State of California, et al v. Alex Azar, II, et al

Filing 48

Submitted (ECF) Answering Brief for review. Submitted by Appellees Commonwealth of Virginia, State of California, State of Delaware, State of Maryland and State of New York in 18-15255, 18-15144, 18-15166. Date of service: 05/21/2018. [10880459] [18-15255, 18-15144, 18-15166] (Carter-Oberstone, Max) [Entered: 05/21/2018 04:09 PM]

Nos. 18-15144, 18-15166, 18-15255
IN THE U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
_______________________________________________

THE STATE OF CALIFORNIA, et al., Plaintiffs-Appellees,
v.
ALEX M. AZAR II, IN HIS OFFICIAL CAPACITY AS ACTING SECRETARY OF THE U.S.
DEPARTMENT OF HEALTH & HUMAN SERVICES, et al., Defendants-Appellants,
THE LITTLE SISTERS OF THE POOR JEANNE JUGAN RESIDENCE, MARCH FOR LIFE
EDUCATION AND DEFENSE FUND, Intervenors-Defendants-Appellants,
_______________________________________________

On Appeal from the U.S. District Court, Northern District of California
_______________________________________________

ANSWERING BRIEF FOR THE STATES OF CALIFORNIA, DELAWARE,
MARYLAND, NEW YORK, VIRGINIA
_______________________________________________
\

XAVIER BECERRA
Attorney General of California
Julie Weng-Gutierrez
Senior Assistant Attorney General
Kathleen Boergers
Supervising Deputy Attorney General
Karli Eisenberg
R. Matthew Wise
Deputy Attorneys General
Max Carter-Oberstone
Associate Deputy Solicitor General
455 Golden Gate Ave.
San Francisco, CA 94102-3660
[phone]
Attorneys for the State of California
MATTHEW P. DENN
Attorney General of Delaware
Ilona Kirshon
Deputy State Solicitor
Jessica M. Willey
David J. Lyons
Deputy Attorneys General
Attorneys for the State of Delaware

BRIAN E. FROSH
Attorney General of Maryland
Carolyn A. Quattrocki
Deputy Attorney General
Steven M. Sullivan
Solicitor General
Kimberly S. Cammarata
Director, Health Education & Advocacy
Attorneys for the State of Maryland
BARBARA D. UNDERWOOD
Acting Attorney General of New York
Lisa Landau
Bureau Chief, Health Care Bureau
Steven C. Wu
Deputy Solicitor General
Ester Murdukhayeva
Assistant Solicitor General
Attorneys for the State of New York
MARK R. HERRING
Attorney General of Virginia
Samuel T. Towell
Deputy Attorney General
Attorneys for the Commonwealth of Virginia

TABLE OF CONTENTS
Page

INTRODUCTION ......................................................................................... 1
JURISDICTIONAL STATEMENT .............................................................. 3
ISSUES PRESENTED FOR REVIEW ......................................................... 3
STATEMENT OF THE CASE ..................................................................... 3
A.

Statutory and Regulatory Framework ............................. 3

B.

The Challenged Religious and Moral Interim Final
Rules (IFRs) .................................................................. 12

C.

The Proceedings Below ................................................ 13

SUMMARY OF ARGUMENT ................................................................... 15
STANDARDS OF REVIEW ....................................................................... 20
ARGUMENT ............................................................................................... 20
I.

THE STATES HAVE ARTICLE III STANDING .............................. 20

II.

VENUE IS PROPER IN THE NORTHERN DISTRICT OF
CALIFORNIA ............................................................................. 28

III.

THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY
ENTERING A PRELIMINARY INJUNCTION PRESERVING THE
STATUS QUO ............................................................................ 32
A.

The States Are Likely to Succeed on the Merits .......... 32
1.

The IFRs Are Procedurally Defective for
Failure to Observe Notice & Comment
Procedures .......................................................... 32

2.

The Religious IFR Is Not Compelled by
RFRA .................................................................. 40

3.

Violation of Notice-and-Comment
Requirements Was Prejudicial ........................... 43

4.

Congress Has Not Excused the Agencies
from Notice-and-Comment Requirements ......... 49
i

TABLE OF CONTENTS
(continued)
Page

5.

The IFRs Are Substantively Invalid and
Unconstitutional ................................................. 53

B.

The States Will Suffer Immediate, Irreparable
Harm Absent a Preliminary Injunction ......................... 55

C.

By Preserving the Status Quo, the Preliminary
Injunction Appropriately Balances the Equities and
Serves the Public Interest .............................................. 63

D.

The District Court Properly Exercised Its
Discretion in Determining the Scope of the
Injunction ...................................................................... 66

CONCLUSION ............................................................................................ 69
STATEMENT OF RELATED CASES ....................................................... 71

ii

TABLE OF AUTHORITIES
Page
CASES
Alabama v. Army Corps of Eng’rs
382 F. Supp. 2d 1301 (N.D. Ala. 2005) ..................................... 17, 29, 30
Alcaraz v. Block
746 F.2d 593 (9th Cir. 1984) ....................................................... 32, 33, 34
Allina Health Servs. v. Sebelius
746 F.3d 1102 (D.C. Cir. 2014)............................................................... 46
Ariz. Dream Act Coal. v. Brewer
757 F.3d 1053 (9th Cir. 2014) ................................................................. 58
Asiana Airlines v. FAA
134 F.3d 393 (D.C. Cir. 1998)..................................................... 18, 49, 50
Bilyeu v. Morgan Stanley Long Term Disability Plan
683 F.3d 1083 (9th Cir. 2012) ................................................................. 28
Bresgal v. Brock
843 F.2d 1163 (9th Cir. 1987) ........................................................... 65, 66
Burwell v. Hobby Lobby Stores
134 S. Ct. 2751 (2014)...................................................................... passim
Buschmann v. Schweiker
676 F.2d 352 (9th Cir. 1982) ............................................................ passim
Cal. Communities Against Toxics v. EPA
688 F.3d 989 (9th Cir. 2012) ................................................................... 43
Cal. Dep’t of Parks & Recreation v. Bazaar Del Mundo Inc.
448 F.3d 1118 (9th Cir. 2006) ................................................................. 64
Cal. Pharmacists Ass’n v. Maxwell-Jolly
563 F.3d 847 (9th Cir. 2009) ....................................................... 18, 56, 57
iii

TABLE OF AUTHORITIES
(continued)
Page
Cal. Sea Urchin Comm’n v. Bean
883 F.3d 1173 (9th Cir. 2018) ................................................................. 20
Cal. Wilderness Coal. v. U.S. Dep’t of Energy
631 F.3d 1072 (9th Cir. 2011) ................................................................. 33
Califano v. Yamasaki
442 U.S. 682 (1979)............................................................... 19, 66, 68, 69
California ex rel. Imperial Cty. Air Pollution Control Dist. v.
U.S. Dep’t of the Interior
767 F.3d 781 (9th Cir. 2014) ....................................................... 15, 21, 27
Campbell v. Trump
No. 17-cv-2455 (D. Colo.)....................................................................... 68
Castillo-Villagra v. INS
972 F.2d 1017 (9th Cir. 1992) ..................................................... 18, 49, 52
Cent. Delta Water Agency v. United States
306 F.3d 938 (9th Cir. 2002) ............................................................. 25, 62
Chalk v. U.S. Dist. Court Cent. Dist. Cal.
840 F.2d 701 (9th Cir. 1988) ................................................................... 63
Chrysler Corp. v. Brown
441 U.S. 281 (1979)................................................................................. 33
Chubb Custom Ins. Co. v. Space Systems/Loral, Inc.
710 F.3d 946 (9th Cir. 2013) ................................................................... 31
City of Chicago v. Sessions
888 F.3d 272 (7th Cir. 2018) ....................................................... 65, 67, 68
City of Davis v. Coleman
521 F.2d 661 (9th Cir. 1975) ................................................................... 27

iv

TABLE OF AUTHORITIES
(continued)
Page
City of Sausalito v. O’Neill
386 F.3d 1186 (9th Cir. 2004) ..................................................... 21, 22, 26
Coal. for Parity, Inc. v. Sebelius
709 F. Supp. 2d 10 (D.D.C. 2010)........................................................... 49
Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv.
789 F.3d 1075 (9th Cir. 2015) ................................................................. 21
Council of Ins. Agents & Brokers v. Molasky-Arman
522 F.3d 925 (9th Cir. 2008) ................................................................... 25
CSX Transp. v. Surface Transp. Bd.
584 F.3d 1076 (D.C. Cir. 2009)......................................................... 46, 47
Custis v. United States
511 U.S. 485 (1994)................................................................................. 51
Decker Coal v. Commonwealth Edison
805 F.2d 834 (9th Cir. 1986) ................................................................... 20
Disney Enterprises, Inc. v. VidAngel, Inc.
869 F.3d 848 (9th Cir. 2017) ....................................................... 20, 32, 60
Earth Island Inst. v. Ruthenbeck
490 F.3d 687 (9th Cir. 2007) ................................................................... 67
Encino Motorcars v. Navarro
136 S. Ct. 2117 (2016)............................................................................. 54
EPA v. EME Homer City Generation, L.P.
134 S. Ct. 1584 (2014)............................................................................. 52
FCC v. Fox Television Stations, Inc.
556 U.S. 502 (2009)........................................................................... 33, 54

v

TABLE OF AUTHORITIES
(continued)
Page
Friends of Santa Clara River v. U.S. Army Corps of Eng’rs
887 F.3d 906 (9th Cir. 2018) ................................................................... 21
Garcia v. Google
786 F.3d 733 (9th Cir. 2015) ................................................................... 65
Gonzales v. Oregon
546 U.S. 243 (2006)........................................................................... 17, 41
Hawaii Helicopter Operators Ass’n v. FAA
51 F.3d 212 (9th Cir. 1995) ..................................................................... 37
Hawaii v. Trump
859 F.3d 741 (9th Cir. 2017) ............................................................. 26, 66
Helling v. McKinney
509 U.S. 25 (1993)................................................................................... 62
Hernandez v. Sessions
872 F.3d 976 (9th Cir. 2017) ................................................................... 57
Idaho Farm Bureau Fed’n v. Babbitt
58 F.3d 1392 (9th Cir. 1995) ....................................................... 37, 43, 48
In re ATM Fee Antitrust Litig.
686 F.3d 741 (9th Cir. 2012) ................................................................... 20
In re: Howmedica Osteonics Corp
867 F.3d 390 (3d Cir. 2017) .................................................................... 60
In re Ozenne
841 F.3d 810 (9th Cir. 2016) ................................................................... 53
Jifry v. FAA
370 F.3d 1174 (D.C. Cir. 2004)............................................................... 38

vi

TABLE OF AUTHORITIES
(continued)
Page
Lake Carriers’ Ass’n v. EPA
652 F.3d 1 (D.C. Cir. 2011) ..................................................................... 50
League of Wilderness Defenders/Blue Mountains Biodiversity
Project v. Connaughton
752 F.3d 755 (9th Cir. 2014) ............................................................. 19, 64
Leiva-Perez v. Holder
640 F.3d 962 (9th Cir. 2011) ................................................................... 57
Los Angeles Haven Hospice, Inc. v. Sebelius
638 F.3d 644 (9th Cir. 2011) ................................................................... 65
Lujan v. Defs. of Wildlife
504 U.S. 555 (1992)........................................................................... 21, 26
Lujan v. Nat’l Wildlife Fed.
497 U.S. 871 (1990)........................................................................... 19, 65
M.R. v. Dreyfus
697 F.3d 706 (9th Cir. 2012) ................................................................... 61
Mack Trucks, Inc. v. EPA
682 F.3d 87 (D.C. Cir. 2012)............................................................. 36, 38
Man-Seok Choe v. Torres
525 F.3d 733 (9th Cir. 2008) ................................................................... 37
Marcello v. Bonds
349 U.S. 302 (1955)................................................................................. 49
Massachusetts v. EPA
549 U.S. 497 (2007)..................................................................... 21, 22, 26
Massachusetts v. U.S. Dep’t of Health and Human Services
No. 17-11930-NMG, —F. Supp. 3d— (D. Mass. March 12,
2018) .................................................................................................. 24, 68
vii

TABLE OF AUTHORITIES
(continued)
Page
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v.
Patchak
567 U.S. 209 (2012)........................................................................... 28, 57
Maya v. Centex Corp.
658 F.3d 1060 (9th Cir. 2011) ................................................................. 24
Meinhold v. U.S. Dep’t of Def.
34 F.3d 1469 (9th Cir. 1994) ................................................................... 66
Melendres v. Arpaio
784 F.3d 1254 (9th Cir. 2015) ........................................................... 19, 67
Methodist Hosp. of Sacramento v. Shalala
38 F.3d 1225 (D.C. Cir. 1994)................................................................. 50
Michigan v. EPA
135 S. Ct. 2699 (2015)............................................................................. 53
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.
Auto. Ins. Co.
463 U.S. 29 (1983)................................................................................... 40
N. Mariana Islands v. United States
686 F. Supp.2d 7 (D.D.C. 2009).................................................. 19, 60, 64
Nat’l Audobon Soc’y v. Davis
307 F.3d 835 (9th Cir. 2002) ................................................................... 24
Nat’l. Mining Ass’n. v. U.S. Army Corps of Eng’rs
145 F.3d 1399 (D.C. Cir. 1998)............................................................... 68
Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv.
886 F.3d 803 (9th Cir. 2018) ............................................................. 59, 61
Network Automation, Inc. v. Advanced Sys. Concepts, Inc.
638 F.3d 1137 (9th Cir. 2011) ................................................................. 20
viii

TABLE OF AUTHORITIES
(continued)
Page
North Carolina Growers’ Ass’n v. United Farm Workers
702 F.3d 755 (4th Cir. 2012) ................................................................... 34
NRDC v. EPA
279 F.3d 1180 (9th Cir. 2002) ................................................................. 46
NRDC v. EPA
464 F.3d 1 (D.C. Cir. 2006) ..................................................................... 26
NRDC v. Evans
316 F.3d 904 (9th Cir. 2003) ................................................................... 38
NRDC v. Jewell
749 F.3d 776 (9th Cir. 2014) ............................................................. 15, 21
Oklahoma ex rel. Pruitt v. Burwell
51 F. Supp. 3d 1080 (E.D. Okl. 2014) ..................................................... 30
Paulsen v. Daniels
413 F.3d 999 (9th Cir. 2005) ............................................................ passim
Pennsylvania v. Trump
281 F. Supp. 3d 553 (E.D. Pa. 2017) ................................................. 49, 68
Priests For Life v. HHS
772 F.3d 229 (D.C. Cir. 2014)............................................................. 7, 40
Ragsdale v. Wolverine World Wide, Inc.
535 U.S. 81 (2002)................................................................................... 53
Recycle for Change v. City of Oakland
856 F.3d 666 (9th Cir. 2017) ................................................................... 28
Riverbend Farms, Inc. v. Madigan
958 F.2d 1479 (9th Cir. 1992) .......................................................... passim

ix

TABLE OF AUTHORITIES
(continued)
Page
Sagebrush Rebellion, Inc. v. Hodel
790 F.2d 760 (9th Cir. 1986) ................................................................... 43
Serv. Emp. Int’l Union, Local 102 v. Cnty. of San Diego
60 F.3d 1346 (9th Cir. 1994) ............................................................. 38, 39
Shinseki v. Sanders
556 U.S. 396 (2009)................................................................................. 44
Sierra Forest Legacy v. Sherman
646 F.3d 1161 (9th Cir. 2011) ..................................................... 22, 24, 25
Simula, Inc. v. Autoliv, Inc.
175 F.3d 716 (9th Cir. 1999) ................................................................... 57
Sorenson Commc’ns Inc. v. FCC
755 F.3d 702 (D.C. Cir. 2014)........................................................... 35, 38
Spencer Enterprises, Inc. v. U.S.
345 F.3d 683 (9th Cir. 2003) ................................................................... 30
Spokeo v. Robins
136 S. Ct. 1540 (2016)............................................................................. 21
Stafford v. Briggs
444 U.S. 527 (1980)................................................................................. 29
Sugar Cane Growers Coop. of Fla. v. Veneman
289 F.3d 89 (D.C. Cir. 2002) ................................................................... 60
Summers v. Earth Island Inst.
555 U.S. 488 (2009)........................................................................... 21, 68
Syed v. M-I, LLC
853 F.3d 492 (9th Cir. 2017) ................................................................... 53

x

TABLE OF AUTHORITIES
(continued)
Page
Texas v. United States
809 F.3d 134 (5th Cir. 2015) ................................................. 22, 26, 57, 65
Texas v. United States
86 F. Supp. 3d 591 (S.D. Tex. 2015) ....................................................... 30
Trump v. Int’l Refugee Assistance Project
137 S. Ct. 2080 (2017)....................................................................... 65, 66
U.S. Steel Corp. v. EPA
595 F.2d 207 (5th Cir. 1979) ............................................................. 18, 45
United States v. Valverde
628 F.3d 1159 (9th Cir. 2010) .......................................................... passim
W. Watersheds Project v. Kraayenbrink
632 F.3d 472 (9th Cir. 2011) ................................................................... 21
Washington v. Trump
847 F.3d 1151 (9th Cir. 2017) ................................................................. 65
Western Oil & Gas Ass’n v. EPA
633 F.2d 803 (9th Cir. 1980) ............................................................. 33, 38
Wheaton College v. Burwell
134 S. Ct. 2806 (2014)...................................................................... passim
Winter v. NRDC
555 U.S. 7 (2008)............................................................................... 54, 62
Zubik v. Burwell
136 S. Ct. 1557 (2016)...................................................................... passim

xi

TABLE OF AUTHORITIES
(continued)
Page
STATUTES
United States Code
Title 5 § 553 ............................................................................................ 51
Title 5 § 553(b) ....................................................................................... 34
Title 5 § 553(b)-(d) ........................................................................... 17, 32
Title 5 § 556(d) ....................................................................................... 44
Title 5 § 559 ...................................................................................... 49, 52
Title 5 § 702 ............................................................................................ 57
Title 5 § 705 ............................................................................................ 68
Title 5 § 706(2) ................................................................................. 49, 54
Title 6 § 944(a) ....................................................................................... 50
Title 21 § 811(j) ...................................................................................... 50
Title 26 § 9833 ........................................................................................ 48
Title 28 § 84 ............................................................................................ 29
Title 28 § 1391 ........................................................................................ 30
Title 28 § 1391(c) ...................................................................... 16, 30, 31
Title 28 § 1391(d) ............................................................................ 16, 31
Title 28 § 1391(e) ............................................................................. 28, 29
Title 29 § 1144(a) ................................................................................... 27
Title 29 § 1191c ...................................................................................... 48
Title 42 § 300gg-13(a)(4) ..................................................................... 3, 5
Title 42 § 300gg-92 .......................................................................... 49, 51
Title 42 § 1320d-2(i)(3)(A) .................................................................... 51
Title 42 § 17013(e) ................................................................................. 50
California Code of Civil Procedure § 401 .................................................... 31
OTHER AUTHORITIES
155 Cong. Rec. S12027 (Dec. 1, 2009) ...........................................................4
155 Cong. Rec. S12051 (Dec. 1, 2009) ...........................................................4
155 Cong. Rec. S12052 (Dec. 1, 2009) ...........................................................4
xii

TABLE OF AUTHORITIES
(continued)
Page
155 Cong. Rec. S12059 (Dec. 1, 2009) ...........................................................4
159 Cong. Rec. S2268 (Mar. 22, 2013) ...........................................................4
Code of Federal Regulations
Title 50 § 47,696 (Nov. 19, 1985) .......................................................... 39
Title 56 § 45,825 (Sept. 6, 1991) ............................................................ 39
Title 76 § 46,621 (Aug. 3, 2011) ...............................................................6
Title 77 § 8,725 (Feb. 15, 2012) ................................................................6
Title 77 § 8,726 (Feb. 15, 2012) ................................................................7
Title 77 § 8,728 (Feb. 15, 2012) ................................................................7
Title 78 § 39,870 (Jul. 2, 2013) .................................................................8
Title 78 § 39,874 (Jul. 2, 2013) .................................................................8
Title 78 § 39,876 (Jul. 2, 2013) .................................................................8
Title 78 § 39,893 (Jul. 2, 2013) .................................................................8
Title 80 § 41,323 (Jul. 14, 2015) ............................................................ 10
Title 80 § 41,343 (Jul. 14, 2015) ...............................................................9
Title 81 § 47,741 (Jul. 22, 2016) ...................................................... 11, 47
Department of Labor, FAQs About Affordable Care Act
Implementation Part 36 ........................................................................... 11
HHS, The Affordable Care Act is Improving Access to
Preventive Services for Millions of Americans (May 14,
2015) ........................................................................................................ 11
HHS, U.S. Federal Poverty Guidelines Used to Determine
Financial Eligibility for Certain Federal Programs (2018) ................... 56
IOM, Clinical Prevention Services for Women: Closing the
Gaps (2011) ..................................................................................... 5, 6, 28
Kaiser Family Foundation, Employer Health Benefits 2017
Annual Survey (Sep. 19, 2017) ...................................................................7

xiii

TABLE OF AUTHORITIES
(continued)
Page
Kaiser Family Foundation, Preventive Services Covered by
Private Health Plans Under the Affordable Care Act (Aug.
4, 2015) .......................................................................................................7
Nat’l Women’s Law Center, New Data Estimates 62.4 Million
Women Have Coverage of Birth Control Without Out-ofPocket Costs (Sep. 2017) ......................................................................... 11
S.Doc. No. 248, 79th Cong., 2d Sess. (1946) ............................. 33, 34, 46, 49
14D Wright & Miller, Fed. Prac. & Proc. § 3815 (4th ed. 2017) ............... 29

xiv

INTRODUCTION
The Patient Protection and Affordable Care Act (ACA) requires that
most group health insurance plans provide no-cost contraceptive coverage to
women. Congress adopted this requirement to end the discriminatory
practice of charging women more than men for preventive healthcare
services, and to realize the important benefits to women’s health and
economic status that accompany greater access to contraceptive care. To
date, tens of millions of women have benefited from this provision,
including over 14 million women in the plaintiff States.
Defendants—U.S. Departments of Health and Human Services
(HHS), Labor, and Treasury—prompted this lawsuit when they issued two
interim final rules (IFRs) purporting to implement the contraceptivecoverage requirement. The IFRs went into immediate effect, bypassing
standard notice and comment procedures. They permit nearly any employer
or health insurance company, claiming any religious or moral objection, to
exempt themselves from the coverage requirement. The regulations thus
transformed an important legal entitlement to no-cost contraceptive coverage
into a conditional benefit subject to an employer’s or insurer’s veto. This
abrupt change to existing policy imperiled the healthcare of millions of

1

women, and threatened to impose direct financial and public health harms
upon the plaintiff States.
Because defendants evaded standard notice and comment procedures,
the States were denied their federal procedural right to participate in the
rulemaking process. The Administrative Procedure Act’s (APA) notice and
comment requirement has, for nearly three-quarters of a century, promoted
transparency, democratic accountability, and informed decision-making.
Defendants’ unjustified decision to bypass this process deprived the States
of the opportunity to present evidence and legal analysis, and to encourage
defendants to adopt a rule that was both legal and in the public interest. This
procedural defect renders the IFRs invalid.
Defendants’ attempt to rely on the “good cause” exception to the
notice and comment requirement was correctly rejected by the district court.
This narrow exception has been traditionally invoked to avert calamities
such as the likelihood of imminent harm or death, or impending threats to
national security. Defendants point to no such exigencies here. And
defendants fail to show that Congress has excused the agencies from
compliance with the notice and comment requirement altogether.
The district court therefore did not abuse its discretion by entering a
preliminary injunction preserving the status quo. It reasonably concluded
2

that the States were, “at a minimum,” likely to succeed on the merits of their
notice and comment claim, and observed that the substantial fiscal,
economic, and public health harms that the IFRs threatened to visit upon the
States tipped the balance of the equities and public interest in their favor.
The order below should be affirmed.
JURISDICTIONAL STATEMENT
The States agree with federal defendants that this Court has jurisdiction.
ISSUES PRESENTED FOR REVIEW
1. Whether the States have Article III standing.
2. Whether the United States District Court for the Northern District of
California is the proper venue to file this action.
3. Whether the district court abused its discretion by entering a
preliminary injunction preserving the status quo.
STATEMENT OF THE CASE
A.

Statutory and Regulatory Framework

Among its many reforms to the nation’s healthcare system, the ACA
requires that certain employer group health insurance plans cover
enumerated categories of preventive health services at no cost to the
employee or their covered dependents. 124 Stat. 119. One such category is
women’s “preventive care and screenings.” 42 U.S.C. § 300gg-13(a)(4).
3

Congress added this category of required coverage in the Women’s Health
Amendment, which sought to redress the “fundamental inequity” that
women were systematically charged more for preventive services than men.
155 Cong. Rec. S12027 (Dec. 1, 2009) (statement of Sen. Gillibrand).1 At
the time, “more than half of women delay[ed] or avoid[ed] preventive care
because of its cost.” Id. Eradicating these discriminatory barriers to
preventive care—including contraceptive care—would substantially improve
health outcomes for women. See, e.g., at S12052 (statement of Sen.
Franken); see also id. at. S12059 (statement of Sen. Cardin) (noting that
amendment will cover “family planning services”); id. (statement of Sen.
Feinstein) (same). While Congress adopted the Women’s Health
Amendment, it also considered and rejected a competing amendment to
permit a broad moral and religious exemption to the ACA’s coverage
requirements. Burwell v. Hobby Lobby Stores, 134 S. Ct. 2751, 2775 n.30
(2014); id. at 2789-2790 (Ginsburg, J., dissenting); cf. 159 Cong. Rec.
S2268 (Mar. 22, 2013).

1

See id. at S12051 (statement of Sen. Franken) (similar); see also id. at
12027 (statement of Sen. Gillibrand) (“women of child-bearing age spend 68
percent more in out-of-pocket heath care costs than men”); see id. at S12051
(statement of Sen. Dodd) (similar).
4

Rather than set forth a comprehensive definition of women’s preventive
services that must be covered, Congress opted to rely on the expertise of the
Health Resources and Services Administration (HRSA)—an agency housed
within HHS—which it charged with this task. 42 U.S.C. § 300gg-13(a)(4).
HRSA, in turn, commissioned the Institute of Medicine (IOM) to study the
issue and to make evidence-based recommendations.2 The IOM assembled a
panel of independent experts, who surveyed the relevant literature and peerreviewed research, and produced a report recommending that preventive
services for women include all FDA-approved “contraceptive methods,
sterilization procedures, and patient education and counseling.” IOM,
Clinical Prevention Services for Women: Closing the Gaps 109-110 (2011)
(IOM Report).3
The IOM Report, like the sponsors of the Women’s Health
Amendment, recognized the importance of contraception to women’s health.
Id. at 102-109. It concluded, for example, that 49% of all pregnancies in the

The IOM, “an arm of the National Academy of Sciences,” is an
organization comprised of independent medical experts, and was established
by Congress “‘for the explicit purpose of furnishing advice to the
Government.’” Hobby Lobby, 134 S. Ct. at 2788 n.3 (Ginsburg, J.,
dissenting).
2

3

available at https://www.nap.edu/read/13181/chapter/1 (last visited May
21, 2018).
5

United States are unintended, and that this phenomenon was most prevalent
among low-income women and women of color, who are least likely to have
access to contraceptive care. Id. at 102-103. The IOM Report relatedly
found that the most effective forms of contraceptives (such as an intrauterine
device or implant) carry substantial upfront costs, id. at 105, 108, and that
even modest out-of-pocket fees (such as co-payments and deductibles) can
appreciably deter adoption of these methods, id. at 109. The report also
discussed the important public health benefits and cost-savings associated
with increased access to contraception. Id. at 102-109.
HRSA adopted the IOM Report’s recommendation, and the three
federal agencies responsible for implementing the ACA (HHS, Labor, and
Treasury) promulgated implementing regulations. See 76 Fed. Reg. 46,621
(Aug. 3, 2011); 77 Fed. Reg. 8,725 (Feb. 15, 2012). The regulations, which
garnered over 200,000 comments, included a carefully-crafted exemption to
the contraceptive-coverage requirement for a defined class of religious
employers.4 The agencies explained that this exemption was meant to apply
Certain plans that were in existence prior to the ACA’s enactment, and
have not undergone specified changes, are statutorily-exempted from the
requirement. These so-called “grandfathered plans” are a “transitional
measure,” meant to ease regulated entities into compliance with the ACA,
and “will be eliminated as employers make changes to their health care
4

6

primarily to houses of worship, where it would be reasonable to presume
that line-level employees would share their employer’s religious objection to
contraception. 77 Fed. Reg. 8,728 (Feb. 15, 2012).5 The agencies declined
to implement a broader exemption out of concern that it might sweep in
employers “more likely to employ individuals who have no religious
objection to the use of contraceptive services,” and thereby risk “subject[ing]
[such] employees to the religious views of [their] employer.” Id.

plans.” Priests For Life v. HHS, 772 F.3d 229, 266 (D.C. Cir. 2014),
vacated and remanded sub nom. Zubik v. Burwell, 136 S. Ct. 1557 (2016)
(PFL); Hobby Lobby, 134 S. Ct. at 2801 (“the grandfathering provision is
‘temporary, intended to be a means for gradually transitioning employers
into mandatory coverage.’”) (Ginsburg, J., dissenting); see also Kaiser
Family Foundation, Employer Health Benefits 2017 Annual Survey 207
(Sept. 19, 2017), available at https://www.kff.org/health-costs/report/2017employer-health-benefits-survey/ (last visited May 21, 2018) (showing
precipitous decline in percentage of covered workers enrolled in a
grandfathered plan); Kaiser Family Foundation, Preventive Services
Covered by Private Health Plans Under the Affordable Care Act (Aug. 4,
2015) (“[I]t is expected that over time almost all plans will lose their
grandfathered status.”), available at http://www.kff.org/health-reform/factsheet/preventive-services-covered-by-private-health-plans/ (last visited May
21, 2018).
The regulation defined “religious employer” as follows: “(1) Has the
inculcation of religious values as its purpose; (2) primarily employs persons
who share its religious tenets; (3) primarily serves persons who share its
religious tenets; and (4) is a non-profit organization [under the relevant
statutes, which] refer[] to churches, their integrated auxiliaries, and
conventions or associations of churches, as well as to the exclusively
religious activities of any religious order.” Id. at 8,726.
5

7

The agencies later solicited public comment on, and implemented,
updated regulations that simplified the criteria for the religious employer
exemption and instituted a separate “religious accommodation” process. 78
Fed. Reg. 39,870 (Jul. 2, 2013). The regulations required an employer that
wished to avail itself of the religious accommodation to submit a
government-issued form to its health insurance provider—or in the case of a
self-insured plan, to its third party administrator (TPA)—certifying that: (1)
it is a non-profit organization that (2) holds itself out as a religious
organization, and (3) opposes providing contraceptive coverage on religious
grounds. Id. at 39,874; Wheaton College v. Burwell, 134 S. Ct. 2806, 2807
(2014).6 Upon submitting the self-certification form, the employer is
absolved of any obligation to “contract, arrange, pay, or refer for
contraceptive coverage” to which it objects. 78 Fed. Reg. 39,874. Upon
receipt of the form, the insurance provider becomes solely responsible for
continuing to provide seamless contraceptive coverage to the insured. Id. at
39,876, 39,893.
Subsequent legal developments caused the agencies to further amend
the religious accommodation. In Hobby Lobby, the Supreme Court held that

6

For simplicity and clarity, the States will refer to TPAs and health insurers
collectively as “insurers” or “health insurers.”
8

the Religious Freedom Restoration Act of 1993 (RFRA) applies to closelyheld for-profit corporations with religious objections to contraception, and
that the government must therefore provide these companies with a less
burdensome means of complying with the contraceptive-coverage
requirement. 134 S. Ct. at 2785. The Court suggested that the government
might comply by simply extending the existing religious accommodation to
these closely-held for-profits. Id. at 2782. It emphasized that its holding
would have no effect on women’s access to contraceptive coverage. Id. at
2760. In the wake of the decision, the agencies solicited public comment,
and later amended the regulations by making certain closely-held for-profits
eligible for the religious accommodation. 80 Fed. Reg. 41,343 (Jul. 14,
2015).
Next in Wheaton College, a nonprofit college that qualified for the
religious accommodation challenged the requirement that it must file the
self-certification form. 134 S. Ct. 2806. It reasoned that doing so made it
complicit in providing contraception, and therefore violated its right to free
exercise of religion under RFRA. Id. at 2808 (Sotomayor, J., dissenting).
The Court granted Wheaton’s application for an interim injunction pending
appeal, while expressing no view on the merits. Id. at 2807. Just as it did in
Hobby Lobby, the Court emphasized that nothing in its order “affects the
9

ability of [Wheaton’s] employees and students to obtain, without cost, the
full range of FDA approved contraceptives.” Id. at 2807. The agencies
responded by providing an alternative process to the self-certification form,
whereby employers need only notify HHS in writing (without resort to any
particular form) “of [their] religious objection to covering all or a subset of
contraceptive services.” 80 Fed. Reg. 41,323. Upon receipt, the agencies
contact the employer’s insurance provider to inform it of its obligation to
separately provide contraceptive coverage to the insured employees. Id.
In Zubik v. Burwell, 136 S. Ct. 1557 (2016) (per curiam), various
nonprofit employers challenged the revised religious accommodation
process, arguing that it violated RFRA. After oral argument, the Court did
not reach the merits, but instead vacated and remanded the matter to the
Courts of Appeal to afford the parties an opportunity to resolve the matter in
light of their evolving legal positions. Id. at 1560-1561. As it did in
Wheaton College and Hobby Lobby, it again underscored that nothing in its
order “is to affect the ability of the Government to ensure that women
covered by petitioners’ health plans ‘obtain, without cost, the full range of
FDA approved contraceptives.’” Id. at 1560-1561.
In response to Zubik, the agencies solicited public comment on
proposed modifications to the religious accommodation process that would
10

lessen any perceived burden on religious expression, “while still ensuring
that women enrolled in the organizations’ health plans have access to
seamless [contraceptive] coverage . . . without cost sharing.” 81 Fed. Reg.
47,741 (Jul. 22, 2016). On January 9, 2017, after considering the 54,000
comments received, the agencies determined that no change to the religious
accommodation process was warranted. Dep’t of Labor, FAQs About
Affordable Care Act Implementation Part 36 4-5.7 Defendants concluded
that the existing accommodation complied with RFRA by protecting the
interests of religious objectors, while also fulfilling the agencies’ statutory
duty to ensure women retained access to no-cost contraceptive coverage. Id.
To date, over 62 million women have benefited from the contraceptive-care
requirement, including over 14 million women in the plaintiff States.8

7

available at https://www.dol.gov/sites/default/files/ebsa/about-ebsa/ouractivities/resource-center/faqs/aca-part-36.pdf (last visited May 21, 2018).
8
Nat’l Women’s Law Center, New Data Estimates 62.4 Million Women
Have Coverage of Birth Control Without Out-of-Pocket Costs (Sep. 2017),
available at https://nwlc.org/wp-content/uploads/2017/09/New-PreventiveServices-Estimates-3.pdf (last visited May 21, 2018); see also HHS, The
Affordable Care Act is Improving Access to Preventive Services for Millions
of Americans (May 14, 2015), available at https://aspe.hhs.gov/pdfreport/affordable-care-act-improving-access-preventive-services-millionsamericans (last visited May 21, 2018).
11

B.

The Challenged Religious and Moral Interim Final Rules
(IFRs)

On October 6, 2017, unexpectedly and without prior notice to the
public, defendants issued two IFRs that created broad exemptions to the
contraceptive-coverage requirement: the Religious IFR and the Moral IFR.
Both rules were effective immediately. ER 283, 327.
The Religious IFR expanded the exemption, previously reserved for a
carefully-defined class of religiously-affiliated nonprofits, to any nongovernmental employer—regardless of corporate structure or religious
affiliation—or any health insurance company. ER 300-303. The IFR does
not require an objecting entity to submit a self-certification form or
otherwise notify its insurance provider or the federal government that it is
availing itself of the exemption. ER 299. While the IFR nominally
preserves the accommodation process, objecting entities are not required to
use it and may instead rely on the wholesale exemption. The IFR thus
renders the religious accommodation process—which ensured that women
received seamless access to contraceptive coverage—entirely voluntary at
the employer’s or health insurer’s sole discretion. ER 303-304.
The Moral IFR created a similarly broad exemption for certain entities
that object to contraception on moral grounds. ER 327-351. No
12

prior regulation or policy had ever recognized non-religious moral
objections as a basis for exemption from the contraceptive-coverage
requirement. Like the Religious IFR, the Moral IFR contained an entirely
voluntary accommodation process. ER 343.
Neither of the IFRs impose any independent obligation upon employers
to notify employees of their decision to use the exemptions. Affected
women therefore may not realize that they have lost contraceptive coverage
until the moment that they try to use it.
C.

The Proceedings Below

On November 1, 2017, plaintiffs—the States of California, Delaware,
Maryland, New York, and Virginia—filed the operative complaint in this
case. ER 250. The complaint alleged causes of action under the APA and
the United States Constitution. In particular, the complaint alleged that the
IFRs were invalid under the APA (1) because the agencies failed to follow
notice and comment procedures, (2) because the IFRs contravene the
statutory provisions they purport to implement and are therefore contrary to
law and arbitrary and capricious, and (3) because the agencies failed to
provide any reasoned explanation for their reversal in policy. ER 278-279.
The complaint also alleged causes of action under the Equal Protection

13

Clause and the Establishment Clause. ER 279-280. On November 9, 2017,
plaintiffs moved for a preliminary injunction. ER 11.
On December 21, 2017, the district court granted the motion. ER 29.
It held that plaintiffs were, “at a minimum,” likely to succeed on the merits
of their procedural APA claim, and therefore declined to address the other
causes of action. ER 2, 17, 25. In so holding, the district court rejected
defendants’ assertion that this case presented an emergency situation that
necessitated bypassing the APA’s notice and comment procedures. ER 1719, 21-24. The district court also found that absent a preliminary injunction,
plaintiffs would face irreparable injuries—both substantive and procedural—
and that the equities and public interest tipped decisively in plaintiffs’ favor.
ER 25-28. In particular, the court found that the IFRs effected irreparable
harms against the States’ fiscs, the public health of its citizens, and their
procedural interest in participating in the public comment process. ER 2526. The court also rejected defendants’ threshold standing and venue
arguments. ER 12-14, 16-17.
Intervenors—March for Life Education and Defense Fund (March)
and Little Sisters of the Poor, Jeanne Jugan Residence (Sisters)—each
appealed. ER 32-35. Defendants later appealed on February 16, 2018. ER

14

30-31. Neither defendants nor intervenors sought to stay the preliminary
injunction, either in this Court or in the district court.
SUMMARY OF ARGUMENT
1.

The States have Article III standing. This action is not, as

defendants suggest (AOB 24), merely a vehicle to express disagreement with
a change in federal policy. Rather, defendants violated the States’
procedural right to participate in the required notice and comment process,
and the resultant regulations—issued without any public input—threaten to
harm the States’ concrete interests. This combination of procedural and
substantive harm is constitutionally sufficient. NRDC v. Jewell, 749 F.3d
776, 782–83 (9th Cir. 2014) (en banc); California ex rel. Imperial Cty. Air
Pollution Control Dist. v. U.S. Dep’t of the Interior, 767 F.3d 781, 789-791
(9th Cir. 2014).
As to the procedural harm, the States were entitled by law to present
their legal analysis, policy views, and relevant evidence in hopes of shaping
the debate and encouraging the agencies to adopt a rule that was both legal
and served the public interest.
As to the substantive harms, the regulations change the status quo and
will directly harm the States’ fiscs. Some women who lose contraceptive
coverage as a result of the regulations will seek contraceptive care through
15

State-run programs, or programs that the States are legally responsible for
reimbursing. Other women who lose coverage will not qualify for these
programs, and will be at heightened risk for unintended pregnancies, which
may also impose direct financial costs on the States. Finally, reduced access
to birth control will have a negative impact on women’s educational
attainment, ability to participate in the labor force, and earnings potential.
These social, economic, and public health outcomes also inflict great harm
on the States. Each harm constitutes a cognizable injury directly caused by
the challenged regulations, which can only be remedied by a favorable
judicial decision.
2.

California is entitled to bring this action in any judicial district

within its territory. Defendants’ contrary reading of the venue statute is
premised on its mistaken belief that States are “entities” as defined in the
venue statute, who may only bring suit in their “principal place of business.”
28 U.S.C. § 1391(c)(2). But the most natural reading of the statute is that
residency for a State is not expressly defined, because the statute uses the
word “State” separately and distinctly from the word “entity,” which
suggests that “entity” would not encompass a plaintiff “State.” Compare 28
U.S.C. § 1391(d) with 28 U.S.C. § 1391(c). Moreover, States are deemed to

16

“reside” in their sovereign borders. Alabama v. Army Corps of Eng’rs, 382
F. Supp. 2d 1301, 1327-29 (N.D. Ala. 2005).
3.

The most important factor in determining whether a preliminary

injunction is warranted is the plaintiffs’ likelihood of success. The district
court focused on one of plaintiffs’ many claims and correctly determined
that the IFRs are invalid for failure to observe notice and comment
procedures. 5 U.S.C. § 553(b)-(d). No exception to the notice and comment
requirement applies. Defendants’ asserted desire for expeditiousness, and to
reduce litigation risk and regulatory uncertainty, fails to meet the high bar of
demonstrating an emergency that necessitates bypassing normal rulemaking
procedures. United States v. Valverde, 628 F.3d 1159, 1166-1167 (9th Cir.
2010). The agencies also assert that the accommodation process needed to
be amended immediately because it conflicts with RFRA. But no decision
of the United States Supreme Court supports defendants’ reading of RFRA,
see Zubik, 136 S. Ct. 1557, and the agencies’ interpretation of RFRA is
entitled to no deference, see Gonzales v. Oregon, 546 U.S. 243, 258-259
(2006).
Defendants’ failure to observe notice and comment procedures is not
harmless because plaintiffs never received actual notice of the proposed
rules, nor any opportunity to comment before they became effective.
17

Paulsen v. Daniels, 413 F.3d 999, 1006 (9th Cir. 2005). And the ACA does
not give defendants blanket authority to dispense with notice and comment
whenever they deem it “appropriate.” AOB 51. The statutes cited by
defendants do not “plainly express[] a congressional intent to depart from
normal APA procedures.” Asiana Airlines v. FAA, 134 F.3d 393, 398 (D.C.
Cir. 1998); see also Castillo-Villagra v. INS, 972 F.2d 1017, 1025-1026 (9th
Cir. 1992).
Furthermore, the district court did not abuse its discretion by issuing a
preliminary injunction, in light of the harms, equities, and public interest.
The financial harms sustained by the States are irreparable because they
cannot be recovered once dispensed. See Cal. Pharmacists Ass’n v.
Maxwell-Jolly, 563 F.3d 847, 851-852 (9th Cir. 2009), vacated and
remanded on other grounds sub nom. Douglas v. Indep. Living Ctr. of S.
California, Inc., 565 U.S. 606 (2012). The uptick in unintended pregnancy
will also inflict irreparable harm to the States’ economic and public health
interests. The States’ procedural injury is equally irreparable because postpromulgation comment is an inadequate remedy. See Paulsen, 413 F.3d at
1006-1008; U.S. Steel Corp. v. EPA, 595 F.2d 207, 214-215 (5th Cir. 1979).
In contrast, the government has pointed to no irreparable harm that
would flow from the delay necessary to follow proper APA procedures. See
18

League of Wilderness Defenders/Blue Mountains Biodiversity Project v.
Connaughton, 752 F.3d 755, 765 (9th Cir. 2014). And defendants’ claimed
harms are undercut by their own statements that several employers will be
unaffected in light of other litigation. AOB 31; Sisters Br. 31; March Br. 55.
Moreover, the public interest is served when “agencies comply with their
obligations under the APA,” N. Mariana Islands v. United States, 686 F.
Supp.2d 7, 21 (D.D.C. 2009), resulting in transparent, informed, and
accountable agency decision-making.
The district court did not abuse its discretion by preliminarily enjoining
the IFRs nationwide. Defendants’ contrary arguments conflate principles of
Article III standing with a district court’s discretion, deriving from its
equitable powers, to fashion the appropriate scope of relief. See Melendres
v. Arpaio, 784 F.3d 1254, 1265 (9th Cir. 2015). The Supreme Court has in
fact admonished that “the scope of injunctive relief is dictated by the extent
of the violation established, not by the geographical extent of the plaintiff
class,” Califano v. Yamasaki, 442 U.S. 682, 702 (1979), and has recognized
that a suit by a single plaintiff can alter an entire federal program, see, e.g.,
Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 890 n.2 (1990). Defendants also
raise a number of policy concerns about the wisdom of issuing nationwide

19

injunctions. But they fail to explain how these generalized concerns amount
to an abuse of discretion in this case.
STANDARDS OF REVIEW
A district court’s order entering a preliminary injunction is reviewed
for abuse of discretion. Network Automation, Inc. v. Advanced Sys.
Concepts, Inc., 638 F.3d 1137, 1144 (9th Cir. 2011). The district court must
be affirmed so long as it “‘identified the correct legal rule’”—even if this
Court “would have arrived at a different result”—and did not make any
clearly erroneous findings of fact. Disney Enterprises, Inc. v. VidAngel,
Inc., 869 F.3d 848, 856 (9th Cir. 2017). Standing and venue are reviewed de
novo. Cal. Sea Urchin Comm’n v. Bean, 883 F.3d 1173, 1180 (9th Cir.
2018); Decker Coal v. Commonwealth Edison, 805 F.2d 834, 841 (9th Cir.
1986). Findings of fact supporting the district court’s standing analysis are
reviewed for clear error. In re ATM Fee Antitrust Litig., 686 F.3d 741, 747
(9th Cir. 2012).
ARGUMENT
I.

THE STATES HAVE ARTICLE III STANDING
To demonstrate standing, a plaintiff must show that (1) it is under threat

of a concrete and particularized injury, (2) that is “fairly traceable to the
challenged action,” and (3) it is likely that a favorable decision will “prevent
20

or redress the injury.” Summers v. Earth Island Inst., 555 U.S. 488, 493
(2009). Where, as here, a plaintiff alleges a procedural injury, it need not
meet “‘all the normal standards’ for traceability and redressability.” Jewell,
749 F.3d at 782.9 It need only show that it “has ‘a procedural right that, if
exercised, could protect [its] concrete interests,’” id. at 783 (emphasis
original), and that the statute conferring the procedural right was “designed
to protect [its] concrete interests,” Imperial Cty., 767 F.3d at 789, 790; see
also W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 485 (9th Cir.
2011).10 It is under no obligation to show that following proper procedures
would have changed the substance of the policy being challenged. Imperial
Cty., 767 F.3d at 790 n.4; Massachusetts, 549 U.S. at 518; Cottonwood
Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1082-1083 (9th Cir.

9

While under some circumstances a bare procedural violation will confer
standing, Spokeo v. Robins, 136 S. Ct. 1540, 1549 (2016), a plaintiff must
generally demonstrate that the procedural fault threatens a concrete interest,
Summers, 555 U.S. at 496.
See also Friends of Santa Clara River v. U.S. Army Corps of Eng’rs, 887
F.3d 906, 918 (9th Cir. 2018); Imperial Cty., 767 F.3d at 790 (for “procedural
rights, ‘our inquiry into the imminence of the threatened harm is less
demanding’”); Massachusetts v. EPA, 549 U.S. 497, 517-518 (2007); Lujan
v. Defs. of Wildlife, 504 U.S. 555, 572 n.7 (1992); City of Sausalito v. O’Neill,
386 F.3d 1186, 1197 (9th Cir. 2004); cf. Lujan, 504 U.S. at 578; id. at 580
(Kennedy, J., concurring) (“Congress has the power to define injuries and
articulate chains of causation that will give rise to a case or controversy where
none existed before”).
10

21

2015); AOB 42 (accord). Finally, where a State exercises a federal
procedural right, its standing to summon the jurisdiction of the federal courts
is afforded “special solicitude.” Massachusetts, 549 U.S. at 520; Texas v.
United States, 809 F.3d 134, 162 (5th Cir. 2015), aff’d by an equally divided
court in United States v. Texas, 136 S. Ct. 2271 (2016).
Plaintiffs have established Article III standing here. The States were
deprived of the procedural right to receive advance notice and submit
comments before the challenged regulations became effective. Infra Section
III.A. Defendants do not dispute that the APA’s procedural rights are
designed to protect States, who routinely challenge unlawful agency action.
See, e.g., Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1178-1179 (9th
Cir. 2011) (per curiam) (California suffered procedural injury sufficient to
confer standing); Texas, 809 F.3d at 152; cf. Sausalito, 386 F.3d at 1200. If
employers are permitted to avail themselves of the new exemptions created
by the IFRs, it will result in increased state responsibilities and thereby
inflict concrete financial harm on the States in at least three distinct ways:11
 Some women who lose contraceptive coverage as a result of the IFRs
will seek contraceptive care through state-funded programs, or
through third party providers that the States are legally responsible for
11

These harms are addressed in greater detail infra Section III.B.
22

reimbursing. The increased demand for these programs will therefore
result in direct financial costs to the States. See infra pp. 55-57.12
 A subset of women who lose contraceptive coverage as a result of the
IFRs may not qualify for these programs, or may opt not to use them
because they cannot afford the cost-sharing requirements that they
impose. These women will have lost access to contraceptive care
altogether, and will be at increased risk for an unintended pregnancy.
The States are burdened with funding a significant portion of the
medical procedures associated with unintended pregnancies and their
aftermath. See infra pp. 57-59.13
 In addition to these direct financial outlays, numerous studies have
shown that reduced access to birth control also has a negative impact
on women’s educational attainment, ability to participate in the labor
force, and earnings potential. These pernicious social, economic, and
public health outcomes also inflict great harm on the States. See infra
pp. 58-59.14
Defendants contend that these harms are premised upon a speculative
chain of future events, and fault the States for failing to identify specific
employers who will use the new exemptions, or specific women who will
lose contraceptive coverage as a result. AOB 28-40. But a causal chain

12

See also ER 233, 236 (Tosh Decl. ¶¶ 22, 33-34); ER 122 (Cantwell Decl.
¶¶ 16-17); ER 199-200 (Jones Decl. ¶ 19); ER 136, 140 (Lytle-Barnaby
Decl. ¶¶ 4, 21-22); ER 115-117 (Rattay Decl. ¶¶ 3, 7-8); ER 205-206, 209211, 213 (Nelson Decl. ¶¶ 5, 8, 20-28, 34); ER 243 (Whorely Decl. ¶¶ 1011).
13

See also ER 141 (Lytle-Barnaby Decl. ¶ 24); ER 115-116 (Rattay Decl.
¶ 5); ER 97 (Grossman Decl. ¶ 6).
14

See also ER 162-163, 169, 171, 175, 177 (Finer Decl. ¶¶ 45, 61, 69, 85,
93); ER 130 (Ikemoto Decl. ¶ 7); ER 234-235 (Tosh Decl. ¶ 28); ER 115117 (Rattay Decl. ¶¶ 5, 7-9); ER 213 (Nelson Decl. ¶ 34).
23

“does not fail simply because it has several ‘links.’” Maya v. Centex Corp.,
658 F.3d 1060, 1070 (9th Cir. 2011). What “matters is not the ‘length of the
chain of causation,’ but rather the ‘plausibility of the links that comprise the
chain.’” Nat’l Audobon Soc’y v. Davis, 307 F.3d 835, 849 (9th Cir. 2002).
There is nothing speculative about the States’ harms. It is amply reasonable
to conclude that employers will use the exemption, that women will lose
contraceptive coverage as a result, and that at least some of those women
will be forced to resort to State services as a result. See infra pp. 55-59.
And defendants cite no authority supporting the proposition that the
States are under any obligation to identify specific women or employers
affected by the IFRs. 15 This Court in fact disapproved of this precise
argument. In Sherman, the State of California challenged as procedurally
defective a land resource and management plan (Plan) that liberalized
standards governing logging and grazing activity on a 10-million-acre parcel
of land. 646 F.3d 1161. The U.S. Forest Service argued that California

15

Sisters itself moved to intervene on the grounds that it intended to use the
IFRs in California. ECF No. 38 at 1 (moving to intervene explaining that it
plans to use the expanded religious exemption); Massachusetts v. U.S. Dep’t
of Health and Human Services, No. 17-11930-NMG, —F. Supp. 3d—, 2018
WL 1257762, at *11 (D. Mass. March 12, 2018) (“There is no doubt that
employers in [] California intend to use the IFR’s expanded exemptions, a
prerequisite to a state incurring an injury to its state fisc or to the health and
well-being of its residents.”).
24

lacked standing because it had not identified a specific logging project that
had been approved as a result of the Plan. Id. at 1178-1179. The Court
rejected that argument, noting that the injury was complete the moment that
the Plan was approved, because the procedural harm was “fairly traceable to
some action that will affect [California’s] interests.” Id. at 1179. The Court
further remarked that California was under no obligation to identify a
specific logging project, because it is entirely unrealistic to assume that the
Forest Service would not undertake any projects pursuant to the Plan. Id.;
cf. Cent. Delta Water Agency v. United States, 306 F.3d 938, 948-950 (9th
Cir. 2002).
The same is true here. It strains credulity to assume, as defendants
suggest, that the States will suffer no cognizable harm—that no women will
lose ACA contraceptive coverage as a result of an employer taking
advantage of the greatly expanded exemptions. See Council of Ins. Agents
& Brokers v. Molasky-Arman, 522 F.3d 925, 932 (9th Cir. 2008) (noting that
Supreme Court has found injury-in-fact even where magnitude of financial
harm was only a few dollars).16 Defendants themselves recognize that the

16

Sisters goes a step further, arguing that no employer will avail themselves
of the broad exemptions created by the IFRs. Sisters Br. 31 (“all known
religious objectors are already protected by the existing injunctions”); see
25

IFRs will affect the States’ concrete fiscal and public health interests: Even
by the agencies’ conservative estimates, hundreds of thousands of women
will be affected by the IFRs. ER 314. And they further acknowledge that
state programs will bear a resultant financial burden. ER 294. Contrary to
defendants’ suggestion, this injury is no less concrete simply because the
names and precise locations of those thousands of women are presently
unknown. Courts have found Article III standing in cases even where the
alleged harm was remote—a situation not presented here. See
Massachusetts, 549 U.S. at 526 (States established standing where risk of
harm was “remote” but “nevertheless real”); id. at 523 n.21.17

also AOB 31 (“[m]any” employers are “currently protected by injunctions”).
This is a curious assertion given that defendants’ primary justification for
bypassing notice and comment was to provide immediate relief for the many
employers they claimed were forced to make the untenable choice between
violating their moral and religious tenants or paying a financial penalty.
17

See also Hawaii v. Trump, 859 F.3d 741, 767-768 (9th Cir. 2017), vacated
on other grounds, 138 S. Ct. 377 (2017) (harm not too speculative where
plaintiff had yet to request a waiver that would have granted him relief);
Texas, 809 F.3d at 155-161; NRDC v. EPA, 464 F.3d 1, 7 (D.C. Cir. 2006)
(lifetime risk of 1 in 200,000 of developing non-fatal skin cancer as a result
of agency action is a cognizable injury-in-fact); cf. Lujan, 504 U.S. at 572
n.7; Sausalito, 386 F.3d at 1197-199 (government interests may be
“congruent with” those of its citizens and “are as varied as a municipality’s
responsibilities, powers, and assets,” including interest in city’s aesthetic,
tourism, and preventing lost tax revenue caused by “congested streets, parks,
parking lots, and sidewalks,” and increase in “noise” and “trash”).
26

The declarations filed in support of the motion for a preliminary
injunction—from respected researchers and public servants—show that the
IFRs will block women from receiving contraceptive care, which will
impose direct responsibilities and associated financial burdens upon the
States. See infra pp. 55-59; Imperial Cty., 767 F.3d at 791 (citing City of
Davis v. Coleman, 521 F.2d 661, 671 (9th Cir. 1975)) (finding injury in fact
where declarations disclose that procedural violation will harm City’s
interest in land management and “controlled growth”). The new burdens
that will be assumed by the States constitute an “injury in fact” that is
directly traceable to the IFRs and redressible by a favorable judicial
decision.
Defendants also argue that the States will not suffer harm because
California, Delaware, Maryland, and New York have enacted state laws that
independently require certain group health plans to cover contraception.
AOB 30; Sisters Br. 33; March Br. 57-59. But these laws will still leave
many women unprotected from the effects of the IFRs. None of these state
laws, for example, apply to self-funded plans, which provide coverage to
several million residents of the plaintiff States. See infra pp. 56-57; see also

27

March Br. 36.18 In addition, Delaware’s laws permit cost-sharing in some
circumstances, which could make contraception unaffordable for some
women, or lead them to use less effective forms of birth control. ER 133
(Navarro Decl. ¶ 11); see also IOM Report at 109. And Virginia has no
independent state contraceptive-coverage requirement. ER 242 (Whorley
Decl. ¶ 8). State law therefore cannot fully abate the harms imposed by the
IFRs. Only a judicial remedy will suffice.19
II.

VENUE IS PROPER IN THE NORTHERN DISTRICT OF CALIFORNIA
The district court correctly determined that venue in the Northern

District of California is proper. ER 16-17. A civil action against an officer
of a United States agency in his official capacity may be brought where “the
plaintiff resides.” 28 U.S.C. § 1391(e)(1)(C). This statute was enacted to

18

The States are preempted from enforcing state contraceptive equity laws
against self-funded plans. 29 U.S.C. § 1144(a).
19

In a single sentence, Sisters asserts that the States lack statutory standing.
Sisters Br. 38. Such perfunctory assertions are insufficient to raise a claim
on appeal. Recycle for Change v. City of Oakland, 856 F.3d 666, 673 (9th
Cir. 2017); see also Bilyeu v. Morgan Stanley Long Term Disability Plan,
683 F.3d 1083, 1090 (9th Cir. 2012) (“statutory standing may be waived”).
And in any event, it cannot be said that the States’ “‘interests are so
marginally related to or inconsistent with the purposes implicit in the statute
that it cannot reasonably be assumed that Congress intended to permit the
suit.’” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v.
Patchak, 567 U.S. 209, 225 (2012).
28

establish “nationwide venue for the convenience of individual plaintiffs in
actions which are nominally against an individual officer but are in reality
against the [federal] Government.” Stafford v. Briggs, 444 U.S. 527, 542
(1980).
Venue is proper in the Northern District of California because
California “resides” in the Northern District of California. 28 U.S.C.
§ 1391(e)(1)(C). When a plaintiff is the State, it “is held to reside in any
district within it.” 14D Wright & Miller, Fed. Prac. & Proc. § 3815 (4th ed.
2017) (citing Alabama, 382 F. Supp. 2d at 1327-1328). While only two
district courts, including the court below, have confronted the issue of where
a State “resides” for venue purposes, both reasonably concluded that when a
State with multiple federal judicial districts, such as California (28 U.S.C.
§ 84), brings suit against federal defendants, it is deemed to “reside” in any
of its own districts. Alabama, 382 F. Supp. 2d at 1329 (noting that federal
government has provided “no just or logical reason” for its contrary
interpretation); ER 16 (“common sense dictates that for venue purposes, a
state plaintiff with multiple federal judicial districts resides in any of those

29

districts”); see id. at 17.20 And States have routinely sued the federal
government in districts other than where their capital is located. See, e.g.,
Texas v. United States, 86 F. Supp. 3d 591, 604 (S.D. Tex. 2015); Oklahoma
ex rel. Pruitt v. Burwell, 51 F. Supp. 3d 1080 (E.D. Okl. 2014).
Defendants argue that for residency purposes, California must either be
a “natural person” or an “entity.” AOB 43 (citing 28 U.S.C. § 1391(c)(2)).
Defendants then argue that because California is not a “natural person,” it
must be an “entity” and, as a result, it is limited to bringing suit in the
“judicial district in which it maintains its principal place of business.” 28
U.S.C. § 1391(c)(1), (2). However, a more logical, plain reading of the
venue statute is that residency for a “State” is not expressly defined, like it is
for “natural person[s],” “entit[ies],” and “corporations,” because States are
deemed to “reside” in their sovereign borders. Indeed, that 28 U.S.C. § 1391
uses the word “State” separately and distinctly from the word “entity,”
suggests that “entity” would not encompass a plaintiff “State.” Compare 28

20

Federal defendants seek to distinguish Alabama on the ground that the
applicable venue statute was subsequently amended. AOB 45. The 2011
amendments merely clarified that incorporated and non-incorporated
plaintiff entities are “residents” of the district in which they maintain their
principle place of business. A State in contrast “resides” throughout its own
sovereign borders. 382 F. Supp. 2d at 1329 (“[c]ommon sense suggests”
that the State, as a sovereign, “is ubiquitous within its borders”).
30

U.S.C. § 1391(d) with 28 U.S.C. § 1391(c); see Spencer Enterprises, Inc. v.
U.S., 345 F.3d 683, 689 (9th Cir. 2003) (it is a “well-established canon of
statutory interpretation that the use of different words or terms within a
statute demonstrates that Congress intended to convey a different meaning
for those words”).
Moreover, defendants’ argument would produce an absurd result.
Corporations in States with multiple districts, like California, would be
deemed to reside “in any district in that State within which its contacts
would be sufficient to subject it to personal jurisdiction if that district were a
separate State.” 28 U.S.C. § 1391(d). But, the State itself, which certainly
has “sufficient” contacts in the Northern District of California, would be
precluded from claiming residency as to that District. Chubb Custom Ins.
Co. v. Space Systems/Loral, Inc., 710 F.3d 946, 958 (9th Cir. 2013)
(cautioning against an interpretation of a statute that would “lead to an
absurd result”). And even if the Court concludes that “entity” encompasses
a “State,” as a State, California’s “principal place of business” is its entire
sovereign. 28 U.S.C. § 1391(c)(2); See, e.g., Cal. Code Civ. Proc. § 401.

31

III. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY
ENTERING A PRELIMINARY INJUNCTION PRESERVING THE
STATUS QUO
A.

The States Are Likely to Succeed on the Merits

Likelihood of success on the merits is the most important factor in
determining whether to issue a preliminary injunction. Disney, 869 F.3d at
856. The district court did not abuse its discretion in holding that the States
were “at a minimum” likely to succeed on the merits of their notice and
comment claim. ER 17, 25.
1.

The IFRs Are Procedurally Defective for Failure to
Observe Notice & Comment Procedures

The APA strives to ensure that federal agencies remain accountable to
the people that they govern. Riverbend Farms, Inc. v. Madigan, 958 F.2d
1479, 1483-1484 (9th Cir. 1992). Hence before an agency may promulgate
a rule carrying the force of law, it must first give notice to the public by
publishing its proposed rule in the Federal Register, invite any interested
persons to submit comments, and finally, publish its final rule in the Federal
Register—typically accompanied by responses to concerns raised by
commenters—at least 30 days before the rule becomes effective. 5 U.S.C.
§ 553(b)-(d); United States v. Valverde, 628 F.3d 1159, 1162 (9th Cir.
2010). This notice and comment process is premised upon notions of basic

32

“fairness and informed administrative decisionmaking.” Chrysler Corp. v.
Brown, 441 U.S. 281, 316 (1979). It “reintroduces a representative public
voice” to counterbalance the substantial authority “‘delegated to
unrepresentative agencies,’” and allows agencies to “educate [themselves]
on the full range of interests [a proposed] rule affects.” Alcaraz v. Block,
746 F.2d 593, 611 (9th Cir. 1984).21 Failure to follow notice and comment
is a procedural defect that renders a regulation legally invalid. Cal.
Wilderness Coal. v. U.S. Dep’t of Energy, 631 F.3d 1072, 1095 (9th Cir.
2011).

21

See also FCC v. Fox Television Stations, Inc., 556 U.S. 502, 537 (2009)
(Kennedy, J., concurring) (quoting Stewart & Sunstein, Public Programs
and Private Rights, 95 Harv. L.Rev. 1193, 1248 (1982)) (“the APA was a
‘working compromise, in which broad delegations of discretion were
tolerated as long as they were checked by extensive procedural
safeguards.’”); Buschmann v. Schweiker, 676 F.2d 352, 357 (9th Cir. 1982)
(“The interchange of ideas between the government and its citizenry
provides a broader base for intelligent decision-making and promotes greater
responsiveness to the needs of the people.”) (citations and quotations
omitted); Western Oil & Gas Ass’n v. EPA, 633 F.2d 803, 813 (9th Cir.
1980) (“When substantive judgments are committed to the very broad
discretion of an administrative agency, procedural safeguards that assure the
public access to the decisionmaker should be vigorously enforced.”); cf.
S.Doc. No. 248, 79th Cong., 2d Sess. iii (1946) (The APA “brings into relief
the ever essential declaration that this is a government of law rather than of
men.”).
33

Defendants argue that the IFRs are nevertheless valid under the “good
cause” exception, 5 U.S.C. § 553(b)(B). AOB 53-62. This “emergency
procedure” permits an agency to forego notice and comment in “‘calamitous
circumstances’” when “‘delay would do real harm.’” Buschmann, 676 F.2d
at 357. Because “[i]t is antithetical to the structure and purpose of the APA
for an agency to implement a rule first, and then seek comment later,”
Paulsen, 413 F.3d at 1005, the good cause exception must be “‘narrowly
construed and only reluctantly countenanced,’” Alcaraz, 746 F.2d at 612.
See also Buschmann, 676 F.2d at 357 (observance of notice and comment
procedures “‘should be closely guarded and the ‘good cause’ exception
sparingly used’”).
To avail itself of the good cause exception, the agency must articulate a
reasoned basis for why notice and comment procedures “are impracticable,
unnecessary, or contrary to the public interest.” 5 U.S.C. § 553(b)(B); see
S.Doc. No. 248, 79th Cong., 2d Sess. 200, 258 (1946) (“A true and
supported or supportable finding of necessity or emergency must be made
and published.”). This requirement is a not a mere “procedural formality.”
North Carolina Growers’ Ass’n v. United Farm Workers, 702 F.3d 755, 766
(4th Cir. 2012). It serves “the crucial purpose of ensuring that the
exceptions do not ‘swallow the rule.’” Id. Courts owe no deference to an
34

agency’s conclusion that it has good cause to bypass required procedures.
Sorenson Commc’ns Inc. v. FCC, 755 F.3d 702, 706 (D.C. Cir. 2014).
Defendants criticize the district court’s phrasing of the appropriate legal
standard. AOB 59-62. But the district court did not hold that good cause
can only be shown where notice and comment would prevent an agency
from executing its statutory duties, nor did it suggest that “the good-cause
exception [is] exclusively an ‘emergency procedure.’” AOB 60. Rather, the
district court set forth the legal standard as this Court has characterized it in
cases like Valverde and Paulsen. See, e.g., ER 18 (good cause only where
“delay would do real harm”) (quoting Valverde, 628 F.3d at 1164-1165).
And the district court correctly referred to the good cause exception as an
“emergency procedure,” ER 22, as this Court has traditionally described it.
See, e.g., Valverde, 628 F.3d at 1165; Buschmann, 676 F.2d at 357.
The IFRs raised the “impracticable” and “contrary to the public
interest” exceptions. ER 304, 344. In particular, the IFRs stated that
immediate promulgation was necessary primarily (1) to reduce litigation risk
and general uncertainty in the wake of Zubik, and (2) to more quickly
achieve the agencies’ policy objectives, such as alleviating the burdens
endured by individuals and corporations with moral or religious objections
to contraception. ER 303-305, 344-345; AOB 58-59. These justifications,
35

which point to ubiquitous and unremarkable circumstances that attend
numerous regulations, fail to demonstrate an impending emergency, or that
providing the usual notice and comment would imperil “the agency’s ability
to carry out its mission.” Riverbend Farms, 958 F.2d at 1485.
This Court has previously rejected arguments nearly identical to those
raised by defendants here. In Valverde, the agency argued that providing
notice and comment would be “contrary to the public interest” because of a
need to resolve uncertainty as to the application of a federal sex offender
registration statute, and to protect the public from the impending danger of
convicted sex offenders living at large. 628 F.3d at 1165. The Court
observed that if a desire for speediness, coupled with a need to reduce
uncertainty were enough to avoid normal procedures, an “‘exception to the
notice requirement would be created that would swallow the rule.’” Id. at
1166. This rationale applies with equal force here.
The “contrary to the public interest” exception applies primarily in the
“rare circumstance when ordinary procedures—generally presumed to serve
the public interest—would in fact harm that interest,” Mack Trucks, Inc. v.
EPA, 682 F.3d 87, 95 (D.C. Cir. 2012), such as when “the announcement of
future [government price] controls could cause [the very] market distortions”
they were meant to avoid, Buschmann, 676 F.2d at 357. The federal
36

agencies do not explain why notice and comment would not have served its
intended purpose here. To the contrary, the agencies acknowledge that
previous invitations for public comment on decidedly less significant
changes to the contraceptive-coverage requirement garnered hundreds of
thousands of comments. E.g., AOB 12, 16; ER 22 n.13. Public comment
could have also identified that some of the agencies’ conclusions are
premised upon mischaracterization of data and simple mathematical errors,
which may have caused defendants to revisit the wisdom of their chosen
course of action. See, e.g., ER 147, 150 (Finer Decl. ¶¶ 13, 20 n.24); cf.
Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1403 (9th Cir. 1995)
(“Opportunity for public comment is particularly crucial when the accuracy
of important material in the record is in question.”).
Defendants’ reliance on the “impracticable” exception fares no better.
Defendants never raised this argument in opposition to plaintiffs’ motion for
a preliminary injunction, and it is therefore forfeited on appeal. See ManSeok Choe v. Torres, 525 F.3d 733, 740 n.9 (9th Cir. 2008). To the extent
that the Court is inclined to consider defendants’ impracticability argument
for the first time on appeal, it fails on the merits.
Notice and comment is impracticable in emergency situations requiring
immediate action to avoid imminent harm or death. See Hawaii Helicopter
37

Operators Ass’n v. FAA, 51 F.3d 212, 214 (9th Cir. 1995) (spate of recent
helicopter crashes and related fatalities).22 Nothing of the sort has been
alleged here. Defendants’ claims that there was an immediate need for the
IFRs are undermined by their own argument—made in service of the
position that the States have not suffered an injury-in-fact—that few
employers will avail themselves of the IFRs’ new exemptions. AOB 31;
Sisters Br. 31 (“all known religious objectors are already protected by the
existing injunctions”).
Citing a footnote in Serv. Emp. Int’l Union, Local 102 v. Cnty. of San
Diego, 60 F.3d 1346, 1352 n.3 (9th Cir. 1994) (SEIU), defendants argue that
resolving uncertainty caused by “conflicting judicial decisions” is a
satisfactory justification to forego notice and comment. AOB 56-57. But
SEIU only found good cause because the divergent legal authority on the

22

See also Jifry v. FAA, 370 F.3d 1174, 1179-1180 (D.C. Cir. 2004) (rule
necessary to combat the “threat of further terrorist acts involving aircraft in
the aftermath of September 11, 2001”); Sorenson, 755 F.3d at 706 (notice
and comment impracticable where “delay would imminently threaten life or
physical property”); cf. Mack Trucks, 682 F.3d at 93 (rescuing major
regulated entity from imminent insolvency not good cause); NRDC v. Evans,
316 F.3d 904, 912 (9th Cir. 2003) (time constraints and complexities
associated with data collection and utilization not good cause); Western Oil,
633 F.2d at 810-812 (compliance with statutory deadlines not good cause).
38

issue of the Fair Labor Standards Act’s applicability to government
employees was poised to cause “enormous” and “unforeseen” financial
liability that could “threaten the fiscal integrity” of States and local
governments. 56 Fed. Reg. 45,825 (Sept. 6, 1991); SEIU, 60 F.3d at 1352
n.3. No similar impending threat to the public fisc was cited here.23
Defendants also appear to suggest that because they used an IFR to
amend the religious accommodation in the wake of Wheaton (supra pp. 910), they are also entitled to do so here. See ER 305; AOB 57-58. Sisters
goes even further, arguing that if the Court invalidates the challenged IFRs it
must also invalidate every other IFR amending the contraceptive-coverage
requirement. Sisters Br. 66. But as defendants acknowledge (AOB 54),
each invocation of good cause must be independently justified. See
Valverde, 628 F.3d at 1164 (whether good cause was properly invoked is a
“‘case-by-case’” inquiry). Good cause therefore cannot be established by
merely gesturing at the existence of prior invocations of good cause to

23

Also, unlike the present case, the IFRs in SEIU did not involve the
wholesale exclusion of the public from the rulemaking process prior to the
IFR becoming effective. SEIU, 60 F.3d at 1352 n.3 (“The public was not
deprived of its input.”); see also 56 Fed. Reg. 45,825; 50 Fed. Reg. 47,696
(Nov. 19, 1985).
39

justify different IFRs on related subject matter. And in any event, the
legality of these prior IFRs are not properly before this Court.24
Federal agencies will presumably always argue, as defendants do here,
that their proposed regulations will advance the public interest. And
bypassing notice and comment procedures will always be one avenue to
avoid delay in implementing new regulations. But for over 70 years, the
APA has stood as a bulwark against such administrative haste. The Act
embodies Congress’ considered judgement that an agency’s desire to act
with dispatch must yield to the virtues of transparency, democratic
accountability, and informed agency decision-making. The district court
therefore correctly concluded that the “good cause” exception does not apply
here.
2.

The Religious IFR Is Not Compelled by RFRA

The agencies attempt to bolster their contention that litigation risk
supports their finding of good cause by suggesting that the prior regulatory

24

The Wheaton IFRs are also distinguishable from the present
circumstances. Defendants relied on the “unnecessary” exception to notice
and comment—not implicated here—to make a very minor change to the
accommodation process in light of a recent Supreme Court order. See PFL,
772 F.3d at 276 (IFRs effected “minor” changes “meant only to ‘augment
current regulations in light of’” Wheaton); ER 22-23 n.14.
40

regime violated RFRA. See ER 297, 305; see also AOB 58; Sisters Br. 4754.25 The Religious IFR, they reason, was therefore a necessary remedy that
required immediate implementation. Id. But the agencies have no
interpretive authority over RFRA, and their reading of that statute is
therefore entitled to no deference from this Court. See Gonzales v. Oregon,
546 U.S. 243, 258-259 (2006) (no deference to agency in the absence of
congressional grant of interpretive authority). Their proffered interpretation
is also legally unsupported.
RFRA does not give employers license to deprive women of their
statutorily-entitled benefits. Each time the Supreme Court has been
presented with a RFRA challenge to the contraceptive-coverage
requirement, it has underscored that there is no inherent conflict between
compliance with RFRA and affording women access to seamless
contraceptive coverage without cost-sharing. Hobby Lobby, 134 S. Ct. at
Sisters’ separate contention that the prior regime violated the Free
Exercise Clause (Sisters Br. 47-54) was never part of the agencies’ good
cause finding. Courts may not consider such post-hoc arguments. Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 50 (1983) (“an agency’s action must be upheld, if at all, on the basis
articulated by the agency itself”). The argument was also never raised
before the district court, and is therefore forfeited. Moreover, the Supreme
Court has never suggested that the contraceptive-coverage requirement
implicates the Free Exercise Clause. See Hobby Lobby, 134 S. Ct. at 2787,
2790-2791 (Ginsburg, J., dissenting).
25

41

2760 (noting that effect of Court’s decision on women employed by Hobby
Lobby “would be precisely zero”); Wheaton College, 134 S. Ct. at 2807;
Zubik, 136 S. Ct. at 1560-1561. The IFRs, which “transform [women’s]
contraceptive coverage from a legal entitlement to an essentially gratuitous
benefit wholly subject to [an] employer’s discretion,” ER 25-26, therefore
are not compelled by RFRA. And in Hobby Lobby—the only Supreme
Court opinion to reach the merits of a RFRA challenge to the contraceptivecoverage requirement—the Court only considered RFRA’s application to
closely-held for-profit corporations. Hobby Lobby, 134 S. Ct. at 2774-2775.
No Supreme Court authority requires the broad exemptions created by the
IFRs—which apply to nearly any employer or insurance provider, regardless
of corporate structure.26
The federal agencies argued, not long ago, that the prior regulatory
regime furthered the government’s “compelling interest” in ensuring that
women had access to contraceptive coverage, while “go[ing] to great
lengths” to accommodate the religious objections of employers. HHS Supp.
Br. at 1 Zubik, 136 S. Ct. 1557 (No. 14-1418) (Apr. 21, 2016); see also
supra p. 11. Defendants point to no intervening authority that casts doubt on

26

And of course, RFRA cannot justify the Moral IFR at all because RFRA
does not extend to moral beliefs.
42

this assertion. See ER 291. RFRA therefore cannot excuse defendants’
failure to follow notice and comment.
3.

Violation of Notice-and-Comment Requirements
Was Prejudicial

Courts “must exercise great caution in applying the harmless error
rule in the administrative rulemaking context.” Riverbend Farms 958 F.2d
at 1487. Failure to provide notice and comment is only harmless where the
error “clearly had no bearing on the procedure used or the substance of
decision reached.” Buschmann, 676 F.2d at 358. An error “clearly ha[s] no
bearing on the procedure used,” id., where interested persons receive actual
notice of the proposed rule, and are permitted to provide comments before
the rule becomes effective, Cal. Communities Against Toxics v. EPA, 688
F.3d 989, 993 (9th Cir. 2012).27
Rather than attempt to satisfy this exacting standard, defendants argue
that their error in forgoing normal procedures was harmless because of (1)

27

Compare Paulsen, 413 F.3d at 1006 (error prejudicial where public not
afforded opportunity to provide pre-promulgation comments) with Idaho
Farm Bureau, 58 F.3d at 1405 (9th Cir. 1995) (error harmless where
individuals were aware of comment period and actually participated);
Sagebrush Rebellion, Inc. v. Hodel, 790 F.2d 760, 765-766 (9th Cir. 1986)
(similar); Riverbend Farms, 958 F.2d at 1488 (error harmless where parties
were aware of and used same technically non-compliant notice and comment
procedure for thirty-five years).
43

the availability of post-promulgation comment, (2) the interim nature of the
rules, and (3) prior public comment on previous rules touching on the same
general subject matter. AOB 62-63.28 Yet no case supports the conclusion
that these factors render procedural error harmless, and for good reason.
These factors are common to innumerable interim final rules. If they could
serve as a predicate for a finding of harmless error, the APA’s notice and
comment requirement would be rendered toothless and the “good cause”
exception superfluous.
Defendants’ first two arguments for why their error was harmless—
opportunity for post-promulgation comment and the interim nature of the
rules—are insufficient as a matter of law. See Paulsen, 413 F.3d at 1006-

28

Defendants also cite Shinseki v. Sanders, 556 U.S. 396, 409 (2009) for the
proposition that plaintiffs bear the burden of demonstrating that the error
was not harmless. AOB 62. But Sanders held no such thing. Sanders
interpreted a harmless error statute specific to agency adjudication of veteran
disability claims. Id. at 406. Its analysis did not extend to the agency
rulemaking context. Moreover, the Court held that harmless error should
generally be determined based on a “case-specific application of judgment”
and “examination of the record,” not “through the use of mandatory
presumptions and rigid rules.” Id. at 407. It also emphasized that the burden
of showing prejudice is not “a particularly onerous requirement.” Id. at 410;
cf. 5 U.S.C. § 556(d) (“the proponent of a rule or order has the burden of
proof”).
44

1008.29 The fact that HHS published guidance on how regulated entities
should implement the IFRs before the comment period even closed further
undermines the agencies’ suggestion (AOB 63) that they remained receptive
to changes proposed by commenters. ER 23; see also U.S. Steel Corp. v.
EPA, 595 F.2d 207, 214-215 (5th Cir. 1979) (explaining why postpromulgation comment is an inadequate substitute).
The agencies’ final argument is equally inapt. While it is undisputed
that neither plaintiffs, nor any member of the public, received notice of the
challenged IFRs, defendants argue that their solicitation of public comments
on prior rules relating to the same general subject matter was an adequate
substitute for providing notice here. But none of these prior comment
periods could have fairly apprised the public of the policies established by
these IFRs, which sharply depart from the agencies’ prior positions and
regulations.

29

Defendants cite no case in support of their argument (AOB 62) that the
error was harmless because the States have not identified any specific
comments they would have submitted. The States are under no obligation to
make such a showing. The APA requires notice to “all members of the
public,” not just those with a “particularized interest” in the subject matter.
Riverbend Farms, 958 F.2d at 1486. And in any event, the States would
have submitted comments highlighting the IFRs’ legal infirmities, which are
now the subject of this litigation.
45

In order for notice to be meaningful, it “must be sufficient to fairly
apprise interested parties of the issues involved” and the policy proposals
that the agency is contemplating. S.Doc. No. 248, 79th Cong., 2d Sess. 200
(1946). 30 A notice of a proposed rulemaking only provides adequate notice
where it makes “clear that the agency was contemplating a particular
change.” CSX Transp. v. Surface Transp. Bd., 584 F.3d 1076, 1081 (D.C.
Cir. 2009). The “‘essential inquiry focuses on whether interested parties
reasonably could have anticipated the final rulemaking from the [proposed
rule].’” NRDC v. EPA, 279 F.3d 1180, 1186 (9th Cir. 2002). A critical
question in this analysis, is “‘whether a new round of notice and comment
would provide the first opportunity for interested parties to offer comments
that could persuade the agency to modify its rule.’” Id. In answering this
question, courts owe no deference to an agency’s assertion that its notice
was adequate. Id.

See also id. at 18 (“[P]ublic rule making procedures ‘are likely to be
diffused and of little real value either to the participating parties or to the
agency, unless their subject matter is indicated in advance. * * * In principle,
therefore, each agency should be obliged to announce with the greatest
possible definiteness the matters to be discussed in rule making
proceedings.’”); Riverbend Farms, 958 F.2d at 1486 (“It is a fundamental
tenet of the APA that the public must be given some indication of what the
agency proposes to do so that it might offer meaningful comment thereon.”).
30

46

The prior comment periods relating to the contraceptive-coverage
requirement, some of which occurred over six years ago, solicited comments
on matters that would effect only incremental changes to the then-extant
regime. See supra pp. 6-11. No prior notice could have reasonably apprised
the public that the agencies were contemplating an overhaul of the
contraception regulations that would effect an unprecedented expansion of
the exemption to include any religious objection, any moral objection
(which had never been previously recognized as a basis for exemption), and
abandon procedures—once considered a core component of the agencies’
statutory duty—to ensure that women continue to receive seamless
contraceptive coverage. See Allina Health Servs. v. Sebelius, 746 F.3d 1102,
1107-1108 (D.C. Cir. 2014) (HHS rule invalid for failure to provide
adequate notice where agency proposed to “clarify” a practice and final rule
sharply diverged from that practice); see also CSX, 584 F.3d at 1082. The
last request for public comment before the IFRs were issued, for example,
only gave the public notice that the agencies were contemplating changes to
the accommodation process that would continue to “ensur[e] that women . . .
have access to seamless [contraceptive] coverage . . . without cost sharing.”
81 Fed. Reg. 47,741. Neither this, nor any prior notice, provided the public

47

with a meaningful chance to comment on the policies ultimately adopted in
the IFRs.31
Finally, the statutory provisions that the IFRs purport to implement
were enacted to ensure that women have access to preventive care—
including birth control—without cost-sharing. See supra pp. 3-4. The IFRs
directly subvert this statutory requirement by creating exemptions that are
available to nearly any employer or insurance company, while no longer
requiring use of the accommodation process to ensure that women receive
seamless contraceptive coverage.32 Congress in fact considered and rejected
a similar proposal that would have permitted a broad exemption on religious
or moral grounds. Supra p. 4. None of the previous requests for public
comment could have conceivably put the public on notice that the agencies

31

The substantial gap in time between the challenged IFRs and some of the
previous comment periods is an independent ground that renders them
categorically deficient as a substitute for providing a new round of notice
and comment here. See Idaho Farm Bureau, 58 F.3d at 1404 (gap of “nearly
six years” renders opportunity for comment inadequate).
Defendants misleadingly note that the accommodation process was “not
materially altered” by the challenged IFRs. AOB 29; see also Sisters Br. 32.
But the IFRs in fact altered what was once a mandatory process to ensure
women continued to receive contraceptive coverage into an option that the
employer is free to ignore at its sole discretion.
32

48

intended to take such arbitrary, capricious, and ultra vires action. See 5
U.S.C. § 706(2)(A), (C); see also infra Section III.A.5.
4.

Congress Has Not Excused the Agencies from
Notice-and-Comment Requirements

The federal agencies also urge that Congress has vested them with
blanket authority to dispense with notice and comment whenever they deem
it to be “appropriate.” AOB 47 (citing 42 U.S.C. § 300gg-92).33 But as
every court to consider the issue has concluded, the cited statutes do not
stand for such a sweeping proposition.34
If Congress wishes to excuse an agency from the APA’s notice and
comment requirement, it must “do[] so expressly.” 5 U.S.C. § 559;
Marcello v. Bonds, 349 U.S. 302, 310 (1955) (“Exemptions from the terms
of the [APA] are not lightly to be presumed in view of the statement in
[§ 559] that modifications must be express.”); S.Doc. No. 248, 79th Cong.,

The statutes provide that: “The Secretary, consistent with section 104 of
the Health Care Portability and Accountability Act of 1996, may promulgate
such regulations as may be necessary or appropriate to carry out the
provisions of this chapter. The Secretary may promulgate any interim final
rules as the Secretary determines are appropriate to carry out this chapter.”
26 U.S.C. § 9833; see also 29 U.S.C. § 1191c; 42 U.S.C. § 300gg-92.
33

34

Coal. for Parity, Inc. v. Sebelius, 709 F. Supp. 2d 10, 17-19 (D.D.C.
2010); Pennsylvania v. Trump, 281 F. Supp. 3d 553, 571-572 (E.D. Pa.
2017); ER 19-21.
49

2d Sess. 231 (1946) (Courts must presume that the APA applies “unless
some subsequent act clearly provides to the contrary.”). The relevant
inquiry is “whether Congress has established procedures so clearly different
from those required by the APA that it must have intended to displace the
norm.” Asiana Airlines, 134 F.3d at 397.
In Castillo-Villagra, for example, this Court held that the APA’s
procedures were supplanted where the statute in question stated that the
“procedure so prescribed shall be the sole and exclusive procedure for
determining the deportability of an alien under this section.” 972 F.2d at
1025 (emphasis added). Courts have also held that Congress clearly
intended to supplant notice and comment procedures when a statute directs
that the agency “shall” issue an IFR, identifies with specificity the subject
matter of the exempt regulation, and sets deadlines that could not be met
were notice and comment procedures followed. See Asiana Airlines, 134
F.3d at 396-399; Methodist Hosp. of Sacramento v. Shalala, 38 F.3d 1225,
1235-1237 (D.C. Cir. 1994); see also id. at 1236 n.18.35

Cf. 42 U.S.C. § 17013(e) (directing that the Secretary “shall” promulgate
“an interim final rule” no later than a specific date and setting forth in detail
what the IFR must accomplish); 6 U.S.C. § 944(a)(2) (similar); 21 U.S.C.
§ 811(j) (similar).
35

50

The statutes that defendants cite do none of these things. They fail to
supply language that meets the high bar of “plainly express[ing] a
congressional intent to depart from normal APA procedures.” Asiana
Airlines, 134 F.3d at 398; cf. Lake Carriers’ Ass’n v. EPA, 652 F.3d 1, 6
(D.C. Cir. 2011). They instead employ language that grants defendants the
substantive power to issue regulations, but are silent as to the procedures that
must be followed when so doing. See, e.g., 42 U.S.C. § 300gg-92 (agency
“may promulgate such regulations as may be necessary or appropriate” and
“may promulgate” IFR as agency determines “appropriate”). In such cases,
the APA’s default procedural rules apply. See 5 U.S.C. § 553.36
Other provisions of the ACA, by contrast, express a clear intent to
override notice and comment procedures. Section 1104(b)(2) of the ACA,
for example, provides that recommendations to amend “adopted standards
and operating rules” that were approved by the “review committee and
reported to” the agency “shall be adopted . . . through promulgation of an
[IFR] not later than 90 days after receipt of the committee’s report.” 42

36

Indeed, in a matter currently pending before the U.S. Supreme Court,
defendant HHS relies on these principles in service of the position that
provisions of the Medicare Act do not override the APA. Pet. for Writ of
Cert. at 14-19, Azar v. Allina Health Servs. (No. 17-1484).
51

U.S.C. § 1320d-2(i)(3)(A) (emphasis added). That Congress opted not to
use similarly unequivocal language in the statutes defendants cite,
underscores that it had no intent to disturb established APA procedures. See
Custis v. United States, 511 U.S. 485, 492, (1994).37
Defendants suggest that this conclusion would violate the rule against
surplusage. AOB 50, 52. But this canon of construction, used to decipher
the meaning of ambiguous statutory language, is of little relevance here.
Congress has specifically forbidden courts from interpreting ambiguous
language to override the provisions of the APA. 5 U.S.C. § 559. The
statutes here neither contain express language exempting defendants from
the APA, nor provide for any alternative procedures that could reasonably be
understood as departing from APA norms.
Under defendants’ reading, the cited statutes permit three of the most
important federal agencies to jettison rulemaking procedures, and cabin
judicial scrutiny to a generalized and highly deferential review for

37

The defendant agencies highlight that they have invoked these statutes in
the past as a basis for foregoing notice and comment procedures. AOB 4849. But no court has ever passed upon the issue of whether those prior
IFRs—which are entirely unrelated to this case—properly interpreted the
cited statutes. And no authority supports defendants’ assertion (id.) that this
Court must interpret defendants’ prior invocations as conclusive authority on
the question of the statutes’ legal meaning.
52

“appropriate[ness].” AOB 46-53. If Congress had intended this
extraordinary and unprecedented result, it would have said so clearly, as the
APA itself requires. See Castillo-Villagra, 972 F.2d at 1025; 5 U.S.C.
§ 559. That it opted not to implement such language here confirms that it
had no intent to disturb the APA’s notice and comment requirement. Cf.
EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584, 1612 (2014)
(The Court has “repeatedly said that Congress ‘does not alter the
fundamental details of a regulatory scheme in vague terms or ancillary
provisions—it does not, one might say, hide elephants in mouseholes.’”).
5.

The IFRs Are Substantively Invalid and
Unconstitutional

In addition to the notice and comment claim, plaintiffs also moved for
a preliminary injunction on the basis that the IFRs are substantively invalid
under the APA, and violate the Equal Protection and Establishment
Clauses.38 While the district court found it unnecessary to reach these other
claims, this Court may uphold the preliminary injunction should it determine
that there is a likelihood of success on any of these causes of action. See
Syed v. M-I, LLC, 853 F.3d 492, 506 (9th Cir. 2017).

38

Because the IFRs violate the APA, this Court need not reach the
constitutional claims. See In re Ozenne, 841 F.3d 810, 814-815 (9th Cir.
2016).
53

The IFRs are contrary to law because they contravene the ACA’s goal
of ensuring that women have access to contraceptive care. 5 U.S.C.
706(2)(A), (C). While defendants are charged with implementing the ACA,
they are not free to do so in a way that squarely contradicts Congress’
express directive. See Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81,
91-92, 95-96 (2002); cf. Michigan v. EPA, 135 S. Ct. 2699, 2708 (2015)
(Chevron deference “does not license interpretive gerrymanders under which
an agency keeps parts of statutory context it likes while throwing away parts
it does not.”).
The IFRs are also “arbitrary and capricious” for failure to explain
defendants’ stark departure from prior policy. 5 U.S.C. 706(2)(A); Encino
Motorcars v. Navarro, 136 S. Ct. 2117, 2125-2127 (2016). Because
defendants’ policy reversal implicates “serious reliance interests,” it must be
justified by a “reasoned explanation.” Id. at 2125-2126; see also FCC v.
Fox Television Stations, Inc., 556 U.S. 502, 535-536 (2009) (Kennedy, J.,
concurring). Yet defendants offer no reason why an opposite result is
warranted given that the underlying factual and legal circumstances that
supported their prior position have not materially changed. See Hobby
Lobby, 134 S. Ct. at 2785-2786 (Kennedy, J., concurring) (noting HHS’s
position that the contraceptive-coverage requirement “serves the
54

Government’s compelling interest in providing insurance coverage that is
necessary to protect the health of female employees, coverage that is
significantly more costly than for a male employee”).
B.

The States Will Suffer Immediate, Irreparable Harm
Absent a Preliminary Injunction

The district court did not abuse its discretion in determining that the
States would suffer irreparable harm in the absence of preliminary relief.
See Winter v. NRDC, 555 U.S. 7, 20 (2008). The court found, in light of the
evidence, that “what is at stake” in this case is the “health of [the States’]
citizens and [the States’] fiscal interests.” ER 25. Every day that the
procedurally invalid IFRs remain in effect is another day that employers can
unilaterally eliminate contraceptive coverage for employees and their
dependents, resulting in devastating consequences for the State. ER 25-26;
see, e.g., ER 248-49 (Werberg Decl. ¶¶ 4-9). As the court noted, the harm
manifests in multiple ways. ER 14, 25-26.
First, if the IFRs are not enjoined, the States will incur additional
responsibilities, and will pay more to provide contraception to their
residents. Take California, where individuals with family income at or
below 200 percent of the federal poverty level are eligible to enroll in the
state’s Family Planning, Access, Care, and Treatment (Family PACT). ER
55

120 (Cantwell Decl. ¶ 7); ER 235 (Tosh Decl. ¶ 29).39 Eligible women are
likely to seek services from Family PACT when their employers slash
coverage for contraception from the benefits of self-funded plans. ER 12122 (Cantwell Decl. ¶¶ 15, 16); ER 236 (Tosh Decl. ¶ 34). And when they
do, the States will be left to pick up the tab. ER 122 (Cantwell Decl. ¶ 17);
ER 236 (Tosh Decl. ¶ 34); ER 208 (Nelson Decl. ¶ 15); ER 116 (Rattay
Decl. ¶ 7). The same holds for New York, Maryland, and Delaware, which
all have state family planning programs. ER 169-175 (Finer Decl. ¶¶ 6386); see also ER 210-211 (Nelson Decl. ¶¶ 22-28) (discussing Maryland
programs). While these States have enacted laws that independently require
that certain insurers provide contraceptive coverage, none apply to selffunded plans. These plans, which are governed by federal law, insure
millions of people in the plaintiff States. ER 196, 201 (Jones Decl. ¶¶ 4, 25)
(6.6 million in California); ER 207-208 (Nelson Decl. ¶¶ 12, 14); ER 133
(Navarro Decl. ¶ 11); ER 247-248 (Werberg Decl. ¶¶ 2, 4).
The harms inflicted by the IFRs will be especially acute in Virginia,
which does not have a state contraceptive equity law. ER 242 (Whorley

39

For a family of four, two hundred percent of the federal poverty level is
$50,200. HHS, U.S. Federal Poverty Guidelines Used to Determine
Financial Eligibility for Certain Federal Programs (2018), available at
https://aspe.hhs.gov/poverty-guidelines (last visited May 21, 2018).
56

Decl. ¶ 8). Many women who lose contraceptive coverage in Virginia will
turn to Plan First, Virginia’s limited benefit family planning program, which
provides contraceptive coverage for women in families below 200 percent of
the federal poverty level. ER 242-43 (¶¶ 3, 4, 10). The increase in Plan
First enrollees—and in women seeking services from hospital systems that
are Plan First providers—will cause fiscal harm to Virginia. ER 243 (¶¶ 10,
11).
This harm to the States is irreparable because there is no remedy at law
to recover the costs of providing these services. See Maxwell-Jolly, 563
F.3d at 852.40 The APA does not provide for money damages, and there is
no other means by which the States could recoup the substantial
expenditures that the IFRs are likely to impose. See Patchak, 567 U.S. at
215; 5 U.S.C. § 702. Even a slight uptick in such costs will cause
irreparable harm to the States. Simula, Inc. v. Autoliv, Inc., 175 F.3d 716,
725 (9th Cir. 1999) (“magnitude of the injury” is not a determinative factor

40

See also Hernandez v. Sessions, 872 F.3d 976, 995 (9th Cir. 2017)
(“economic burdens” constitute irreparable harm); Leiva-Perez v. Holder,
640 F.3d 962, 969-970 (9th Cir. 2011) (“‘potential economic hardship’” may
constitute irreparable harm); Texas, 809 F.3d at 186.

57

in the analysis of irreparable harm); Ariz. Dream Act Coal. v. Brewer, 757
F.3d 1053, 1068 (9th Cir. 2014).
Second, the overwhelming weight of authority demonstrates that
reduced access to contraception produces a surge in unintended pregnancies,
which irreparably harms the States. When contraception is provided at no
cost—as is the law under the ACA—women are free to use the most
effective methods, resulting in lower rates of unintended pregnancy,
abortion, and birth among adolescents. ER 146, 148-49, 149-150, 157
(Finer Decl. ¶¶ 7-9, 14-15, 17-19, 32); ER 103 (Lawrence Decl. ¶ 9); ER 9899 (Grossman Decl. ¶ 9)); ER 126-128 (Ikemoto Decl. ¶ 5); ER 234 (Tosh
Decl. ¶ 26); ER 209-210, 212 (Nelson Decl. ¶¶ 21, 30). It also allows
women greater control over the intervals between pregnancies, which is
correlated with improved birth outcomes. See ER 97-98 (Grossman Decl.
¶ 7). The converse is true under the IFRs. When the cost of contraception
increases, women are more likely to use less effective methods of
contraception, use them inconsistently or incorrectly, or not use them at

58

all—and the result is a higher rate of unintended pregnancies. ER 154-55,
159-162 (Finer Decl. ¶¶ 28, 38-43).41
Unintended pregnancies cause both immediate and far-reaching
impacts on the States. Over half of unintended pregnancies end in
miscarriage or abortion. ER 234 (Tosh Decl. ¶ 26); see also ER 102-103
(Lawrence Decl. ¶ 8). All of these outcomes—whether miscarriages,
abortions, or live births—cost the States in the short-term and long-term.
The States are burdened not only with funding a significant portion of the
medical procedures associated with unintended pregnancies and their
aftermath, ER 167, 169, 171, 173, 175, 177 (Finer Decl. ¶¶ 54, 61
(California), 69 (Delaware), 77 (Maryland), 85 (New York), 93 (Virginia));
ER 234-235 (Tosh Decl. ¶¶ 26-28); ER 115-116 (Rattay Decl. ¶ 5), but also
with the social and economic repercussions flowing from lost opportunities
for affected women to succeed in the classroom, participate in the
workforce, and to contribute as taxpayers. ER 162-163 (Finer Decl. ¶ 45);
ER 101-102 (Lawrence Decl. ¶ 5); ER 223-224 (Arensmeyer Decl. ¶ 4); ER
212 (Nelson Decl. ¶ 31); ER 217, 218 (Bates Decl. ¶¶ 3, 6). These lifelong

41

See also ER 103 (Lawrence Decl. ¶ 9); ER 98-99 (Grossman Decl. ¶¶ 89)); ER 126-28 (Ikemoto Decl. ¶ 5); ER 198-99 (Jones Decl. ¶ 15); ER 23637 (Tosh Decl. ¶ 35); ER 212 (Nelson Decl. ¶ 30); ER 116 (Rattay Decl.
¶ 6); ER 141-42 (Lytle-Barnaby Decl. ¶ 28).
59

consequences for women and their families are severe and effect irreparable
harm upon the States. The only way to avoid this disruption is to ensure that
the ACA’s guarantee of no-cost contraceptive coverage is maintained.
In addition to these fiscal and public health harms, depriving the States
of the federal procedural right to participate in notice and comment also
harms the States irreparably. Irreparable harm is “determined by reference
to the purposes of the statute being enforced.” Nat’l Wildlife Fed’n v. Nat’l
Marine Fisheries Serv., 886 F.3d 803, 818 (9th Cir. 2018). The purposes of
the APA’s notice and comment requirement—transparency, democratic
accountability, and informed agency decisionmaking—cannot be attained
with an ex post remedy. The federal defendants’ violation of the APA’s
notice-and-comment requirement therefore supports issuing a preliminary
injunction. See N. Mariana Islands, 686 F. Supp. 2d at 17 (quoting Sugar
Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89, 94-95 (D.C. Cir.
2002)) (failure to provide notice and comment is irreparable); cf. In re:
Howmedica Osteonics Corp, 867 F.3d 390, 401 (3d Cir. 2017) (procedural
harm “irreparable” under standard for mandamus).
Defendants dispute the factual findings underpinning the district court’s
finding of irreparable harm, but fail to explain how the district court clearly
erred. Disney, 869 F.3d at 856 (court clearly errs only where fact findings
60

are “illogical,” “implausible,” or “without support” in the record). The
district court evaluated the facts before it, including declarations from
experts and scholars and statements made within the IFRs themselves, and
determined that the States would be injured as a result of the IFRs. Among
other things, the court concluded that “for a substantial number of women,
the 2017 IFRs transform contraceptive coverage from a legal entitlement to
an essentially gratuitous benefit wholly subject to their employer’s
discretion.” ER 25-26. Further, the court found that “[t]he impact of the
rules governing the health insurance coverage of [the States’] citizens—and
the stability of that coverage—was immediate, which also implicates [the
States’] fiscal interests.” ER 26. Most importantly, the district court noted
that in the event that it found in favor of the States on the merits, “any harm
caused in the interim by rescinded contraceptive coverage would not be
susceptible to remedy.” ER 26.
Defendants have not identified “clear error” in any of these factual
findings. They instead echo the same arguments marshalled against Article
III standing, namely that the States’ harms are insufficiently concrete. AOB
64; see also March Br. 55, 61-62. These arguments are no more persuasive
in the context of irreparable harm analysis. They also appear to be premised
upon the erroneous notion that the States must wait to sustain harm before
61

seeking an injunction. Cf. Helling v. McKinney, 509 U.S. 25, 33 (1993) (“It
would be odd to deny an injunction to inmates who plainly proved an
unsafe, life-threatening condition in their prison on the ground that nothing
yet had happened to them.”); Delta Water, 306 F.3d at 948. And as this
Court recently explained, “[i]rreparable harm may be caused by activities
broader than those that plaintiffs seek to enjoin,” and thus, a “district court
[is] not required to find irreparable harm solely” from a single source in
order to conclude irreparable harm exists. Nat’l Wildlife, 886 F.3d at 820;
see also M.R. v. Dreyfus, 697 F.3d 706, 728 (9th Cir. 2012).
Defendants’ own statements undermine their suggestion that the States
will not be irreparably harmed absent an injunction. The federal agencies
acknowledge that, in certain respects, they do not know how many entities
will take advantage of the IFRs (ER 308); yet they also assert that hundreds
of employers will take advantage of the IFRs. See, e.g., ER 309 (109 of the
209 entities making use of the accommodation process will instead “make
use of their exempt status”); id. (at least 122 nonprofits would use the
expanded exemption); ER 314 (120,000 women affected). And the evidence
before the district court demonstrated that women in the plaintiff States
would be harmed. Given defendants’ concessions and the evidence before

62

the court, maintaining the status quo with a preliminary injunction was well
within the court’s discretionary authority.
C.

By Preserving the Status Quo, the Preliminary Injunction
Appropriately Balances the Equities and Serves the
Public Interest

The balance of the equities and the public interest analyses support
issuing a preliminary injunction as well. See Winter, 555 U.S. at 24-26. The
district court noted two interests to balance when considering the equities:
“‘the interest in ensuring coverage for contraceptive and sterilization
services’ as provided for under the ACA, and the interest in ‘provid[ing]
conscience protections for individuals and entities with sincerely held
religious beliefs [or moral convictions] in certain health care contexts.’” ER
26 (quoting ER 284). In violating the APA’s notice-and-comment
requirement, the federal defendants failed to properly consider the former
interest before issuing the IFRs, causing the States substantial injury.
While the IFRs inflict grave and lasting harm upon the States and their
residents, enjoining the IFRs has little impact on the federal defendants.
Defendants acknowledge as much. Their main justification for rushing the
IFRs into effect without full vetting is to avoid “delay [in] the ability of []
organizations and individuals to avail themselves of the relief afforded by
these interim final rules.” ER 305. Yet the ACA’s accommodations and
63

exemptions, which eight Circuit Courts of Appeal found did not impose a
substantial burden on religious exercise under RFRA, remain available as
this matter is litigated to its conclusion.42 Connaughton, 752 F.3d 755, 765
(9th Cir. 2014) (the balance of equities generally tips in favor of plaintiffs
when the harms they face if an injunction is denied are permanent, while the
harms defendants face if an injunction is granted are temporary).
When weighing these interests, particular attention should be given to
preserving the status quo. Chalk v. U.S. Dist. Court Cent. Dist. Cal., 840
F.2d 701, 704 (9th Cir. 1988). Here, the status quo is the ACA’s
contraceptive-coverage requirement, as well as the carefully and deliberately
crafted accommodations and exemptions to that requirement. Cal. Dep’t of
Parks & Recreation v. Bazaar Del Mundo Inc., 448 F.3d 1118, 1124 (9th
Cir. 2006) (status quo is “the last uncontested status that preceded the
parties’ controversy”). Preserving the status quo prevents irreparable harm
to the States and their residents, while still protecting the sincerely held
religious beliefs of those who oppose contraception. The balance of the
equities and the public interest accordingly tips in the States’ favor. N.

42

ER at 27 n.17 (collecting cases).
64

Mariana Islands, 686 F. Supp.2d at 21 (“[t]he public interest is served when
administrative agencies comply with their obligations under the APA”).
Defendants contrary arguments are unpersuasive. Defendants’
suggestion (AOB 65) that the “institutional” harm suffered by the defendants
militates in favor of denying the injunction is unsupported by authority, and
would preclude nearly all injunctions against the federal government. And
their assertion that the district court failed to account for the potential harm
to religious and moral objectors to contraception is incorrect. The district
court in fact carefully considered this harm in its analysis. ER 26.
Moreover, defendants’ argument is undercut by their own statements that
several employers will be unaffected in light of other litigation. See, e.g.
March Br. 55 (referencing the employers who have “favorably settled their
cases”); Sisters Br. 31 (asserting all “known religious objectors are already
protected by the existing injunctions”). Defendants’ assertions of harm are
also belied by their failure to act with dispatch in seeking relief from the
injunction. See supra pp. 14-15; cf. Garcia v. Google, 786 F.3d 733, 746
(9th Cir. 2015) (en banc) (delay undercuts claim of harm).

65

D.

The District Court Properly Exercised Its Discretion in
Determining the Scope of the Injunction

Defendants argue that the district court erred by failing to limit the
scope of the injunction to employers in the plaintiff States. AOB 70. But
the “scope of injunctive relief is dictated by the extent of the violation
established, not by the geographical extent of the plaintiff class.” Califano,
442 U.S. at 702. A suit by a single plaintiff can therefore alter an entire
federal program, if the program itself contravenes the Constitution or a
federal law. See Lujan, 497 U.S. at 890 n.2; Trump v. Int’l Refugee
Assistance Project, 137 S. Ct. 2080, 2087 (2017).43 Hewing to this
precedent, the district court correctly enjoined defendants from
implementing the IFRs, promulgated in violation of the APA, without
geographic restriction.

43

Circuit courts have heeded this guidance. See, e.g., Washington v. Trump,
847 F.3d 1151, 1166 (9th Cir. 2017); Bresgal v. Brock, 843 F.2d 1163, 1171
(9th Cir. 1987); City of Chicago v. Sessions, 888 F.3d 272, 288-293 (7th Cir.
2018); Texas, 809 F.3d at 187-188. The cases that defendants cite (AOB 68,
70, 72) disapproving of nationwide injunctions are fact-bound, and do not
apply to the circumstances of this case. Los Angeles Haven Hospice, Inc. v.
Sebelius, 638 F.3d 644, 665 (9th Cir. 2011) (nationwide injunction would
“significantly disrupt” the administration of Medicare and result in “great
uncertainty and confusion”); Meinhold v. U.S. Dep’t of Def., 34 F.3d 1469,
1480 (9th Cir. 1994) (lawsuit to reinstate single officer did not justify
nationwide injunction).
66

Defendants take issue with the “nationwide” scope of the injunction,
urging that it violates principles of Article III standing which dictate that at
least one litigant must have standing for each form of relief sought. AOB
68. But the scope of an injunction is not a different form of relief for
standing purposes. Rather, the scope of an injunction derives from the
district court’s equitable powers, and is left to its sound discretion. See
Melendres, 784 F.3d at 1265. The breadth of the court’s remedial powers is
therefore distinct from Article III’s case or controversy requirement. And
contrary to defendants’ suggestion, “[t]here is no general requirement that an
injunction affect only the parties in the suit.” Bresgal, 843 F.2d at 1169.
Defendants also argue that, as a matter of policy, nationwide
injunctions are only appropriate in the class action context. AOB 72. But
this notion is “inconsistent with Trump and the myriad cases preceding it in
which courts have imposed nationwide injunctions in individual actions.”
Chicago, 888 F.3d at 290.
Where, as here, a challenged agency action has a nationwide impact, a
nationwide injunction advances the public interest by providing “efficiency
and certainty in the law.” Id. at 288. As such, nationwide injunctions are an
accepted remedy for violations of the APA, which often implicate matters of
national concern. Earth Island Inst. v. Ruthenbeck, 490 F.3d 687, 699 (9th
67

Cir. 2007), rev’d in part on other grounds by Summers, 555 U.S. 488; Nat’l.
Mining Ass’n. v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir.
1998) (When regulations are deemed invalid, the “‘ordinary result is that the
rules are vacated—not that their application to the individual petitioners is
proscribed.’”). Defendants’ suggestion that the APA itself bars such relief
(AOB 70-71) is refuted by its plain language. 5 U.S.C. § 705 (courts have
power to issue “all necessary and appropriate process to postpone the
effective date of an agency action or to preserve status or rights pending
conclusion of the review proceedings”).
Defendants’ concern that the provisional relief provided in this case
will “disserve[] the deliberative development of the law” by halting the
adjudication of similar issues in other courts is unpersuasive. AOB 71-72.
It is not at all clear that “requiring simultaneous litigation of [a] narrow
question of law in countless jurisdictions” benefits the public interest.
Chicago, 888 F.3d at 292; see also Califano, 442 U.S. at 702. And in any
event, other challenges to the IFRs continue to be vigorously litigated in the
wake of the provisional relief here. Pennsylvania, 281 F. Supp.3d 553,
appeals docketed, Nos. 17-3752, 17-3679, 18-1253 (3rd Cir. 2017);
Massachusetts, 2018 WL 1257762 (D. Mass. Mar. 12, 2018); Campbell v.
Trump, No. 17-cv-2455 (D. Colo.).
68

Defendants fail to demonstrate how the district court abused its
discretion in issuing a nationwide injunction. AOB 68-73. Defendants also
do not explain how the nationwide scope of the provisional relief has
harmed them. See Califano, 442 U.S. at 702. Indeed, the nationwide
injunction advances the public interest by preserving the status quo,
preventing grave and lasting harm upon the States, and ensuring uniformity
in the administration of federal law pending resolution of the merits.
CONCLUSION
The States respectfully request that this Court affirm the district court’s
preliminary injunction.

69

Date: May 21, 2018
XAVIER BECERRA
Attorney General of California
Julie Weng-Gutierrez
Senior Assistant Attorney
General
Kathleen Boergers
Supervising Deputy Attorney
General
Karli Eisenberg
R. Matthew Wise
Deputy Attorneys General
s/ Max Carter-Oberstone
Max Carter-Oberstone
Associate Deputy Solicitor
General
455 Golden Gate Ave.
San Francisco, CA 94102
[phone]
Attorneys for the State of
California
BRIAN E. FROSH
Attorney General of Maryland
Carolyn A. Quattrocki
Deputy Attorney General
Steven M. Sullivan
Solicitor General
Kimberly S. Cammarata
Director, Health Education &
Advocacy
200 St. Paul Place
Baltimore, MD 21202
[phone]
Attorneys for the State of
Maryland

Respectfully Submitted,
BARBARA D. UNDERWOOD
Acting Attorney General of New York
Steven C. Wu
Deputy Solicitor General
Ester Murdukhayeva
Assistant Solicitor General
Lisa Landau
Bureau Chief, Health Care Bureau
Sara Haviva Mark
Special Counsel
Elizabeth Chesler
Assistant Attorney General
28 Liberty St.
New York, NY 10005
[phone]
Attorneys for the State of New York
MATTHEW P. DENN
Attorney General of Delaware
Ilona Kirshon
Deputy State Solicitor
Jessica M. Willey
David J. Lyons
Deputy Attorneys General
820 N. French St.
Wilmington, DE 19801
[phone]
Attorneys for the State of Delaware
MARK R. HERRING
Attorney General of Virginia
Samuel T. Towell
Deputy Attorney General
202 N. Ninth St.
Richmond, VA 23219
[phone]
Attorneys for the Commonwealth of Virginia

70

STATEMENT OF RELATED CASES
The States are not aware of any related cases, as defined by Ninth Circuit
Rule 28-2.6, that are currently pending in this Court and are not already
consolidated here.

71

CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the requirements of Federal Rules of
Appellate Procedure 32(a)(5)-(6), and Ninth Circuit Rules 32-1 and 32-2(b)
because it uses a proportionately spaced Times New Roman font, has a typeface of
14 points, and contains 15,314 words.

Date: May 21, 2018

s/ Max Carter-Oberstone

72

CERTIFICATE OF SERVICE
I certify that on May 21, 2018, I electronically filed the foregoing document
with the Clerk of the Court of the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system. I certify that all other participants
in this case are registered CM/ECF users and that service will be accomplished by
the appellate CM/ECF system.

Date: May 21, 2018

s/ Max Carter-Oberstone

73