Commonwealth v. President United States

930 F.3d 543

Commonwealth of PENNSYLVANIA; State of New Jersey

v.PRESIDENT UNITED STATES of America; Secretary United States Department of Health and Human Services; United States Department of Health and Human Services; Secretary United States Department of Treasury; United States Department of Treasury; Secretary United States Department of Labor; United States Department of Labor; United States of America

Little Sisters of the Poor Saints Peter and Paul Home (Intervenor in D.C.), Appellant in 17-3752, 19-1129

President United States of America, Secretary United States of Department of Health and Human Services, United States Department of Health and Human Services, Secretary United States Department of Treasury, United States Department of Treasury, Secretary United States Department of Labor, United States Department of Labor, Appellants in 18-1253, 19-1189 (Except President United States of America)

Nos. 17-3752

18-1253

19-1129

19-1189

United States Court of Appeals, Third Circuit.

Argued May 21, 2019

Filed July 12, 2019

As Amended July 18, 2019

Michael J. Fischer [ARGUED], Aimee D. Thomson, Office of Attorney General of Pennsylvania, 1600 Arch Street, Suite 300, Philadelphia, PA 19103, Glenn J. Moramarco, Office of Attorney General of New Jersey, Department of Law & Public Safety, Division of Law, Richard J. Hughes Justice Complex, 25 Market Street, P.O. Box 112, Trenton, NJ 08625, Counsel for Appellees Commonwealth of Pennsylvania and State of New Jersey

Lowell V. Sturgill, Jr., United States Department of Justice, Civil Division, 950 Pennsylvania Avenue, N.W., Room 7241, Washington, DC 20530, Hashim M. Moopan [ARGUED], United States Department of Justice, Civil Division, Appellate Staff, 950 Pennsylvania Avenue, N.W., Washington, DC 20530, Karen Schoen, United States Department of Justice, Civil Division, Appellate Section, 950 Pennsylvania Avenue, N.W. Room 7533, Washington, DC 20530, Counsel for Appellants President United States of America, Secretary United States Department of Health & Human Services, United States Department of Health & Human Services, United States Department of Treasury, Secretary United States Department of Treasury, United States Department of Labor, Secretary United States Department of Labor, and United States of America

Mark L. Rienzi [ARGUED], Lori H. Windham, Becket Fund for Religious Liberty, 1200 New Hampshire Avenue, N.W., Suite 700, Washington, DC 20036, Nicholas M. Centrella, Conrad O'Brien, 1500 Market Street, West Tower, Suite 3900, Philadelphia, PA 19102, Counsel for Appellee-Intervenor Little Sisters of the Poor Saints Peter and Paul Home

Jason R. LaFond, Office of Attorney General of Texas, 209 West 14th Street, 7th Floor, Austin, TX 78711, Counsel for Amici Curiae in Support of Appellants States of Texas, Alabama, Arkansas, Georgia, Idaho, Louisiana, Missouri, Nebraska, Oklahoma, South Carolina, and West Virginia

Elizabeth N. Dewar, Office of Attorney General of Massachusetts, 20th Floor, One Ashburton Place, McCormack Building, Boston, MA 02108, Counsel for Amici Curiae States of Massachusetts, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Michigan, Minnesota, Nevada, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington and the District of Columbia

Dariely Rodriguez, Lawyers' Committee for Civil Rights Under Law, 1500 K Street, N.W., Suite 900, Washington, DC 20005, Counsel for Amici Curiae Center for Reproductive Rights, Lawyers Committee for Civil Rights Under Law, California Womens Law Center, GLBTQ Legal Advocates and Defenders, LatinoJustice PRLDEF, Lawyers for Civil Rights, Legal Momentum, Legal Voice, Mississippi Center for Justice, National Center for Lesbian Rights, and Women's Law Project

Sara J. Rose, American Civil Liberties Union, 313 Atwood Street, Pittsburgh, PA 15213, Counsel for Amici Curiae American Civil Liberties Union, Anti Defamation League, Leadership Conference on Civil and Human Rights, and National Urban League

Thomas W. Hazlett, Stephen J. Kastenberg, Ballard Spahr, 1735 Market Street, 51st Floor, Philadelphia, PA 19103, Counsel for Amici Curiae Public Interest Law Center of Philadelphia, Washington Lawyers Committee for Civil Rights and Urban Affairs, Chicago Lawyers Committee for Civil Rights, Lawyers Committee for Civil Rights of the San Francisco Bay Area, and Public Counsel

Jeffrey Blumenfeld, Lowenstein Sandler, 2200 Pennsylvania Avenue, N.W., Suite 5, Washington, DC 20037, Counsel for Amici Curiae National Womens Law Center, National Latina Institute for Reproductive Health, Sisterlove Inc., and National Asian Pacific American Women Forum

Robert Dunn, Gibson Dunn & Crutcher, 1881 Page Mill Road, Palo Alto, CA 94304, Counsel for Amicus Curiae Religious Sisters of Mercy

Miles Coleman, Nelson Mullins Riley & Scarborough, 104 South Main Street, Suite 900, Greenville, SC 29601, Counsel for Amici Curiae Ronald J. Colombo, Richard Epstein, Carl H. Esbeck, David F. Forte, Richard W. Garnett, Esq., Professor Robert P. George, Mary Ann Glendon, Michael P. Moreland, Stacy Scaldo, and Michael Uhlmann

Bruce H. Schneider, Stroock Stroock & Lavan, 180 Maiden Lane, 38th Floor, New York, NY 10038, Counsel for Amici Curiae American Nurses Association, American College of Obstetricians and Gynecologists, American Academy of Nursing, American Academy of Pediatrics, and Physicians for Reproductive Choice and Health

Allan J. Arffa, Melina M. Meneguin-Layerenza, Sierra Robart, Paul Weiss Rifkind Wharton & Garrison, 1285 Avenue of the Americas, New York, NY 10019, Counsel for Amici Curiae Planned Parenthood Federation of America, National Health Law Program, and National Family Planning & Reproductive Health Association

Priscilla J. Smith, Yale Law School RRJP Clinic, 319 Sterling Place, Brooklyn, NY 11328, Counsel for Amicus Curiae Program for the Study of Reproductive Justice

Leah Bruno, Dentons US, 233 South Wacker Drive, Suite 5900, Chicago, IL 60606, Jeffrey S. Feldman, The Feldman Firm, 600 West Germantown Pike, Suite 400, Plymouth Meeting, PA 19462, Counsel for Amici Curiae United States Women's Chamber of Commerce and National Association for Female Executives

Joshua A. Matz, Kaplan Hecker & Fink, 350 Fifth Avenue, Suite 7110, New York, NY 10118, Counsel for Amicus Curiae Church State Scholars

Rhiannon N. Batchelder, Jamie A. Levitt, Morrison & Foerster, 250 West 55th Street, New York, NY 10019, Counsel for Amici Curiae American Association of University Women and Service Employees International Union

Richard B. Katskee, Americans United for Separation of Church & State, 1310 L Street, N.W., Suite 200, Washington, DC 20005, Counsel for Amicus Curiae Americans United for Separation of Church and State

Before: McKEE, SHWARTZ, and FUENTES, Circuit Judges.

OPINION OF THE COURT

SHWARTZ, Circuit Judge.

The Women's Health Amendment to the Affordable Care Act ("ACA") mandated that women's health insurance include coverage for preventive health care. Through the Amendment, Congress directed the Health Resources and Services Administration ("HRSA"), a component of the Department of Health and Human Services ("HHS"), to issue guidelines setting forth the preventive health care services that women should be provided. Among the services HRSA identified was contraceptive care. Nowhere in the enabling statute did Congress grant the agency the authority to exempt entities from providing insurance coverage for such services nor did Congress allow federal agencies to issue regulations concerning this coverage without complying with the Administrative Procedure Act.

Notwithstanding Congress's directives, in 2017, HHS and the Departments of Labor and Treasury (collectively, "the Agencies") promulgated regulations that expanded the entities that could invoke an exemption to the requirement that group health insurance plans cover contraceptive services as a form of women's preventive health care. Because the state plaintiffs are likely to succeed in proving that the Agencies did not follow the APA and that the regulations are not authorized under the ACA or required by the Religious Freedom Restoration Act ("RFRA"), we will affirm the District Court's order preliminarily enjoining the rules' enforcement nationwide.

I

A

Enacted as a part of the ACA, Pub. L. No. 111-148, 124 Stat. 119 (2010), the Women's Health Amendment mandates that "[a] group health plan¹ and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for ... preventive care and screenings [for women] ... as provided for in comprehensive guidelines supported by the [HRSA]."² 42 U.S.C. § 300gg-13(a), (a)(4). HRSA commissioned an expert panel from the Institute of Medicine to recommend covered services. In 2011, HRSA adopted the Institute's recommendations and issued guidelines defining preventive care to include all "Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity," "as prescribed" by a woman's health care provider. HRSA, Women's Preventive Services Guidelines, https://www.hrsa.gov/womens-guidelines/index.html (last visited May 8, 2019). This statutory and regulatory scheme was deemed the "Contraceptive Mandate." Several regulations and litigation followed.

The same day that the Guidelines were issued, the Agencies promulgated an interim final rule ("IFR"), followed by a final rule in 2013, to exempt certain religious employers—namely, churches and similar entities—from the Contraceptive Mandate. Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection Affordable Care Act, 77 Fed. Reg. 8,725 (Feb. 15, 2012) (the "Church Exemption"); Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and...