Case 4:17-cv-05783-HSG Document 462 Filed 08/03/21 Page 1 of 8

1 BRIAN NETTER
Deputy Assistant Attorney General
2 STEPHANIE HINDS
Acting United States Attorney
3 MICHELLE R. BENNETT
Assistant Branch Director
4 JUSTIN M. SANDBERG, IL. BAR NO. 6278377
Senior Trial Counsel
5 MICHAEL GERARDI
CHRISTOPHER R. HEALY
6 REBECCA M. KOPPLIN
DANIEL RIESS
7 Trial Attorneys
United States Department of Justice
8 Civil Division, Federal Programs Branch
1100 L Street NW
9 Washington, D.C. 20001
Telephone: (202) 514-5838
10 Email: [email protected]
Counsel for Federal Defendants
11

12
IN THE UNITED STATES DISTRICT COURT
13
FOR THE NORTHERN DISTRICT OF CALIFORNIA
14
OAKLAND DIVISION
15
______________________________________
16 )
STATE OF CALIFORNIA, et al., ) Case No.: 4:17-cv-5783-HSG
17 )
Plaintiffs, )
18 ) JOINT STATUS REPORT
v. )
19 )
XAVIER BECERRA, Secretary of )
20 Health and Human Services, et al., )
)
21 Defendants, )
)
22 and, )
)
23 THE LITTLE SISTERS OF THE POOR, )
JEANNE JUGAN RESIDENCE, et al., )
24 )
Defendant-Intervenors )
25 )

26 On April 30, 2021, Federal Defendants filed a status report [ECF No. 456] in which they

27 proposed filing another joint status report. The parties report as follows:

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1. This case concerns the validity of two rules which create a moral exemption, and expand a
2
religious exemption, to the rules establishing the contraceptive coverage requirement. See Religious
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Exemptions and Accommodations for Coverage of Certain Preventive Services Under the ACA, 83
4
Fed. Reg. 57,536 (Nov. 15, 2018); Moral Exemptions and Accommodations for Coverage of Certain
5
Preventive Services Under the ACA, 83 Fed. Reg. 57,592 (Nov. 15, 2018).
6
2. The Court has before it fully briefed dispositive motions, see ECF Nos. 311, 366, 368, 370,
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as well as supplemental briefs addressing the Supreme Court’s decision in Little Sisters of the Poor
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Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020), see ECF Nos. 433, 435, 437,
9
438, 440.
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3. On March 1, 2021, Federal Defendants filed a motion to stay the case to afford new leadership
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at the federal defendant agencies—the U.S. Department of Health and Human Services, the U.S.
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Department of Labor, and the U.S. Department of the Treasury—and the U.S. Department of Justice
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additional time to evaluate the issues that this case presents. ECF No. 451.
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4. The Court entered an order holding the pending dispositive motions in abeyance until April
15
30, 2021 and instructing the parties to file a joint status report on or before April 30, 2021.
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5. On April 30, 2021, Federal Defendants reported that they have been evaluating, and would
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continue to evaluate, the issues that this litigation presents in light of all relevant facts and
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circumstances, including the Executive Order on Strengthening Medicaid and the Affordable Care
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Act, January 28, 2021 (EO), https://www.whitehouse.gov/briefing-room/presidential-
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actions/2021/01/28/executive-order-on-strengthening-medicaid-and-the-affordable-care-
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act/?_hsmi=117826243&_hsenc=p2ANqtz-
22
9ZGdrSbFhmzpZv1U5tBXA5boILZhCzIZdVpKC3RgZl3d3ZDayiCDM0lrq6CTOqVJsF88ThoYb
23
QQFpNxZbyc7C5jyrg9A. The EO states, among other things, that “it is the policy of my
24
Administration to protect and strengthen Medicaid and the ACA and to make high-quality healthcare
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accessible and affordable for every American.” Id. § 1
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6. Since filing the last status report, Federal Defendants have held conference calls with both
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the Plaintiffs and Defendant-Intervenors to hear their views about how Federal Defendants should
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proceed in light of the legal and policy issues implicated by the rules and this litigation.
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7. Accordingly, Federal Defendants request that, to conserve resources for the parties and the
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Court, the Court continue to hold the pending dispositive motions in abeyance to afford the agencies
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additional time to assess the issues presented by this case—and to consider their regulatory and
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policy options. Federal Defendants propose that they file another status report on or before October
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29, 2021 and every 90 days thereafter. Counsel for Federal Defendants have conferred by phone
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with counsel for the other parties. Plaintiffs and Defendant-Intervenor March for Life do not oppose
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this proposal.
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8. Defendant-Intervenor the Little Sisters of the Poor opposes this request and expresses the
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following position: In their third request to delay this litigation, the Federal Defendants are still
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unable to point to any rulemaking in process, much less an actual change in the law. Since the status
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report filed 90 days ago, the only progress the Federal Defendants can report is a conversation with
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the parties in this litigation. They ask this Court for an indefinite delay, anticipating multiple 90-day
14
intervals for filing status reports. The best we know is that, at some unknown point in the future, the
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agencies might propose something. Then, after more months of public comment and analysis of those
16
comments, they might issue a changed rule that might be relevant to this case. And then that changed
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rule might eventually take effect if it is not enjoined in court.
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Respectfully, this is a recipe for courts to never decide cases against federal agencies. The
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democratic process ensures that there’s always a next election on the horizon, or one that just
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happened. The contraceptive mandate is the poster child for this problem. If there is a basis to avoid
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resolving this case based on the ordinary political calendar and a government that is thinking about
22
its rules, then there is a basis to avoid deciding any case involving federal rulemaking.
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The Supreme Court issued its ruling in this case over a year ago, and the pending summary
24
judgment motions have been fully briefed for nearly two years. The rules at issue in this case were
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issued years ago, and they will remain the law of the land indefinitely, unless and until the Federal
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Defendants act. As the Federal Defendants consider their regulatory and policy options, a decision
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in this case could help guide their process by clarifying the legality of the existing rules.
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The Little Sisters respectfully request that this Court resolve the pending motions. At bottom,
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the Federal Defendants’ repeated requests for indefinite delay—and the States’ repeated
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acquiescence in indefinite delay—simply confirm that the religious exemption is not causing
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significant harm.
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9. The Plaintiff States respond as follows: Plaintiff States disagree with the Little Sisters’s
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unsubstantiated claim that the Exemption Rules are not causing harm. Indeed, the States remain very
7
concerned about the ongoing harm to women while this case is held in abeyance and the Exemption
8
Rules are operative. See States Mot. [Dkt. No. 311] at pp. 1-3 (describing the extensive record
9
evidence demonstrating the benefits of contraceptive coverage, the corresponding impact on society,
10
and the States, and the harm that occurs with the loss of full healthcare coverage). Moreover, under
11
the Exemption Rules, employers need not give any notice to the government or their employees that
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they are utilizing the Rules. See 83 Fed. Reg. at 57,558 (these Rules “do not impose any new notice
13
requirements”) id. at 57,574 (entities can “avoid sending any supplemental notices”); see also States
14
Opp. [Dkt. No. 385] at 50 n.24; States Supp. Br. [Dkt. No. 433] at 4, 6, 9. Thus, neither the public
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nor the government will ever know the extent to which employers are utilizing the Exemptions Rules
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and thereby depriving women of their healthcare benefits. See Tr. of Dec. 16, 2020 Hr’g on Cross-
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Mots. for Summ. J. at 26:20-26:21 (“the rules are designed in a way that ensures that nobody would
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have notice”); see also id. at 28:7-28:9 (the rules do not “identify any mechanism for a woman who
19
wants to bring a challenge to her employer”). At a minimum, the U.S. Department of Health and
20
Human Services itself estimated that 30 million women gained access to contraceptive coverage due
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to the Women’s Health Amendment and up to 126,400 women stand to lose contraceptive coverage
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due to the Religious Exemption Rule. 83 Fed. Reg. at 57,551; see also Appendix to States Mot.
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[Dkt. No. 313] Ex. 17 (D9 571363).
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Nevertheless, in light of the Federal Defendants’ commitment to evaluating the issues
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presented in this case, as well as interests in judicial economy, Plaintiff States do not oppose the
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Federal Defendants’ proposal to hold the pending motions in abeyance.
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1 Dated: August 3, 2021 Respectfully submitted,

2 BRIAN NETTER
Deputy Assistant Attorney General
3
STEPHANIE HINDS
4 Acting United States Attorney

5 MICHELLE R. BENNETT
Assistant Branch Director
6
/s/ Justin M. Sandberg
7 JUSTIN M. SANDBERG, IL Bar No. 6278377
Senior Trial Counsel
8 MICHAEL GERARDI
CHRISTOPHER R. HEALY
9 REBECCA M. KOPPLIN
DANIEL RIESS
10 Trial Attorneys
United States Department of Justice
11 Civil Division, Federal Programs Branch
1100 L Street NW
12 Washington, D.C. 20001
Telephone: (202) 514-5838
13 Email: [email protected]
Counsel for Federal Defendants
14
/s/ Mark L. Rienzi
15
Eric C. Rassbach – No. 288041
16 Mark L. Rienzi – pro hac vice
Lori H. Windham – pro hac vice
17 Diana M. Verm – pro hac vice
The Becket Fund for Religious Liberty
18 1919 Pennsylvania Ave. NW, Suite 400
Washington, DC 20036
19
Telephone: (202) 955-0095
20 Facsimile: (202) 955-0090
[email protected]
21 Counsel for Defendant-Intervenor The Little
Sisters of the Poor
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Dated: August 3, 2021 Respectfully submitted,
2
ROB BONTA
3 Attorney General of California
KATHLEEN BOERGERS
4 Supervising Deputy Attorney General
KATAKEE KANE
5 Deputy Attorney General

6
/s/ Karli Eisenberg
7 KARLI EISENBERG
Supervising Deputy Attorney General
8 Attorneys for Plaintiff the State of
California
9
WILLIAM TONG
10 Attorney General of Connecticut
MAURA MURPHY OSBORNE
11 Assistant Attorney General
Attorneys for Plaintiff the State of
12 Connecticut

13 KATHLEEN JENNINGS
Attorney General of Delaware
14 CHRISTIAN DOUGLAS WRIGHT
Director of Impact Litigation
15 JESSICA M. WILLEY
Deputy Attorney General
16 Attorneys for Plaintiff the State of Delaware

17 KARL A. RACINE
Attorney General of the District of Columbia
18 KATHLEEN KONOPKA
Deputy Attorney General, Public Advocacy
19 Division
Attorneys for Plaintiff the District of
20 Columbia

21 CLARE E. CONNORS
Attorney General of Hawaii
22 ERIN N. LAU
Deputy Attorney General
23 Attorneys for Plaintiff the State of Hawaii

24 KWAME RAOUL
Attorney General of Illinois
25 HARPREET K. KHERA
Deputy Bureau Chief, Special Litigation
26 Bureau
ELIZABETH MORRIS
27 Assistant Attorney General, Special Litigation
Bureau
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1 Attorneys for Plaintiff the State of Illinois

2 BRIAN E. FROSH
Attorney General of Maryland
3 CAROLYN A. QUATTROCKI
Deputy Attorney General
4 STEVE M. SULLIVAN
Solicitor General
5 KIMBERLY S. CAMMARATA
Director, Health Education and Advocacy
6 Attorneys for Plaintiff the State of Maryland

7 KEITH ELLISON
Attorney General of Minnesota
8 JACOB CAMPION
Assistant Attorney General
9 Attorney for Plaintiff the State of Minnesota,
by and through its Department of Human
10 Services

11 LETITIA JAMES
Attorney General of New York
12 LISA LANDAU
Bureau Chief, Health Care Bureau
13 STEVEN C. WU
Deputy Solicitor General
14 Attorneys for Plaintiff the State of New York

15 JOSHUA H. STEIN
Attorney General of North Carolina
16 SRIPRIYA NARASIMHAN
Deputy General Counsel
17 Attorneys for Plaintiff the State of North
Carolina
18
PETER F. NERONHA
19 Attorney General of Rhode Island
MICHAEL W. FIELD
20 Assistant Attorney General
Attorneys for Plaintiff the State of Rhode
21 Island

22 T.J. DONOVAN
Attorney General of Vermont
23 ELEANOR SPOTTSWOOD
Assistant Attorney General
24 Attorneys for Plaintiff the State of Vermont

25 MARK R. HERRING
Attorney General of Virginia
26 SAMUEL T. TOWELL
Deputy Attorney General
27 Attorneys for Plaintiff the Commonwealth of
Virginia
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ROBERT F. FERGUSON
2 Attorney General of Washington
JEFFREY T. SPRUNG
3 Assistant Attorney General
Attorneys for Plaintiff the State of Washington
4
Dated: August 3, 2021 Respectfully submitted,
5
ELLEN F. ROSENBLUM
6 Attorney General of Oregon

7
/s/ Nicole DeFever
8 (as authorized on XX/XX/21)
J. NICOLE DEFEVER, CA Bar No. 191525
9 Senior Assistant Attorney General
Attorneys for Plaintiff-Intervenor the State
10 of Oregon

11

12 /s/ Kenneth J. Connelly

(as authorized on 8/3/21)
13 KENNETH J. CONNELLY, AZ Bar No. 25420
14 Alliance Defending Freedom
15100 N. 90th Street
15 Scottsdale, AZ 85260
Telephone: (480) 444-0020
16 Facsimile: (480) 444-0028
Email: [email protected]
17 Counsel for Defendant-Intervenor March for
18 Life Education and Defense Fund

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