGBT Community Center and Center on Halsted) (“LGBT-services Plaintiffs”).

5

14. The private-healthcare-provider and individual-provider Plaintiffs assert claims on

6 their own behalf and also on behalf of their patients and recipients of services, who face barriers to

7 asserting their own claims and protecting their own interests. The medical-association Plaintiffs

8 assert claims on behalf of themselves and their members.

9

15. Plaintiffs assert different but complementary interests, and share the common

10 objective of maintaining an effective, functioning healthcare system, one that protects patients’

11 dignity and their rights of access to health services as well as the dignity of healthcare workers who

12 raise religious objections. Plaintiffs also support the objective of providing informed access to

13 comprehensive reproductive healthcare and gender-affirming and medically appropriate care to

14 transgender and gender-nonconforming patients without discrimination based on a patient’s sex,

15 gender identity, or transgender status and in accordance with medical and ethical standards of care.

16

16. Plaintiff County of Santa Clara is a charter county and political subdivision of the

17 State of California, located in the Northern District of California. It is home to almost two million

18 residents, is more populous than 14 States, and employs more than 20,000 people.

19

17. The County, as part of its governmental responsibilities, is tasked with providing

20 critical safety-net and public health services. These core County functions are undertaken by a

21 network of County departments and programs, including several County-owned and -operated

22 hospitals, public pharmacies, a public health department, an emergency-medical-services

23 department, a behavioral-health-services department, and a publicly run health-insurance plan. The

24 County of Santa Clara Health System is the only public safety-net healthcare provider in Santa

25 Clara County, and it is the second largest such provider in the State of California.

26

18. To operate this network, and because of the County’s focus on serving indigent and

27 vulnerable populations whose insurance is paid through federally funded Medicare or Medicaid,

28 the County is dependent on hundreds of millions of dollars of federal funding from HHS. The

- 4 -
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, CASE NO. 5:19-CV-2916

Case 5:19-cv-02916 Document 1 Filed 05/28/19 Page 6 of 74

1 County also receives funding through a variety of other funding streams that pass through HHS,

2 including under the Public Health Services Act (“PHSA”). Because it receives this federal funding,

3 the County is subject to the Denial-of-Care Rule in its entirety.

4

19. At the center of the County’s health system are the County’s three hospitals. The

5 County owns and operates Santa Clara Valley Medical Center (“Valley Medical Center”), an acute-

6 care hospital with over 6,000 employees providing emergency medical services, primary care,

7 hospital care, and reproductive-health services. The mission of Valley Medical Center and its

8 satellite clinics is to provide high-quality, accessible, and compassionate care to all, regardless of

9 their socio-economic status or ability to pay. Last year, Valley Medical Center had an average daily

10 census of 363 patients and handled 3,087 births and 88,856 emergency department visits.

11

20. Valley Medical Center also operates a Gender Health Center that provides

12 (1) resources and psychological support for people of all ages, including children, teens, and young

13 adults, who seek to understand and explore their gender identity; (2) medical care, including

14 hormone treatments; and (3) primary care, including HIV and STI testing. Patient services at the

15 Gender Health Center include standard primary care and acute care, as well as specialized care for

16 the psychological and biological elements of gender transition. Valley Medical Center also operates

17 a family-planning clinic, which provides contraception and abortion services, and it operates a

18 dedicated clinic for LGBT patients.

19

21. In March 2019, the County purchased three additional major health facilities in

20 danger of closing—O’Connor Hospital, St. Louise Regional Hospital, and De Paul Health Center—

21 adding these critical local facilities to its safety net. O’Connor Hospital is the home of one of the

22 only family-medicine residency programs in the Bay Area. It provides emergency medical services,

23 urgent-care services, primary care, hospital care, and reproductive-health services. Last year,

24 O’Connor Hospital handled an estimated 51,948 emergency visits, 4,311 surgical cases, and 1,631

25 births.

26

22. St. Louise Regional Hospital, located in the City of Gilroy, operates the only acute-

27 care hospital in the southern part of Santa Clara County and specializes in maternal child-health

28 services, emergency services, women’s health, breast-cancer care, imaging, surgical procedures,

- 5 -
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, CASE NO. 5:19-CV-2916

Case 5:19-cv-02916 Document 1 Filed 05/28/19 Page 7 of 74

1 and wound care. St. Louise Regional Hospital is the only hospital in reasonable proximity to many

2 County residents living in the vast rural areas to the north, east, and south of the City of Gilroy.

3

23. De Paul Health Center, located in the City of Morgan Hill, provides urgent-care

4 services and a breast cancer clinic, and is also one of the key healthcare clinics close to many of

5 the rural residents in the County. In 2018, De Paul Health Center provided care for approximately

6 8,858 patients.

7

24. The County also operates the local public health department, which is responsible

8 for providing immunizations; tracking disease outbreaks; offering long-term case management for

9 patients with conditions such as active tuberculosis; providing testing, prevention, and treatment

10 services for sexually transmitted diseases; operating a needle-exchange program; and planning for

11 health emergencies. The 15 cities within the County—including the City of San José, the nation’s

12 tenth largest city—lack their own public health departments and depend on the County to provide

13 all public health services.

14

25. To support its hospitals and public health department, the County operates numerous

15 pharmacies that supply essential medicines and treatments, including those used for contraceptive

16 care, abortions, hormone therapy as part of gender-transition-related care, sexually transmitted

17 infections, and HIV/AIDS. One County pharmacy provides free, donated medicine to individuals

18 who cannot afford the retail cost of needed medications. Another specializes in serving patients

19 with HIV/AIDS, patients with tuberculosis, patients from the Public Health Department’s STD

20 clinic, and patients being discharged from the County jail. Staff at these pharmacies supports

21 communicable-disease control by procuring, storing, maintaining, and distributing essential

22 medications and vaccines during outbreaks and by distributing state-funded influenza vaccines for

23 administration at no charge to low-income and elderly residents.

24

26. The County also operates the local emergency-medical-services system, overseeing

25 all 911 ambulance response countywide. The County is also the sole accreditor in the county for

26 emergency responders, such as ambulance workers and firefighters.

27

27. The Santa Clara County Behavioral Health Services Department serves County

28 residents in need of mental-health and substance-use-treatment services. It provides needed

- 6 -
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, CASE NO. 5:19-CV-2916

Case 5:19-cv-02916 Document 1 Filed 05/28/19 Page 8 of 74

1 emergency and crisis care, short-term and long-term inpatient psychiatric care, outpatient mental-

2 health care, medication support, case-management services, and substance-abuse treatment. These

3 services are provided to many County residents from vulnerable populations, with a focus on

4 providing non-stigmatizing care to support those affected by mental illness and substance use.

5

28. The County also operates the only local publicly operated insurance plan, Valley

6 Health Plan. As a health-maintenance organization, Valley Health Plan offers various healthcare-

7 coverage plans that give enrolled members access to a range of medical services from physicians

8 and other healthcare providers within Valley Health Plan’s network.

9

29. Plaintiff Trust Women Seattle, located in Seattle, Washington, is a clinic that

10 provides full-spectrum reproductive-health services, including abortion and transgender-health

11 services. Its mission is to expand access to abortion, healthcare for LGBT people, and reproductive

12 healthcare in underserved communities throughout the United States. In serving this mission, Trust

13 Women strives to treat all patients with dignity and compassion. Trust Women Seattle is a

14 subrecipient of federal Medicaid funding through the State of Washington and therefore is subject

15 to the Denial-of-Care Rule.

16

30. Plaintiff Dr. Colleen McNicholas is the Medical Director for Trust Women,

17 overseeing medical practice at Trust Women’s Seattle, Oklahoma, and Kansas clinics.

18 Dr. McNicholas is involved in all aspects of medical decision-making with respect to abortion,

19 contraception, and transgender care offered at Trust Women Seattle. She provides full-spectrum

20 reproductive healthcare to her patients, including contraceptive care and abortion care into the

21 second trimester. In her hospital practice, Dr. McNicholas has developed a program to incorporate

22 gender-affirming gynecologic treatment for transgender children and adults. And she trains other

23 providers to provide abortion, contraception, and gender-affirming care. Dr. McNicholas is the

24 Director of the Ryan Residency Collaborative between Oklahoma University and Washington

25 University School of Medicine in St. Louis, Missouri, which offers formal training in abortion and

26 family planning to residents in obstetrics/gynecology; the Assistant Director of the Fellowship in

27 Family Planning at Washington University School of Medicine; and an Associate Professor at

28

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, CASE NO. 5:19-CV-2916

Case 5:19-cv-02916 Document 1 Filed 05/28/19 Page 9 of 74

1 Washington University School of Medicine, in the Department of Obstetrics and Gynecology’s

2 Division of Family Planning.

3

31. Plaintiff Los Angeles LGBT Center is located in Los Angeles, California. Its

4 mission is to build a world in which LGBT people thrive as healthy, equal, and complete members

5 of society. The LA LGBT Center offers programs, services, and advocacy spanning four broad

6 categories: health, social services and housing, culture and education, and leadership and advocacy.

7 The LA LGBT Center has more than 650 employees and provides services for more LGBT people

8 than any other organization in the world, with about 500,000 patient visits per year. LA LGBT

9 Center receives funds under the PHSA. Approximately 80 percent of the LA LGBT Center’s

10 funding originates from the federal government, including, but not limited to, funding under the

11 Ryan White Comprehensive AIDS Resources Emergency Act of 1990, 42 U.S.C. § 300ff et seq.

12 (“Ryan White funding”); direct funding from the Centers for Disease Control and Prevention,

13 discounts under the 340B Drug Discount Program, grants under section 330 of the PHSA; grants

14 from HHS-HRSA-Bureau of Primary Health Care under which the LA LGBT Center is a Federally

15 Qualified Health Center; and Medicaid and Medicare reimbursements. The LA LGBT Center

16 therefore is subject to the Denial-of-Care Rule.

17

32. Plaintiff Dr. Robert Bolan is the Chief Medical Officer of the LA LGBT Center.

18 He oversees the delivery of healthcare for approximately 9,000 patients who come to the LA LGBT

19 Center and personally treats approximately 300 patients. Over 90% of these patients identify as

20 LGBT, many of them coming from different areas of California and other States to obtain services

21 in a safe and affirming environment. Dr. Bolan also oversees the LA LGBT Center’s Research

22 Department. Dr. Bolan and the providers he supervises treat patients who identify as transgender

23 and who require gender-affirming treatment, including medically necessary healthcare for gender

24 dysphoria. Many of Dr. Bolan’s patients and many of the patients of the providers he supervises at

25 the LA LGBT Center already have experienced traumatic and discriminatory denials of healthcare

26 based on their sexual orientation, gender identity, transgender status, or HIV status at the hands of

27 providers outside the LA LGBT Center, including by healthcare providers who have expressed

28

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1 religious or moral objections to treating them. Such experiences will increase as a result of the

2 Denial-of-Care Rule.

3

33. Plaintiff Dr. Ward Carpenter is the Co-Director of Health Services at the LA

4 LGBT Center. Dr. Carpenter is a nationally recognized expert in the field of transgender medicine.

5 In his role as Co-Director of Health Services, Dr. Carpenter oversees the healthcare of over 17,000

6 patients who come to the LA LGBT Center and personally treats 150 patients. All of Dr.

7 Carpenter’s patients identify within the LGBT community, and approximately 30% of them are

8 people living with HIV. These patients come from different areas of California and other States to

9 obtain services in a safe and affirming environment. Dr. Carpenter’s patient population is

10 disproportionately low-income and experiences high rates of chronic medical conditions,

11 homelessness, unstable housing, and extensive trauma history. In addition, many of Dr. Carpenter’s

12 patients, as well as those of the other medical providers he supervises at the Center, already have

13 experienced traumatic and discriminatory denials of healthcare based on their sexual orientation,

14 gender identity, transgender status, or HIV status at the hands of providers outside the LA LGBT

15 Center, including by healthcare providers who have expressed religious or moral objections to

16 treating them. Such experiences will increase as a result of the Denial-of-Care Rule.

17

34. Plaintiff Whitman-Walker Clinic, Inc. d/b/a Whitman-Walker Health, located

18 in Washington, D.C., provides a range of services, including medical and community healthcare,

19 transgender care and services, behavioral-health services, dental-health services, legal services,

20 insurance-navigation services, and youth and family support. It has particular expertise in LGBT

21 and HIV care. The mission of Whitman-Walker is to offer affirming community-based health and

22 wellness services to all with a special expertise in LGBT and HIV care. Whitman-Walker

23 empowers all persons to live healthy, love openly, and achieve equality and inclusion. In 2018,

24 Whitman-Walker provided health care services to more than 20,700 individuals. Whitman-Walker

25 receives various forms of federal funding from HHS and from institutions affiliated with or

26 themselves funded by HHS, including but not limited to funds under the PHSA, direct grants, Ryan

27 White funding, funds under the 340b drug subsidy program, research grants from the Centers for

28 Disease Control and Prevention and the National Institutes of Health, and Medicaid and Medicare

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1 reimbursements. For 2019, Whitman-Walker’s federally funded research contracts and grants total

2 more than $2 million. Whitman-Walker therefore is subject to the Denial-of-Care Rule.

3

35. Plaintiff Dr. Sarah Henn is the Chief Health Officer of Whitman-Walker. Dr. Henn

4 oversees all healthcare-related services at Whitman-Walker and maintains a panel of patients for

5 whom she provides direct care. Whitman-Walker’s patient population, including patients to whom

6 Dr. Henn provides direct care and whose care she oversees, includes many patients who have

7 experienced refusals of healthcare or who have been subjected to disapproval, disrespect, or

8 hostility from medical providers outside of Whitman-Walker because of their actual or perceived

9 sexual orientation, gender identity, or transgender status. Many of Dr. Henn’s patients and those

10 whose care she oversees are, therefore, apprehensive or fearful of encountering stigma and

11 discrimination in healthcare settings because of their past experiences. Such experiences will

12 increase as a result of the Denial-of-Care Rule. In addition to overseeing medical care of patients

13 and working with her own patients, Dr. Henn oversees Whitman-Walker’s Research Department,

14 and is personally involved in a number of clinical research projects, including as the Leader of

15 Whitman-Walker’s Clinical Research Site for the AIDS Clinical Trials Group funded by the

16 National Institutes of Health.

17

36. Plaintiff Dr. Randy Pumphrey is Senior Director of Behavioral Health at

18 Whitman-Walker. As Senior Director of Behavioral Health, Dr. Pumphrey oversees Whitman-

19 Walker’s portfolio of mental-health services and substance-use-disorder-treatment services and

20 maintains a panel of patients for whom he provides direct behavioral healthcare. In 2018, Whitman-

21 Walker provided mental-health or substance-use-disorder-treatment services to over 2,300 patients,

22 many of whom identify as LGBT or are living with HIV. Many, if not most, of the patients to whom

23 Dr. Pumphrey provides direct care and whose behavioral healthcare he oversees face considerable

24 stigma and discrimination as people living with HIV, as sexual or gender minorities, or as people

25 of color and have experienced difficulty finding therapists or other mental-health or substance-use-

26 disorder professionals who are understanding and welcoming of their sexual orientation, gender

27 identity, or transgender status. Such experiences of discrimination will increase as a result of the

28 Denial-of-Care Rule.

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1

37. Plaintiff Center on Halsted is a 501(c)(3) nonprofit organization based in Chicago

2 and incorporated in Illinois. Center on Halsted is a comprehensive community center dedicated to

3 securing the health and well-being of the LGBT people of the Chicago area. Center on Halsted

4 provides programs and services for the LGBT community, including HIV/HCV testing; behavioral

5 health services; case management, job development, social programming, meals, and housing for

6 seniors; housing, meals, counseling, and leadership for youth; and anti-violence services. Center

7 on Halsted also administers social programming for families and advises patrons on concerns

8 related to family planning. On average, more than 1400 community members visit Center on

9 Halsted each day. Center on Halsted receives various forms of pass-through federal funding from

10 HHS, including Ryan White funding and funding from the National Institutes of Health and the

11 Centers for Disease Control and Prevention. Center on Halsted also benefits from programs

12 governed by the Centers for Medicare through Medicare reimbursements.

13

38. Plaintiff Hartford Gyn Center, located in Hartford, Connecticut, is the only

14 independent, state-licensed family-planning clinic in Connecticut. Hartford Gyn Center provides

15 reproductive-health services, including contraception and abortion services through 21 weeks.

16 Hartford Gyn Center’s mission is to provide women with compassionate reproductive-health

17 services and abortion care, to respect the autonomy of each patient, to support and strengthen

18 reproductive rights, and to effect corresponding social change. Hartford Gyn Center sees patients

19 from all walks of life, including low-income patients who cannot easily access care elsewhere, if at

20 all. Hartford Gyn is one of the only facilities in the region that trains physicians in abortion care,

21 especially in the second trimester. The clinic also operates a medical-residency and training

22 program. Hartford Gyn Center is a subrecipient of federal Medicaid funding through the State of

23 Connecticut and therefore is subject to the Denial-of-Care Rule.

24

39. Plaintiff Bradbury-Sullivan LGBT Community Center is a 501(c)(3) nonprofit

25 organization based in Allentown, Pennsylvania, and incorporated in Pennsylvania. It is dedicated

26 to securing the health and well-being of LGBTQ people of the Greater Lehigh Valley. It provides

27 a variety of programs and services for the LGBTQ community, including HIV/STI testing,

28 healthcare-enrollment events, family-planning services, support groups, and a free legal clinic.

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1 Bradbury-Sullivan Center also provides referrals to LGBT-welcoming healthcare providers,

2 including providers engaged in family planning services. Patrons of Bradbury-Sullivan Center

3 often seek healthcare services from other healthcare organizations, including religiously affiliated

4 organizations. Bradbury-Sullivan Center works with patrons who have experienced discriminatory

5 treatment when seeking healthcare services from such organizations and it advocates on behalf of

6 those patrons by providing referrals to LGBT-welcoming agencies and providers, training agencies

7 to provide LGBT-welcoming services, and, when necessary, communicating with agencies to

8 inform them of their legal obligations to serve LGBT people. Bradbury-Sullivan Center also

9 conducts research documenting health disparities in the LGBT community and performs related

10 community-education efforts to improve public health within the LGBT community. Bradbury-

11 Sullivan Center receives pass-through funding from HHS through the Maternal and Child Health

12 Services Block Grant, and in the past also has received Ryan White funding. Bradbury-Sullivan

13 Center therefore is subject to the Denial-of-Care Rule.

14

40. Plaintiff Mazzoni Center, located in Philadelphia, Pennsylvania, is a multi-service,

15 community-based healthcare and social-service provider that primarily serves LGBTQ individuals

16 and individuals living with HIV. Its mission is to provide quality comprehensive health and

17 wellness services in an LGBTQ-focused environment, while preserving the dignity and improving

18 the quality of life of the individuals whom it serves. Mazzoni Center receives various forms of

19 federal funding, including Title X Family Planning, Centers for Disease Control, Department of

20 Justice, and Ryan White funding. Mazzoni Center therefore is subject to the Denial-of-Care Rule.

21

41. Plaintiff American Association Of Physicians For Human Rights d/b/a GLMA:

22 Health Professionals Advancing LGBT Equality (formerly known as the Gay & Lesbian

23 Medical Association) is a 501(c)(3) nonprofit membership organization based in Washington, D.C.,

24 and incorporated in California. GLMA is a national organization committed to ensuring health

25 equity for lesbian, gay, bisexual, transgender, queer, and all sexual and gender minority individuals,

26 and equality for health professionals in such communities in their work and learning environments.

27 To achieve this mission, GLMA utilizes the scientific expertise of its diverse multidisciplinary

28 membership to inform and drive advocacy, education, and research. GLMA represents the interests

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1 of tens of thousands of LGBTQ health professionals and millions of LGBTQ patients and families

2 across the United States. GLMA’s membership includes approximately 1,000 member physicians,

3 nurses, advanced-practice nurses, physician assistants, researchers and academics, behavioral-

4 health specialists, health-profession students, and other health professionals throughout the country.

5 Their practices represent the major healthcare disciplines and a wide range of health specialties,

6 including internal medicine, family practice, psychiatry, pediatrics, obstetrics/gynecology,

7 emergency medicine, neurology, and infectious diseases.

8

42. Plaintiff Medical Students for Choice is a 501(c)(3) nonprofit organization based

9 in Philadelphia, Pennsylvania. MSFC provides training in the provision of abortion services to

10 medical students and residents throughout the country, works to destigmatize abortion provision,

11 and advocates for medical schools and residency programs to include abortion as part of the

12 reproductive-health-services curriculum. MSFC’s members include 163 chapters of medical

13 students and residents at medical schools in 45 States. MSFC has thousands of medical-student

14 members and thousands of alumni who are practicing physicians.

15

43. Medical students receive their clinical training disproportionally at academic

16 medical centers and teaching hospitals that receive significant federal funding. Likewise, residents

17 are almost entirely subsidized through federal funding from HHS, including through Medicare

18 grants. Residents receive salaries that are directly funded by Medicare, and hospitals bill Medicare

19 for services provided to patients by residents. MSFC guides student and resident members in how

20 to obtain abortion training and runs a reproductive-health externship program that places members

21 in abortion clinics for training. MSFC also runs its own educational programs, including a

22 competitive 400-student training institute taught by alumni. Because of resource constraints, the

23 institute is already limited to accepting fewer than half the students who apply for the program.

24

44. Many of MSFC’s members receive various forms of federal funding directly or

25 indirectly via federal programs. MSFC’s members are, thus, subject to the restrictions of the Denial-

26 of-Care Rule. Without federal funding, MSFC members may not have the resources to provide

27 proper treatment to their patients and have a reasonable fear that they could be sanctioned and lose

28 federal funding for providing and training others to provide abortion.

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1

45. Through its student and resident members across the country and its alumni who are

2 practicing physicians at hospitals and clinics, MSFC is aware that many hospitals, healthcare

3 facilities, and educational programs no longer provide abortion care or training. Because the

4 Denial-of-Care Rule creates strong incentives for even more healthcare institutions to cease

5 providing abortion training (including by putting at risk federal funding for those institutions that

6 provide such training), the Rule will further strain MSFC’s resources and threaten its mission of

7 ensuring that doctors receive training in abortions and abortion-related care.

8

46. Plaintiff AGLP: The Association of LGBTQ Psychiatrists is a 501(c)(3) nonprofit

9 organization based in Philadelphia, Pennsylvania. AGLP, the oldest association of LGBTQ+

10 professionals in the country, is a national organization of psychiatrists that educates and advocates

11 on LGBTQ mental-health issues. AGLP represents the interests of 450 LGBTQ+ psychiatrists

12 throughout the country who are members of the Association, and works to influence policies

13 relevant to the LGBTQ+ community, as well as to support its members and advocate for its

14 members’ patients. AGLP also assists medical students and residents in their professional

15 development; encourages and facilitates the presentation of programs and publications relevant to

16 LGBTQ concerns at professional meetings; and serves as liaison with other minority and advocacy

17 groups within the psychiatric community. Many of AGLP’s members receive various forms of

18 federal funding directly or indirectly via federal programs. AGLP’s members therefore are subject

19 to the restrictions of the Denial-of-Care Rule. Without federal funding, AGLP members may not

20 have the resources to provide proper treatment to their patients or proceed with their medical-

21 research programs. AGLP’s members, therefore, have a reasonable fear that they could be

22 sanctioned and lose federal funding for the work that they do in enforcing nondiscrimination

23 policies and ensuring patient care in accordance with medical standards of care and ethical

24 requirements, which are vital to providing proper care to patients.

25

B. Defendants

26

47. Defendant HHS is a cabinet department of the federal government, headquartered

27 in the District of Columbia. It has responsibility for, among other things, enhancing and protecting

28 Americans’ health and well-being via the provision of health and human services.

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1

48. Defendant Alex M. Azar, II is the Secretary of HHS and is sued in his official

2 capacity. Secretary Azar is responsible for all aspects of the operation and management of HHS,

3 including the adoption, administration, and enforcement of the Denial-of-Care Rule.

4

STATEMENT OF FACTS

5

A. Statutory Background

6

49. A network of federal statutes mandates nondiscriminatory treatment of patients and

7 healthcare workers. Some statutes mandate that patients receive nondiscriminatory access to

8 healthcare, information about treatment options, and emergency services. Other statutes allow

9 individuals or entities to object to participating in certain medical procedures on religious or moral

10 grounds and prohibit discrimination against them. These statutes, together with the patients’

11 constitutional rights and healthcare providers’ duties of care and ethical obligations, require

12 healthcare providers to accommodate religious objections in a manner that does not interfere with

13 the delivery of services or information to patients.

14

1. Laws Protecting Patients’ Access to Care and Information

15

50. Congress has repeatedly recognized the paramount importance of providing patients

16 with prompt and nondiscriminatory access to medical care and to information about all treatment

17 options.

18

51. For example, Section 1554 of the Patient Protection and Affordable Care Act (ACA)

19 provides that “[n]otwithstanding any other provision of this Act, the Secretary of Health and Human

20 Services shall not promulgate any regulation that—

21

(1) creates any unreasonable barriers to the ability of individuals to obtain appropriate

22

medical care;

23

(2) impedes timely access to healthcare services;

24

(3) interferes with communications regarding a full range of treatment options between the patient and the provider;

25 (4) restricts the ability of healthcare providers to provide full disclosure of all relevant

26

information to patients making healthcare decisions;

27

(5) violates the principles of informed consent and the ethical standards of healthcare

28

professionals; or

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1

(6) limits the availability of healthcare treatment for the full duration of a patient’s medical

2

needs.”

42 U.S.C. § 18114. 3

52. Section 1557 of the ACA, 42 U.S.C.   §  18116, similarly protects against 4

discrimination in the provision of healthcare services. It provides: “[A]n individual shall not, on [a] 5

ground prohibited under title VI of the Civil Rights Act of 1964, title IX of the Education 6

Amendments of 1972, the Age Discrimination Act of 1975, or section 504 of the Rehabilitation 7

Act of 1973, be excluded from participation in, be denied the benefits of, or be subjected to 8

discrimination under, any health program or activity, any part of which is receiving Federal 9

financial assistance.” This provision therefore prohibits discrimination based on sex, including 10

discrimination based on a patient’s failure to conform to sex stereotypes, gender identity, or 11

transgender status, all of which are forms of sex discrimination. 12

53. The Emergency Medical Treatment and Labor Act, 42 U.S.C. § 1395dd(b)(1) 13

(“EMTALA”) governs when and how a patient must be examined and offered treatment (including 14

medically necessary abortion services) while in an unstable medical condition. It requires a hospital 15

that “determines that [an] individual has an emergency medical condition” to “provide either—(A) 16

within the staff and facilities available at the hospital, for such further medical examination and 17

such treatment as may be required to stabilize the medical condition, or (B) for transfer of the 18

individual to another medical facility . . . .” Id. 19

54. The ACA, which respects certain religious objections to healthcare procedures, 20

makes clear that nothing in it may “be construed to relieve any healthcare provider from providing 21

emergency services as required by State or Federal law,” including EMTALA. 42 U.S.C. 22

§ 18023(d). 23

55. Title X of the Public Health Service Act, 42 U.S.C. §§ 300-300a-6, provides federal 24

funding for family-planning services. Congress requires Title X grantees to operate “voluntary 25

family planning projects which shall offer a broad range of acceptable and effective family planning 26

methods and services.” 42 U.S.C. § 300(a). Title X appropriations bills, e.g., 2019 Continuing 27

Appropriations Act, Pub. L. No. 115-245, Div. B., Tit. II, 132 Stat. 2981, 3070-71 (2018), require 28

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1 that “all pregnancy counseling shall be nondirective”; in other words, funded projects are to offer

2 pregnant women neutral, nonjudgmental information and counseling regarding their options,

3 including prenatal care and delivery; infant care, foster care, or adoption; and pregnancy

4 termination.

5

2. Laws Protecting Religious Objectors

6

56. Certain statutes applicable to recipients of federal funds allow individuals to opt out

7 of participating in certain medical procedures, training, or research based on their religious beliefs

8 or moral convictions, and prohibit discrimination against individuals or entities for asserting such

9 objections. These laws include, among others, the Weldon Amendment, e.g., Department of

10 Defense and Labor, Health and Human Services, and Education Appropriations Act, 2019 and

11 Continuing Appropriations Act, 2019, Pub. L. 115-245, § 507(d)(2), 132 Stat. 2981, 3118 (2018);

12 the Coats-Snowe Amendment, 42 U.S.C. § 238n; and the Church Amendments, 42 U.S.C. § 300a-

13 7.

14

57. The Weldon Amendment is a rider that has been attached to the Labor, Health, and

15 Human Services, and Education, and Related Agencies Appropriations Act every year since 2004.

16 162 Cong. Rec. H4844, H4852 (July 13, 2016) (Rep. Weldon). It provides that none of the funds

17 appropriated under that Act “may be made available to a Federal agency or program, or to a State

18 or local government, if such agency, program, or government subjects any institutional or

19 individual healthcare entity to discrimination on the basis that the healthcare entity does not

20 provide, pay for, provide coverage of, or refer for abortions.” Pub. L. 115-245, § 507(d)(2), 132

21 Stat. 2981, 3118 (2018).

22

58. The Coats-Snowe Amendment prohibits abortion-related governmental

23 discrimination in the area of medical training. It provides that “[t]he federal government, and any

24 state or local government that receives Federal financial assistance,” may not discriminate against

25 a healthcare entity because “the entity refuses to undergo training in the performance of induced

26 abortions, to require or provide such training, to perform such abortions, or to provide referrals for

27 such training or such abortions,” 42 U.S.C. § 238n(a)(1); “refuses to make arrangements” for those

28

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1 activities, id. § 238n(a)(2); or attends or attended a program that does not perform abortions or

2 provide training in abortion care, id. § 238n(a)(3).

3

59. The Church Amendments, which were adopted in the 1970s, provide certain

4 protections for religious and moral objections arising in medical research and training. One

5 subsection provides that the receipt of certain federal funds by a healthcare provider does not

6 authorize “any court or any public official or other public authority” to require an individual to

7 perform or assist in the performance of an abortion or sterilization procedure, or to require an entity

8 to make its facilities or personnel available for those procedures. 42 U.S.C. § 300a-7(b). Another

9 subsection provides that an entity receiving federal funding for biomedical or behavioral research

10 may not discriminate against personnel on the basis that they refused on religious or moral grounds

11 to participate in a research or healthcare activity. 42 U.S.C.  §  300a-7(c). A third subsection

12 provides that an entity receiving certain federal funds may not discriminate against a physician or

13 health care personnel in employment, promotion, termination, or the extension of staff or other

14 privileges because he performed or refused to perform or assist in the performance of an abortion

15 or sterilization procedure on the grounds that it would be contrary to his religious beliefs or moral

16 convictions. 42 U.S.C. § 300a-7(c)(1). A fourth subsection prohibits discrimination by certain

17 funding recipients against applicants for training or study based on their “reluctance, or willingness,

18 to counsel, suggest, recommend, assist, or in any way participate in abortions or sterilizations”

19 because of “the applicant’s religious beliefs or moral convictions.” 42 U.S.C. § 300a-7(e).

20

60. Subsection (d) of the Church Amendments provides that “[n]o individual shall be

21 required to perform or assist in the performance of any part of a health service program or research

22 activity funded in whole or in part under a program administered by the Secretary of Health and

23 Human Services if his performance or assistance in the performance of such part of such program

24 or activity would be contrary to his religious beliefs or moral convictions.” 42 U.S.C. § 300a-7(d).

25

61. The ACA prohibits discrimination by any recipient of federal funds against persons

26 or entities because of their refusal to cause or assist in suicide or euthanasia, 42 U.S.C. § 18113;

27 provides that the ACA does not require a health-insurance plan to provide coverage for abortions,

28 42 U.S.C. § 18023(b)(1)(A); prohibits any “qualified health plan offered through an [Insurance]

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1 Exchange” from “discriminat[ing] against any individual healthcare provider or facility because”

2 it does not “provide, pay for, provide coverage of, or refer for abortions,” 42 U.S.C. § 18023(b)(4);

3 and states that the ACA should not be construed to affect other federal laws regarding “conscience

4 protection” or willingness or refusal to provide abortions, 42 U.S.C. § 18023(c)(2)(A)(i)-(iii).

5

62. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., prohibits

6 discrimination against employees based on their religious beliefs and requires accommodation of

7 religious practices. Importantly, employers’ ability to ensure reliable care for their patients is

8 recognized as a “business necessity,” 42 U.S.C.   §   2000e-2(k)(1)(A)(i), and religious

9 accommodation is required only if, and only to the extent that, it does not create “undue hardship,”

10 42 U.S.C. § 2000e( j).

11

3.

The Implementation and Enforcement of Religious-Objection Laws

12

63. The religious-objection laws described above are self-executing and do not require

13 regulations to go into effect. Accordingly, healthcare providers covered by the laws, including both

14 the County and the private-healthcare-provider Plaintiffs, have adopted policies that accommodate

15 conscience interests without compromising patients’ access to care and information.

16

64. Nevertheless, HHS previously promulgated regulations purporting to clarify and

17 implement the religious-objection laws. On December 19, 2008, more than nine years before it

18 proposed the Denial-of-Care Rule, HHS promulgated a final rule that purported to implement the

19 Church Amendments, the Weldon Amendment, and the Coates-Snowe Amendment. See Ensuring

20 That Dep’t of Health & Human Services Funds Do Not Support Coercive or Discriminatory

21 Policies or Practices in Violation of Federal Law, 73 Fed. Reg. 78,072 (Dec. 19, 2008). On January

22 20, 2009, the final rule went into effect.

23

65. On March 10, 2009, HHS proposed to rescind the January 2009 rule in its entirety.

24 It noted that no statutory provision required promulgation of regulations and that commenters had

25 raised numerous questions and concerns about the regulations. See Rescission of the Regulation

26 Entitled “Ensuring That Dep’t of Health & Human Services Funds Do Not Support Coercive or

27 Discriminatory Policies or Practices in Violation of Federal Law”; Proposal, 74 Fed. Reg. 10,207

28 (Mar. 10, 2009).

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1

66. On February 23, 2011, HHS largely rescinded the regulations but retained

2 provisions delegating to HHS’s Office for Civil Rights (“OCR”) the authority to receive complaints

3 of violations of religious-objection laws. See Regulation for the Enforcement of Federal Health

4 Care Provider Conscience Protection Laws, 76 Fed. Reg. 9968 (Feb. 3, 2011).

5

67. The Rule challenged in this action is a centerpiece of the Trump Administration’s

6 concerted, aggressive effort to expand enforcement of religious-objection laws at the expense of

7 patients. On January 18, 2018, the Acting Secretary of HHS established a new Conscience and

8 Religious Freedom Division within OCR and delegated to this new Division the responsibility to

9 enforce religious-objection laws. OCR then increased the budget of the Conscience and Religious

10 Freedom division by $1.546 million. OCR also modified its mission statement to emphasize a

11 commitment to enforce “federal laws that guarantee the protection of conscience and free exercise

12 of religion and prohibit coercion and religious discrimination in HHS-conducted or funded

13 programs.” When it promulgated the final Denial-of-Care Rule, HHS emphasized OCR’s “singular

14 and critical responsibility . . . to vigorously enforce” federal conscience laws. See Protecting

15 Statutory Conscience Rights in Health Care, 84 Fed. Reg. 23,170, 23,178 (May 21, 2019) (to be

16 codified at 45 C.F.R. Pt. 88).

17

C. The Proposed Denial-of-Care Rule

18

68. On January 26, 2018, the Acting Secretary proposed the Denial-of-Care Rule. See

19 Protecting Statutory Conscience Rights in Health Care; Delegation of Authority, 83 Fed. Reg. 3880

20 (Jan. 28, 2018). The proposed Rule, like the final Rule, adopted an expansive construction of the

21 religious-objection laws; ignored healthcare providers’ obligations to ensure their patients’

22 uninterrupted access to care and information and to advance the providers’ own missions as

23 healthcare institutions; imposed costly certification and recordkeeping requirements; would

24 undermine Plaintiffs’ ability to fulfill their missions; would require healthcare providers to rewrite

25 and re-conceptualize their existing religious-objection policies; and threatened draconian penalties

26 for violations without providing sufficient guidance on how to comply with the Rule.

27

69. During the 60-day notice-and-comment period, more than 72,000 comments were

28 filed by interested parties, including medical associations, medical providers, civil-rights

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1 organizations, states, and local governments. See 84 Fed. Reg. 23,170, 23,180 & n.41 (May 21,

2 2019). The comments explained that the proposed Rule’s expansive new right-of-refusal provisions

3 were unworkable; that the Rule would upset well-developed practices by healthcare providers and

4 medical schools that respect religious objections without compromising patient care; that it

5 conflicted with federal and state laws and medical ethics; that it would violate patients’ and

6 providers’ constitutionally protected rights; that it would severely threaten access to reproductive

7 healthcare and LGBT healthcare; and that it threatened to deprive the nation’s most vulnerable

8 citizens of healthcare by stripping States and hospitals of Medicare and Medicaid funds.1

9

70. Commenters identified the following problems, among others, with the proposed

10 Rule:

11

(a) The Rule would conflict with long-standing practices by healthcare

12 providers and medical schools that protect both the interests of healthcare workers and entities with

13 religious objections and the rights of the patients whom they serve. Indeed, commenters explained,

14 the Rule’s prohibitions are framed so broadly that they invite healthcare workers to deny

15 information and treatment to people without even alerting the medical facility or the patient that

16 they have done so, thereby preventing the facility or the patient from protecting the patient’s

17 interests.2

18

(b) Because the Rule would interfere with the effective management of religious

19 objections, it would increase barriers to care and deprive some patients of care altogether—

20 including in emergency situations. Commenters demonstrated that when healthcare providers give

21

22

23 1 Medicare is the federal insurance program principally for elderly and disabled individuals.

24 Medicaid provides health coverage to millions of Americans, including eligible low-income adults,

children, pregnant women, elderly adults, and people with disabilities. Medicaid is administered by 25 the States, according to federal requirements, and is funded jointly by States and the federal

26 government. 2 See, e.g., Comments of Lambda Legal HHS-OCR-2018-0002-72186; Comments of Office of the

27 County Counsel, County of Santa Clara HHS-OCR-2018-0002-54930; Comments of GLMA HHS-

28

OCR-2018-0002-71703; Comments of National Family Planning & Reproductive Health Association HHS-OCR-2018-0002-70260.

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1 religious concerns priority over patient well-being, patients are denied care and information about

2 treatment options.3

3

(c) The Rule would encourage discrimination by health professionals based on

4 sex, sexual orientation, gender identity, transgender status, and HIV status.

5

(d) Because it allows the imposition of catastrophic sanctions while failing to

6 articulate practicable methods of compliance, the Rule would cause many healthcare providers to

7 scale back their services drastically or close certain of their clinics completely, for fear of losing

8 hundreds of millions of dollars of funding for the rest of the medical services that they provide.4

9

(e) The Rule would impose significant administrative burdens on healthcare

10 providers, including burdens resulting from the rule’s recordkeeping and other compliance

11 requirements.5

12

(f) The Rule would prevent medical schools from adequately training doctors

13 to meet their professional obligations and would impair the ability to run teaching hospitals and

14 research facilities.6

15

71. The American Medical Association (AMA), among others, urged HHS to withdraw

16 the Denial-of-Care Rule.7 The AMA stated that the Rule would “undermine patients’ access to

17 medical care and information, impose barriers to physicians’ and health care institutions’ ability to

18 provide treatment, impede advances in biomedical research, and create confusion and uncertainty

19 3 See, e.g., Comments of Office of the County Counsel, County of Santa Clara HHS-OCR-2018-

20

0002-54930; Comments of Center for Reproductive Rights HHS-OCR-2018-0002-71830; Comments of Lambda Legal HHS-OCR-2018-0002-72186; Comments of Americans United for

21 Separation of Church and State HHS-OCR-2018-0002-71232; Comments of GLMA HHS-OCR2018-0002-71703.
22 4 Comments of National Family Planning & Reproductive Health Association HHS-OCR-2018-

23 0002-70260; Comments of Wisconsin Hospital Association, Inc. HHS-OCR-2018-0002-66144.

24 5 Comments of Wisconsin Hospital Association, Inc. HHS-OCR-2018-0002-66144. 6 Comments of Association of American Medical Colleges HHS-OCR-2018-0002-67592 (“AAMC
25 Comment”).

26 7 Comments American Medical Association HHS-OCR-2018-0002-70564, at 1. The AMA is the

largest association of doctors and medical students in the United States. The AMA’s mission is “to

27 promote the art and science of medicine and the betterment of public health.” The AMA maintains

28

the AMA Code of Medical Ethics, a guide to the ethical practice of medicine created by the AMA in 1847.

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1 among physicians, other health care professionals, and health care institutions about their legal and

2 ethical obligations to treat patients.” Similarly, the Association of American Medical Colleges

3 warned that adoption of the Rule would “result in harm to patients, undermine standards of medical

4 professionalism, and raise serious concerns regarding individuals’ rights that are protected by other

5 federal and state laws.”8

6

D. The Final Denial-of-Care Rule

7

72. Despite the significant concerns raised during the comment period, HHS published

8 the final Rule in the Federal Register on May 21, 2019. See Protecting Statutory Conscience Rights

9 in Health Care, 84 Fed. Reg. 23,170 (May 21, 2019). It is attached as Exhibit 1 and incorporated

10 by reference.

11

73. In adopting the final Rule, HHS failed adequately to address many of the serious

12 issues raised by commenters, including the practical difficulties associated with the Rule, its

13 conflict with obligations relating to emergency care and informed consent, and its detrimental

14 effects on patients. HHS also lacked data to support its decisions and conclusions, refused without

15 justification to credit the data that commenters submitted to it, and failed to consider alternatives to

16 the Rule that would impose fewer costs and burdens on patients and providers. Furthermore, HHS

17 repeatedly declined to clarify key issues or to provide guidance to regulated entities necessary for

18 them to implement the Rule, stating instead that it would consider numerous questions on a case-

19 by-case basis.

20

74. For example, HHS acknowledged that it “received comments expressing concern

21 about the impact of the rule on access to care in rural communities, underprivileged communities,

22 or other communities that are primarily served by religious healthcare providers or facilities.” 84

23 Fed. Reg. at 23,180. The agency responded by stating that finalizing the rule is appropriate even if

24 the rule “impact[s] overall or individual access to a particular service,” such as abortion or treatment

25 8 AAMC Comment at 1. The AAMC is not-for-profit association of 151 accredited U.S. and 17

26 accredited Canadian medical schools; nearly 400 major teaching hospitals and health systems,

including 51 Department of Veterans Affairs medical centers; and more than 80 academic societies.

27 The AAMC serves more than 173,000 full-time faculty members, 89,000 medical students, 129,000

28

resident physicians, and more than 60,000 graduate students and postdoctoral researchers in the biomedical sciences.

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1 for gender dysphoria. Id. at 23,182. Although it acknowledged that it lacked data to support this

2 assumption, HHS asserted that the rule would be “reasonably likely to increase, not decrease, access

3 to care” in underserved communities by attracting providers who otherwise would not practice

4 medicine because of their religious objections. Id. at 23,180. In support, HHS cited a small,

5 outdated, and unreliable political poll, id. at 23,181, in which responders stated that they would not

6 practice medicine if doing so involved violation of their religious or moral convictions but said

7 nothing about where they would practice medicine. HHS cited no data showing that the Rule was

8 needed to keep providers from quitting or that it would attract any new providers to underserved

9 communities. HHS also failed to address how an increase in providers that refuse to provide care

10 would address the concern that patients will struggle to get the care that they need. Moreover,

11 HHS’s evaluation prefers certain types of care over others: The agency assumes that access to care

12 will increase, and cites this as a benefit of the Rule, but does not contradict comments asserting that

13 certain types of care, including reproductive healthcare and LGBT care, will be reduced, especially

14 in rural areas.

15

75. HHS rejected comments observing that the Rule conflicted with EMTALA. See 84

16 Fed. Reg. at 23,182-23,183. But it failed to address whether emergency exceptions are permissible,

17 and it cited cases where nurses with religious objections were required to assist patients in

18 emergencies as examples of discrimination that it was trying to remedy. Id. at 23,176. HHS also

19 stated that driving a patient to the hospital in an ambulance for an emergency procedure may qualify

20 as assisting in the performance of a procedure, id. at 23,188, without acknowledging that the

21 procedure (removal of an ectopic pregnancy) could be necessary to save the patient’s life. In so

22 doing, HHS failed to provide any clear rule for determining whether or when ambulance drivers

23 and paramedics might object under the Rule to caring for or transporting a patient, instead stating

24 that this determination depends on the facts and circumstances of each case. Id. HHS also failed to

25 acknowledge or address the risk to patients’ lives if paramedics or other individuals who provide

26 emergency care refuse to administer needed treatments or refuse to transport patients when no

27 alternate staff member is immediately available to perform the service.

28

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1

76. HHS acknowledged that the Rule has the potential to harm patients. See 84 Fed.

2 Reg. at 23,251 (“First, the patient’s health might be harmed if an alternative is not readily found,

3 depending on the condition. Second, there may be search costs for finding an alternative. Third, the

4 patient may experience distress associated with not receiving a procedure he or she seeks.”). Yet it

5 made no efforts to craft provisions that would reduce the risk of harm to patients. Instead, without

6 evidence, HHS downplayed the risks that patients would be harmed by assuming that various types

7 of objections would not be raised. See, e.g., id. at 23,188 (stating that HHS is unaware of any

8 medical professionals who would object to treating or transporting patients experiencing

9 complications after an abortion); id. at 23,244 (stating that HHS “is unaware of any religious or

10 ethical belief systems that prohibit treatment of a person on the basis of their HIV status”). It also

11 suggested, without citing statutory language, that the enactment of religious-objection laws justified

12 any harm to patients resulting from their enforcement. See, e.g., 84 Fed. Reg. at 23,251 (recognizing

13 that “some patients do experience emotional distress as a consequence of providers’ exercise of

14 religious beliefs or moral convictions” but stating that Congress “did not establish balancing tests

15 that weigh such emotional distress against the right to abide by one’s conscience”).

16

77. HHS asserted that any harm to patients was attributable not to the Denial-of-Care

17 Rule but to the religious-objection statutes themselves. For that reason, HHS deemed it unnecessary

18 to quantify the harm to patients. It concluded that “it is appropriate to finalize this rule . . . even

19 though the Department and commenters do not have data capable of quantifying all of its effects

20 on the availability of care.” 84 Fed. Reg. at 23,182. Again invoking purported congressional policy,

21 the agency deemed religious refusals “worth protecting even if they impact overall or individual

22 access to a particular service, such as abortion.” Id.; see id. at 23,251 (asserting that “objections

23 based on potential (often temporary) lack of access to particular procedures as a result of

24 enforcement of the law are really objections to policy decisions made by the people’s

25 representatives in Congress”).

26

1.

The Rule’s Overly Broad and Distorted Definitions

27

78. Although HHS repeatedly attributes the Rule’s harmful consequences to the

28 underlying statutes, the Rule sharply departs from the will of Congress. The Rule contains

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1 numerous prohibitions, applicable to specified funding recipients, that purport to implement the

2 religious-objection laws. See 84 Fed. Reg. at 23,264, § 88.3. But the Rule defines or redefines key

3 statutory terms, expanding their reach far beyond their ordinary meaning and congressional intent.

4 See 84 Fed. Reg. at 23,263-23,264, § 88.2.

5

79. Through these overly broad definitions, the Rule will encourage individuals or

6 institutional healthcare providers, or even someone with only a tangential connection to a procedure

7 (such as a receptionist, lab technician, bookkeeper, janitor, or volunteer), to claim an absolute right

8 to refuse to provide or have any connection whatsoever to providing healthcare and information

9 based on a religious or moral objection—regardless of the impact on patients and on other

10 healthcare providers. The Rule also invites these individuals to refuse to provide a referral to

11 another provider or even general information about services to which the refuser objects, thereby

12 denying patients critical information about their treatment options. Taken together, these definitions

13 will embolden almost any person or entity whose work has even a vague tie to healthcare delivery

14 to decline to provide and even to block needed medical care, services, administrative support,

15 advice, and information.

16

80. The Rule redefines key terms with extraordinary and unwarranted breadth,

17 distorting the underlying statutes’ meaning. These terms are either undefined or more narrowly

18 defined in the underlying statues. When read together, the definitions of “assist in the performance,”

19 “refer,” “health care entity,” and “discriminate” greatly expand the Rule’s prohibitions beyond the

20 authority granted in any of the statutes. The Rule therefore interconnects various, separately enacted

21 provisions of the Coates, Weldon, and Church Amendments to create an unlawful regulation that

22 expands religious refusals to an unworkable, dangerous degree. For example, as discussed more

23 fully below, the definition of “assist in the performance” includes the term “refer,” which in turn is

24 defined with unprecedented breadth.

25

81. The Rule prohibits all federal funding recipients, including subrecipients, from

26 “requir[ing]” any “individual to perform or assist in the performance of any part of a health

27 service program or research activity . . . if the individual’s performance or assistance in the

28 performance of such part of such program or activity would be contrary to his religious beliefs or

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1 moral convictions.” 84 Fed. Reg. at 23,265, § 88.3(a)(2)(vi) (emphasis added). The Rule defines

2 the key terms with extraordinary and unwarranted breadth, thus distorting the underlying statutes’

3 meaning.

4

82. First, the Rule defines “assist in the performance” extremely broadly to include

5 activities only tangentially related to any healthcare procedure. Only the Church Amendments refer

6 to “assist[ing] in the performance” of an activity, and nothing in that statutory scheme envisions

7 the broad definition in the Rule. 42 U.S.C. § 300a-7. Under the Rule, however, to “assist in the

8 performance” means to “take an action that has a specific, reasonable, and articulable connection

9 to furthering a procedure or a part of a health service program or research activity undertaken by

10 or with another person or entity,” including “counseling, referral, training, or otherwise making

11 arrangements for the procedure or a part of a health service program or research activity, depending

12 on whether aid is provided by such actions.” 84 Fed. Reg. at 23,263, § 88.2.

13

83. HHS rejected arguments that the definition was too broad, explaining instead that

14 the agency intends the Rule to be defined expansively. 84 Fed. Reg. at 23,186-23,187. The agency

15 likewise defended its inclusion of counseling and referral within the definition of “assist in the

16 performance,” asserting without authority that these are “common and well understood forms of

17 assistance that help people reach desired medical ends.” Id. at 23,188. But Congress made specific

18 references to “counsel[ing]” in one of the Church Amendments’ provisions, “training” in the Coats-

19 Snowe Amendment, and “refer for” in the Weldon Amendment. The separation of these terms in

20 the statutes is evidence of Congress’s intent to distinguish them. Yet the Rule includes each

21 category of actions, which themselves are defined with incredible breadth, within the definition of

22 “assist in the performance.” The inclusion of a panoply of additional activities within the definition

23 of “assist in the performance” is contrary to the statutes.

24

84. Second, the Rule defines “referral or refer”—terms that are part of the definition

25 of “assist in the performance”—with extreme breadth. Expanding those terms beyond any

26 commonsense understanding or traditional meaning in the medical context, the Rule defines them

27 to include the “provision of information in oral, written, or electronic form (including names,

28 addresses, phone numbers, email or web addresses, directions, instructions, descriptions, or other

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1 information resources), where the purpose or reasonably foreseeable outcome of provision of the

2 information is to assist a person in receiving funding or financing for, training in, obtaining, or

3 performing a particular health care service, program, activity, or procedure.” 84 Fed. Reg. at

4 23,264, § 88.2. This definition goes far afield from what is traditionally considered referral or

5 counseling, instead expanding it to invite an individual worker—one who may lack the medical

6 expertise or information about a patient’s medical history to understand the implications of this

7 decision—to refuse to notify either the patient or the worker’s employer of the decision to deny

8 information or care. When read in conjunction with the definition of “assist in the performance,”

9 this definition empowers an unprecedented universe of individuals to deny care and information

10 without providing these essential and ethically required notifications. The limited provisions of the

11 Rule that permit healthcare providers to require certain, limited advance notice of refusals,

12 discussed more fully below, are not sufficient to cure the unreasonable breadth and unworkability

13 of this definition.

14

85. By defining participation in a procedure as any activity with “a specific, reasonable,

15 and articulable connection” to a procedure; by explicitly including referrals, counseling, training.

16 and arrangements for a procedure; and by defining “referral” to include the provision of any

17 information that may foreseeably lead a person to obtain training, funding, or services, the Rule

18 vastly expands the class of people who will be empowered to assert objections and the activities

19 that may be the subject of objections.

20

86. The Rule defines “workforce” broadly to mean “employees, volunteers, trainees,

21 contractors, and other persons whose conduct, in the performance of work for an entity or health

22 care entity, is under the direct control of such entity or health care entity, whether or not they are

23 paid by the entity or health care entity, as well as health care providers holding privileges with the

24 entity or health care entity.” 84 Fed. Reg. at 23,264, § 88.3. The proposed Rule defined the word

25 “individual”—a word used in several of the Rule’s prohibitions—to include any member of an

26 entity’s workforce. 83 Fed. Reg. at 3924, § 88.2. That definition of “individual” was deleted from

27 the Rule, but the definition of “workforce” was retained. And the preamble’s discussion of that

28 decision makes clear that HHS’s Office for Civil Rights still asserts that it may interpret that term

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1 to include members of the “workforce” as defined in the Rule, stating that “sometimes [the term

2 individual] refers to members of the workforce of an entity or health care entity. . . .”). 84 Fed. Reg.

3 at 23,199.

4

87. The preamble to the Rule makes clear that these definitions allow objections to be

5 raised by a receptionist who schedules an appointment, a janitor who prepares an operating room,

6 an orderly who provides patients with assistance in the recovery room, or an ambulance driver who

7 transports a patient to the hospital. See 84 Fed. Reg. at 23,186-23,187.

8

88. Indeed, the Rule could be read to cover virtually any healthcare-related task,

9 including providing information about treatment options and coverage information to allow for

10 informed consent; providing, collecting, or filing forms related to patients’ health history, insurance

11 information, or informed consent; escorting patients to treatment areas; cleaning or restocking

12 treatment rooms, operating rooms, ambulances, or other facilities to allow for treatment of patients;

13 billing, collecting fees for, and administering insurance reimbursements for treatment; and even

14 minor administrative, clerical, or supporting tasks such as scheduling appointments. Invoking the

15 definitions of “assist in the performance” and “refer,” a worker could feel empowered to object to

16 providing even basic information to a patient—such as information about insurance coverage, the

17 phone number of a medical office, or directions to a bus stop—on the theory that the worker would

18 thereby be “assisting in the performance” of a procedure to which the worker has a moral objection.

19

89. These terms reach even further when read in conjunction with the Rule’s definition

20 of “discriminate.” As noted above, several statutes prohibit discrimination based on the assertion

21 of religious objections in specified circumstances. The Rule includes prohibitions employing

22 language from these statutes (e.g., 84 Fed. Reg. at 23,265, § 88.3(a)(2)(iv), citing 42 U.S.C. 300a-

23 7(c)(1)), but defines the word “discriminate” in an unreasonable and arbitrary manner, dramatically

24 expanding what the supposed authorizing statutes actually require or provide. That definition has

25 no basis in law and undermines policies designed to reconcile religious objections and the needs of

26 patients.

27

90. Under the Rule, “discriminate” means “(1) [t]o withhold, reduce, exclude from,

28 terminate, restrict, or make unavailable or deny any grant, contract, subcontract, cooperative

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1 agreement, loan, license, certification, accreditation, employment, title, or other similar instrument,

2 position, or status; (2) [t]o withhold, reduce, exclude from, terminate, restrict, or make unavailable

3 or deny any benefit or privilege or impose any penalty; or (3) [t]o utilize any criterion, method of

4 administration, or site selection, including the enactment, application, or enforcement of laws,

5 regulations, policies, or procedures directly or through contractual or other arrangements, that

6 subjects individuals or entities protected under this part to any adverse treatment with respect to

7 individuals, entities, or conduct protected under this part on grounds prohibited under an applicable

8 statute encompassed by this part.” 84 Fed. Reg. at 23,263, § 88.2.

9

91. This definition appears to classify as prohibited discrimination any action having

10 the slightest negative effect, even if there is a compelling reason for that action. Although Title VII

11 of the Civil Rights Act of 1964 provides that employers need not provide accommodations for an

12 employee’s religious beliefs when the accommodation would cause undue hardship to the

13 employer, the Rule incorporates no such consideration and does not recognize any exception for

14 business necessity or acknowledge that employers may have legitimate, nondiscriminatory reasons

15 for an allegedly adverse employment action. As a result, it appears that a healthcare entity could be

16 deemed to have engaged in unlawful discrimination when it takes measures that are reasonably

17 necessary to ensure patient care notwithstanding the religious views of individual workers—such

18 as taking religious objections into account when making scheduling decisions, enforcing policies

19 requiring advance notice of religious objections, requiring employees to tell someone when they

20 have refused to provide care to a patient, or considering whether a job candidate is willing to

21 perform the essential duties of the position or deliver healthcare services critical to the providers’

22 mission when making hiring decisions.

23

92. HHS incorporated into the definition of “discrimination” exceptions that

24 purportedly allow certain methods, such as advance-notice requirements and use of alternate staff,

25 that providers use to reconcile objections with the needs of patients. But these provisions are

26 unreasonably narrow, vague, and unworkable.

27

93. First, the definition states that “an entity subject to any prohibition in this part shall

28 not be regarded as having engaged in discrimination against a protected entity where the entity

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1 offers and the protected entity [i.e., an employee or volunteer] voluntarily accepts an effective

2 accommodation for the exercise of such protected entity’s protected conduct, religious beliefs, or

3 moral convictions.” 84 Fed. Reg. at 23,263, § 88.2. The requirement that an accommodation be

4 “voluntarily accept[ed]” does not say what providers should do when an employee rejects an

5 offered accommodation and demands an accommodation that would put patients at risk or

6 otherwise compromise patient care.

7

94. The definition also states that “an entity subject to any prohibition in this part may

8 require a protected entity to inform it of objections to performing, referring for, participating in, or

9 assisting in the performance of specific procedures, programs, research, counseling, or treatments,

10 but only to the extent that there is a reasonable likelihood that the protected entity may be asked in

11 good faith to perform, refer for, participate in, or assist in the performance of, any act or conduct

12 just described. Such inquiry may only occur after the hiring of, contracting with, or awarding of a

13 grant or benefit to a protected entity, and once per calendar year thereafter, unless supported by a

14 persuasive justification.” 84 Fed. Reg. at 23,263, § 88.2.

15

95. This provision sharply constrains providers’ ability to require that workers provide

16 notice of their objections to procedures. Healthcare institutions may ask about “specific”

17 procedures, research, and treatment only; they may ask for advance notice of objections only if

18 there is “a reasonable likelihood” that the particular worker will be asked to participate in the

19 particular procedures; they may ask only after the worker is hired and then only once per year

20 thereafter. The Rule does not indicate how providers may handle unanticipated objections or

21 situations. Nor does it authorize providers to adopt policies requiring workers to alert them when

22 the workers decline to provide needed medical care or information to a patient, or (if the workers

23 have given such notice) when they decide to object to additional categories of patients or

24 procedures. And the Rule prohibits any questioning about religious objections before hiring,

25 notwithstanding the immense burden that would fall on a healthcare provider if it learned after

26 hiring a worker that the worker is unwilling to perform the critical and even primary aspects of the

27 job for which the worker was hired.

28

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1

96. Finally, the Rule limits the ability of healthcare providers to ensure that patients are

2 not denied care because of a religious objection. The Rule states that “[t]he taking of steps by an

3 entity subject to prohibitions in this part to use alternate staff or methods to provide or further any

4 objected‐to conduct . . . would not, by itself, constitute discrimination or a prohibited referral, if

5 such entity does not require any additional action by, or does not take any adverse action against,

6 the objecting protected entity (including individuals or health care entities), and if such methods do

7 not exclude protected entities from fields of practice on the basis of their protected objections.

8 Entities subject to prohibitions in this part may also inform the public of the availability of alternate

9 staff or methods to provide or further the objected‐to conduct, but such entity may not do so in a

10 manner that constitutes adverse or retaliatory action against an objecting entity.” 84 Fed. Reg. at

11 23,263, § 88.2. By appearing to foreclose requiring any “additional action” by objectors, the Rule

12 suggests that providers may not even require objectors to assist in transferring patients to alternative

13 providers or to tell patients that an alternative provider is available. Instead, the Rule envisions that

14 providers will post public notices to inform patients about the availability of alternatives. That will

15 create anxiety by alerting patients that some of a healthcare facility’s staff may refuse to treat them.

16 The patients may have no idea that they may need a treatment to which a healthcare worker might

17 object. This inappropriately shifts to patients the burden of anticipating possible objections by

18 employees and finding a way to ensure that they still can receive needed care and information.

19

97. The Rule also expansively redefines “health care entity”—a phrase that is used in

20 both the Coats-Snowe Amendment and the Weldon Amendment and is specifically defined in each.

21 The Rule’s new definition expands “health care entity” to include new entities not covered by either

22 statute. In so doing, the Rule goes far beyond those statutes’ scope.

23

98. Under the Coats-Snowe Amendment, “health care entity” “includes an individual

24 physician, a postgraduate physician training program, and a participant in a program of training in

25 the health professions.” 42 U.S.C. § 238n(c)(2). Under the Rule, “health care entity” for purposes

26 of the Coats-Snowe Amendment includes “an individual physician or other health care

27 professional, including a pharmacist; health care personnel; a participant in a program of training

28 in the health professions; an applicant for training or study in the health professions; a post‐graduate

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1 physician training program; a hospital; a medical laboratory; an entity engaging in biomedical or

2 behavioral research; a pharmacy; or any other health care provider or health care facility.” 84 Fed.

3 Reg. at 23,264, § 88.2.

4

99. Under the Weldon Amendment, “ ‘health care entity’ includes an individual

5 physician or other health care professional, a hospital, a provider-sponsored organization, a health

6 maintenance organization, a health insurance plan, or any other kind of health care facility,

7 organization, or plan.” E.g., Pub. L. 115-245, § 507(d)(2), 132 Stat. 2981, 3118 (2018). But in the

8 Rule, “health care entity” for purposes of the Weldon Amendment is defined to include “an

9 individual physician or other health care professional, including a pharmacist; health care

10 personnel; a participant in a program of training in the health professions; an applicant for training

11 or study in the health professions; a post‐graduate physician training program; a hospital; a medical

12 laboratory; an entity engaging in biomedical or behavioral research; a pharmacy; a provider‐

13 sponsored organization; a health maintenance organization; a health insurance issuer; a health

14 insurance plan (including group or individual plans); a plan sponsor or third‐party administrator;

15 or any other kind of health care organization, facility, or plan.” 84 Fed. Reg. at 23,264, § 88.2.

16

100. Through these sweeping definitions, the Rule broadens the universe of potential

17 objectors to include individuals and entities not included in either of the statutory definitions of

18 “health care entity,” including applicants for training and study and pharmacists. And the Rule

19 expands the definition of “health care entity” for purposes of the Coats-Snowe Amendment to

20 include any healthcare professional, healthcare provider, or healthcare facility, notwithstanding that

21 such general terms do not appear in the statutory definition.

22

101. The Rule uses the term “sterilization” to describe medically necessary, gender-

23 affirming healthcare procedures sought by transgender patients. It does so to justify denials of care

24 to transgender and gender-nonconforming patients. But that understanding of the term sterilization

25 is inaccurate—it is contrary to current medical, traditional, and commonsense understandings of

26 the term. The Rule cites Minton v. Dignity Health, No. 17-558259 (Calif. Super. Ct. Apr. 19, 2017),

27 as justification for the Rule’s enactment. See 84 Fed. Reg. at 23,276, n.27. Minton concerned

28 whether a Catholic hospital was justified in blocking a surgeon’s performance of a hysterectomy

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1 on a transgender patient as part of the patient’s prescribed course of treatment for gender dysphoria

2 based on the hospital’s religious objection to “sterilization.” But equating treatment for gender

3 dysphoria with sterilization is medically inaccurate. Procedures undertaken for the purpose of

4 sterilization are distinct from medical procedures undertaken for other purposes that incidentally

5 affect reproductive function. The Rule also expressly and improperly declines to rule out whether

6 treatment for cancer, such as chemotherapy or surgical removal of testes or ovaries to treat

7 cancerous tumors, could constitute “sterilization” simply because such treatment also could affect

8 reproductive function. The Rule’s targeting of transgender patients by adopting a particular

9 religious definition of “sterilization” violates statutory nondiscrimination requirements and medical

10 and ethical standards of care, improperly endorses a particular religious belief, and threatens the

11 provision of medically necessary healthcare to transgender patients, thereby threatening public

12 health.

13

2. The Rule’s Inadequate Explanation of Emergency Exceptions,

Compliance Certification, and Notice Requirements 14

15

102. The Rule contains no exception for emergencies. In the Rule’s preamble, HHS

16 specifically contemplates that individuals will deny patients access to necessary care even in

17 emergency situations in which no alternative provider is available. Further, HHS cites cases

18 involving people being required to provide emergency care as evidence of the need for the Rule.

19 See, e.g., 84 Fed. Reg. at 23,176 (citing Cenzon-Decarlo v. Mount Sinai Hosp., No. 09 CV

20 3120(RJD), 2010 WL 169485, at *1 (E.D.N.Y. Jan. 15, 2010), aff ’d, 626 F.3d 695 (2d Cir. 2010)

21 (only on-call nurse did not want to provide emergency care for patient suffering from severe

22 preeclampsia)); id. at 23,176 n. 27 (citing Means v. U.S. Conference of Catholic Bishops, No. 1:15-

23 CV-353, 2015 WL 3970046 (W.D. Mich. 2015) (hospital turned away patient, refusing to complete

24 miscarriage following premature rupture of membranes, risking grave threats to patient’s health)).

25 HHS also cites as evidence of the need for the rule a medical-ethics opinion requiring emergency

26 care notwithstanding religious objections. See 83 Fed. Reg. at 3888 (citing, as evidence of the denial

27 of conscience rights in medicine, an American Congress of Obstetricians and Gynecologists ethics

28 opinion advising that providers have an obligation to provide emergency care in certain

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1 circumstances). These examples illustrate HHS’s intent to authorize the denial of care to patients

2 even in emergencies and in derogation of patients’ constitutionally protected rights. HHS’s only

3 response is that it will decide on a case-by-case basis how emergency needs and conscience

4 objections should be reconciled. 84 Fed. Reg. at 23,176.

5

103. The Rule requires funding recipients to certify their compliance with the Rule and

6 imposes recordkeeping requirements. 84 Fed. Reg. at 23,269-23,271, § 88.4-88.6. But the Rule

7 provides no practical guidance on compliance; it does not specify what form that the records should

8 take or how they should be maintained.

9

104. The Rule includes a notice requirement that will encourage individuals to

10 unilaterally refuse to provide care and information to patients. 84 Fed. Reg. at 23,270, § 88.5. The

11 notice purports to be “voluntary,” but the Rule pressures recipients to post certain recommended

12 text. The Rule states that OCR “will consider an entity’s voluntary posting of a notice of

13 nondiscrimination as non‐dispositive evidence of compliance” with the Rule, as long as “such

14 notices are provided according to the provisions of this section.” Id. The Department will take into

15 account where the notice is published—e.g., whether it is “[i]n a prominent and conspicuous

16 physical location” where it can be readily observed by the recipient’s workforce and the public; in

17 personnel manuals; and in employment applications. Id. § 88.5(b). The Rule recommends that the

18 notice read: “You may have the right under Federal law to decline to perform, assist in the

19 performance of, refer for, undergo, or pay for certain health care‐related treatments, research, or

20 services (such as abortion or assisted suicide, among others) that violate your conscience, religious

21 beliefs, or moral convictions.” 84 Fed. Reg. at 23,272, App. A to Pt. 88. This recommended notice

22 does not suggest that the objector must comply with advance-notice requirements, that the objector

23 must cooperate in handing off the patient to another workforce member, or that the objector must

24 assist in an emergency. The posting of a notice in the recommended form therefore would

25 undermine policies designed to reconcile religious objections with the needs of patient care. Yet

26 the Rule does not state what the consequences will be for failing to post a notice in this form.

27

28

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1

3. The Rule’s Vague and Coercive Enforcement Provisions

2

105. The Denial-of-Care Rule threatens entities that violate the Rule with punitive

3 sanctions, up to and including the total withdrawal and even clawback of Medicare and Medicaid

4 reimbursements and all other federal funds. See 84 Fed. Reg. at 23,180 (emphasizing that remedies

5 may include “termination of relevant funding, in whole or in part” and “funding claw backs to the

6 extent permitted by law”); 84 Fed. Reg. at 23,271, § 88.7(i) (remedies for noncompliance with the

7 Rule include withholding, denying, or terminating existing federal funding; denying or withholding

8 new federal funding; and suspending award activities).

9

106. These penalties could be applied for even a single violation by a covered entity or a

10 violation by a subrecipient or contractor. Direct recipients bear “primary responsibility to ensure

11 that” their subrecipients are “in compliance with Federal conscience and anti-discrimination laws

12 and this part, and shall take steps to eliminate any violations of the Federal conscience and anti-

13 discrimination laws and this part.” 84 Fed. Reg. at 23,270, § 88.6(a). The Rule makes clear that if

14 “a sub-recipient is found to have violated the Federal conscience and anti-discrimination laws, the

15 recipient from whom the sub-recipient received funds may be subject to the imposition of funding

16 restrictions or any appropriate remedies available under this part, depending on the facts and

17 circumstances.” Id. The preamble further states that the conduct of contractors is attributable to

18 States and local governments. 84 Fed. Reg. at 23,207 (“The conduct and activities of contractors

19 engaged by the Department, a Departmental program, or a State or local government is attributable

20 to such Department, program, or government for purposes of enforcement or liability under the

21 Weldon amendment.”).

22

107. Moreover, although the Rule asserts that matters will be resolved informally

23 “whenever possible,” it makes clear that loss of all funds can still be immediate: “Attempts to

24 resolve matters informally shall not preclude OCR from simultaneously pursuing any action

25 described in § 88.7.” 84 Fed. Reg. at 23,271-23,272, § 88.7(h)(2).

26

108. The preamble to the proposed Rule asserted that the Department may regulate an

27 unspecified “broader range of funds or broader categories of covered entities” for “noncompliant

28 entities.” 83 Fed. Reg. at 3898. In other words, HHS asserted the power to withhold not only federal

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1 funds that are used for programs in which violations are occurring, but also federal funds used for

2 programs unrelated to any alleged offense. And the Rule provides that OCR may temporarily

3 withhold “Federal financial assistance or other Federal funds, in whole or in part, pending

4 correction of the deficiency,” without limiting that authority to funds from HHS, a limitation that

5 is present in other provisions of the same section. 84 Fed. Reg. at 23,272, § 88.7(i)(3)(i).

6

109. These draconian enforcement mechanisms will have the effect of intimidating and

7 coercing healthcare providers—leading them to adopt overly limiting constructions of ambiguous

8 provisions or to stop providing certain services altogether. Likewise, direct recipients that face

9 liability for violations by subrecipients will have little option but to regulate aggressively or to pull

10 funding from subrecipients, particularly those that provide abortion, contraception, or LGBT

11 healthcare, as well as those that will not alter their nondiscrimination or emergency policies.

12

110. The Rule provides no mechanisms for notice, a hearing, or an appeal before HHS

13 terminates or withholds funds for asserted violations of the Rule.

14

111. The Rule provides no guidelines as to which enforcement mechanisms HHS will

15 use in particular circumstances, instead leaving it entirely to the discretion of enforcement officials.

16 As a result, HHS officials could employ the most draconian punishments for even the most trivial

17 technical violations, and the healthcare provider would have no outlined avenue for appeal.

18

112. Moreover, the Rule threatens recipients and subrecipients with onerous compliance

19 and investigation requirements that infringe on patient privacy. See 84 Fed. Reg. at 23,270,

20 § 88.6(c) (each recipient and subrecipient “shall cooperate with any compliance review,

21 investigation, interview, or other part of OCR’s enforcement process, which may include the

22 production of documents, participation in interviews, response to data requests, and making

23 available of premises for inspection where relevant”). Investigations are mandatory whenever there

24 is a violation or “threatened” or “potential” violation, which can be demonstrated through “any

25 information.” Id. at 23,271, § 88.7(d) (“OCR shall make a prompt investigation, whenever a

26 compliance review, report, complaint, or any other information found by OCR indicates a

27 threatened, potential, or actual failure to comply with Federal health care conscience and associated

28 anti-discrimination laws or this part.”).

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1

113. Each recipient or subrecipient is required to “permit access by OCR during normal

2 business hours to such of its books, records, accounts, and other sources of information, as well as

3 its facilities, as may be pertinent to ascertain compliance with this part.” The Rule expressly

4 overrides patients’ privacy rights, stating that “[a]sserted considerations of privacy or

5 confidentiality may not operate to bar OCR from evaluating or seeking to enforce compliance with

6 this part. Information of a confidential nature obtained in connection with compliance reviews,

7 investigations, or other enforcement activities shall not be disclosed except as required in formal

8 enforcement proceedings or as otherwise required by law.” 84 Fed. Reg. at 23,271, § 88.5(c).

9

114. Given the expansiveness and vagueness of the Rule, and the severity of its penalty

10 provisions, any individual or entity receiving federal funding—including direct recipients and

11 subrecipients, hospitals, independent providers, contractors, and affiliates—faces a substantial risk

12 of crippling sanctions. To avoid severe penalties, providers must either risk violating the laws (and

13 ethical and professional obligations) that require them to provide timely and adequate access to

14 information and care to patients, or cease offering services to which some employee or volunteer

15 might potentially object, including reproductive-health services, care for LGBT patients, and end-

16 of-life care.

17

115. The Rule thus creates especially strong disincentives for healthcare entities to

18 provide reproductive-health services and services to LGBT patients, for fear that their funding

19 (including their ability to obtain Medicare and Medicaid reimbursements) will be terminated and

20 their ability to provide medical care to underserved populations will be severely reduced or

21 curtailed.

22

116. The threat of punitive sanctions under the Rule also will deter healthcare facilities

23 from taking remedial action against discrimination by an employee against patients or other

24 employees, even when that discrimination is not tied to any religious belief.

25

E. The Rule’s Immediate and Irreparable Harms

26

1. Overview

27

117. The Denial-of-Care Rule will harm local governments, hospitals, small clinics, local

28 providers, community centers, healthcare and professional associations and their members, and

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1 their patients. These harms will occur nationwide. They will directly and irreparably injure

2 Plaintiffs, their members, their employees, and their patients.

3

118. The Rule privileges particular religious views over all other medical, legal, and

4 operational concerns, and it will force Plaintiff healthcare providers to rewrite their existing policies

5 to the extent that they are inconsistent with the Rule. Providers will have to choose between two

6 unacceptable courses of action: compromising their missions, operations, and medical ethics and

7 placing patients at risk by attempting to comply with the Rule, or jeopardizing the federal funding

8 supporting many of their most important functions and services. And even if providers attempt to

9 comply, the uncertainty created by the Rule will pose staffing, budgeting, and operational

10 dilemmas. The Rule fails to give providers necessary guidance on how the Rule will be applied. As

11 a result, it leaves providers unsure of what is required of them during emergencies, preventing them

12 from making critical judgments about the degree of redundant staffing and other measures that they

13 must implement to minimize the risk of harm to patients that may result from the Rule. The Rule

14 will further harm Plaintiffs’ operations by undermining patient trust, constraining already limited

15 resources, and flooding Plaintiffs’ facilities with patients denied care by other providers.

16

119. Patients will suffer the gravest harms. Some patients will be denied care (including

17 lifesaving care) or denied information needed for informed consent. Other patients will be exposed

18 to physical, mental, and dignitary harms, in violation of their constitutional rights. And many of the

19 most vulnerable patients will be afraid to give their providers information that is critical to

20 establishing the clinical relationship and guiding appropriate care—an unconstitutional chilling of

21 speech that harms patients and providers alike. If Plaintiffs are forced out of business or forced to

22 stop offering certain healthcare services, patients will be delayed in obtaining care and may be

23 entirely unable to obtain care.

24

120. The Rule threatens patients’ ability to obtain needed and even emergency care in

25 accordance with their medical needs, and in some instances their own religious and moral beliefs,

26 particularly with respect to contraception, abortion, end-of-life care, and gender-affirming

27 healthcare. It encourages and in some instances may require the imposition of the beliefs of a single

28 employee on healthcare institutions and patients, thereby overriding or preventing patients’ access

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1 to healthcare. It also invites discrimination on the basis of sex, gender identity, transgender status,

2 and disabilities such as addiction and positive HIV status. It deprives patients in need of

3 reproductive healthcare and transgender and gender-nonconforming patients of their right to equal

4 dignity and stigmatizes them as second-class citizens. And it impermissibly burdens and chills

5 constitutionally protected speech by threatening to penalize certain individuals based on their

6 gender identity, gender expression, or medical history.

7

121. The harms imposed on Plaintiffs, their members, and their patients reflect the harms

8 that will be imposed on all similarly situated providers across the country. The Rule will be

9 unworkable for any hospital or facility committed to providing objective, compassionate, and

10 responsible abortion, contraception, or transition-related healthcare, because most, if not all,

11 hospitals rely on HHS for a large percentage of their funding. Smaller medical providers may be

12 forced to close or sacrifice elements of the care that they provide, compromising their core missions.

13 And if Plaintiffs are either forced out of business or forced to stop offering certain healthcare

14 services, patients will likewise be delayed in accessing care and in some instances will be entirely

15 unable to access care.

16

122. Hospitals, clinics, community health centers, and other facilities that are unprepared

17 to risk the loss of federal funding may entirely forgo providing abortion, contraception, or LGBT

18 services (including referrals to such services). Indeed, the Rule will chill the provision of care in

19 any medical facility that is unwilling or unable to take on the risks imposed by the Rule.

20

123. At facilities that do continue to provide services to which some staff members may

21 object, the delivery of that care will suffer. Patients will be more likely to experience discriminatory

22 treatment or be denied care altogether because a member of the workforce disapproves of them or

23 the treatment they seek.

24

2. Harms to the County of Santa Clara

25

124. The County, through its departments and agencies, is committed to delivering high-

26 quality care, including to underserved and vulnerable populations, in settings that protect and

27 respect patients, their families, and providers alike. County departments already have in place

28 nondiscrimination and conscience-objection policies that respect and comply with existing legal

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1 requirements and medical ethics. If the Denial-of-Care Rule goes into effect, the County will

2 immediately need to rewrite and re-evaluate all of its conscience-objection polices, and it will need

3 to inquire as to the conscience objections of thousands of employees newly covered under the Rule.

4

125. For example, Valley Medical Center has a policy allowing its current and

5 prospective medical staff and employees to request in writing not to participate in certain patient

6 care that conflicts with staff members’ cultural values, ethics, or religious beliefs. Once an

7 exemption is requested, the appropriate manager or director determines whether the request can be

8 granted in light of staffing levels and other relevant circumstances. If the request is granted, the

9 staff member’s tasks, activities, and duties may be redistributed to ensure appropriate patient care.

10 The policy makes clear that requests for exemptions will not result in disciplinary or recriminatory

11 action. A manager or director may decline to accept an employee or medical-staff member for

12 permanent assignment, however, if the staff member has requested not to participate in an aspect

13 of care that is commonly performed in that assignment. The policy makes clear that patient care

14 must not be adversely affected by the granting of an exemption and that medical emergencies take

15 precedence over personal beliefs.

16

126. Valley Medical Center designed this policy to appropriately address the healthcare

17 needs of patients, including patients’ rights to be treated in a nondiscriminatory manner, and Valley

18 Medical Center’s need to plan in advance to ensure appropriate staffing, as well as to respect the

19 cultural values and ethical and religious beliefs of employees. Without prior notice and the ability

20 to plan assignments around conscience objections, the County would be unable to staff many of its

21 operations appropriately. Further, it is critical to patient care and to hospital functionality that

22 Valley Medical Center be able to rely on all medical staff to assist a patient in the event of an

23 emergency.

24

127. O’Connor and St. Louise Hospitals have similar policies regarding religious and

25 moral objections to providing certain patient care, with comparable requirements for advance notice

26 and attending to emergencies. In the near future, those facilities will transition to the Valley Medical

27 Center policy, as part of their ongoing integration into the County’s health system.

28

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1

128. The County is extremely concerned about the lack of an emergency exception on

2 the face of the Rule. An objector’s refusal to assist in patient care during an emergency could lead

3 to delays in care and worse medical outcomes, including fatalities. If it cannot rely on all staff to

4 provide care in an emergency, the County will have to consider whether backup or double staffing

5 is necessary to protect patient welfare. Moreover, the Rule’s lack of clarity about whether and when

6 an emergency exception exists creates unacceptable operational uncertainty, leaving the County in

7 the dark about what policies it would need to put in place around emergencies to be able to certify

8 compliance with the Rule.

9

129. Further, under a regime that permits only occasional inquiry into employees’

10 objections and only voluntarily accepted accommodations, the County will be unable to ensure

11 proper patient care. For example, at some County-run pharmacies, there is only one pharmacist on

12 site at any given time. Patients will be prevented from obtaining their prescribed medications if a

13 pharmacist unilaterally decides not to provide certain types of medication, or not to serve certain

14 people, without first discussing the issue with a manager and agreeing to some accommodation.

15

130. The requirement that accommodation be “voluntarily accept[ed],” 84 Fed. Reg. at

16 23,263, § 88.2—meaning that staff must consent to any reassignment or shifting of hours made to

17 account for religious objections—will similarly pose staffing challenges for the County’s many

18 critical health-related programs. The County must ensure that there are sufficient non-objecting

19 staff members to cover each shift and ensure continuous patient care. If an employee’s religious

20 objection is incompatible with that person’s role, the person may need to be reassigned to another

21 role. And for some positions, no accommodation will be possible. For example, if a receptionist

22 objected to informing people that County hospitals provide contraceptive and abortion care and

23 also objected to connecting patients with someone who could discuss those options, there would be

24 no accommodation the County could offer that would avoid compromising access to care.

25

131. The Rule allows for an employer to ask for notice of an employee’s religious or

26 moral objections once a year. But it does not address what should happen if an employee develops

27 an objection after having already told the employer that he or she has no objections. The County

28 must be able to obtain or require notice of all religious or moral objections; otherwise, it could face

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1 a situation where a staff member unexpectedly objects to care, leading to staffing issues and lack

2 of continuous patient care. Under the Rule, the County could be wholly unaware that an objector

3 had ceased performing his or her assigned duties on the basis of a religious or moral objection,

4 which would gravely compromise patient care and the functioning of the County’s health systems.

5 The Rule’s failure to address these concrete logistical issues poses significant operational

6 challenges to the County and unacceptable health risks to patients.

7

132. The Rule will have grave effects on the County’s Gender Health Center. The

8 Clinic’s mission is to provide the care necessary for people of all ages to understand and explore

9 their gender identity. The Rule will imperil that mission because it will require the County to allow

10 employees who object on religious or moral grounds to the Clinic’s mission to work in that setting.

11

133. The Rule’s notice provision will adversely affect the County. The Rule’s model

12 notice tells employees that they “have the right to decline to participate in, refer for, undergo, or

13 pay for certain health care-related treatments, research, or services . . . which violate your

14 conscience, religious beliefs, or moral convictions under Federal law.” That might encourage or

15 suggest that it is permissible for employees to, for example, refuse to treat a transgender patient

16 who comes to the emergency room seeking care for a broken arm, based on the provider’s “moral

17 convictions,” even though refusal of service would violate federal nondiscrimination law and

18 EMTALA, 42 U.S.C. § 1395dd. And if the patient sees the notice, the patient would be discouraged

19 from communicating openly with the provider, for fear that services will be denied. Under the Rule,

20 the County must choose between displaying the model notice, or something like it, and risking loss

21 of federal funding for its decision not to display the model notice.

22

134. In the County’s view, complying with the Denial-of-Care Rule is operationally

23 unworkable, endangers patient health, and creates insurmountable staffing challenges. Further, the

24 Rule will require the County to risk malpractice actions or other suits by patients whose healthcare

25 was negatively affected by a County employee’s refusal to provide care. Were the County to fail to

26 provide care in an emergency situation because of an employee’s religious or moral objection, the

27 County might run afoul of state and federal laws requiring hospital emergency departments to

28 provide evaluation and emergency aid and requiring its Behavioral Health Services Department to

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1 provide timely access to an adequate network of mental-health care. See EMTALA, 42 U.S.C.

2 § 1395dd; Cal. Health & Safety Code §§ 1317-1317.10 (2008); 42 C.F.R. §§ 438.206-438.208.

3

135. The County faces withdrawal or even clawback of hundreds of millions of dollars

4 in federal funding annually if the Rule is enforced against it. 84 Fed. Reg. at 23,271, § 88.7(i).

5 Without federal funding, the County’s ability to provide a broad range of quality health services to

6 many thousands of patients—including to infants and children, those with chronic diseases, the

7 indigent, and the elderly—would be greatly diminished or potentially eliminated. These vulnerable

8 patients would face increased healthcare costs and would likely have little choice but to forgo care

9 or to seek it in already crowded emergency rooms of other hospitals. And those patients may face

10 additional barriers to treatment at those hospitals if those hospitals are covered by the Rule.

11

136. Because Valley Medical Center and other County healthcare facilities are safety-net

12 providers that primarily serve low-income individuals, vulnerable communities will be severely

13 harmed by a loss of federal funding. For example, the Public Health Department’s direct services

14 primarily benefit low-income persons, children, people of color, and people living with chronic

15 diseases such as HIV/AIDS. Because all 15 cities within the County are dependent on the County’s

16 public health department, many, if not most, of these individuals simply would not get the care and

17 resources that they need without federally funded services from the Public Health Department.

18

137. Further, the Rule creates untenable budgetary uncertainty for the County as a whole,

19 because the County is unsure what the Rule requires and whether the County is able to comply with

20 the Rule. This makes it infeasible for the County entirely to mitigate the risk that noncompliance

21 with the Rule could cause the County to lose more than a billion dollars in necessary federal

22 funding.

23

2. Harms to Private Healthcare Providers

24

138. Plaintiffs include clinics and healthcare providers that operate independently from

25 other healthcare systems, each with missions that include providing comprehensive and

26 compassionate care. For example, Trust Women Seattle’s mission is to treat patients with dignity,

27 empathy, and respect, to give them complete and accurate medical information and to empower

28 them to make decisions free from judgment or disruptions in their care. Likewise, the mission of

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1 the LA LGBT Center—the Nation’s largest provider of LGBT medical and mental-health

2 services—is to provide a safe and affirming environment for LGBT people seeking healthcare

3 services. To fulfill that mission, the LA LGBT Center must be able to treat its patients with dignity,

4 empathy, and respect; to give them complete and accurate medical information; and to empower

5 them to make decisions free from judgment or disruptions in their care. At Hartford Gyn, clinic

6 procedures and practices are designed to ensure that patients receive the highest quality,

7 nonjudgmental care. Hartford Gyn and Trust Women have taken a public stance defending

8 reproductive rights. Abortion clinics and their patients are routinely targeted and harassed,

9 including by protestors outside clinics and by groups and individuals who pose grave security

10 threats to physicians, staff, and volunteers. Hartford Gyn and Trust Women have been targeted by

11 the anti-choice movement for harassment and threatened violence, and they are symbols of the

12 determined provision of constitutionally protected care. Ensuring the safety of everyone in the

13 clinic, including patients, is of paramount concern for both providers.

14

139. Whitman-Walker, Bradbury-Sullivan Center, Center on Halsted, and the Mazzoni

15 Center also are mission-driven healthcare providers and entities.

16

140. In the reproductive-healthcare and LGBT-healthcare settings, the Rule invites

17 individuals to deny patients care and information, which will threaten both the health of patients

18 and the sustainability of the providers’ operations. The Rule will frustrate these mission-driven

19 providers’ ability to hire personnel who will work to support their missions. By expanding the

20 definition of what it means to “assist in the performance” of a procedure to include people not

21 directly engaged in providing care, and by inviting religious or moral objections without notice to

22 patients or providers, the Rule threatens grave harms to the healthcare-provider Plaintiffs’

23 operations, provision of care to their patients, their core missions, and their reputations.

24

141. The Plaintiff healthcare providers seek to empower patients to make their own

25 decisions. But the Rule’s broad definitions invite an employee to substitute his or her own opinion

26 about a patient’s care for sound medical judgment and the patient’s consent. As with Santa Clara,

27 these providers could face situations in which a staff member unexpectedly objects to care, leading

28 to staffing issues and inadequate responses in an emergency. Even worse, Plaintiffs could be wholly

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1 unaware that an objector has ceased performing his or her assigned duties on the basis of a religious

2 or moral objection, or has turned a patient away altogether, which would gravely compromise

3 patient care and Plaintiffs’ missions. The Rule’s failure to address these concrete logistical issues

4 poses unacceptable operational challenges and health risks to patients.

5

142. Small providers face a significant concern that staff members who assert

6 unanticipated objections will be able to unilaterally veto key aspects of patient care. This concern

7 affects even clinics devoted to providing reproductive or LGBT care. For example, someone willing

8 to process billing for pregnancy services may have objections to contraception or abortion, or

9 someone comfortable with scheduling an appointment for gay patients may have objections to

10 transgender patients. Because the Rule is designed to protect objectors from any consequences,

11 providers may be forced to reorganize their staffing structures, consume precious resources with

12 unnecessary workarounds, duplicate staffing in cost-prohibitive ways, unfairly burden

13 nonobjecting employees, reduce services, and even close programs in an attempt to reduce the risk

14 that a single employee will deny care or information to a patient.

15

143. Trust Women Seattle, for example, is a small business. It cross-trains clinical and

16 some nonclinical staff to serve multiple roles, many of which touch on providing information about

17 or scheduling, or directly providing abortion, contraception, or transgender healthcare. Likewise,

18 Hartford Gyn must operate efficiently because of its already limited income. In order to do so, all

19 staff must perform functions that touch on providing abortion and contraception. No alternative

20 human-resources structure could sustain the clinic.

21

144. At Trust Women Seattle, some employees monitor the provision of abortion care

22 and contraceptive care at the clinic. Others perform medication management, sanitize instruments,

23 and clean operating rooms and laboratories that may be used for general gynecological exams one

24 day and the provision of contraception or hormone therapy the next. Under the Rule, these sanitary

25 and custodial activities could fall within the definition of “assist in the performance,” though they

26 do not involve the direct provision of care.

27

145. Further, Trust Women has an emergency policy requiring all office personnel to be

28 familiar with the facilities’ agreements to transfer patients to other facilities in the case of an

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1 emergency. This policy requires that any staff member assist in an emergency transfer, even if only

2 by calling ahead to the hospital. Hartford Gyn likewise has emergency practices requiring all staff

3 to be willing to help in an emergency. Trust Women also has a “no turn-away” policy for patients

4 and a nondiscrimination policy. To the extent that the Rule would prevent Trust Women and

5 Hartford Gyn from continuing to enforce these policies, it would be unworkable. To the extent that

6 they would be prevented from requiring that front-facing employees like receptionists (who do not

7 assist in procedures according to Trust Women’s current understanding) are compassionate and

8 supportive of the independent decision-making of patients, it would both undermine Trust

9 Women’s business and inhibit its patients’ access to healthcare.

10

146. The Rule will strain already limited resources. Because patients will fear refusal of

11 care at traditional healthcare facilities, providers such as the LA LGBT Center and Whitman-

12 Walker that specialize in reproductive and LGBT healthcare likely will see an increase in demand

13 resulting from patients’ hope that those clinics, which are designed to meet their specific needs,

14 will remain safe spaces. The same is true for plaintiffs who provide abortion and contraception

15 care. Such an increase will strain the limited resources of these providers. At the same time, the

16 providers will need to invest resources in educating the community about the Rule and in battling

17 the erosion of community members’ confidence in the healthcare system that will result from the

18 Rule’s application. These consequences will increase the LA LGBT Center’s and Whitman-

19 Walker’s operating costs and will take a toll on the health and well-being of the LGBT community.

20

147. In anticipation of the release of the Rule, Center on Halsted’s staff already has been

21 forced to devote resources to addressing the Rule. It has conducted additional “Know Your Rights”

22 programming regarding discrimination against LGBT people; sent and prepared staff to attend

23 meetings and events with other LGBT stakeholders in the city; and held internal training for staff

24 to manage the added strains on the mental health of Center on Halsted’s patients. This diversion

25 and additional expenditure of resources frustrates Center on Halsted’s efforts to counsel those

26 whom it serves and to advocate for them to receive necessary healthcare services from outside

27 organizations.

28

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1

148. As a result of the Rule, Bradbury-Sullivan Center will be required to redirect its staff

2 and resources from providing its own services to assisting patrons in determining who among the

3 healthcare providers in the region will serve LGBT patients in a nondiscriminatory manner. Indeed,

4 Bradbury-Sullivan Center already has had to divert staff and resources from other program

5 activities to advocacy, policy analysis, and development of additional resources to address the ill

6 effects of the Rule.

7

149. Loss of funding threatens dire results for these Plaintiffs. For example, Trust Women

8 Seattle and Hartford Gyn are dependent on Medicaid funding to continue providing the full range

9 of services they offer patients and keep their doors open.

10

3. Harms to Patients

11

150. If implemented, the Rule will harm Plaintiffs’ patients. The Rule attacks access to

12 reproductive and LGBT healthcare at hospitals, clinics, and other facilities throughout the country

13 and invites an unprecedented number of individuals to delay or deny care to patients, directly

14 affecting the patients’ access to healthcare. As detailed in the comments to the proposed Rule,

15 discrimination against these patients already is widespread and well-known, as are the harms that

16 result from delayed and denied care.

17

a. Harms to patients generally

18

151. Healthcare refusals often result in significant costs for and harms to patients. Under

19 the Rule, an individual employee, because of that employee’s morally or religiously motivated

20 refusal to provide care, may force a patient to choose between forgoing care or taking on the burden

21 of locating and traveling to a willing provider. When patients are turned away from a doctor’s office

22 or a hospital without a referral or even basic information about their condition or treatment options,

23 they must find willing providers to provide the healthcare that they need. They incur additional

24 expenditures of time and money researching and trying other providers, including additional time

25 off work for new appointments. In areas with a limited number of affordable healthcare providers,

26 patients may need to travel long distances to find care, requiring additional travel expenses,

27 sometimes including overnight stays and childcare. The harms from the additional time and expense

28

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1 fall most heavily on low-income individuals and those without the job flexibility to take paid sick

2 time. Some patients will lack the resources to continue to pursue the treatment they need.

3

152. Patients seeking treatment from healthcare entities of last resort, such as the County

4 and other Plaintiffs, may be entirely denied the care that they seek and desperately need.

5

153. The Rule may result in denials of time-sensitive or emergency care, putting patients’

6 health and even their very lives at substantial risk.

7

154. Because the Rule does not always require objecting providers to alert either their

8 employers or the patients about religious or moral objections (and permits healthcare employers to

9 require such notice only in limited circumstances), the Rule may mean not only that some patients

10 will be denied necessary care, but also that those patients will not know that they are being denied

11 that care on the basis of an employee’s religious objection. That will be true even if the patient

12 chooses to go to a particular healthcare facility because the facility normally provides that care.

13 Either way, the patient is harmed. If patients know that they are being denied care because of who

14 they are or what services they seek, that is a stigmatizing and potentially traumatizing experience.

15 If patients do not know that they are being denied the care that they seek, they will not know to

16 seek it elsewhere and their healthcare needs will remain unmet.

17

b. Special burdens on reproductive rights

18

155. The Rule threatens to impede or eliminate access to abortion and contraception.

19

156. Patients who are denied contraception are less able to safeguard their own health

20 and welfare.

21

157. The ability to prevent or space pregnancy, facilitated by easy and affordable access

22 to contraception, has significant health benefits.

23

158. Abortion is a fundamental part of healthcare. It is a common medical procedure: one

24 in three women in the United States has undergone an abortion and an estimated one in four women

25 will need an abortion in the future. And it is extremely safe: it is 14 times safer than childbirth and

26 even safer than a shot of penicillin. But abortion care already is a marginalized healthcare service,

27 often provided at clinics that operate independently from other healthcare systems. Because of

28 increasing regulation and targeting of abortion clinics and their staff for violence and harassment,

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1 there is a national shortage of abortion providers in the United States, and their numbers are

2 shrinking. As a result, a woman who is denied abortion care at a healthcare facility may find it

3 difficult to find an available provider in a reasonable timeframe. Eighty-nine percent of counties in

4 the United States do not have a single abortion clinic, and some counties that have a clinic provide

5 abortion services only on certain days. Several States have only one clinic that provides abortion

6 care anywhere within the State.

7

159. Reproductive choice is a reality for patients only when there are enough family

8 planning providers available to meet patients’ needs and those providers are available in an

9 equitable distribution. Currently, the supply of those providers is not meeting the needs of U.S.

10 patients, in large part because facilities providing abortion are increasingly concentrated in cities,

11 and very few primary-care providers are skilled in family-planning services.

12

160. Four of the ten largest healthcare systems in the United States by hospital count are

13 now religiously sponsored, often because of hospital consolidations between Catholic or other

14 religious healthcare systems and secular institutions. As a result of hospital mergers and other

15 factors, significant parts of the Southern and Midwestern United States have deserts of abortion

16 training and care.

17

161. Hospitals across the United States are large businesses that demand significant

18 administrative resources. Many hospitals already decline to provide contraception and abortion

19 because of the effort required to accommodate refusals and the additional expense that they entail.

20 If the Rule goes into effect, the United States will see an even more dramatic reduction in the

21 number of large medical education institutions that provide abortions and teach students and

22 residents about it. Access to these services in the United States already is very limited, and the Rule

23 will immeasurably exacerbate the problem.

24

162. Because of the shortage of providers, patients already must travel long distances

25 (and incur the associated costs) to obtain abortion care. In addition, in some areas the shortage of

26 providers results in significantly increased wait times or leads to some patients’ being turned away

27 altogether.

28

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1

163. Delays in obtaining an abortion compound the logistical and financial burdens that

2 patients face and substantially increase the health risks to patients. On average, patients must wait

3 at least a week between initially attempting to make an appointment and receiving an abortion.

4 Delays also increase the cost of an abortion, because abortions during the second trimester are

5 substantially more expensive than during the first trimester: The median price of a surgical abortion

6 at ten weeks is $508; the cost at 20 weeks rises to $1,195. Other costs also increase with delays.

7 For example, one recent study found that Utah’s mandatory waiting period caused 47 percent of

8 women having an abortion to miss an extra day of work. More than 60 percent of the women in the

9 study were negatively affected in other ways, including having to pay increased transportation

10 costs, lost wages, or having to disclose the abortion to someone whom they otherwise would not

11 have told. Delays in obtaining an abortion also mean that patients obtain that care in later stages of

12 pregnancy. Although abortion is a safe procedure, risks increase with later gestational ages. Patients

13 approaching legal limits in their State for obtaining a medical abortion may be forced to seek care

14 in another State. Because the Rule will create incentives for more healthcare providers to stop

15 offering abortion services, it will increase delays and add to the costs of obtaining an abortion.

16

164. The Rule also further stigmatizes abortion and contraception. Stigma has

17 tremendous impact on patients, fostering fear and psychological stress. When patients perceive the

18 community’s disapproval of their choice, they feel the need to maintain secrecy around their

19 decisions and will be deterred from seeking care out of fear of judgment and discrimination.

20

165. Patients seeking treatment from healthcare entities of last resort, such as the County

21 and other Plaintiffs, may be entirely denied the care that they seek and desperately need, even in

22 emergency situations. This will put patients’ health and even their lives at substantial risk. If

23 patients are denied care entirely, they will encounter a whole host of additional harms. Denying

24 someone an abortion and forcing them to carry to term increases the risk of serious health harms,

25 including eclampsia and death. In addition, denying someone an abortion may lead to increased

26 risk of life-threatening bleeding, cardiovascular complications, diabetes associated with pregnancy,

27 as well as all other risks of pregnancy. A pregnant person is 14 times more likely to die from giving

28 birth than from having an abortion.

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1

166. Whether because patients encounter an objector, providers are forced to close their

2 doors, or patients are deterred from seeking care because of stigma and fear of discrimination,

3 individuals seeking abortion and contraception will be either delayed or totally denied such care

4 because of the Rule.

5

167. Objections to other types of procedures will also increase healthcare costs. For

6 example, a patient who has a cesarean section and wants to have a postpartum tubal ligation

7 immediately following delivery might be denied that option by an employee of a healthcare facility

8 who objects to the latter procedure—even though having the procedure at that time is medically

9 recommended, presents fewer risks to the patient, and is more cost-effective than delaying the

10 procedure. If the patient cannot have that procedure immediately following delivery, the patient

11 must first recover from the cesarean surgery and then schedule the tubal ligation at least six weeks

12 later, when the patient is busy caring for a newborn; the patient will be required to go to another

13 doctor and possibly a different hospital; will have to arrange for the transfer of medical records;

14 and will incur duplicative costs and duplicative risks, pain, and recovery time for the second round

15 of anesthesia and invasive surgery.

16

c. Special burdens on LGBT patients

17

168. The Rule imposes particular burdens on transgender and gender-nonconforming

18 people as well. Transgender people are defined as transgender because their gender identity does

19 not align with the sex that they were assigned at birth. Gender identity refers to an individual’s

20 sense of being a particular gender, and constitutes an essential element of human identity. Everyone

21 possesses a gender identity, which is innate, has biological underpinnings, and is fixed at an early

22 age. An individual’s sex is generally assigned at birth solely on the basis of visual observation of

23 external genitalia. Other sex-related characteristics such as chromosomes, hormone levels, internal

24 reproductive organs, secondary sex characteristics, and gender identity typically are not assessed

25 or considered during the assignment of sex at birth. Most people have a gender identity that matches

26 their sex assigned at birth and other sexual characteristics.

27

169. Where an individual’s gender identity does not match that individual’s sex assigned

28 at birth, gender identity is the critical determinant of sex. External genitalia are but one of several

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1 sex-related characteristics and are not always indicative of a person’s sex. A scientific consensus

2 recognizes that attempts to change an individual’s gender to bring it into alignment with the sex

3 assigned at birth are ineffective and harmful.

4

170. The dissonance between individuals’ gender identity and the sex that they were

5 assigned at birth can be associated with clinically significant distress, which is known as gender

6 dysphoria. Gender dysphoria is a medical condition recognized in the American Psychiatric

7 Association’s Diagnostic and Statistical Manual of Mental Disorders and by leading medical and

8 mental-health professional groups, including the AMA and the American Psychological

9 Association (APA).

10

171. Gender dysphoria can be treated in accordance with internationally recognized

11 Standards of Care formulated by the World Professional Association for Transgender Health and

12 recognized as authoritative by national medical and behavioral health organizations such as the

13 AMA and APA.

14

172. The ability to live in a manner consistent with one’s gender identity is critical to a

15 person’s health and well-being and is a key aspect in the treatment of gender dysphoria. The process

16 by which transgender people come to live in a manner consistent with their gender identity, rather

17 than the sex they were assigned at birth, is known as transition. The steps that each transgender

18 person takes to transition are not identical, but usually include social, legal, and medical transition.

19 Medical transition includes treatments that bring transgender people’s bodies into alignment with

20 their gender identity, such as hormone-replacement therapy or surgical care such as hysterectomy

21 or orchiectomy. Whether any particular treatment is medically necessary or even appropriate

22 depends on the medical needs of the individual.

23

173. All Plaintiffs, regardless of whether they provide particular transition-related

24 treatments and services, are committed to providing inclusive and individually tailored gender-

25 affirming care and services that respect each patient’s gender identity and status without

26 discrimination, in accordance with medical and ethical standards of care.

27

174. LGBT individuals, and especially transgender and gender-nonconforming people,

28 already face particularly acute barriers to care and health disparities that will be compounded by

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1 the Rule. A majority of LGBT patients fear going to a healthcare provider because of past

2 experiences of anti-LGBT bias in a healthcare setting. Many LGBT patients report negative

3 experiences, including hostility, discrimination, and denials of care, when they disclose to

4 healthcare providers their sexual orientation, history of sexual conduct, gender identity, transgender

5 status, or history of gender-affirming medical treatment, and related medical histories.

6

175. For example, multiple LGBT patients at Whitman-Walker have previously been

7 refused medical care, including routine care unrelated to gender dysphoria, by providers outside of

8 Whitman-Walker simply because they are transgender or gay. In one instance, a radiological

9 technician refused to perform an ultrasound for testicular cancer on a transgender patient. In

10 another, a healthcare worker at a dialysis clinic confronted a Whitman-Walker patient with end-

11 stage renal disease and objected to being involved in the patient’s care because of hostility to his

12 sexual orientation. In another, after a Whitman-Walker patient—a transgender teenager—was

13 hospitalized in a local hospital following a suicide attempt, the staff would only address or refer to

14 the young person with pronouns inconsistent with their gender identity, exacerbating the teenager’s

15 acutely fragile state of mind. Local hospitals and surgeons have refused to perform transition-

16 related surgeries on Whitman-Walker transgender patients, even when they routinely perform the

17 very same procedures on non-transgender patients, including in situations when the patient’s

18 insurance would have covered the procedure or when the patient was able to pay for the procedure.

19 Many local primary-care physicians unaffiliated with Whitman-Walker have refused to prescribe

20 hormone therapy for transgender patients. And multiple Whitman-Walker patients have been

21 denied prescriptions by pharmacists. Behavioral-health providers at Whitman-Walker report that

22 the vast majority of transgender patients—as many as four out of five—report instances of

23 mistreatment or discrimination by healthcare providers, hospitals, clinics, doctors’ offices, or other

24 facilities outside of Whitman-Walker.

25

176. Patients of the LA LGBT Center report similar experiences of discrimination by

26 other providers. One transgender patient, who developed profuse bleeding after surgery, was denied

27 treatment at an emergency room and arrived at the LA LGBT Center in distress three days later,

28 having lost a significant amount of blood. Another patient required extensive surgery to repair

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1 damage caused by a prior silicone breast-augmentation procedure. But she was turned down by an

2 academic plastic-surgery center in Los Angeles because her surgeon there said that her health

3 problems were caused by her own poor decision-making and she therefore would not be considered

4 for treatment. By the time she was able to identify a surgeon who was willing to treat her, with the

5 assistance of a physician at the LA LGBT Center, years had passed and her condition had become

6 life-threatening. For patients at the LA LGBT Center, the ability to receive gender-affirming

7 medical care can mean the difference between life and death.

8

177. In many geographic regions, a majority of LGBT people lack a provider whom they

9 consider to be their personal doctor. As a result, when they seek healthcare services, they are likely

10 to encounter a healthcare provider with whom they do not have a relationship. This makes them

11 especially vulnerable to discriminatory treatment from providers who are not LGBT-affirming. For

12 some medical specialties, there are only a handful of healthcare providers in the region who have

13 the expertise necessary to treat a patient for a particular condition, so a denial of care from even

14 one provider could make it practically impossible for an LGBT patient to receive any care at all.

15

178. In a recent study, nearly one in five LGBT people, including 31 percent of

16 transgender people, said that if they were turned away from a hospital, it would be very difficult or

17 impossible to get the healthcare that they need elsewhere. The rate was substantially higher for

18 LGBT people living in non-metropolitan areas, with 41 percent reporting that it would be very

19 difficult or impossible to find an alternative provider. Even when they are able to get access to care,

20 many individuals report that healthcare professionals have used harsh language toward them,

21 refused to touch them, used excessive precaution, or blamed the individuals for their health status.

22

179. Consequently, LGBT patients are disproportionately likely to delay preventative

23 screenings and necessary medical treatment and therefore to end up with more acute health

24 problems and outcomes. Research has identified pervasive health disparities for LGBT people with

25 respect to cancer, HIV, obesity, mental health, tobacco use, and more. In other words, LGBT

26 people, who are disproportionately likely to need a wide range of routine medical care, already

27 have reason to fear, and often do fear, negative consequences of “coming out” to healthcare

28

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1 providers about their sexual orientation, history of sexual conduct, gender identity, transgender

2 status, history of gender-affirming medical treatment, and related medical histories.

3

180. The Rule encourages these patients to remain closeted to the extent possible when

4 seeking medical care. But remaining closeted to a health care provider may result in significant

5 adverse health consequences. For instance, a patient who conceals or fails to disclose a same-sex

6 sexual history may not be screened for HIV or other relevant infections or cancers, or may not be

7 prescribed preventative medications such as Pre-Exposure Prophylaxis or PrEP, which is extremely

8 effective at preventing HIV transmission. Patients who fail fully to disclose their gender identity

9 and sex assigned at birth may not undergo medically indicated tests or screenings (such as tests for

10 cervical or breast cancer for some transgender men, or testicular or prostate cancer for some

11 transgender women). The barriers to care are particularly high for transgender individuals. Nearly

12 one-quarter of transgender individuals report delaying or avoiding medical care when sick or

13 injured, at least partially because of fear of discrimination by and disrespect from healthcare

14 providers.

15

181. In the past, OCR has investigated numerous complaints from transgender patients

16 about being denied certain health services, ranging from routine to life-saving care, because of the

17 patients’ gender identities. The Rule will make it more likely that these patients will be denied care

18 or will avoid seeking care altogether.

19

d. Harms to vulnerable populations

20

182. The effects of refusals will fall particularly heavily on rural patients in need of

21 reproductive healthcare. These patients are four times more likely than urban dwellers to reside in

22 medically underserved communities. Reproductive-health services are especially difficult for rural

23 patients to obtain because obstetric and gynecologic services and other medical specialties are not

24 common in rural settings. Further, for healthcare providers such as the County of Santa Clara that

25 operate clinics and hospitals in rural communities, experience has shown that reproductive health

26 care and gender-affirming health care are frequently in demand, contrary to the Department’s

27 assertion that patients in rural communities may be more likely to share providers’ religious

28 objections and therefore are not likely to seek such care. See 84 Fed. Reg. 23,181. The inappropriate

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1 expansion of refusals under the Denial-of-Care Rule will undoubtedly exacerbate the harms to these

2 individuals.

3

183. Patients and recipients of non-medical services coming to Trust Women Seattle,

4 Hartford GYN Center, Whitman-Walker, the LA LGBT Center, Bradbury-Sullivan Center, Center

5 on Halsted, and the Mazzoni Center have been disrespected and demeaned by other healthcare

6 providers for their reproductive and LGBT healthcare decisions and will have no other options if

7 they cannot obtain care from these providers. These Plaintiffs serve communities with already

8 limited options for healthcare services.

9

184. For example, in the region where Bradbury-Sullivan Center is located, there often

10 is only one or very few healthcare providers who have the specialty necessary to treat an LGBT

11 patient for a specific service, so a denial of care from that provider could make it practically

12 impossible for a patient to receive any care at all. And some of the region’s healthcare providers

13 are religiously affiliated organizations that could claim religious objections to providing care to

14 LGBT people, exempting them under the Rule from adhering to existing nondiscrimination laws

15 and standards.

16

185. The Rule will chill the expressive rights of Plaintiffs’ patients by causing them to

17 hide their identities and same-sex relationships when seeking healthcare services from other

18 organizations with religious objections to serving LGBT people.

19

186. Further, the additional demand for services and advocacy caused by discrimination

20 resulting from the Rule will drain the resources of these Plaintiffs.

21

4. Harms to Medical-Association Plaintiffs

22

a. AGLP

23

187. The Denial-of-Care Rule will harm AGLP, its members, and the patients whom they

24 treat because the Rule threatens AGLP’s federal funding. AGLP’s members depend on that funding

25 to provide vital services and to conduct critical medical research. In addition, the Rule will frustrate

26 AGLP’s mission of achieving and enforcing safe workspaces for LGBT psychiatrists and

27 nondiscriminatory healthcare services for AGLP members’ patients. The Rule also will frustrate

28 AGLP’s mission of advocating for nondiscriminatory standards of care for patients, culturally

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1 competent standards of care for treatment of LGBTQ patients, and nondiscriminatory work

2 environments for members that protect against discrimination on the basis of sexual orientation and

3 gender identity.

4

188. The Rule invites additional burdens, harassment, and even discriminatory treatment

5 of AGLP members in the workplace by fellow employees who will claim that that the Rule gives

6 them a right to accommodations for discriminatory behavior. AGLP members and their LGBTQ

7 patients are stigmatized and demeaned by the message communicated by the Rule—that their

8 government privileges beliefs that disparage transgender people and their medical needs, and

9 invites denials of care at the cost of the dignity and physical and mental health of patients based

10 solely on transgender status.

11

b. MSFC

12

189. The Rule will also cause severe harms to MSFC and its members.

13

190. First, medical students receive their clinical training disproportionally at academic

14 medical centers and teaching hospitals that receive significant federal funding. Likewise, residents

15 depend on federal funding for their continuing medical education. If HHS determines that the

16 institutions at which these individuals work are violating the Rule, their funding to continue

17 working at that institution may be reduced or eliminated. Those institutions also may stop providing

18 certain services or training in order to avoid risk of catastrophic sanctions under the Rule.

19

191. Second, MSFC is committed to creating the next generation of abortion providers.

20 There is already a shortage in training opportunities. For example, members of MSFC have reported

21 instances in which facilities across the nation have ceased providing these services based on the

22 religious or moral objection of select staff or funders or because of the stigma and controversy

23 surrounding these services. Even in progressive States, religious refusals by hospital leadership

24 have already pushed abortion training out of certain facilities. Further, mergers of secular teaching

25 hospitals with religiously affiliated facilities have reduced the number of facilities that provide

26 abortion training, and clinic closures across the country further threaten access to training and

27 services.

28

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1

192. The Rule is so broad as to be unworkable for some hospitals and other facilities

2 providing abortion and contraception, creating incentives for institutions to stop providing and

3 training for abortion services. As a consequence, MSFC members will be able to acquire training

4 at a shrinking number of facilities. As training programs grow more limited, fewer new physicians

5 will be able to achieve competency in family planning sufficient to join existing practices or clinics

6 right out of medical school or residency. The result will be a shrinking pool of providers that will

7 be unable to replenish itself through normal training programs, significantly longer wait times even

8 for patients who are able to travel and can afford to obtain care from trained providers, and

9 decreased access to care for patients around the country.

10

c. GLMA

11

193. If not enjoined, the Denial-of-Care Rule will harm both GLMA members and the

12 LGBT patients whose interests GLMA represents. The Rule creates a safe haven for discrimination

13 and prevents GLMA from achieving its goals with professional accreditation bodies by preventing

14 such bodies from holding healthcare providers accountable for discrimination against LGBT people

15 and denial of care whenever the discriminatory conduct is ostensibly grounded in religious beliefs.

16

194. GLMA collaborates with professional accreditation bodies, such as The Joint

17 Commission, on the development, implementation, and enforcement of sexual-orientation and

18 gender-identity nondiscrimination policies as well as cultural-competency standards of care for

19 treatment of LGBT patients. GLMA has worked with The Joint Commission, and continues to work

20 with similar professional bodies and health-professional associations, on standards, guidelines, and

21 policies that address LGBT health and protect individual patient health and public health in general.

22

195. In order for a healthcare organization to participate in and receive federal payment

23 from Medicare or Medicaid programs, the organization must meet certain requirements, including

24 a certification of compliance with health and safety requirements. That certification is achieved

25 based on a survey conducted either by a state agency on behalf of the federal government, or by a

26 federally recognized national accrediting organization. Accreditation surveys include requirements

27 that healthcare organizations not discriminate on the basis of sex, sexual orientation, or gender

28 identity in providing services or in employment. A healthcare organization that discriminates in

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1 those ways or that otherwise deviates from medical, professional, and ethical standards of care can

2 lose its accreditation.

3

196. As explained above, all of the leading health-professional associations, including

4 the AMA, have adopted policies stating that healthcare providers should not discriminate in

5 providing care for patients and clients because of sexual orientation or gender identity.

6

197. The Rule presents a direct conflict with nondiscrimination standards adopted by the

7 Joint Commission and all the major health-professional associations, which have recognized the

8 need to ensure that LGBT patients are treated with respect and without bias or discrimination in

9 hospitals, clinics, and other healthcare settings.

10

198. The Rule would prevent state agencies and other recipients of federal funds from

11 recognizing, to the extent allowed by law, the loss of accreditation of a healthcare organization

12 because of specified anti-LGBT beliefs and denials of care. The Rule therefore will frustrate

13 GLMA’s mission of achieving and enforcing accreditation standards relating to nondiscrimination

14 on the basis of sexual orientation and gender identity and cultural competency standards of care for

15 treatment of LGBT patients.

16

199. Some members of GLMA are employed by religiously affiliated healthcare

17 organizations (such as hospitals, hospices, or ambulatory-care centers) that receive federal funding.

18 These healthcare providers treat LGBT patients. Members of GLMA employed by religiously

19 affiliated providers will experience additional burdens for adhering to their medical and ethical

20 obligations to treat all patients in a nondiscriminatory manner, including providing all medically

21 necessary care that is in the patient’s best interests.

22

200. The Rule invites harassment and discriminatory treatment of GLMA members in

23 the workforce by fellow employees who will claim that the Rule gives them a right to

24 accommodation for discriminatory behavior. GLMA members and their LGBT patients are

25 stigmatized and demeaned by the Rule’s message that their government privileges beliefs that result

26 in the disapproval and disparagement of LGBT people in the healthcare context.

27

201. As an organization of health professionals who often serve and care for patients

28 from the LGBT community, GLMA knows that discrimination against LGBT individuals in

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1 healthcare access and coverage remains a pervasive problem and that too often this discrimination

2 is based on religious objections. GLMA members have reported numerous instances of

3 discrimination in care based on religious grounds. Since HHS issued the proposed Rule, GLMA

4 members shared with GLMA many ways that religious objections have been used to the detriment

5 of the healthcare of LGBT patients.

6

CAUSES OF ACTION

7

FIRST COUNT

8

Administrative Procedure Act, 5 U.S.C. § 706(2)(A) Arbitrary And Capricious

9

202. Plaintiffs incorporate the preceding paragraphs as if fully set forth here.

10

203. Defendants are subject to the Administrative Procedure Act (APA), 5 U.S.C. § 551

11 et seq. See 5 U.S.C. § 703.

12

204. The Denial-of-Care Rule violates the APA, 5 U.S.C.  §  706(2)(A), because it is

13 arbitrary, capricious, an abuse of discretion, and not in accordance with law, in that HHS failed

14 adequately to consider important aspects of the issue, including harm to patients, costs to healthcare

15 facilities, impracticability of the Rule for the efficient administration of healthcare facilities and

16 programs and for delivery of health services, and possible alternatives to the Rule.

17

205. Commenters showed that the Denial-of-Care Rule will cause substantial harms to

18 patients. The Rule nonetheless fails adequately to quantify and inappropriately disregards these

19 costs and harms, particularly in its cost-benefit analysis. HHS also has ignored that the Rule is

20 unnecessary and that current law provides sufficient protection for religious objectors while also

21 considering patients’ rights to care and information. Notwithstanding the concerns raised by

22 commenters that the Rule would harm patients, HHS omitted from the Rule any provisions to lessen

23 the Rule’s adverse effects on the delivery of healthcare and on patients’ health and well-being,

24 instead opting to expand objection rights without regard to the practical effects of the rule on the

25 healthcare system. Further, by failing to address the many issues arising from its requirements, or

26 stating that they will be resolved on a case-by-case basis, the Rule leaves employers in the dark

27 about what they may or may not do without running afoul of the Rule’s prohibitions.

28

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1

206. In addition, HHS adopted an unprecedented, confusing, and unreasonable definition

2 of what it means to “discriminate” against an individual or entity based on a religious or moral

3 objection. HHS’s definition would consider virtually any action to manage objections to be

4 “discriminatory” unless the action falls within narrowly drawn and unworkable exceptions. These

5 provisions contain no undue-hardship exception or legitimate-nondiscriminatory-reason defense,

6 and they unreasonably limit the measures providers can take to accommodate religious and moral

7 objections without compromising patient care.

8

207. Although Commenters detailed the substantial and potentially unmanageable costs

9 of compliance with the Rule and other administrative burdens on healthcare facilities and providers

10 that the Rule would impose, the Rule fails to take account of these costs and burdens.

11

208. In adopting the final Rule, HHS failed to consider pertinent data and failed to

12 articulate a reasoned or legally sufficient basis for the Rule.

13

209. In adopting the Rule, HHS failed to consider alternative ways of achieving the

14 objectives of the underlying statutes.

15

210. Additionally, HHS failed to respond adequately to significant comments critical of

16 the proposed Rule that were submitted during the notice-and-comment period.

17

SECOND COUNT

18

Administrative Procedure Act, 5 U.S.C. § 706(2)(C) Exceeds Statutory Authority

19

211. Plaintiffs incorporate the preceding paragraphs as if fully set forth here.

20

212. The Denial-of-Care Rule violates the APA, 5 U.S.C. § 706(2)(C), because it is

21 greatly in excess of statutory jurisdiction, authority, or limitation.

22

213. When read together, HHS’s definitions of critical statutory terms—including “assist

23 in the performance,” “referral or refer,” “health care entity,” and “discrimination”—are inconsistent

24 with the statutory provisions that HHS purports to be construing, as well as the plain, accepted

25 meanings of those terms. As a result, HHS’s construction of the statutory provisions that it purports

26 to be implementing is inconsistent with the plain scope and meaning of those provisions, rendering

27 the Rule in excess of statutory jurisdiction and authority.

28

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1

THIRD COUNT

2

Administrative Procedure Act, 5 U.S.C. § 706(2)(A) Not in Accordance with Other Federal Laws

3

214. Plaintiffs incorporate the preceding paragraphs as if fully set forth here.

4

215. The Denial-of-Care Rule violates the APA, 5 U.S.C. § 706(2), because it is

5 arbitrary, capricious, an abuse of discretion, and not in accordance with law in that it conflicts with

6 numerous federal laws. These laws include:

7

(a) 42 U.S.C. § 18114 (because the Rule will impede individuals’ timely access

8 to medical care and information about treatment options);

9

(b) EMTALA, 42 U.S.C. § 1395dd(b)(1) and its implementing regulations

10 (because the Rule will provide blanket license to emergency-room personnel to decline to provide

11 or assist in the provision of emergency services, to decline to facilitate patients’ transfer to other

12 facilities, or to decline to make referrals);

13

(c) ACA, 42 U.S.C. § 18023(d) (because the Rule contravenes the ACA’s

14 prohibition against construing right-of-conscience exemptions to relieve any healthcare provider of

15 the legal obligation to provide emergency services as required by State or Federal law, including

16 the EMTALA);

17

(d) ACA, 42 U.S.C. § 18116 (because the Rule contravenes the statutory

18 provisions stating that “[a]n individual shall not, on [a] ground prohibited under title VI of the Civil

19 Rights Act of 1964, title IX of the Education Amendments of 1972, the Age Discrimination Act of

20 1975, or section 504 of the Rehabilitation Act of 1973, be excluded from participation in, be denied

21 the benefits of, or be subjected to discrimination under, any health program or activity, any part of

22 which is receiving Federal financial assistance”);

23

(e) Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (because

24 in creating such expansive religious-accommodation requirements and inviting employees to veto

25 the types of accommodations that may be offered, the Rule may require employing healthcare

26 entities to take actions that are contrary to the rights of other employees to be free from the forms

27 of discrimination prohibited by Title VII); and

28

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1

(f) Title X of the Public Health Service Act, 42 U.S.C. §§ 300-300a-6 (because

2 the Rule contravenes Congress’ requirement that Title X grantees operate “voluntary family

3 planning projects which shall offer a broad range of acceptable and effective family planning

4 methods and services,” 42 U.S.C. § 300(a), and because Title X appropriations bills, e.g., 2019

5 Continuing Appropriations Act, Pub. L. No. 115-245, Div. B., Tit. II, 132 Stat. 2981, 3070-71

6 (2018), require that “all pregnancy counseling shall be nondirective,” meaning that funded projects

7 are to offer pregnant women neutral, non-judgmental information and counseling regarding their

8 options, including “prenatal care and delivery; infant care, foster care, or adoption; and pregnancy

9 termination”).

10

FOURTH COUNT

11

U.S. Constitution, First Amendment; Administrative Procedure Act, 5 U.S.C. § 706(2)(B)

12

Establishment Clause

13

216. Plaintiffs incorporate the preceding paragraphs as if fully set forth here.

14

217. The Denial-of-Care Rule is contrary to constitutional rights, powers, privileges, or

15 immunities and therefore must be set aside under 5 U.S.C. § 706(2)(B).

16

218. The Establishment Clause of the First Amendment prohibits the government from

17 favoring one religion over another or favoring religion over nonreligion.

18

219. The Establishment Clause permits government to afford religious accommodations

19 or exemptions from generally applicable laws only if, among other requirements, the

20 accommodation (1) lifts a substantial, government-imposed burden on the exercise of religion and

21 (2) does not impose on innocent third parties the costs or burdens of accommodating another’s

22 religious exercise.

23

220. The Rule fails both of these requirements and therefore violates the Establishment

24 Clause.

25

221. The Rule violates the Establishment Clause because it creates expansive religious

26 exemptions for healthcare employees at the expense of third parties, namely, Plaintiffs, other

27 providers, and, crucially, patients.

28

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1

222. HHS’s asserted statutory authority for the Rule cannot be read to authorize the Rule,

2 because if so read, those statutes would exceed Congress’s legislative authority and constitute

3 unconstitutional religious preferences, both by granting religious exemptions for purported burdens

4 on religious exercise that are not of the federal government’s own making, and by imposing costs

5 and burdens on third parties to accommodate the religious beliefs or exercise of objecting

6 employees.9

7

223. The effect of the Rule will be that patients who seek care at odds with the religious

8 beliefs of a provider’s employee—or whose very identity is at odds with that employee’s religious

9 beliefs—may be delayed in receiving care (including emergency care) or denied care altogether.

10 Patients will suffer the stigma of government-sanctioned discrimination. The Rule also will burden

11 Plaintiffs and other providers because by leaving them unable to treat patients in accord with their

12 own ethical and legal obligations and precluding them from carrying out their organizational

13 missions, based solely on the religious views of a single employee.

14

224. The Rule impermissibly advances religious beliefs in violation of the Establishment

15 Clause because it imposes on Plaintiffs an unqualified obligation to give preferential protection to

16 religious objections of their employees, regardless of the costs and harms to Plaintiffs, their

17 patients, and the greater public health.

18

225. The Denial-of-Care Rule further violates the Establishment Clause of the First

19 Amendment because, among other reasons, it:

20

(a) has the primary purpose of favoring, preferring, and endorsing certain

21 religious beliefs and certain religious denominations over others and over nonreligion;

22

(b) has the primary effect of favoring, preferring, and endorsing certain religious

23 beliefs and certain religious denominations over others and over nonreligion;

24

25

9 Attempts by HHS to mandate federal exemptions from burdens on religious exercise imposed by 26 state or local governments are permissible, only if (among other requirements) there is a clear

27

constitutional commitment of congressional power and express legislative authorization for the federal action. Otherwise, HHS impermissibly intrudes on the States’ traditional prerogatives and

28 general authority to regulate for the health and welfare of their citizens, exceeding the federal

government’s statutory authority in violation of the APA. See Second Count, supra.

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1

(c) has the primary purpose and primary effect of preferring the religious beliefs

2 of some people and institutions over the lives, health, and other rights and interests of third parties;

3

(d) impermissibly entangles government with religion;

4

(e) makes Plaintiffs, their patients, and other third parties bear the costs and

5 harms of objecting employees’ religious beliefs or religious exercise; and

6

(f) imposes on Plaintiffs a requirement to accommodate employees’ religious

7 objections without taking constitutionally required account of the actual burdens (if any) on the

8 objectors or the effects on or harms to Plaintiffs, their patients, or the greater public health.

9

FIFTH COUNT

10

(Brought by Plaintiffs other than County of Santa Clara) U.S. Constitution, Fifth Amendment; Administrative Procedure Act,

11

5 U.S.C. § 706(2)(B) Substantive Due Process/Right To Privacy And Personal Autonomy

12

226. Plaintiffs incorporate the preceding paragraphs as if fully set forth here.

13

227. The Denial-of-Care Rule is contrary to constitutional rights, powers, privileges, or

14 immunities and therefore must be set aside under 5 U.S.C. § 706(2)(B).

15

228. The Fifth Amendment’s Due Process Clause protects individuals’ substantive rights

16 to be free to make certain decisions central to privacy, bodily autonomy, integrity, self-definition,

17 intimacy, and personhood without unjustified governmental intrusion. Those decisions include the

18 right to abortion and other reproductive decision-making, as well as the right to live openly and

19 express oneself consistent with one’s gender identity.

20

229. By imposing conditions on funding that require healthcare providers to interfere

21 with and unduly burden patients’ access to medically necessary health care, including reproductive

22 healthcare and healthcare necessary to preserve health or life, the Rule violates the rights of

23 Plaintiffs’ patients to privacy, liberty, dignity and autonomy guaranteed by the Fifth Amendment.

24

230. In particular, a person’s gender identity and ability to live and express oneself

25 consistent with one’s gender identity without unwarranted governmental interference constitutes a

26 core aspect of each person’s autonomy, dignity, self-definition and personhood. By imposing

27 conditions on funding that interfere with patients’ access to gender-affirming medical care,

28 including surgical procedures, hormone therapy, and other medically necessary care, and by

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1 interfering with the ability of transgender and gender-nonconforming patients to live and express

2 themselves in accordance with their gender identities, the Rule infringes on patients’ interests in

3 privacy, liberty, dignity, and autonomy protected by the Fifth Amendment.

4

231. There is no legitimate interest supporting the Rule’s infringement on patients’

5 fundamental rights, let alone an interest that can survive the elevated scrutiny required to justify

6 infringement of these fundamental rights.

7

SIXTH COUNT

8

(Brought by Plaintiffs Other Than County of Santa Clara) U.S. Constitution, First Amendment; Administrative Procedure Act,

9

5 U.S.C. § 706(2)(B) Free Speech

10

232. Plaintiffs incorporate the preceding paragraphs as if fully set forth here.

11

233. The Denial-of-Care Rule is contrary to constitutional rights, powers, privileges, or

12 immunities and therefore must be set aside under 5 U.S.C. § 706(2)(B).

13

234. A person’s disclosure of transgender or gender-nonconforming status, speech, or

14 expression that discloses gender identity, and the person’s gendered speech and expressive conduct,

15 all receive constitutional protection under the First Amendment.

16

235. The Rule has the purpose and effect of chilling constitutionally protected First

17 Amendment activity. As a result of the Rule, an increased number of LGBT people will remain

18 closeted in healthcare settings and to doctors, nurses, and other healthcare providers, and will

19 decline to disclose their sexual orientation, transgender or gender-nonconforming status, or gender

20 identities. Further, an increased number of LGBT people will decline to engage in gendered speech

21 and expression, including by declining to disclose related medical histories—even when that self-

22 censorship impedes the ability of their healthcare providers to provide appropriate treatment and

23 results in negative health consequences to the patients and to public health.

24

236. The Rule imposes conditions on funding that invite denials of care to Plaintiffs’

25 patients based on religious or moral objections to these patients’ identity or past or present

26 healthcare decisions and needs.

27

237. The Rule impermissibly chills patients who are seeking medical care from being

28 open about their reproductive-health histories and needs, including abortion and contraception.

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1

238. The Rule will chill a patient of ordinary firmness from making such disclosures.

2

239. The Rule violates the Free Speech Clause of the First Amendment because it

3 impermissibly burdens the exercise of patients’ constitutionally protected speech, expression and

4 expressive conduct based on the content and viewpoint of patients’ speech.

5

240. Additionally, the Rule is overbroad because it will chill protected First Amendment

6 activity.

7

SEVENTH COUNT

8

(Brought by Plaintiffs Other Than County of Santa Clara) U.S.. Constitution, Fifth Amendment; Administrative Procedure Act,

9

5 U.S.C. § 706(2)(B) Equal Protection

10

241. Plaintiffs incorporate the preceding paragraphs as if fully set forth here.

11

242. The Denial-of-Care Rule is contrary to constitutional rights, powers, privileges, or

12 immunities and therefore must be set aside under 5 U.S.C. § 706(2)(B).

13

243. The Fifth Amendment’s Due Process Clause provides that no person shall be

14 deprived of life, liberty, or property without due process of law.

15

244. That Clause includes within it a prohibition against the denial of equal protection of

16 the laws by the federal government, its agencies, or its officials or employees.

17

245. The purpose and effect of the Rule are to discriminate against Plaintiffs’ patients

18 based on their sex, gender identity, transgender status, gender nonconformity, and exercise of

19 fundamental rights, including the rights to bodily integrity and autonomous medical decision-

20 making, the rights of access to abortion and contraceptives, and the rights to live and express oneself

21 consistent with one’s gender identity.

22

246. Additionally, the purpose of the Rule is to facilitate, authorize, and encourage

23 private discrimination against Plaintiffs’ patients on the basis of sex, gender identity, transgender

24 status, gender nonconformity, and exercise of fundamental rights, including the rights to abortion

25 and contraceptives and to live and express oneself consistent with one’s gender identity.

26

247. Further, the Rule is intended to have, and will have, a disproportionate impact on

27 women and transgender people, people who exercise their rights to abortion and contraception, and

28

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1 people who wish to live and express themselves consistent with their gender identity. The Rule

2 places an impermissible special burden on these individuals.

3

248. Discrimination based on sex is presumptively unconstitutional and subject to

4 heightened scrutiny.

5

249. Discrimination based on gender identity or transgender status also is presumptively

6 unconstitutional and subject to heightened scrutiny. Transgender people have suffered a long

7 history of discrimination and continue to suffer that discrimination; they are a discrete and insular

8 group and lack the power to protect their rights through the political process; a person’s gender

9 identity or transgender status bears no relation to that person’s ability to contribute to society;

10 gender identity is a core, defining trait that is so fundamental to a person’s sense of self and

11 personhood that a person cannot be required to abandon it as a condition of equal treatment; and

12 efforts to change a person’s gender identity through intervention have been widely condemned.

13

250. Discrimination based on the exercise of a fundamental right is presumptively

14 unconstitutional and is subject to strict scrutiny.

15

251. The Denial-of-Care Rule lacks even a rational or legitimate justification, let alone

16 the important or compelling one that is constitutionally required. The Rule also lacks adequate

17 tailoring under any standard of review.

18

252. Defendants’ requirement of disparate treatment of patients and encouragement of

19 private discrimination deprives patients of their right to equal dignity and stigmatizes them as

20 second-class citizens in violation of equal protection.

21

EIGHTH COUNT

22

(Brought only by County of Santa Clara) Spending Clause

23

253. Plaintiffs incorporate the preceding paragraphs as if fully set forth here.

24

254. The Denial-of-Care Rule violates the Spending Clause for at least four reasons.

25

(a) First, the Denial-of-Care Rule is vague and ambiguous, and it fails to provide

26 adequate notice of what conduct by a recipient would result in HSS withholding federal funds.

27

(b) Second, the Rule attaches new, after-the-fact conditions to Santa Clara’s

28 receipt of federal funds, in violation of the Spending Clause.

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1

(c) Third, the Rule is not rationally related to the federal interest in the particular

2 programs that receive federal funds. See South Dakota v. Dole, 483 U.S. 203 (1987); Massachusetts

3 v. United States, 435 U.S. 444, 461 (1978) (plurality op.) (conditioning federal grants illegitimate

4 if conditions are unrelated “to the federal interest in particular national projects or programs”). The

5 Rule places various federal grants at risk, but there is no rational relationship between the federal

6 religious-objection laws that Defendants seek to enforce and the federal interest in those programs.

7

(d) Fourth, the Rule unconstitutionally attempts to coerce state and local

8 government recipients, such as the County of Santa Clara, to adopt the federal government’s policy

9 by threatening to withhold, terminate, and claw back unprecedented levels of federal funding,

10 whether or not those funds are related to the provision of health care or to the specific violation

11 alleged. Such conditions on federal funding go beyond “relatively mild encouragement” to put a

12 “gun to the head” of public entities, coercing them to adopt federal policy in contravention of the

13 Spending Clause. See National Federation of Independent Business v. Sebelius, 567 U.S. 519, 581

14 (2012).

15

NINTH COUNT

16

(Brought only by County of Santa Clara) Separation of Powers

17

255. The Constitution vests the Spending Power in Congress, not in the Executive

18 Branch. U.S. Const. art. I, § 8, cl. 1.

19

256. Congress may delegate some discretion to the Executive Branch to decide how to

20 spend appropriated funds, but that discretion is cabined by the scope of the delegation. City of

21 Arlington, Texas v. FCC, 569 U.S. 290, 297 (2013).

22

257. The Executive Branch cannot amend or cancel appropriations that Congress has

23 duly enacted. Clinton v. City of New York, 524 U.S. 417, 439 (1998); Train v. City of New York,

24 420 U.S. 35, 38, 44 (1975).

25

258. The Rule imposes requirements not authorized by the underlying federal statutes

26 and would allow defendants to withhold, deny, suspend, or terminate federal financial assistance

27 for noncompliance with those requirements.

28

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1

259. The Rule’s conditions improperly usurp Congress’s spending power and amount to

2 an unconstitutional refusal to spend money appropriated by Congress, in violation of constitutional

3 separation-of-powers principles.

4

260. Defendants’ violation causes ongoing harm to the County of Santa Clara and its

5 residents.

6

TENTH COUNT

7

Equitable Relief To Preserve Remedy

8

261. Plaintiffs incorporate by reference the foregoing paragraphs as if fully set forth.

9

262. The Denial-of-Care Rule will become effective on July 22, 2019, unless it is

10 enjoined. Plaintiffs are entitled to a full, fair, and meaningful process to adjudicate the lawfulness

11 of the Rule before being required to implement its far-reaching and harmful requirements.

12

263. Plaintiffs will suffer irreparable injury by implementation of the Rule, which would

13 erode hard-won trust between vulnerable populations and their healthcare providers, stigmatize and

14 traumatize patients, interfere with core governmental and medical operations, and result in delays

15 and denials of care leading to physical harm and even death. Preliminary and permanent injunctive

16 relief is therefore needed to ensure that Plaintiffs’ injuries are fully remedied.

17

264. Injunctive relief is also needed to prevent the immediate harm resulting from the

18 uncertainty created by the Rule about the policies and procedures guiding critical medical

19 operations and the conditions being placed on huge swaths of federal funding. On the first day that

20 this Rule takes effect, Plaintiff providers must know how to handle medical emergencies as they

21 happen; they cannot wait to see how HHS chooses to interpret concededly confusing provisions in

22 after-the-fact enforcement actions. The hospitals and clinics that Plaintiffs operate need to know

23 how to staff their facilities, how staff must handle objections when they arise, and whether the

24 providers can rely on continued receipt of federal funding that supports life-saving services.

25 Patients need assurance that they will receive complete, accurate information and timely and

26 responsive medical care in an environment that protects their constitutional rights and does not

27 expose them to stigma and harm. This Court should step in to protect Plaintiffs’ institutions, their

28

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1 patients, and the foremost principle guiding medical providers in responding to those in need of

2 assistance and care—first, do no harm.

3

265. Accordingly, to ensure that Plaintiffs receive meaningful relief should they prevail

4 in this action, the Court should preliminarily and permanently enjoin Defendants from

5 implementing the Denial-of-Care Rule.

6

REQUEST FOR RELIEF

7

Plaintiffs request that the Court grant the following relief:

8

(a) A declaratory judgment under 28 U.S.C. § 2201(a) and 5 U.S.C. § 706(a)

9 that the Denial-of-Care Rule is unlawful and unconstitutional;

10

(b) Preliminary and permanent injunctions enjoining Defendants from

11 implementing and enforcing the Denial-of-Care Rule;

12

(c) Attorneys’ fees, costs, and expenses and other disbursements for this action;

13 and

14

(d) Any further and additional relief that this Court deems just and proper.

15 Dated: May 28, 2019

Respectfully submitted,

16 By: /s/ Richard B. Katskee

By: /s/ Mary E. Hanna-Weir

RICHARD B. KATSKEE* 17 katskee@au.org

JAMES R. WILLIAMS (SBN 271253) GRETA S. HANSEN (SBN 251471)

KENNETH D. UPTON, JR.** 18 upton@au.org

LAURA S. TRICE (SBN 284837) MARY E. HANNA-WEIR (SBN 320011)

AMERICANS UNITED FOR SEPARATION SUSAN P. GREENBERG (SBN 318055)

19 OF CHURCH AND STATE

H. LUKE EDWARDS (SBN 313756)

1310 L Street NW, Suite 200 20 Washington, DC 20005

mary.hanna-weir@cco.sccgov.org OFFICE OF THE COUNTY COUNSEL,

Tel: (202) 466-3234; Fax: (202) 466-3234 21

COUNTY OF SANTA CLARA 70 West Hedding Street, East Wing, 9th Floor

Counsel for Plaintiffs Other Than County of San José, CA 95110-1770

22 Santa Clara

Tel: (408) 299-5900; Fax: (408) 292-7270

23

Counsel for Plaintiff County of Santa Clara

24

25

26

27

28

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1 By: /s/ Genevieve Scott

By: /s/ Lee H. Rubin

2

GENEVIEVE SCOTT* gscott@reprorights.org

LEE H. RUBIN (SBN 141331) lrubin@mayerbrown.com

3

RABIA MUQADDAM* rmuqaddam@reprorights.org

MAYER BROWN LLP Two Palo Alto Square, Suite 300

4

CHRISTINE PARKER* cparker@reprorights.org

3000 El Camino Real Palo Alto, CA 94306-2112

5

CENTER FOR REPRODUCTIVE RIGHTS 199 Water Street, 22nd Floor

Tel: (650) 331-2000; Fax: (650) 331-2060

6

New York, NY 10038 Tel: (917) 637-3605 Fax: (917) 637-3666

MIRIAM R. NEMETZ* mnemetz@mayerbrown.com

7

Counsel for Plaintiffs Other Than County of

NICOLE A. SAHARSKY* nsaharsky@mayerbrown.com

8 Santa Clara

MAYER BROWN LLP 1999 K Street, Northwest

9

Washington, DC 20006-1101 Tel: (202) 263-3000; Fax: (202) 263-3300

10 By: /s/ Jamie A. Gliksberg JAMIE A. GLIKSBERG*
11 jgliksberg@lambdalegal.org CAMILLA B. TAYLOR*
12 ctaylor@lambdalegal.org LAMBDA LEGAL DEFENSE AND
13 EDUCATION FUND, INC. 105 West Adams, 26th Floor

Counsel for Plaintiffs County of Santa Clara, Trust Women Seattle, LA LGBT Center, Whitman-Walker, Bradbury-Sullivan Center, Center on Halsted, Hartford Gyn Center, Mazzoni Center, Medical Students for Choice, AGLP, GLMA, Ward Carpenter, Sarah Henn, and Randy Pumphrey

14 Chicago, IL 60603-6208

Tel: (312) 663-4413; Fax: (312) 663-4307 15
OMAR GONZALEZ-PAGAN*

* To be admitted pro hac vice ** Licensed in Oklahoma and Texas only.

16 ogonzalez-pagan@lambdalegal.org

Supervised by Richard B. Katskee, a member of

LAMBDA LEGAL DEFENSE AND

the D.C. Bar. To be admitted pro hac vice

17 EDUCATION FUND, INC.

120 Wall Street, 19th Floor

18 New York, NY 10005-3919

Tel: (212) 809-8585

19

Counsel for Plaintiffs Other Than County of

20 Santa Clara

21

22

23

24

25

26

27

28

- 73 -
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, CASE NO. 5:19-CV-2916

 
 Case 3:19-cv-02916-WHA Document 38 Filed 06/13/19 Page 1 of 1

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

CITY AND COUNTY OF SAN

7

FRANCISCO,

8

Plaintiff,

9

v.

10

ALEX M. AZAR, et al.,

11

Defendants.

Case No. 19-cv-02405-JCS
ORDER GRANTING MOTION TO RELATE CASES Re: Dkt. No. 13

12

13

Pursuant to Civil Local Rule 3-12, the Court GRANTS California’s Administrative Motion

14 to Consider Whether Cases Should Be Related (Docket No. 13) and relates this case to the

15 following cases:

16

• State of California v. Azar, et al., Case No. 3:19-cv-02769 HSG

17

• County of Santa Clara et al. v. U.S Dep’t of Health and Human Svcs., et al., Case

18

No. 5:19-cv-2916 NC

19 Because one or more parties have declined to consent to the jurisdiction of a magistrate judge

20 pursuant to 28 U.S.C. § 636(c), the Clerk is instructed to reassign all three cases to a randomly

21 selected district court judge.

22

IT IS SO ORDERED.

23

24 Dated: June 13, 2019

25

______________________________________

JOSEPH C. SPERO

26

Chief Magistrate Judge

27

28

 
 Case 3:19-cv-02916-WHA Document 46 Filed 06/27/19 Page 1 of 2

United States District Court For the Northern District of California

1

2

3

4

IN THE UNITED STATES DISTRICT COURT

5 FOR THE NORTHERN DISTRICT OF CALIFORNIA
6

7

8 CITY AND COUNTY OF SAN 9 FRANCISCO,

10

Plaintiff,

No. C 19-02405 WHA Related to
No. C 19-02769 WHA No. C 19-02916 WHA

11

v.

12

ALEX M. AZAR II, Secretary of U.S. Department of Health and Human Services;

13

ROGER SERVERINO, Director, Office for Civil Rights, Department of Health and

14

Human Services; U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES; and

15 DOES 1-25,

ORDER RE DEFENDANTS’ ADMINISTRATIVE MOTION TO ADJUST SCHEDULE

16

Defendants. /

17

18

The Court has received defendants’ request to hold in abeyance plaintiffs’ motion for

19 preliminary injunction and to set a briefing schedule for cross motions for summary judgment

20 (Dkt. No. 50). The motion is principally based on defense counsel’s representation to the Court

21 that “HHS will delay enforcement of the HHS rule challenged in this case, Protecting Statutory

22 Conscience Rights in Health Care; Delegations of Authority, 84 Fed. Reg. 23, 170 (May 21,

23 2018) [hereinafter Final Rule], until November 22, 2010” (Br. at 2).

24

In support, defense counsel swears, “The Department of Health and Human Services

25 (HHS) has indicated to the undersigned that it will delay enforcement of the Final Rule until

26 November 22, 2019” (Takemoto Decl. at ¶ 4).

27

The problem is that a mere indication HHS “will delay” enforcement of the rule until

28 November 22 is not the same as an official postponement of the rule. Until there is an official

postponement, counsel’s and the agency’s “indications” are too uncertain to rely on.

Case 3:19-cv-02916-WHA Document 46 Filed 06/27/19 Page 2 of 2

United States District Court For the Northern District of California

1 Accordingly, we will proceed with the motion for preliminary injunction until there is an official

2 postponement.

3

Defendants are already in default with the existing briefing schedule. As such, this order

4 gives defendants until JULY 1, 2019 AT NOON to file their opposition to the pending motion. The

5 reply will be due JULY 8, 2019 AT NOON. The hearing will remain on JULY 17, 2019 AT 8:00

6 A.M.

7

Unfortunately, this extra time for the defendants will come out of the time the Court

8 needs to review the materials. Counsel should have taken this into account before filing this

9 half-baked administrative motion.

10

Defendants are admonished that nothing short of an official postponement of the final

11 revised rule until a later fixed date will be sufficient to reactivate defendants’ request for relief

12 from the existing briefing schedule. Defendants should not gamble again on this possibility.

13 Defendants must file their opposition. The administrative motion is DENIED.

14

15

IT IS SO ORDERED.

16

17 Dated: June 27, 2019. 18

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

19

20

21

22

23

24

25

26

27

28

2

 
 Case 3:19-cv-02916-WHA Document 51 Filed 07/01/19 Page 1 of 3

United States District Court For the Northern District of California

1

2

3

4

IN THE UNITED STATES DISTRICT COURT

5 FOR THE NORTHERN DISTRICT OF CALIFORNIA
6

7

8 CITY AND COUNTY OF SAN 9 FRANCISCO,

10

Plaintiff,

11

v.

12

ALEX M. AZAR II, Secretary of U.S. Department of Health and Human Services;

13

ROGER SERVERINO, Director, Office for Civil Rights, Department of Health and

14

Human Services; U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES; and

15 DOES 1-25,

16

Defendants. /

17

No. C 19-02405 WHA Related to
No. C 19-02769 WHA No. C 19-02916 WHA
ORDER RE STIPULATED REQUEST AND BRIEFING SCHEDULE

18

19

With respect to the stipulated request, the Court enters the following order:

20

1. Pursuant to 5 U.S.C. § 705, this order approves the stipulated request and

21

hereby orders that the effective date of the rule titled Protecting Statutory

22

Conscience Rights in Health Care; Delegations of Authority, 84 Fed. Reg.

23

23, 170 (May 21, 2019) is postponed to NOON ON NOVEMBER 22, 2019.

24

2. This order further approves the stipulated request to hold the preliminary

25

injunction motions in abeyance. The preliminary injunction briefing

26

schedule is VACATED.

27

3. The parties’ requested summary judgment schedule is too generous to

28

counsel and too stingy to the Court, meaning the judge is left with too

Case 3:19-cv-02916-WHA Document 51 Filed 07/01/19 Page 2 of 3

United States District Court For the Northern District of California

1

little time to hold a hearing and make a ruling by November 22.

2

Accordingly, the following schedule will be used.

3

a. JULY 22, 2019: HHS lodges the administrative record.

4

b. AUGUST 21, 2019 AT NOON: Defendants file their motion for

5

summary judgment.

6

c. SEPTEMBER 12, 2019 AT NOON: Plaintiffs file their opposition and

7

cross-motion for summary judgment.

8

d. SEPTEMBER 26, 2019 AT NOON: Defendants file their reply and

9

opposition.

10

e. OCTOBER 10, 2019 AT NOON: Plaintiffs file their reply.

11

f. OCTOBER 30, 2019 AT 8:00A.M.: The Court holds a hearing on the

12

cross-motions. The parties will hold available the entire day

13

because the Court may have trial on that day, and this hearing may

14

be postponed until later in the afternoon.

15

16

Defendants shall file a single opening brief limited to 40 PAGES in 12 point font. The

17 Court realizes that on motions for preliminary injunction, the Court allowed defendants to file a

18 55-page opposition brief. However, that excessive page limit was allowed only because

19 defendants found themselves in a bind and needed to recycle essentially the same brief used in a

20 different court.

21

Plaintiffs shall file a single opposition and cross-motion for summary judgment limited to

22 40 PAGES in 12 point font.

23

Defendants’ reply/opposition shall be limited to 20 PAGES in 12 point font. Plaintiffs’

24 reply shall be limited to 20 PAGES in 12 point font. Replies shall not include declarations or

25 evidentiary exhibits unless they are genuine rebuttals to points that could not have been foreseen

26 in the immediately preceding brief.

27

Defendants’ amicus briefs shall be filed at or before their motion for summary judgment

28 is due. Plaintiffs’ amicus briefs shall be filed at or before their opposition and cross-motion for

2

Case 3:19-cv-02916-WHA Document 51 Filed 07/01/19 Page 3 of 3

United States District Court For the Northern District of California

1 summary judgment is due. Each amicus brief is limited to 15 PAGES in 12 point font. There

2 shall be no attachments or declarations.

3

Any declarant in any declaration must make themselves promptly available for

4 deposition. The foregoing schedule presumes that a proper administrative record will be filed

5 and that there will be no substantive litigation concerning the scope of the administrative record.

6

7

8

IT IS SO ORDERED.

9

10

11 Dated: July 1, 2019. 12

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

 
 Case 3:19-cv-02916-WHA Document 87 Filed 11/19/19 Page 1 of 32

United States District Court For the Northern District of California

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

10

CITY AND COUNTY OF SAN FRANCISCO,

11

Plaintiff,

12

v.

13 ALEX M. AZAR II, Secretary of U.S.

14

Department of Health and Human Services; ROGER SERVERINO, Director, Office for

15

Civil Rights, Department of Health and Human Services; U.S. DEPARTMENT OF

16

HEALTH AND HUMAN SERVICES; and DOES 1–25,

17

Defendants.

18

/

No. C 19-02405 WHA
Related to
No. C 19-02769 WHA and
No. C 19-02916 WHA
ORDER RE MOTIONS TO DISMISS AND FOR SUMMARY JUDGMENT AND REQUESTS FOR JUDICIAL NOTICE

19

INTRODUCTION

20

In these challenges to a final agency rule allowing those with religious, moral, or other

21 conscientious objections to refuse to provide abortions and certain other medical services,

22 federal defendants move to dismiss or, in the alternative, for summary judgment. Plaintiffs

23 oppose and also move for their own summary judgment. For the following reasons, defendants’

24 motion to dismiss is DENIED. To the extent stated below, plaintiffs’ motion for summary

25 judgment is GRANTED.

26

STATEMENT

27

Following Roe v. Wade, 410 U.S. 113 (1973), at least one religiously affiliated hospital

28 became forced by a court to allow its facilities to be used for abortion procedures. See, e.g.,

Case 3:19-cv-02916-WHA Document 87 Filed 11/19/19 Page 2 of 32

United States District Court For the Northern District of California

1 Taylor v. St. Vincent’s Hospital, 369 F. Supp. 948 (D. Mont. 1973). That provoked the first

2 federal statute to ensure that federally-financed hospitals as well as doctors, among others, could

3 refuse to perform such procedures on grounds of conscientious objection. Over the years, the

4 right to refuse on such grounds has received yet more attention in further contexts via federal

5 statutes. Defendant United States Department of Health and Human Services (HHS) has

6 recently promulgated a rule that, plaintiffs say, expands these protections beyond what Congress

7 intended and will hamstring the delivery of health care. Plaintiffs fear losing important federal

8 grants as a result of their inability to comply with the new rule.

9

Under the new rule, to preview just one example, an ambulance driver would be free,

10 on religious or moral grounds, to eject a patient en route to a hospital upon learning that the

11 patient needed an emergency abortion. Such harsh treatment would be blessed by the new rule.

12 One important question presented herein is the extent to which such scenarios conflict with the

13 underlying statutes themselves. Although this order does not accept all of plaintiffs’ criticisms,

14 this order holds that the new rule conflicts with those statutes in a number of ways and upsets

15 the balance drawn by Congress between protecting conscientious objections versus protecting

16 the uninterrupted effective flow of health care to Americans.

17

1.

HISTORY OF CONSCIENCE STATUTES.

18

Starting in 1973, Congress enacted laws providing certain protections to doctors and

19 others who objected to performing abortions and certain other procedures. Relevant for our

20 purposes are the following: (1) the Church Amendment; (2) the Coats-Snowe Amendment;

21 (3) Medicaid and Medicare Advantage law; (4) the Weldon Amendment; and (5) the Patient and

22 Affordable Care Act. Since the new rule purports to interpret these statutes, let’s review them.

23

A. Church Amendment (1973).

24

Senator Frank Church of Idaho will be remembered by many for his opposition to the

25 Vietnam War, his hearings exposing abuse by CIA surveillance of American citizens, and his

26 championing of wilderness and environmental causes. For our immediate purposes, however,

27 we remember him for the Church Amendment.

28

2

Case 3:19-cv-02916-WHA Document 87 Filed 11/19/19 Page 3 of 32

United States District Court For the Northern District of California

1

Following Roe v. Wade, as stated, a Montana district court issued a temporary injunction

2 requiring a Catholic hospital to allow its facilities to be used for sterilization, specifically, a tubal

3 ligation procedure. Taylor, 369 F. Supp. at 948. Senator Church stated the purpose of his

4 amendment was, among other things, to clarify the intent of Congress as to “physicians, nurses,

5 or institutions” who don’t perform “abortions or sterilization in religious affiliated hospitals

6 where such operations are contrary to religious belief.” 119 Cong. Rec. 9595–97.

7

The Church Amendment provided that the receipt of federal funds by any individual

8 or entity did not authorize any court or public official to require such individual to perform

9 or assist in the performance of any sterilization procedure or abortion contrary to his religion

10 or conscience, nor to require such entity to make its facilities available for sterilization or

11 abortion if such procedure was prohibited by the entity on the basis of religious or moral

12 convictions. Entities receiving federal funds were barred from discriminating “in the

13 employment, promotion, or termination of employment” of physicians or health care personnel

14 as well as from discriminating “in the extension of staff or other privileges” to physicians

15 or “health care personnel” based upon their conscientious refusal to perform or assist in the

16 performance of those procedures. The amendment also provided that “[n]o individual shall be

17 required to perform or assist in the performance of any part of a health service program or

18 research activity funded in whole or in part under a program administered by the Secretary

19 of Health and Human Services if his performance or assistance in the performance of such part

20 of such program or activity would be contrary to his religious beliefs or moral convictions.”

21 42 U.S.C. § 300a-7. The statute gave no delegation of authority to any agency to issue

22 legislative rules (or even interpretive rules, for that matter).

23

B. Coats-Snowe Amendment (1996).

24

Twenty-three years passed. No agency rule issued or was even proposed. In 1996,

25 however, a new concern surfaced, namely that medical students felt coerced into learning how

26 to perform abortions. Still, no agency acted — but Congress did act. A 1996 amendment

27 drew sponsorship from Senators Olympia Snowe and Dan Coats. Until her recent retirement,

28 Senator Snowe of Maine received notice for her finding bi-partisan ways forward through

3

Case 3:19-cv-02916-WHA Document 87 Filed 11/19/19 Page 4 of 32

United States District Court For the Northern District of California

1 contentious issues. Senator Dan Coats became known for sponsoring the “Don’t Ask, Don’t

2 Tell” policy of the early 1990s. He later served as Director of National Intelligence from

3 March 2017 to August 2019.

4

The Coats-Snowe Amendment prohibited, among other things, government entities

5 receiving federal financial assistance from discriminating against any “health care entity” that

6 “refuses to undergo training in the performance of induced abortions, to require or provide such

7 training, to perform such abortions, or to provide referrals for such training or such abortions”

8 or refusing to make arrangements for those activities. The amendment specifically defined the

9 term “health care entity” to include “an individual physician, a postgraduate physician training

10 program, and a participant in a program of training in the health professions.” 42 U.S.C. § 238n.

11

The Amendment also required government entities receiving federal financial instance to

12 accredit health care entities “that would be accredited but for the accrediting agency’s reliance

13 upon an accreditation standards that requires an entity to perform an induced abortion or require,

14 provide, or refer for training in the performance of induced abortions, or make arrangements for

15 such training.” The Amendment provided express rulemaking authority as to that provision

16 only. Id. at § 238n(b)(1).

17

C. Medicaid and Medicare Advantage (1997).

18

The following year, in 1997, Congress passed the Balanced Budget Act, which changed

19 key components of Medicaid and introduced Medicare Advantage. Of importance, the statute

20 stated that Medicaid-managed organizations and Medicare Advantage plans were not

21 required to “provide, reimburse for, or provide coverage of a counseling or referral service”

22 if the organization objected to the service on moral or religious grounds. 42 U.S.C.

23 §§ 1395w-22(j)(3)(B), 1396u-2(b)(3)(B). The Social Security Act provided express rulemaking

24 authority to HHS to implement the Medicaid and Medicare Advantage provisions. Id. at

25 §§ 1302(a); 1395w-26(b)(1).

26

27

28

4

Case 3:19-cv-02916-WHA Document 87 Filed 11/19/19 Page 5 of 32

United States District Court For the Northern District of California

1

D. Weldon Amendment (2004).

2

In 2004 came the Weldon Amendment. Representative Dave Weldon, a doctor,

3 made headlines for legislation regarding home ownership affordability, vaccine safety, and

4 the prevention of human cloning.

5

The Weldon Amendment provided that no federal funds “may be made available to

6 a Federal agency or program, or to a State or local government, if such agency, program, or

7 government subjects any institutional or individual health care entity to discrimination on the

8 basis that the health care entity does not provide, pay for, provide coverage of, or refer for

9 abortions.” Importantly, it expressly defined the term “health care entity” for purposes of the

10 Amendment to include “an individual physician or other health care professional, a hospital,

11 a provider-sponsored organization, a health maintenance organization, a health insurance

12 plan, or any other kind of health care facility, organization, or plan.” See, e.g., Appropriations

13 Act, Pub. L. No. 115-245, Div. B., § 507(d), 132 Stat. 2981, 3118 (2018) (emphasis added).

14 This definition differed from the definition of the same phrase as used in the Coats-Snowe

15 Amendment. The Weldon Amendment was meant to protect “health care entities” from being

16 forced by the government to provide, cover, refer, or pay for abortions. HMOs and health

17 insurance plans could not, under the amendment, be discriminated against with respect to federal

18 funds on account of their refusal to cover abortions.

19

E. Patient Protection and Affordable Care Act (2010).

20

Finally, in 2010 came the Patient Protection and Affordable Care Act with several

21 new conscience provisions. One such notable provision stated the federal government or any

22 governmental agency that received federal financial assistance under the act “may not subject

23 an individual or institutional health care entity to discrimination on the basis that the entity

24 does not provide any health care item or service furnished for the purpose of causing, or for

25 the purpose of assisting in causing, the death of any individual, such as by assisted suicide,

26 euthanasia, or mercy killing.” 42 U.S.C. § 18113. For that section only, the Act defined

27 “health care entity” in the same way as the Weldon Amendment, to include, “an individual

28 physician or other health care professional, a hospital, a provider-sponsored organization,

5

Case 3:19-cv-02916-WHA Document 87 Filed 11/19/19 Page 6 of 32

United States District Court For the Northern District of California

1 a health maintenance organization, a health insurance plan, or any other kind of health care

2 facility, organization, or plan.” Ibid.

3

Another provision said that a State could prohibit abortion coverage in qualified health

4 care plans, and that a qualified health care plan could not discriminate against a health

5 care provider or entity that was unwilling to provide, pay for, provide coverage of, or refer for

6 abortions. Id. § 18023. A further provision allowed individuals to seek exemption based on,

7 among other things, their religion. Id. § 18081(b)(5)(A). The Act also provided HHS with

8 express rulemaking authority to implement the Act. Id. § 18041(a)(1).

9

2.

THE HISTORY OF AGENCY RULES REGARDING THESE STATUTES.

10

None of the foregoing statutes other than the Coats-Snowe Amendment, the

11 Medicare/Medicaid laws, and the Affordable Care Act expressly delegated rulemaking authority

12 to any agency. Even in those cases, the delegation remained limited. From 1973 until 2008, no

13 agency issued any rule of any type concerning any health care conscience statute.

14

A. 2008 and 2011 Rules.

15

In August 2008, however, HHS first proposed an interpretive rule for the enforcement

16 of the conscience statutes then in place. The comments in response to the proposed rule

17 expressed many of the same concerns as plaintiffs express in this instant action, stating, for

18 example, that the definitions of the terms “assist in the performance of” and “health care entity”

19 were too broad. Critics also worried that the proposal conflicted with Medicaid, Title X (which

20 required family planning projects to offer certain family planning services), and the Emergency

21 Medical Training and Active Labor Act (EMTALA) (which required certain hospitals to

22 stabilize or transfer patients in emergency situations). 42 U.S.C. §§ 300; 1395dd.

23

The 2008 rule defined many of the same statutory terms as does the 2019 rule at issue,

24 such as “assist in the performance” and “health care entity,” to take only two examples. See

25 Ensuring That HHS Funds Do Not Support Coercive or Discriminatory Policies or Practices

26 in Violation of Federal Law, 73 Fed. Reg. at 78,082, 78,097 (Dec. 19, 2008). It ultimately

27 prohibited HHS fund recipients from discriminating against health care entities that did not

28 “provide, pay for, provide coverage of, or refer for abortions,” and further required HHS fund

6

Case 3:19-cv-02916-WHA Document 87 Filed 11/19/19 Page 7 of 32

United States District Court For the Northern District of California

1 recipients to certify compliance with the rule. For those that did not comply with the rule, HHS

2 stated it “intend[ed] to work with recipients . . . to ensure compliance with the requirements or

3 prohibitions promulgated in this regulation, and, if such assistance fails to achieve compliance,

4 the Department will consider all legal options, including termination of funding.” The rule

5 designated the Office of Civil Rights (OCR) to receive complaints of discrimination and

6 coercion based on the health care conscience protection statutes. Id. at 78,074–79, 93.

7

Three months after the rule took effect, however, and with a different administration in

8 office, HHS proposed to rescind the rule in order to review the regulation and “ensure its

9 consistency with current Administration policy and to reevaluate the necessity for regulation.”

10 74 Fed. Reg. 10,207 (Mar. 10, 2009). HHS received over 300,000 comments in response.

11 Many of these comments expressed concern the 2008 rule “unacceptably impacted patient rights

12 and restricted access to health care and conflicted with federal law, state law, and other

13 guidelines addressing informed consent.” Regulation for the Enforcement of Federal Health

14 Care Provider Conscience Protection Laws, 76 Fed. Reg. 9968, 9971 (Feb. 23, 2011). In 2011,

15 HHS rescinded in part and revised in part the 2008 rule. Of importance, the 2011 rule rescinded

16 the definitions “because of concerns that they may have caused confusion regarding the scope of

17 the federal health care provider conscience protection statutes” and stated “individual

18 investigations will provide the best means of answering questions about the application of the

19 statutes in particular circumstances.” The rule also stated “the certification requirements in the

20 2008 Final Rule are unnecessary to ensure compliance with the federal health care provider

21 conscience protection statutes, and that the certification requirements created unnecessary

22 additional financial and administrative burdens on health care entities.” The rule further

23 designated the OCR to receive complaints of discrimination and coercion based on the

24 conscience protection statutes and to coordinate the handling of complaints with the HHS

25 funding components. Id. at 9974.

26

B. The Instant Rule.

27

In May 2017, President Donald Trump issued an executive order instructing the Attorney

28 General to “issue guidance interpreting religious liberty protections in Federal law.” Promoting

7

Case 3:19-cv-02916-WHA Document 87 Filed 11/19/19 Page 8 of 32

United States District Court For the Northern District of California

1 Free Speech and Religious Liberty, 82 Fed. Reg. 21,675 (May 4, 2017). In October 2017,

2 Attorney General Jeff Sessions issued a memorandum to “guide all administrative agencies

3 and executive departments” in doing so. Federal Law Protections for Religious Liberty Attorney

4 General Memorandum (Oct. 6, 2017). In January 2018, HHS proposed to resurrect most of the

5 2008 rule, stating that the 2011 rescission had “created confusion over what is and is not

6 required under Federal conscience and anti-discrimination laws.” Protecting Statutory

7 Conscience Rights in Health Care, 83 Fed. Reg. 3880 (Jan. 26, 2018). HHS received over

8 242,000 comments in response. Many comments expressed the same concerns as plaintiffs here,

9 including among other things, that the rule would lead to a decrease in access to health care;

10 that the proposed definitions for terms such as “health care entity,” “referral or refer for,” and

11 “assist in the performance of” were too broad; and that the rule conflicted with laws such as

12 EMTALA and Title X (see, e.g., AR 006-58592, 008-187087, 008-187916, 008-191263).

13

In May 2019, HHS issued its final rule — the rule in suit. Protecting Statutory

14 Conscience Rights in Health Care, 84 Fed. Reg. 23,170 (May 21, 2019). It defines various

15 nouns, verbs, and phrases in the conscience statutes in an expansive way, as explained below,

16 so as to inflate the scope of protections for conscientious objectors. The rule also provides

17 compliance and certification provisions that require covered entities to certify their compliance

18 with federal conscience statutes, anti-discrimination laws, and the rule itself. Covered entities

19 that fail to abide by these requirements risk losing the entirety of their federal funding, not just

20 categories of funding such as grants, loans, and insurance.

21

Plaintiff City and County of San Francisco filed the instant action, alleging the rule

22 violated the Administrative Procedure Act (APA) and the Constitution. City and County of

23 San Francisco v. Alex M. Azar II, et al., C 19-02405 WHA. A few weeks later, plaintiff State of

24 California filed an action making most of the same claims as San Francisco with an additional

25 FOIA claim. State of California v. Alex M. Azar II, et al., C 19-02769 WHA. A week later,

26 plaintiffs County of Santa Clara and various health and LGBTQ organizations also filed an

27 action challenging the rule, making the same claims. County of Santa Clara, et al., v. U.S. Dept.

28 of Health and Human Services, et al., C 19-02916 WHA. An order granted the parties’

8

Case 3:19-cv-02916-WHA Document 87 Filed 11/19/19 Page 9 of 32

United States District Court For the Northern District of California

1 stipulated request to postpone the effective date of the rule until November 22, 2019, thus

2 obviating the need to consider any provisional relief. Defendants now move to dismiss under

3 FRCP 12(b)(1) and 12(b)(6) or, in the alternative, for summary judgment. Plaintiffs also move

4 for summary judgment (Dkt. Nos. 14, 66, 89, 136). The Court appreciates the briefing and

5 argument by both sides and the notable contributions made by amici.

6

ANALYSIS

7

1. RULE 12(B)(1) MOTION TO DISMISS.

8

Defendants raise two jurisdictional arguments under FRCP 12(b)(1). First, they argue

9 plaintiffs’ spending clause and establishment clause claims are not ripe for review because

10 they have not identified any specific enforcement actions against them. Second, they argue the

11 physician plaintiffs in Santa Clara lack standing to bring free speech, equal protection, and due

12 process claims on behalf of their patients.

13

A. Plaintiffs’ Spending Clause and Establishment

Clause Claims Are Ripe for Review.

14

Determining whether an action is ripe for judicial review requires an evaluation of:

15

(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial

16

intervention would inappropriately interfere with further administrative action; and (3) whether

17

the courts would benefit from further factual development of the issues presented. Ohio Forestry

18

Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998). Hardship can occur when the impact of the

19

regulation can be felt immediately by those subject to it in conducting their day-to-day affairs.

20

Toilet Goods Ass’n, Inc. v. Gardner, 387 U.S. 158, 164 (1967). Specifically, “where a regulation

21

requires an immediate and significant change in the plaintiffs’ conduct of their affairs with

22

serious penalties attached to noncompliance,” the claims are ripe for review. Abbott Labs. v.

23

Gardner, 387 U.S. 136, 153 (1967), overruled on other grounds by Califano v. Sanders,

24

430 U.S. 99, 105 (1977).

25

Defendants argue plaintiffs’ establishment clause and spending clause claims are not ripe

26

because the claims rest on contingent future events. In particular, they contend that plaintiffs

27

have only provided speculative scenarios in which the two claims can be evaluated. Not so.

28

Regardless of how the rule is interpreted, plaintiffs would need to conduct extensive inquiries

9

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1 into hospitals and personnel to determine their compliance with not only the underlying statutes,

2 but the rule itself. Plaintiffs have further provided examples of numerous hospital policies which

3 contain provisions regarding discrimination that may need to be overhauled under the final rule.

4 For example, Zuckerberg San Francisco General Hospital policies state (State of California, Dkt.

5 No. 69 ¶ 8):

6

In the event a staff member feels reluctant to participate in an

aspect of patient care because the patient’s condition, treatment

7

plan, or physician’s orders are in conflict with the staff member’s

religious beliefs, cultural values, or ethics, the staff member’s

8

written request for accommodation will be considered if the

request does not negatively affect the quality of patient’s care.

9

Such policies would need to be rewritten and alternative business practices or procedures

10

created to comply with the rule while also ensuring patients receive adequate care. Furthermore,

11

if plaintiffs alternatively choose not to comply with the rule, they would need to prepare for the

12

contingency of the termination of all federal funding. Although defendants have stated that the

13

extent of enforcement in regard to funding is now unknown given the postponement of the rule,

14

this does not change the fact that the whole point of the rule is to “clarify” the statutes in a way

15

that will impose changes to comply. Accordingly, defendants’ motion to dismiss plaintiffs’

16

spending clause and establishment clause claims is DENIED.

17

B. The Santa Clara Physician Plaintiffs Have Standing.

18

Defendants challenge the standing of the Santa Clara physician plaintiffs in raising free

19

speech, equal protection, and due process claims on behalf of their LGBTQ and abortion-seeking

20

patients. Although plaintiffs generally must assert their own legal rights and interests, a third

21

party may have standing depending on the relationship of the litigant to the person whose right

22

he or she seeks to assert and the ability of the third party to assert his or her own rights.

23

Singleton v. Wulff, 428 U.S. 106, 114–16 (1976).

24

Defendants attempt to distinguish Singleton from the instant case by stating its holding

25

only applies to physicians who perform nonmedically indicated abortions and are asserting

26

rights on behalf of pregnant women. Not so. Singleton’s holding is broader, as the Supreme

27

Court found that the physicians had third party standing given the confidential nature of the

28

relationship between physicians and women seeking the abortion as well as the obstacles women

10

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1 have in asserting their right to an abortion. In particular, women generally cannot safely secure

2 abortions without the aid of physicians and “the constitutionally protected abortion decision is

3 one in which the physician is intimately involved.” Singleton, 428 U.S. at 115–17.

4

In the instant case, physicians are similarly asserting claims on behalf of women seeking

5 abortions and LGBTQ patients. Doctors and their patients have a confidential relationship,

6 especially when it comes to asserting rights related to invasive procedures and treatments.

7 Furthermore, most of the medical procedures at issue here such as abortions, gender-affirming

8 surgery, and HIV treatments cannot be safely secured without the aid of a physician. The rights

9 of the individual physician plaintiffs and their patients here are thus closely intertwined.

10 Because the physician plaintiffs in Santa Clara have standing, defendants’ motion to dismiss

11 the Santa Clara physician plaintiffs’ free speech, equal protection, and due process claims is

12 DENIED.

13

2. RULES 12(B)(6) AND 56 — THE APA CLAIM.

14

On the merits, this order holds that the new rule sets forth new definitions of statutory

15 terms that conflict with the statutes themselves — expansive definitions that would upset the

16 balance drawn by Congress between protecting conscientious objectors versus facilitating the

17 uninterrupted provision of health care to Americans.

18

With the minor exceptions noted below, the new rule is purely an interpretive rule,

19 not a legislative rule. An agency, of course, must interpret a statute under its care. But an

20 interpretation, even if cast in the form of a regulation, is nothing more than that —

21 an interpretation. The statute itself is what has the force of law, not the interpretation.

22 No interpretation can add or subtract from the actual scope of the statute itself. If the agency

23 misconstrues a statute, then the statute controls, not the interpretation.

24

The guiding principle, therefore, is that no interpretation, not even an agency

25 interpretation, can add or subtract from what the statute itself specifies. In a close case of

26 statutory construction, we might defer to the agency’s interpretation. But otherwise, we must

27 remain faithful to the statutes enacted by Congress. And while a legislative rule may add to a

28 statute, it cannot subtract from a statute. Fidelity to the statute is paramount.

11

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1

In reading the statutes in question, the Court sees that Congress tried to strike a balance

2 between two competing considerations. One consideration was recognition that, due to religious

3 or ethical beliefs, some doctors, nurses, and hospitals, among others, wanted no part in the

4 performing of abortions and sterilizations, among other medical procedures, and Congress

5 wanted to protect them from discrimination for their refusal to perform them. The countervailing

6 consideration was recognition of the need to preserve the effective delivery of health care to

7 Americans, including to those seeking, for example, abortions and sterilizations. Every doctor

8 or nurse, for example, who bowed out of a procedure for religious or ethical reasons became one

9 more doctor or nurse whose shifts had to be covered by someone else, a burden on the healthcare

10 system. Congress struck a balance between these two opposing considerations.

11

In reading the rule in question, the Court sees a persistent and pronounced redefinition

12 of statutory terms that significantly expands the scope of protected conscientious objections.

13 As laudable as that sounds, however, it would come at a cost — a burden on the effective

14 delivery of health care to Americans in derogation of the actual balance struck by Congress.

15

A. Definitions.

16

The new rule includes five columns (in the Federal Register) of new definitions of

17 statutory terms. These definitions, as will be seen, make the mischief. Then follow many

18 columns of restatements of the statutes in question, which restatements remain largely true to the

19 words used by Congress (but whose scope becomes expanded by the definitions). Finally come

20 concluding columns imposing “assurance” and “compliance” certificate obligations on

21 applicants for federal funds. This order will now turn to the definitions, the heart of the problem.

22

(1) “Assist in the Performance of.”

23

The reader will recall that the Church Amendment protected not only those individuals

24 who “perform” abortions and sterilizations but also those individuals who “assist in the

25 performance” of abortions and sterilizations. Only the Church Amendment used “assist in

26 the performance of,” and it did so as follows:

27

The receipt of any grant, contract, loan, or loan guarantee under

the Public Health Service Act, the Community Mental Health

28

Centers Act, or the Developmental Disabilities Services and

Facilities Construction Act by any individual or entity does not

12

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1

authorize any court or any public official or other public authority

to require (1) such individual to perform or assist in the

2

performance of any sterilization procedure or abortion if his

performance or assistance in the performance of such procedure or

3

abortion would be contrary to his religious beliefs or moral

convictions; [. . .]

4

42 U.S.C. § 300a-7 (emphasis added).

5

The final rule now defines “assist in the performance” as:

6

[T]o take an action that has a specific, reasonable, and articulable

7

connection to furthering a procedure or a part of a health service

program or research activity undertaken by or with another person

8

or entity. This may include counseling, referral, training, or

otherwise making arrangements for the procedure or a part of a

9

health service program or research activity, depending on whether

aid is provided by such actions.

10

“Assist in the performance” was originally intended to cover only those individuals in the

11

operating room who actually assisted the physician in carrying out the abortion or sterilization

12

procedure. This is clear from the colloquy between Senator Russell Long and Senator Church

13

on the floor prior to the passage of the amendment:

14

Mr. Long: The thought occurs to me that it would seem

15

reasonable to say that where one seeks a sterilization

procedure or an abortion, it could not be performed

16

because there might be a nurse or an attendant

somewhere in the hospital who objected to it. If it

17

was not a matter of concern to that individual, it

seems to me that that is getting to be a little far-

18

fetched, that is, that someone who had nothing to do

with the matter and was not involved in it one way or

19

the other, just someone who happened to be working

in a hospital, and was not involved in an abortion or

20

a sterilization procedure, could veto the rights of a

physician and the rights of patients to have a

21

procedure which the Supreme Court has upheld.

22

Mr. Church: Let me make clear, Mr. President, that such is not

my intention. I understand the basis for the

23

expression of concern on the part of the Senator from

Louisiana, but the words on line 19, “. . . of such

24

physician or other health care personnel, . . .” relate

back to the same words used on lines 12 and 13 and

25

must be read in context with those words.

26

Mr. Long: If I understand what the Senator is saying, he is

saying that a nurse or an attendant who has religious

27

feelings contrary to sterilization or abortion should

not be required and would not be required by any

28

Federal activity to participate in any such procedure

13

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1

to which they hold strong moral or religious

convictions to the contrary.

2

Mr. Church: That is correct.

3

Mr. Long: So that this would not, in effect, say that one who

4

sought such an operation would be denied it because

someone working in the hospital objected who had

5

no responsibility, directly or indirectly with regard

to the performance of that procedure. It would only

6

be that one who was involved in performing the

operation or in assisting to perform the operation

7

could not be required to participate when he or she

held convictions against that type of procedure.

8

Mr. Church: The Senator is correct. The amendment is meant

9

to give protection to the physicians, to the nurses,

to the hospitals themselves, if they are religious

10

affiliated institutions. So the fact Federal funds

may have been extended will not be used as an

11

excuse for requiring physicians, nurses, or

institutions to perform abortions or sterilizations that

12

are contrary to their religious precepts. That is the

objective of the amendment. There is no intention

13

here to permit a frivolous objection from someone

unconnected with the procedure to be the basis for a

14

refusal to perform what would otherwise be a legal

operation.

15

119 Cong. Rec. 9597 (1973) (emphasis added). Accordingly, the phrase “assist in the

16

performance” refers only to the assistance provided by nurses or other medical professionals

17

involved in the procedure itself in the operating room, not the ambulance driver or anyone else

18

outside the time and place of the procedure itself.

19

HHS nevertheless insists that “driving a person to a hospital or clinic for a scheduled

20

abortion could constitute ‘assisting in the performance of’ an abortion, as would physically

21

delivering drugs for inducing abortion.” 84 Fed. Reg. 23,188 (May 21, 2019). At recent oral

22

argument for a similar challenge to the same rule in the United States District Court for the

23

Southern District of New York, District Judge Paul Engelmayer presented counsel for HHS with

24

the following situation:

25

A pregnant woman takes an ambulance across Central Park to

26

Mt. Sinai Hospital and, midway through, from conversation with

the ambulance driver, it becomes clear that she is headed there to

27

terminate an ectopic pregnancy. The driver tells her to get out in

the middle of the park, and the employer fires the ambulance

28

driver for that. Is the ambulance driver assisting in the

14

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1

performance of the procedure if the ambulance driver takes her to

the hospital?

2

In response, government counsel insisted “[t]he rule protects an ambulance driver’s ability

3

not to assist in the performance of a procedure to which the driver has an objection” (State of

4

California, Dkt. No. 133, Exh. A at 116:21–25; 117:1–18). During oral argument in the instant

5

action, HHS again insisted that ambulance drivers should and would be covered (Id., Dkt. No.

6

139 at 48–52).

7

Under a proper reading of the Church Amendment, however, no driver or EMT could

8

ever qualify, under any circumstance, as an individual who “assists in the performance of” an

9

abortion or sterilization. The colloquy between Senators Church and Long demonstrated that

10

the Church Amendment was meant to protect those who would be involved in carrying out the

11

procedure itself, such as physicians, nurses assisting the physicians, and others in the operating

12

room necessary for the procedure itself. An ambulance driver assists in no such way.

13

Ambulance drivers and EMTs aboard ambulances transport and stabilize. Accordingly, neither

14

an ambulance driver nor an EMT “assist in the performance” and thus fall outside the Church

15

Amendment.

16

Also covered under HHS’s interpretation of the rule would be schedulers and

17

housekeeping staff. HHS has stated “[s]cheduling an abortion or preparing a room and the

18

instruments for an abortion are necessary parts of the process of providing an abortion, and

19

it is reasonable to consider performing these actions as constituting ‘assistance.’” 84 Fed. Reg.

20

23,186–87 (May 21, 2019). Under the rule, a clerk scheduling surgeries for an operating room

21

could refuse to reserve slots for abortions and sterilizations. So could an employee who merely

22

sterilizes and places surgical instruments or ensures that the supply cabinets in the operating

23

room are fully stocked in preparation for an abortion. For the reasons already stated, the Church

24

Amendment was never intended to apply to those who have no role in the actual performance of

25

the abortion or sterilization. Neither those who schedule abortions nor those who prepare an

26

operating room assist in the performance of such a procedure under the Church Amendment.

27

HHS also states it disagrees with any interpretation of “assisting in the performance” that

28

excludes pre- and post-operative support to an abortion patient. Id. at 23,187. But Senators

15

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1 Long and Church agreed that it would be far-fetched for the amendment to cover situations

2 in which “one seeks a sterilization procedure or an abortion, [and] it could not be performed

3 because there might be a nurse or an attendant somewhere in the hospital who objected to it.”

4 119 Cong. Rec. 9597 (1973). Pre- and post-op tasks include monitoring and ensuring that a

5 patient is stable and/or recovering following a procedure such as taking vitals and placing an

6 intravenous line — tasks that are generic to surgeries in general, not specific to abortions or

7 sterilization.1

8

(2) “Health Care Entity” For Purposes

of the Coats-Snowe Amendment.

9

The reader will recall that the Coats-Snowe Amendment protected “health care

10

entities” that refused to undergo or provide training for abortions against discrimination.

11

The Coats-Snowe Amendment defined “health care entity” as including “an individual

12

physician, a postgraduate physician training program, and a participant in a program of training

13

in the health professions,” meaning, in short, doctors, residency programs, and medical students

14

or residents. 42 U.S.C. 238n(c)(2). The Coats-Snowe Amendment followed a new standard by

15

the Accrediting Council on Graduate Medical Education “indicating that failure to provide

16

training for induced abortions could lead to loss of accreditation” for hospitals and training

17

programs. The purpose of the amendment was thus to (1) ensure medical training programs

18

such as schools and residencies were not required to provide abortion training in order to be

19

accredited, and (2) extend conscience protections to students and faculty in the context of

20

training for abortions as well as to extend the protection to state schools (not just religious

21

schools). 142 Cong. Rec. 2264–65 (1996).

22

The final rule, however, redefines “health care entity” for purposes of the Coats-Snowe

23

Amendment as:

24

(1) For purposes of the Coats-Snowe Amendment (42 U.S.C.

25

238n) and the subsections of this part implementing that law

(§ 88.3(b)), an individual physician or other health care

26

27

1 This order recognizes that the physical act of removing and disposing a fetus during and immediately

28 following an abortion would be “assisting in its performance.” The definition proposed by HHS, however, goes
well beyond such assistance and cannot be squared with the statute itself.

16

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1

professional, including a pharmacist; health care personnel;

a participant in a program of training in the health professions;

2

an applicant for training or study in the health professions; a

postgraduate physician training program; a hospital; a medical

3

laboratory; an entity engaging in biomedical or behavioral

research; a pharmacy; or any other health care provider or

4

health care facility. As applicable, components of State or

local governments may be health care entities under the

5

Coats-Snowe Amendment.

6 84 Fed. Reg. 23,264 (May 21, 2019).

7

The problem with the redefinition in the rule is that it adds several new persons and

8 entities beyond those in the actual statute (as italicized above). To be precise, the following

9 did not appear in the Coats-Snowe Amendment (or its legislative history) but now surface in the

10 redefinition of “health care entity”:

11

health care professional, a pharmacist, health care personnel, an

applicant for training or study in the health professions, a hospital,

12

medical laboratory, an entity engaging in biomedical or behavioral

research, a pharmacy, or any other health care provider or health

13

care facility.

14 To be sure, some of these entities appeared in other conscience statutes. For example, the

15 Church Amendment protected “applicants for training or study in the health professions.”

16 The Church Amendment also referenced entities engaging in biomedical or behavior research,

17 but only as entities that were prohibited from discriminating. Under the final rule, however,

18 they have been moved to the other side of the ledger — as entities protected from discrimination

19 and, equally problematic, imported from a different statute.

20

Other additions, however, never appeared in any conscience statute. Let’s start with

21 pharmacists and pharmacies. The rule states that “[a] pharmacy is a health care entity,

22 considering the ordinary meaning of that term, because it provides pharmaceuticals and

23 information, which are health care items and services.” 84 Fed. Reg. 23,196 (May 21, 2019).

24 Nowhere in the text or legislative history of the Coats-Snowe Amendment, however, is a “health

25 care entity” defined as one that provides health care items and services. Rather, when it comes

26 to individuals (as opposed to organizations), the statute consistently includes only those

27 engaging in or needing to engage in the actual performance of the procedure in question or

28 assisting in the procedure, such as doctors and nurses.

17

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1

The Coats-Snowe Amendment was aimed at protecting doctors, residents, and

2 medical students in the context of training. Pharmacists, like ambulance drivers, don’t fit.

3 A pharmacist’s only possible role in an abortion or sterilization procedure would be dispensing

4 advance medication to facilitate the procedure or post-procedure medication to stabilize or heal

5 the patient, such as pain medication. Dispensing such medication, however, is not specific to the

6 performance of the procedure itself.

7

“Medical laboratories” is another term added into the new definition that did not appear

8 in another statute. The Coats-Snowe Amendment, to repeat, expressly defined “health care

9 entity” as “an individual physician, a postgraduate physician training program, and a participant

10 in a program of training in the health professions.” Medical laboratories run tests that assist in

11 diagnosing or in analyzing the outcome of certain procedures. They do not fit the statutory

12 definition. Medical laboratories are thus not health care entities as defined or contemplated

13 by the Coats-Snowe Amendment and the final rule was wrong to include them.

14

HHS has made many other additions in defining the term and justified doing so by

15 stating that the Coats-Snowe Amendment used the word “include.” It is, of course, true that

16 the statutory definition used the verb “include,” and the Supreme Court has held that the word

17 “include” can signal that the list that follows is meant to be illustrative rather than exhaustive.

18 Samantar v. Yousuf, 560 U.S. 305, 317 (2010). But when interpreting Congress’s intent or

19 administrative regulations, the word “include” is nonetheless bounded by the intent expressed

20 in the legislative history. See United States v. $215,587.22 in U.S. Currency Seized from Bank

21 Account No. 100606401387436 held in the Name of JJ Szlavik Companies, Inc. at Citizens Bank,

22 306 F. Supp. 3d 213, 218 (D.D.C. 2018). In other words, even when the listed terms in an

23 inclusive definition are illustrative, a list still cannot be inflated with terms lacking the defining

24 essence of those in the list, as has occurred here. See Russell Motor Car Co. v. United States,

25 261 U.S. 514, 519 (1923).

26

(3) “Health Care Entity” For Purposes of the

Weldon Amendment and the Affordable Care Act.

27

The Weldon Amendment itself provided its own statutory definition of “health care

28

entity,” stating “[i]n this subsection, the term ‘health care entity’ includes an individual

18

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1 physician or other health care professional, a hospital, a provider-sponsored organization, a

2 health maintenance organization, a health insurance plan, or any other kind of health care

3 facility, organization or plan.” Pub. L. No. 1154-245, Div. B., § 507(d)(2), 132 Stat. 2981, 3118

4 (2018). Note that this definition differed from the statutory definition of the same term in the

5 Coats-Snowe Amendment. The final rule, however, redefines “health care entity” for purposes

6 of the Weldon Amendment (and for purposes of the Affordable Care Act, discussed hereafter)

7 as:

8

(2) For purposes of the Weldon Amendment (e.g., Department of

Defense and Labor, Health and Human Services, and Education

9

Appropriations Act, 2019, and Continuing Appropriations Act,

2019, Pub. L. 115–245, Div. B., sec. 507(d), 132 Stat. 2981,

10

3118 (Sept. 28, 2018)), Patient Protection and Affordable Care

Act section 1553 (42 U.S.C. 18113), and to sections of this part

11

implementing those laws (§ 88.3(c) and (e)), an individual

physician or other health care professional, including a

12

pharmacist; health care personnel; a participant in a program of

training in the health professions; an applicant for training or

13

study in the health professions; a postgraduate physician training

program; a hospital; a medical laboratory; an entity engaging in

14

biomedical or behavioral research; a pharmacy; a provider-

sponsored organization; a health maintenance organization; a

15

health insurance issuer; a health insurance plan (including group

or individual plans); a plan sponsor or third-party administrator;

16

or any other kind of health care organization, facility, or plan.

As applicable, components of State or local governments may be

17

health care entities under the Weldon Amendment and Patient

Protection and Affordable Care Act section 1553.

18

84 Fed. Reg. 23,264 (May 21, 2019). The following individuals and organizations did not

19

appear in the Weldon Amendment (nor in its legislative history), but now appear as part of the

20

expanded definition of “health care entity” for purposes of the Weldon Amendment:

21

pharmacist, health care personnel, a participant in a program of

22

training in the health professions, an applicant for training or study

in the health professions, a postgraduate physician training

23

program, a medical laboratory, an entity engaging in biomedical

or behavioral research; a pharmacy, a health insurance issuer, and

24

a plan sponsor or third-party administrator.

25

In presenting the Amendment, Representative Weldon stated the following:

26

The reason I sought to include this provision in the bill is my

experience as a physician, and I still see patients, is that the

27

majority of nurses, technicians and doctors who claim to be

pro-choice who claim to support Roe v. Wade always say to me

28

that they would never want to participate in an abortion, perform

an abortion, or be affiliated with doing an abortion. This provision

19

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1

is meant to protect health care entities from discrimination because

they choose not to provide abortion services.

2

In addressing Representative Zoe Lofgren’s concern that the “sweeping new legislation”

3

would allow “any individual physician, health care professional, hospital, HMO, health

4

insurance plan or any other kind of health care facility, organization, or plan from providing,

5

paying for, or even referring a patient for abortion services,” Representative Weldon stated that,

6

“[t]his provision is intended to protect the decisions of physicians, nurses, clinics, hospitals,

7

medical centers, and even health insurance providers from being forced by the government to

8

provide, refer, or pay for abortions.” 150 Cong. Rec. 25,044–45 (2004).

9

As with the Coats-Snowe Amendment, the redefinition for purposes of the Weldon

10

Amendment adds a host of individuals and organizations under “health care entities.” Some of

11

these terms come from conscience provisions in other statutes and others do not. Regardless,

12

none of these additions was defined or contemplated in the underlying statute. For example, a

13

pharmacist has again been included. As Representative Weldon stated, however, the protection

14

against discrimination was only extended to “physicians, nurses, clinics, hospitals, medical

15

centers, and even health insurance providers.” Unlike those listed individuals and entities, a

16

pharmacist does not play a role specific to the performance of an abortion or sterilization

17

procedure. The addition of individuals such as pharmacists and other such organizations like

18

pharmacies fall outside the intent of the underlying statute and the final rule is wrong to include

19

them.

20

*

*

*

21

The Affordable Care Act protected health care entities from discrimination in the

22

context of assisted suicides. The ACA defined the term “health care entity” in exactly the

23

same way as the Weldon Amendment. The same entities added in by the new rule for the

24

Weldon Amendment was also added in for purposes of the ACA. Nonetheless, the definition

25

of “health care entity” under the ACA presents a closer question, given the fact that the ACA

26

applied to health care entities in the context of assisted suicides and not abortions and given

27

that, unlike the other statutes, the ACA did delegate legislative rulemaking power to the agency.

28

We can accept that a pharmacy is a “health care entity” for purposes of the ACA. Although

20

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1 pharmacists do not play a significant role in treatment in the context of abortions and

2 sterilizations, they do in assisted suicides. For example, one method of assisted suicide requires

3 patients to ingest lethal amounts of barbital capsules, and a pharmacist could be required to

4 dispense such medication and ultimately cause the patient’s death. In that context, it is clear

5 that the pharmacist would have a role in the actual treatment of the patient. This order is thus

6 unable to find a clear conflict of the definition of “health care entity” for purposes of the ACA

7 in the challenged rule versus the definition in the ACA.

8

(4) “Entity.”

9

At this point, let’s return briefly to the Church Amendment. Although it did not use the

10 term “health care entity,” it did use the term “entity.” It also used the term “individual.” It

11 consistently used those terms so as to distinguish “entities” from “individuals,” the former being

12 organizations and the latter being natural persons. This is quite evident from a simple reading of

13 the statute.

14

The final rule, however, merges the two. Specifically, it defines “entity” to include,

15 among others, “a ‘person’ as defined in 1 U.S.C. 1.” In turn, Section 1 defines “person” to

16 include: “corporations, companies, associations, firms, partnerships, societies, and joint stock

17 companies, as well as individuals” (emphasis added). Therefore, the rule redefines “entity” to

18 include “individual,” exactly what the Church Amendment avoided. The new rule was wrong to

19 do so.

20

(5) “Discriminate” or “Discrimination.”

21

The final rule defines “discriminate or discrimination” to include:

22

(1) To withhold, reduce, exclude from, terminate, restrict, or make

unavailable or deny any grant, contract, subcontract, cooperative

23

agreement, loan, license, certification, accreditation, employment,

title, or other similar instrument, position, or status;

24

(2) To withhold, reduce, exclude from, terminate, restrict, or make

25

unavailable or deny any benefit or privilege or impose any penalty;

or

26

(3) To utilize any criterion, method of administration, or site

27

selection, including the enactment, application, or enforcement of

laws, regulations, policies, or procedures directly or through

28

contractual or other arrangements, that subjects individuals or

entities protected under this part to any adverse treatment with

21

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1

respect to individuals, entities, or conduct protected under this part

on grounds prohibited under an applicable statute encompassed by

2

this part.

3

(4) Notwithstanding paragraphs (1) through (3) of this definition,

an entity subject to any prohibition in this part shall not be

4

regarded as having engaged in discrimination against a protected

entity where the entity offers and the protected entity voluntarily

5

accepts an effective accommodation for the exercise of such

protected entity’s protected conduct, religious beliefs, or moral

6

convictions. In determining whether any entity has engaged in

discriminatory action with respect to any complaint or compliance

7

review under this part, OCR will take into account the degree to

which an entity had implemented policies to provide effective

8

accommodations for the exercise of protected conduct, religious

beliefs, or moral convictions under this part and whether or not the

9

entity took any adverse action against a protected entity on the

basis of protected conduct, beliefs, or convictions before the

10

provision of any accommodation.

11

(5) Notwithstanding paragraphs (1) through (3) of this definition,

an entity subject to any prohibition in this part may require a

12

protected entity to inform it of objections to performing, referring

for, participating in, or assisting in the performance of specific

13

procedures programs, research, counseling, or treatments, but only

to the extent that there is a reasonable likelihood that the protected

14

entity may be asked in good faith to perform, refer for, participate

in, or assist in the performance of, any act or conduct just

15

described. Such inquiry may only occur after the hiring of,

contracting with, or awarding of a grant or benefit to a protected

16

entity, and once per calendar year thereafter, unless supported by

a persuasive justification.

17

(6) The taking of steps by an entity subject to prohibitions in this

18

part to use alternate staff or methods to provide or further any

objected-to conduct identified in paragraph (5) of this definition

19

would not, by itself, constitute discrimination or a prohibited

referral, if such entity does not require any additional action by,

20

or does not take any adverse action against, the objecting protected

entity (including individuals or health care entities), and if such

21

methods do not exclude protected entities from fields of practice

on the basis of their protected objections. Entities subject to

22

prohibitions in this part may also inform the public of the

availability of alternate staff or methods to provide or further the

23

objected-to conduct, but such entity may not do so in a manner that

constitutes adverse or retaliatory action against an objecting entity.

24

84 Fed. Reg. 23,263 (May 21, 2019). The problematic part of the new rule is its restriction on

25

inquiry into conscientious objections during the hiring process (italicized above), something

26

none of the underlying statutes expressly barred.

27

The Church Amendment, for example, provided that certain entities could not

28

“discriminate in the employment, promotion, or termination of employment of any physician or

22

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1 other health care personnel” or “discriminate in the extension of staff or other privileges to any

2 physician or other health care personnel,” 42 U.S.C. § 300a-7(c), but nowhere did it expressly

3 bar inquiry into any conscientious objections in the hiring process.

4

Plaintiffs attack the new definition because it does not include an “undue hardship”

5 exception. To be clear, however, no federal conscience statute ever defined “discriminate” or

6 “discrimination,” ever referred to Title VII, or itself provided any undue hardship exception.

7 At first blush, therefore, it is a bit hard to grasp plaintiffs’ grievance.

8

Plaintiffs showcase a Florida case wherein a pro-life nurse applied for employment at a

9 Title X health center. She applied for a position as an antepartum, laborist, postpartum, and

10 preventative care nurse. Hellwege v. Tampa Family Health Centers, 103 F. Supp. 3d 1303, 1306

11 (M.D. Fla. 2015). If the health center had not been able to inquire about any ethical objections

12 she had to doing those jobs, it is possible she could have been staffed on an abortion procedure

13 and only learned of her objection after she was on the job. Surely, the employer in such

14 circumstance can ask if the applicant would have any conscience objection to doing the very

15 job at issue. The district judge in Hellwege did not reach this issue, as she found the Church

16 Amendment did not provide a private right of action. But scenarios like this could jeopardize

17 federal funding under the challenged rule.

18

Plaintiffs are correct that Title VII, 42 U.S.C. § 2000e–2(a), provides protection for

19 applicants of employment against discrimination based on their religious beliefs, yet provides

20 an undue hardship exception. Specifically, Title VII defines the term “religion” to include “all

21 aspects of religious observance and practice, as well as belief, unless an employer demonstrates

22 that he is unable to reasonably accommodate an employee’s or prospective employee’s religious

23 observance or practice without undue hardship on the conduct of the employer’s business.” Id.

24 at § 2000e(j). The Supreme Court has held that an undue hardship is one where an

25 accommodation would have “more than a de minimis cost.” Trans World Airlines, Inc. v.

26 Hardison, 432 U.S. 63, 84 (1977).

27

In sum, Title VII allows an employer to inquire about religious beliefs that might impose

28 a hardship on the employer and allows the employer to reject an applicant whose religious

23

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1 practices cannot be reasonably accommodated. The question here is whether the Title VII

2 scheme should be read into the Church Amendment (and any other conscience statutes covering

3 applicants for employment). After hewing to the words actually used in the Church Amendment

4 (as plaintiffs themselves have argued), it would be ironic to veer from the actual text of the

5 Church Amendment and to read concepts into it from the Civil Rights Act. But it’s unnecessary

6 to decide that point. Note well that the new rule includes an exception for “persuasive

7 justification,” meaning pre-employment inquiries can be made and applicants rejected when

8 supported by a “persuasive justification.” Although this term is not further defined by the rule,

9 this order expects that any undue hardships would supply persuasive justification. Therefore,

10 this order will not criticize the rule based on its definition of “discriminate” or “discrimination.”

11

(6) “Referral” or “Refer for.”

12

The final rule defines “referral” or “refer for” to include:

13

[T]he provision of information in oral, written, or electronic

form (including names, addresses, phone numbers, email or

14

web addresses, directions, instructions, descriptions, or other

information resources), where the purpose or reasonably

15

foreseeable outcome of provision of the information is to assist a

person in receiving funding or financing for, training in, obtaining,

16

or performing a particular health care service, program, activity,

or procedure.

17

84 Fed. Reg. 23,264 (May 21, 2019).

18

The Church Amendment only addressed the performance and assistance in the

19

performance of abortions, not referrals. The other conscience statutes, however, did use the

20

terms “referral” or “refer for.” The Coats-Snowe Amendment applied to health care entities

21

that chose not to train “in the performance of induced abortions, to require or provide such

22

training, to perform such abortions, or to provide referrals for such training or such abortions.”

23

42 U.S.C. §238n(a)(1) (emphasis added). The Medicaid and Medicare laws stated that

24

Medicaid-managed organizations and Medicare Advantage plans were not required to “provide,

25

reimburse for, or provide coverage of a counseling or referral service” if the organization

26

objected to the service on moral or religious grounds. 42 U.S.C. §§ 1395w-22(j)(3)(B),

27

1396u–2(b)(3)(B) (emphasis added). The Affordable Care Act prohibited qualified health care

28

plans from discriminating against “any individual health care provider or health care facility

24

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1 because of its unwillingness to provide, pay for, provide coverage of, or refer for abortions.”

2 Id. at § 18023(b)(4) (emphasis added). The Weldon Amendment applied to health care entities

3 that do not “pay for, provide coverage of, or refer for” abortions. Pub. L. No. 115-245, Div. B

4 § 507 (d), 132 Stat. 2981, 3118 (2018) (emphasis added).

5

The term was not defined nor addressed in the legislative history of any of the conscience

6 statutes. However, the legislative history of at least the Weldon Amendment provided some

7 guidance. In explaining his purpose, Representative Weldon stated:

8

This provision is intended to protect the decisions of physicians,

nurses, clinics, hospitals, medical centers, and even health

9

insurance providers from being forced by the government to

provide, refer, or pay for abortions.

10

*

*

*

11

This provision only applies to health care entities that refuse to

12

provide abortion services. Furthermore, the provision only affects

instances when a government requires that a health care entity

13

provide abortion services. Therefore, contrary to what has been

said, this provision will not affect access to abortion, the provision

14

of abortion-related information or services by willing providers or

the ability of States to fulfill Federal Medicaid legislation.

15

150 Cong. Rec. 25,044–45(2004) (emphasis added).

16

Therefore, Representative Weldon used the term “refer for” as separate from the

17

provision of information, and further explicitly clarified that the Amendment was not meant to

18

apply to the provision of abortion-related information.

19

Under the rule, however, the provision of any information by a “health care entity”

20

that could reasonably lead to a patient obtaining the procedure at issue would be considered a

21

“referral.” This means, for example, that an entity could lose all of its HHS funding if it fired a

22

hospital front-desk employee for refusing to tell a woman seeking an emergency abortion for an

23

ectopic pregnancy which floor she needed to go to for her procedure.

24

In justifying the need for this definition, HHS cites to National Institute of Family and

25

Life Advocates v. Becerra (NIFLA), a decision that addresses only the First Amendment

26

concerns in providing information regarding abortions to patients. 138 S. Ct. 2361 (2018).

27

Specifically in NIFLA, California enacted the FACT Act, which, in relevant part, required

28

licensed clinics that offered pregnancy-related services to provide a government-drafted script

25

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1 about the availability of state-sponsored services, including abortions. Id. at 2371. Although the

2 Supreme Court found such provision of information to violate the First Amendment, it did not

3 speak to whether the government-drafted script constituted a “referral” within the meaning of

4 any conscience statute. Id. at 2365.

5

Instead, as to the Weldon Amendment at least, the legislative history is more instructive

6 in determining whether the definition in the rule is appropriate. As quoted above, Representative

7 Weldon explicitly stated his amendment was not meant to cover the provision of abortion-related

8 information even though the rule covers exactly such provision of information (and more).

9 Additionally, the Weldon Amendment used the term “referral” versus the general provision of

10 information as separate things. This distinct use indicates that “referrals” are meant to cover

11 narrower circumstances than the general provision of information.

12

The text and legislative histories of the remaining statutes do not provide any guidance

13 regarding how “referral” or “refer for” should be defined. The use of the terms in the medical

14 profession, however, does provides some guidance. In particular, medical professionals use the

15 word “referral” as a term of art that ordinarily means a request from one physician to another to

16 assume responsibility of a patient’s specified problems. See, e.g., American Academy of Family

17 Physicians Clinical Policies (2019);2 32 C.F.R 199.2.3 In contrast, the informal provision of

18 general information such as emails, names, and directions are simply recommendations. The

19 definition of the term “referral” in the rule here thus goes beyond the meaning of the term as

20 understood by the very industry HHS purports it is trying to protect.

21

3.

INTERPRETIVE RULES VS. LEGISLATIVE RULES.

22

HHS claims that it has authority to promulgate a substantive, legislative rule, not a mere

23 interpretive rule. But there is no delegation of authority, either explicit or implicit, in any of the

24 underlying statutes to do so except in the limited instances noted above. An interpretive rule can

25

26

2 “A referral is a request from one physician to another to assume responsibility for management of

one or more of a patient’s specified problems.”

27

3 In the context of the Civilian Health and Medical Program of Uniformed Services (CHAMPUS), a

28 referral relationship exists when a CHAMPUS beneficiary is sent, directed, assigned or influenced to use a
specific CHAMPUS-authorized provider, or a specific individual or entity eligible to be a

CHAMPUS-authorized provider.

26

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1 never add to or subtract from a statute itself. A legislative rule can never subtract from a statute,

2 though one can add to it if the addition falls within the delegation authority. No rule of either

3 type can ever conflict with the statute itself. As shown above, the new definitions conflict with

4 the underlying statutes in significant ways.

5

A. Explicit Rulemaking Authority.

6

Nothing in the Church or Weldon amendments provided that HHS could promulgate

7 rules. Furthermore, the Coats-Snowe Amendment, Affordable Care Act and Medicare and

8 Medicaid statutes cited by defendants conferred upon HHS authority to make and publish

9 regulations only to a limited extent. For example, Section 1302 of Title 42 of the United States

10 Code granted the Secretary explicit authority to publish rules regarding the impact of Medicare

11 and Medicaid on small rural hospitals. Section 18113 furthermore explicitly designated HHS to

12 receive complaints of discrimination based on the statute prohibiting discrimination on

13 performing assisted suicides. HHS, of course, has rulemaking authority to implement the ACA

14 and Medicare and Medicaid programs as well as the applicable conscience provisions. 42 U.S.C.

15 §§ 18041, 1302, 1395w–26. But HHS does not have rulemaking authority to change, add to, or

16 subtract from conscience provisions in other statutes such as the Church and Weldon

17 Amendments.

18

Defendants further mistakenly rely on their “housekeeping authority” to support their

19 authority to promulgate the rule. None of the statutes cited by defendants provide HHS with the

20 authority to promulgate substantive rules. For example, 5 U.S.C. § 301 states:

21

The head of an Executive department or military department may

prescribe regulations for the government of his department, the

22

conduct of its employees, the distribution and performance of its

business, and the custody, use, and preservation of its records,

23

papers, and property. This section does not authorize withholding

information from the public or limiting the availability of records

24

to the public.

25 The Supreme Court and our court of appeals has found this statute to empower an agency to

26 create rules regarding internal procedure, practice, or organization, not substantive rules.

27 Chrysler Corp. v. Brown, 441 U.S. 281, 310 (1979); Exxon Shipping Co. v. U.S. Dep’t of

28 Interior, 34 F.3d 774, 777 (9th Cir. 1994). The challenged rule is not, however, a mere

27

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1 housekeeping rule. The expansive definitions in the rule depart from the federal statutes, as

2 explained above, changing the rights and responsibilities of health care providers. Coupled with

3 the addition of the termination of all HHS funding as a consequence of noncompliance, the rule

4 is undoubtedly substantive.

5

HHS next cites Section 121(c) of Title 40 of the United States Code, which provides the

6 General Services Administrator (GSA) with authority to promulgate the Federal Acquisition

7 Regulation. Section 121(d) goes on to state that the GSA does not have “the authority to

8 prescribe regulations on matters of policy applying to executive agencies.” Statements on

9 matters of policy are generally those that explain how an agency will enforce a statute or

10 regulation. Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243, 251–52 (D.C. Cir. 2014).

11

HHS also invokes the Uniform Administrative Requirements (UAR). The UAR is the

12 Office of Management and Budget’s (OMB) guidance for funding instruments. In relevant part,

13 the UAR provides agencies with the authority to ensure that federal funding programs are

14 implemented in full accordance with federal statutory and public policy requirements. While it

15 is true that the UAR also provides agencies with the authority to require fund recipients to

16 comply with federal statutes and regulations, it only allows for termination of an entity’s “federal

17 award,” which is defined as “Federal financial assistance,” in instances of noncompliance. 45

18 C.F.R. § 75.371(c). This means failure to comply under the UAR would only allow HHS to

19 terminate limited categories of funding such as grants, loans, and insurance. Under the new rule,

20 however, failure to comply would allow HHS to terminate all of an entity’s funding including

21 Medicaid and Medicare reimbursements. For California, this would mean a single instance of

22 noncompliance could jeopardize, for example, the $63 billion in federal funding it receives for

23 healthcare programs for one-third of Californians. There is no federal statute, UAR or

24 otherwise, that delegates to HHS the authority to promulgate a rule with such draconian

25 mechanisms.

26

27

28

28

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1

B. Implicit Rulemaking Authority.

2

Nor do defendants have implicit authority to promulgate the instant rule. The Supreme

3 Court has discussed the manner in which Congress may implicitly delegate legislative authority

4 to an agency:

5

Congress [] may not have expressly delegated authority or

responsibility to implement a particular provision or fill a

6

particular gap. Yet it can still be apparent from the agency’s

generally conferred authority and other statutory circumstances

7

that Congress would expect the agency to be able to speak with

the force of law when it addresses ambiguity in the statute or fills

8

a space in the enacted law.

9 United States v. Mead Corp., 533 U.S. 218, 229 (2001) (emphasis added). In other words,

10 Congress may implicitly authorize an agency to promulgate a legislative regulation if it is

11 apparent from the agency’s generally conferred authority and other statutory circumstances that

12 Congress would expect the agency to be able to speak with the force of law when addressing

13 ambiguity in a statute it administers. Such authorization may be indicated by express

14 congressional delegation of rulemaking or adjudicative authority, or by some other indication of

15 comparable congressional intent.

16

To show this, HHS refers back to the UAR as well as 5 U.S.C. § 301 and 40 U.S.C.

17 § 121(c) for the collective proposition that HHS has the authority to disburse funds and

18 to condition such funds based on compliance with federal conscience provisions. There,

19 nonetheless, exists a disconnect between HHS’s ability to condition funds based on compliance

20 with the law versus any ability to change the law. HHS attempts to bridge that disconnect by

21 explaining that, if HHS can and sometimes must condition funds based on compliance with the

22 statutes it administers, “it follows from these authorizations that HHS may . . . explain its

23 interpretation of those statutes” (State of California, Dkt. No. 54 at 13).

24

True, any and all agencies must interpret the statutes under their care. But if their

25 interpretations are wrong, then a court must set them aside. This order holds that Congress

26 has not made any express or implicit delegation of authority for HHS to issue legislative rules

27 (excepted in limited cases already cited) and thus it has no authority to add to the requirements

28 of the underlying statutes. This order also holds that while HHS may interpret the statutes in

29

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1 question, those interpretations may not add to or subtract from what the statutes themselves say.

2 This order further holds that the rule in question does exactly that by adding expansive

3 definitions in conflict with the statutes and imposing draconian financial penalties.

4

4. RELIEF.

5

When a rule is invalid, “[t]he reviewing court shall — hold unlawful and set aside agency

6 action, findings, and conclusions found to be — (A) arbitrary, capricious, an abuse of discretion,

7 or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege,

8 or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory

9 right . . . . ” 5 U.S.C. § 706(2). For the foregoing reasons, this order holds the rule is “not in

10 accordance with law,” by reason of conflict with the underlying statutes and is in conflict with

11 the balance struck by Congress in harmonizing protection of conscience objections vis-a-vis the

12 uninterrupted flow of health care to Americans. When a rule is so saturated with error, as here,

13 there is no point in trying to sever the problematic provisions. The whole rule must go.

14

HHS has requested that the relief granted, if any, be limited to the parties. This order

15 recognizes that in the past, our court of appeals has vacated nationwide preliminary injunctions

16 when the record only demonstrated the impact the ruling would have on plaintiffs and not on the

17 nation as a whole or when limited relief was sufficient to provide complete relief to the

18 plaintiffs. See, e.g., City & Cty. of San Francisco v. Trump, 897 F.3d 1225, 1244–45 (9th Cir.

19 2018); California v. Azar, 911 F.3d 558, 582–84 (9th Cir. 2018).

20

Those cases did not, however, involve motions for summary judgment in which an entire

21 rule was finally set aside, as here. The rule is not being enjoined or severed. It is being vacated

22 in its entirety based on the administrative record and not on any considerations specific to the

23 plaintiffs. Importantly, HHS does not and cannot cite to instances where a rule has been vacated

24 in its entirety, but limited only to the parties. All of the courts that have been presented with the

25 possibility of such a remedy have rejected it. E.g., O.A. v. Trump, 2019 WL 3536334, at *29

26 (D.D.C. Aug. 2, 2019) (Judge Randolph Moss); Desert Survivors v. U.S. Dep’t of the Interior,

27 336 F. Supp. 3d 1131, 1134 (N.D. Cal. 2018). When reviewing courts have determined that a

28 rule is facially invalid, the result is that the rule is vacated, “not that their application to the

30

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1 individual petitioners is proscribed.” Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d

2 1399, 1409 (D.C. Cir. 1998) (quoting Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir.

3 1989)); see also Make the Rd. N.Y. v. McAleenan, 2019 WL 4738070, at *49 (D.D.C. Sept. 27,

4 2019) (Judge Ketanji Brown Jackson) (finding that relief must not just be granted to the

5 plaintiffs but to anyone to whom it could apply “so as to give interested parties (the plaintiff, the

6 agency, and the public) a meaningful opportunity to try again”).

7

Setting aside the rule just for the plaintiffs in this case would not only go against the

8 foregoing precedent, but would also be illogical given the fact that the APA violations found

9 here would apply with equal force for any other plaintiff to whom the rule could apply. A rule

10 cannot be vacated in its entirety on the ground that it is “not in accordance with law” for a

11 limited group of parties only. It can only be vacated as to all applicable parties. And limiting

12 relief would be especially illogical here given the fact that other courts have set aside the rule

13 already.4

14

In light of the fact that the rule is vacated in its entirety, this order will and need not reach

15 the remaining constitutional claims.

16

5.

REQUESTS FOR JUDICIAL NOTICE, USE OF DECLARATIONS, AND

17

MISCELLANEOUS MOTIONS.

18

Federal Rule of Evidence 201(b) permits courts to take judicial notice of any fact “that is

19 not subject to reasonable dispute because it . . . can be accurately and readily determined from

20 sources whose accuracy cannot reasonably be questioned.” While a court may take judicial

21 notice of matters of public record at the motion to dismiss stage, it cannot take judicial notice of

22 disputed facts contained in such public records. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d

23 988, 999 (9th Cir. 2018).

24

Plaintiffs request judicial notice of the following documents: (1) the HHS Budget,

25 (2) the HHS Guidelines for Regulatory Impact Analysis (2016), (3) the FDA’s “Importance of

26

27

4 On November 6, 2019, the United States District Court for the Southern District of New York

28 vacated the rule in its entirety on a nationwide basis. State of New York, et al. v. U.S. Dep’t of Health & Human
Servs., C 19-04676 (Dkt. No. 248).

31

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1 Influenza Vaccination for Health Care Personnel,” (4) HHS, Office of Population Affairs,

2 definition of “sterilization,” (5) HHS “Factsheet, Final Conscience Regulation,” (6) White

3 House, Remarks by President Trump at the National Day of Prayer Service, (7) excerpts from

4 the congressional record from the 93rd Congress (Senate), and (8) excerpts from the

5 congressional record from the 109th Congress (House of Representatives). Because these

6 documents are appropriate subjects of judicial notice, plaintiffs’ unopposed request is GRANTED.

7 Plaintiffs’ administrative motion to request judicial notice and their request to judicially notice

8 the transcript of oral arguments of the State of New York case is also GRANTED. The transcript

9 contains clarifications and concessions regarding the scope of the text of the rule that were

10 relevant to this Court’s decisionmaking.

11

The government has also opposed plaintiffs’ use of declarations in their briefing.

12 These declarations were not relevant in the determination of the Administrative Procedures Act

13 claims and is thus DENIED AS MOOT.

14

The motions for preliminary injunction (City and County of San Francisco Dkt. No. 14;

15 State of California Dkt. No. 11; County of Santa Clara Dkt. No. 36) and the State of California’s

16 administrative motion for leave to exceed the page limit for their preliminary injunction motion

17 (Dkt. No. 12) are DENIED AS MOOT.

18

CONCLUSION

19

For the foregoing reasons, defendants’ motion to dismiss and for summary judgment is

20 DENIED. To the extent stated above, plaintiffs’ motion for summary judgment is GRANTED.

21

The challenged rule is set aside and shall be unenforceable. This order gives plaintiffs

22 substantially all the relief they seek, although it has not reached all the claims tendered.

23 The undersigned judge accordingly believes this action is ready for appeal, and suggests that

24 all sides stipulate to entry of final judgment with reservation of all issues not reached in this

25 order in the event of a remand.

26

IT IS SO ORDERED.

27 Dated: November 19, 2019. 28

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

32

 
 Case 3:19-cv-02916-WHA Document 89 Filed 01/08/20 Page 1 of 2

RICHARD B. KATSKEE*

JAMES R. WILLIAMS (SBN 271253)

1 AMERICANS UNITED FOR SEPARATION GRETA S. HANSEN (SBN 251471)

OF CHURCH AND STATE 2 1310 L Street NW, Suite 200

LAURA S. TRICE (SBN 284837) MARY E. HANNA-WEIR (SBN 320011)

3

Washington, DC 20005 Tel: (202) 466-3234; Fax: (202) 466-3234

4 katskee@au.org

5

GENEVIEVE SCOTT* CENTER FOR REPRODUCTIVE RIGHTS

SUSAN P. GREENBERG (SBN 318055)
H. LUKE EDWARDS (SBN 313756) OFFICE OF THE COUNTY COUNSEL, COUNTY OF SANTA CLARA 70 West Hedding Street, East Wing, 9th Fl.
San José, CA 95110-1770

6 199 Water Street, 22nd Floor New York, NY 10038

Tel: (408) 299-5900; Fax: (408) 292-7240 mary.hanna-weir@cco.sccgov.org

7 Tel: (917) 637-3605; Fax: (917) 637-3666

gscott@reprorights.org 8
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9 LAMBDA LEGAL DEFENSE AND

EDUCATION FUND, INC. 10 105 West Adams, 26th Floor

11

Chicago, IL 60603-6208 Tel: (312) 663-4413; Fax: (312) 663-4307

LEE H. RUBIN (SBN 141331) MAYER BROWN LLP Two Palo Alto Square, Suite 300 3000 El Camino Real Palo Alto, CA 94306-2112 Tel: (650) 331-2000; Fax: (650) 331-2060 lrubin@mayerbrown.com
* Admitted Pro Hac Vice

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Counsel for Plaintiffs

13

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

14 COUNTY OF SANTA CLARA, TRUST WOMEN

15

SEATTLE, LOS ANGELES LGBT CENTER, WHITMAN-WALKER CLINIC, INC. d/b/a

16 WHITMAN-WALKER HEALTH, BRADBURYSULLIVAN LGBT COMMUNITY CENTER,

17 CENTER ON HALSTED, HARTFORD GYN

CENTER, MAZZONI CENTER, MEDICAL 18 STUDENTS FOR CHOICE, AGLP: THE

19

ASSOCIATION OF LGBTQ+ PSYCHIATRISTS, AMERICAN ASSOCIATION OF PHYSICIANS

Case No. 3:19-cv-02916

20 FOR HUMAN RIGHTS d/b/a GLMA: HEALTH PROFESSIONALS ADVANCING LGBTQ

[PROPOSED] FINAL JUDGMENT

21 EQUALITY, COLLEEN MCNICHOLAS, ROBERT BOLAN, WARD CARPENTER, SARAH Hon. William Alsup
22 HENN, and RANDY PUMPHREY,

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Plaintiffs,

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vs.

U.S. DEPARTMENT OF HEALTH AND 25 HUMAN SERVICES and ALEX M. AZAR, II, in
his official capacity as SECRETARY OF HEALTH 26 AND HUMAN SERVICES,

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Defendants.

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[PROPOSED] FINAL JUDGMENT — CASE NO. 3:19-cv-02916

Case 3:19-cv-02916-WHA Document 89 Filed 01/08/20 Page 2 of 2

1

[PROPOSED] FINAL JUDGMENT

2

For the reasons detailed in the Court’s November 19, 2019, Order (ECF No. 87), the Court

3 enters the following dispositions:

4

Plaintiffs’ Motion for Summary Judgment (see ECF No. 70; State of California v. Azar et

5 al., No. 3:19-cv-02769 (N.D. Cal.), ECF No. 113) is GRANTED. The challenged rule is set aside

6 and shall be unenforceable.

7

Defendants’ Motion to Dismiss Or, In the Alternative, for Summary Judgment (ECF No.

8 64) is DENIED.

9

Because Plaintiffs have received substantially all the relief they sought in this action, it is

10 unnecessary for the Court to reach the claims not addressed in the Court’s Order.

11

Final Judgment is hereby entered this __8__ day of January, 2020.

12

13 Date: __J_a_n_u_a_r_y_8_,_2_0_2_0_.___ 14 15

_____________________________
HONORABLE WILLIAM ALSUP United States District Judge

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[PROPOSED] FINAL JUDGMENT—CASE NO. 3:19-cv-02916