Franciscan Alliance, Inc. v. Becerra

553 F.Supp.3d 361

FRANCISCAN ALLIANCE, INC. et al., Plaintiffs,

v.Xavier BECERRA, Secretary of the United States Department of Health and Human Services ; and United States Department of Health and Human Services, Defendants.

v.American Civil Liberties Union of Texas et al., Intervenors.

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

United States District Court, N.D. Texas, Wichita Falls Division.

Signed August 9, 2021

As Amended August 16, 2021

Luke Goodrich, Joseph C. Davis, Mark Leonard Rienzi, Stephanie Hall Barclay, The Becket Fund for Religious Liberty, Washington, DC, for Plaintiffs Franciscan Alliance, Inc., Christian Medical and Dental Society, Specialty Physicians of Illinois, LLC.

David Jonathan Hacker, First Liberty Institute, Plano, TX, William Thomas Thompson, Office of the Attorney General, Austin, TX, for Plaintiffs State of Texas, State of Nebraska, Commonwealth of Kentucky, by and through Governor Matthew G. Bevin, State of Kansas, State of Louisiana, State of Arizona, State of Mississippi.

Bradley Philip Humphreys, Rhett Martin, Alexander Haas, Bailey Wilson Heaps, United States Department of Justice, Civil Division, Washington, DC, for Defendants Thomas E. Price, U.S. Department of Health and Human Services.

Kali Alanna Cohn, ACLU of Texas, Dallas, TX, Andre Segura, Brian Klosterboer, ACLU Foundation of Texas, Houston, TX, Brigitte Adrienne Amiri, James Esseks, Joshua Block, Lindsey Breton Kaley, Louise Melling, American Civil Liberties Union Foundation, New York, NY, Daniel Mach, American Civil Liberties Union Foundation, Washington, DC, Rebecca Scout Richters, ACLU of Nebraska, Lincoln, NE, for Intervenor American Civil Liberties Union of Texas.

Andre Segura, ACLU Foundation of Texas, Houston, TX, Brian Matthew Hauss, Brigitte Adrienne Amiri, James Esseks, Joshua Block, Lindsey Breton Kaley, Louise Melling, American Civil Liberties Union Foundation, New York, NY, Daniel Mach, American Civil Liberties Union Foundation, Washington, DC, Kali Alanna Cohn, ACLU of Texas, Dallas, TX, Rebecca Scout Richters, ACLU of Nebraska, Lincoln, NE, for Intervenor River City Gender Alliance.

MEMORANDUM OPINION AND ORDER

Reed O'Connor, UNITED STATES DISTRICT JUDGE

Before the Court are Plaintiffs’ Supplemental Brief on Remand (ECF No. 200), filed May 14, 2021; Intervenors’ Memorandum of Law in Opposition to Plaintiffs’ Supplemental Brief on Remand (ECF No. 201), filed June 4, 2021; Defendants’ Supplemental Brief on Remand (ECF No. 202), filed June 4, 2021; and Plaintiffs’ Supplemental Reply Brief on Remand (ECF No. 203), filed June 18, 2021. Having considered the motion, briefing, and applicable law, the Court GRANTS the motion.

I. BACKGROUND

Five years ago as part of the implementation of Section 1557 of the Affordable Care Act, 42 U.S.C. § 18116(a), the Department of Health & Human Services ("HHS") promulgated a rule requiring medical providers to perform and insure abortions and gender-transition procedures¹ or face penalties for unlawful discrimination on the basis of "termination of pregnancy" and "gender identity," respectively. Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31,375, 31,467 (May 18, 2016) (formerly codified as 45 C.F.R. § 92.4 (2016) ) (the "2016 Rule"); see also 20 U.S.C. § 1681 ("Title IX"). Already facing legal challenges,² a Catholic hospital association and a Christian healthcare professional association ("Christian Plaintiffs") objected to performing abortions and gender-transition procedures, which they view as harmful. Along with several states ("State Plaintiffs"), Christian Plaintiffs sued HHS to enjoin the enforcement of Section 1557 and the 2016 Rule in such a way that would violate their religious beliefs. Compl., ECF No. 1.

After a hearing, the Court concluded that it had jurisdiction over the dispute, that the 2016 Rule violated the APA by contradicting existing law and exceeding statutory authority, and that the 2016 Rule likely violated RFRA as applied to the Christian Plaintiffs. See Order, ECF No. 62. Accordingly, the Court granted a preliminary injunction, enjoining "Defendants from enforcing the [2016] Rule's prohibition against discrimination on the basis of gender identity or termination of pregnancy." Order 46, ECF No. 62. In light of an HHS notice of upcoming rulemaking proceedings addressing the 2016 Rule, the Court granted a stay of the case, retained jurisdiction, and maintained the full effect of its preliminary injunction in the interim. Order 10, ECF No. 108.

For sixteen months, the case remained stayed until the parties jointly requested the case be re-opened, which the Court allowed. See ECF Nos. 125, 126. In the former half of 2019, the parties fully briefed the Intervenors’ Motion to Intervene (ECF No. 129) and both State Plaintiffs’ and Christian Plaintiffs’ Motions for Partial Summary Judgment and Permanent Injunction (ECF Nos. 132, 135), addressing their APA and RFRA claims only. The Court granted the motion to intervene; granted in part Plaintiffs’ motions for summary judgment, finding the 2016 Rule violative of both the APA and RFRA; denied in part the motion, declining to grant a permanent injunction nationwide; and issued a final judgment to that effect. Mem. Op. 25, ECF No. 175; see also Final Judgment, ECF No. 176. Soon thereafter, the Court modified the Final Judgment to clarify that it vacated the 2016 Rule insofar as it defined "on the basis of sex" to include gender identity and termination of pregnancy. See Order, ECF No. 182. The Christian Plaintiffs appealed the denial of injunctive relief. Not. of Appeal, ECF No. 185.

While pending appeal, the landscape drastically shifted. HHS repealed the 2016 Rule and finalized a new rule in 2020. Nondiscrimination in Health and Health Education Programs or Activities, Delegation of Authority, 85 Fed. Reg. 37,160 (June 19, 2020) (the "2020 Rule"). The Supreme Court interpreted Title VII's prohibition of "sex discrimination" to include gender identity and sexual orientation in Bostock v. Clayton Cnty. , ––– U.S. ––––, 140 S. Ct. 1731, 207 L.Ed.2d 218 (2020). Two district courts extended Bostock ’s reasoning to Title IX as applied through Section 1557, entering injunctions modifying the 2020 Rule and purportedly restoring certain provisions of the 2016 Rule. See Walker v. Azar , 480 F. Supp. 3d 417, 430 (E.D.N.Y. 2020) ("As a result [of the district court's injunction], the definitions of ‘on the basis of sex,’ ‘gender identity,’ and ‘sex stereotyping’ currently set forth in [the 2016 Rule] will remain in effect."); Whitman-Walker Clinic, Inc. v. HHS , 485 F. Supp. 3d 1, 64 (D.D.C. 2020) ("HHS will be preliminarily enjoined from enforcing the repeal of the 2016 Rule's definition of discrimination ‘[o]n the basis of sex’ insofar as it includes ‘discrimination on the basis of ... sex stereotyping.’ "). President Biden issued an executive order declaring that his administration would apply Bostock ’s interpretation of Title VII to other statutes prohibiting sex discrimination. Exec. Order No. 13,988, 86 Fed. Reg. 7023 (Jan. 20, 2021). The Department of Justice issued guidance instructing federal agencies to apply Bostock ’s definition of sex discrimination to Title IX. Pamela S. Karlan, Principal Deputy Assistant Att'y Gen., U.S. Dep't of Justice, C.R. Div., Memorandum re: Application of Bostock v. Clayton County to Title IX of the Education Amendments of 1972 (Mar. 26, 2021). HHS began considering a new rule. See Order, Whitman-Walker Clinic, Inc. v. HHS , No. 20-5331 (D.C. Cir. Feb. 18, 2021) (staying the appeal from the preliminary injunction in light of ongoing agency proceedings).

The shifting landscape led the Fifth Circuit panel to remand the case to this Court for further consideration and to retain jurisdiction over the matter if again appealed. The panel offered this mandate:

On appeal, the providers argue that the district court should have granted them injunctive relief against the 2016 rule and the underlying statute, that they still suffer a substantial threat of irreparable harm under the 2016 rule, and that the subsequent developments have only made it clear that an injunction should have been granted in the first place. In response, the government contends that the case is moot and that the providers never asked the district court for relief against the underlying statute. On remand, the district court should consider these issues, and we express no view as to their relative merits at this time.

Franciscan All., Inc. v. Becerra , 843 F. Appx 662, 663 (5th Cir. 2021). Since the Fifth Circuit's remand and presumably spurred by the President's executive order and DOJ's guidance, HHS issued guidance documentation that it would now interpret Section 1557 to prohibit "gender identity" discrimination. "Notification of Interpretation and Enforcement" Dep't of Health and Hum. Servs., Notification of Interpretation and Enforcement of Section 1557 of the Affordable Care Act and Title IX of the Education Amendments of 1972 (May 10, 2021), https://www-hhs-gov.ezproxy.brunel.ac.uk/sites/default/files/ocr-bostock-notification.pdf (the "2021 Interpretation"). The Court ordered supplemental briefing, through which the Christian Plaintiffs asked the Court to permanently enjoin HHS

from interpreting or enforcing Section 1557 of the Affordable Care Act, 42 U.S.C. § 18116(a), or any implementing regulations thereto against Plaintiffs ... in a manner that would require them to perform or provide insurance coverage for gender-transition procedures or abortions ....

Pls.’ Proposed Order. ECF No. 200-1; see also Pls.’ Supp. Reply 2, ECF No. 203 ("an injunction here would merely protect Plaintiffs, leaving HHS free to promulgate any rules it wants."). The government and Intervenors ("the ACLU") opposed the motion, and it is ripe for the Court's consideration. See Ints.’ Supp. Resp., ECF No. 201; Defs.’ Supp. Resp., ECF No. 202; Pls.’ Supp. Reply, ECF No. 203.

II. LEGAL STANDARD

A. Summary Judgment

Summary judgment is...