21-1890 Appellees Opening BR 1
21-1890 Appellees Opening BR 1
21-1890
LUKE W. GOODRICH
MARK L. RIENZI
JOSEPH C. DAVIS
DANIEL L. CHEN
The Becket Fund for
Religious Liberty
1919 Pennsylvania Ave. NW
Suite 400
Washington, DC 20006
(202) 955-0095
[email protected]
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SUMMARY OF THE CASE
ers who are subject to this requirement and who challenged it as a viola-
tion of the Religious Freedom Restoration Act (RFRA). The district court
held that this requirement violates RFRA and enjoined HHS from enforc-
HHS now appeals. It does not dispute the merits of the district court’s
RFRA analysis. It argues only that the district court erred by finding that
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TABLE OF CONTENTS
Page
INTRODUCTION ....................................................................................... 1
A. Plaintiffs.............................................................................................. 8
H. Subsequent Developments............................................................... 25
STANDARD OF REVIEW........................................................................ 27
ARGUMENT ............................................................................................. 30
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II. The district court correctly held this case is ripe. .......................... 50
CONCLUSION ......................................................................................... 57
CERTIFICATE OF SERVICE.................................................................. 60
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TABLE OF AUTHORITIES
Page(s)
Cases
Balogh v. Lombardi,
816 F.3d 536 (8th Cir. 2016) ........................................................... 38-39
Carson v. Simon,
978 F.3d 1051 (8th Cir. 2020) .............................................................. 24
Colwell v. HHS,
558 F.3d 1112 (9th Cir. 2009) ......................................................... 55-56
iv
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Cruz v. Zucker,
116 F. Supp. 3d 334 (S.D.N.Y. 2015)............................................. 11, 39
Elrod v. Burns,
427 U.S. 347 (1976) .............................................................................. 30
Gibson v. Collier,
920 F.3d 212 (5th Cir. 2019) ................................................................ 13
Holt v. Hobbs,
574 U.S. 352 (2015) .............................................................................. 22
v
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Iowa League of Cities v. EPA,
711 F.3d 844 (8th Cir. 2013) ........................................................ passim
Jones v. Jegley,
947 F.3d 1100 (8th Cir. 2020) .................................................. 21, 37, 46
Kiser v. Reitz,
765 F.3d 601 (6th Cir. 2014) ................................................................ 42
Korte v. Sebelius,
735 F.3d 654 (7th Cir. 2013) .......................................................... 30, 56
Lopez v. Candaele,
630 F.3d 775 (9th Cir. 2010) ................................................................ 47
Majors v. Abell,
317 F.3d 719 (7th Cir. 2003) ................................................................ 42
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Neb. Pub. Power Dist. v. MidAm. Energy Co.,
234 F.3d 1032 (8th Cir. 2000) .............................................................. 53
Parrish v. Dayton,
761 F.3d 873 (8th Cir. 2014) ................................................................ 53
Rodgers v. Bryant,
942 F.3d 451 (8th Cir. 2019) .......................................................... 40, 48
vii
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Smith v. Rasmussen,
249 F.3d 755 (8th Cir. 2001) ................................................................ 13
Walker v. Azar,
480 F. Supp. 3d 417 (E.D.N.Y. 2020) .......................................... passim
Washington v. HHS,
482 F. Supp. 3d 1104 (W.D. Wash. 2020) ..................................... 18, 34
Statutes
28 U.S.C. § 1291.......................................................................................... 6
28 U.S.C. § 1331.......................................................................................... 6
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42 U.S.C. § 2000bb-3 ................................................................................ 49
Other Authorities
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INTRODUCTION
Section 1557 of the Affordable Care Act to require almost every doctor
the Religious Freedom Restoration Act (RFRA), and two federal courts,
including the court below, agreed. These courts reasoned that forcing re-
On appeal, HHS doesn’t dispute the merits of this RFRA ruling. It ar-
gues only that this lawsuit is “premature.” Br.1. Although HHS gives this
arable injury”—it is really just one argument: Plaintiffs can’t bring a law-
by HHS.” Br.30.
But this argument flies in the face of the well-settled doctrine of “pre-
to past enforcement.” Br.20. It need only show (1) that it intends to en-
gage in conduct “arguably affected with a constitutional interest”; (2) that
1
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its conduct is “arguably proscribed” by law; and (3) that there exists a
“credible threat” of enforcement. SBA List v. Driehaus, 573 U.S. 149, 159,
has been applied by multiple courts, which have refused to dismiss law-
suits against religious hospitals and insurance plans for declining to per-
2
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(quoting N.H. Right to Life Pol. Action Comm. v. Gardner, 99 F.3d 8, 15
Care Comm. v. Arneson, 638 F.3d 621, 628 (8th Cir. 2011). Here, Section
1557 is far from desuetude. It was recently enacted and has been the
subject of two rulemakings in five years. HHS has said it will “vigorously
ing the public to file complaints. And it is the basis of multiple current
lawsuits seeking to force religious organizations to perform and insure
gender transitions. As the district court held, this “is more than sufficient
HHS has not, “to date,” evaluated whether RFRA “might apply to [pro-
tect] religious entities,” so HHS “might” not enforce Section 1557 against
them. Br.16. But that is cold comfort. The whole point of a pre-enforce-
ment challenge is that “a plaintiff need not wait for an actual prosecution
scope Media v. Lucero, 936 F.3d 740 (8th Cir. 2019). And this Court has
held that even a sworn disavowal of “present” intent not to enforce doesn’t
ent result. United Food & Commercial Workers Int’l Union v. IBP, Inc.,
3
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exemption in its regulations. President Biden campaigned on a promise
ical providers.” A738. Asked point blank by the Fifth Circuit if it would
disavow enforcement against religious plaintiffs, HHS said no: “[Q.] Are
you able to tell us that … you’re not going to enforce? [A.] No your honor.”
Oral Arg. at 15:46-19:27, Franciscan All. v. Azar, No. 20-10093 (5th Cir.
Mar. 3, 2021). In fact, HHS sought to modify the injunction in this very
case because it worried it would be held in “contempt” for enforcing Sec-
Lacking any valid argument under the Driehaus factors, HHS tries to
arable harm. But its rebranding fails. The case is ripe because the issues
are purely legal, as HHS admitted below, and because withholding re-
view would force Plaintiffs to choose between violating their religious be-
rable harm because, as this Circuit has held, the loss of First Amendment
* * *
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HHS interprets Section 1557 to prohibit Plaintiffs’ conduct. And Plain-
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JURISDICTIONAL STATEMENT
April 20, 2021. This Court has jurisdiction under 28 U.S.C. § 1291.
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STATEMENT OF THE ISSUES
1. Whether the district court properly held that Plaintiffs have stand-
Section 1557 of the Affordable Care Act, and Plaintiffs face a credible
threat of enforcement. See Driehaus, 573 U.S. 149; Telescope Media, 936
2. Whether the district court properly held that this case was ripe,
where Plaintiffs must either violate their religious beliefs or face civil li-
ability, loss of federal funding, and criminal penalties. See Iowa League
of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013); Minn. Citizens Concerned
for Life, Inc. v. FEC, 113 F.3d 129 (8th Cir. 1997).
rable harm, where Plaintiffs succeeded under RFRA, and courts have re-
peatedly held that the loss of RFRA rights is irreparable harm. See Ro-
Holdings, Inc. v. HHS, 801 F.3d 927 (8th Cir. 2015); Minn. Citizens Con-
cerned for Life, Inc. v. Swanson, 692 F.3d 864 (8th Cir. 2012) (en banc).
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STATEMENT OF THE CASE
A. Plaintiffs
Each Sister has chosen to follow Jesus Christ by taking a lifetime vow to
serve the poor and sick by caring for the whole person, ministering to
sistent with this mission, some Sisters serve as licensed healthcare pro-
fessionals in healthcare facilities throughout the country. A101¶5-6.
The Sisters also operate Sacred Heart Mercy Health Care Center,
a nonprofit health clinic. A101¶6. Sacred Heart furthers the Sisters’ mis-
sion to care for the elderly and the poor by serving Medicare and Medicaid
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healthcare professionals. A101¶6. Sacred Heart shares the Sisters’ be-
liefs and follows the U.S. Conference of Catholic Bishops’ Ethical and Re-
senior housing. A108¶3. It has a special emphasis on caring for the poor
Health shares the beliefs of the Sisters of Mary of the Presentation and
follows the Ethical and Religious Directives for Catholic Health Care Ser-
vices. A109¶5.
tered in North Dakota. The University infuses all its programs with
upholds Catholic teaching in all its programs. Id. The University is sub-
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ject to HHS’s interpretations of Section 1557 because it operates a stu-
dent health clinic and offers a nursing program that receives HHS fund-
Like the Catholic Church they serve, these Plaintiffs believe that
every man and woman is created in God’s image and reflects God’s image
Care Act” or ACA in 2010. At issue here is Section 1557 of the ACA, which
§ 18116(a).
Section 1557 does not itself specify the grounds on which discrimina-
der four other federal statutes: Title VI (race), Title IX (sex), the ADA
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(age), and “section 794 of Title 29” (disability). Id. Section 1557 thus pro-
discrimination.
uals filed complaints against both state-run and religious healthcare pro-
1557. See, e.g., Cruz v. Zucker, 116 F. Supp. 3d 334 (S.D.N.Y. 2015);
Compl. ¶80, Conforti v. St. Joseph’s Healthcare Sys., Inc., No. 2:17-cv-
00050, 2017 WL 67114 (D.N.J. Jan. 5, 2017) (HHS complaint filed Dec.
11, 2015). HHS ultimately agreed with this novel interpretation of Sec-
tion 1557, and in May 2016 promulgated a rule interpreting Section 1557
The 2016 Rule applies to any “entity that operates a health program
Thus, by HHS’s own estimate, the 2016 Rule applies to almost every
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facilities (such as hospitals and clinics) and “almost all licensed physi-
The 2016 Rule prohibits discrimination “on the basis of … sex,” defines
“sex” to include “gender identity,” and defines “gender identity” as an in-
for a transgender man would have to revise its policy to provide the pro-
must do the same for a woman who wants to remove a healthy uterus to
services”; it “is not limited to surgical treatments and may include, but is
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The 2016 Rule also interprets Section 1557 to require covered entities
72. According to HHS, this means that a plan excluding “coverage for all
quired to cover that procedure on the same basis that it would cover a
hysterectomy for other conditions (like cancer). Id.
ness with the federal government, false-claims liability, lawsuits for dam-
ages and attorneys’ fees, and criminal penalties. A757; see also 81 Fed.
216, 224 (5th Cir. 2019); Smith v. Rasmussen, 249 F.3d 755, 760-61 (8th
Cir. 2001) (recognizing “the lack of consensus in the medical community”
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regarding “sex reassignment surgery”). And HHS did this even though
review of the clinical evidence” that “there is not enough high quality ev-
idence to determine whether gender reassignment surgery improves
On November 6, 2016, Plaintiffs and the State of North Dakota filed this
suit, alleging HHS had violated, among other things, the APA, the First
other suit was filed in the same District, Catholic Benefits Ass’n v. Bur-
Section 1557 but also EEOC’s interpretation of Title VII. 2 These two suits
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Franciscan All., Inc. v. Burwell, No. 16-cv-108 (N.D. Tex. filed Aug. 23,
2016).
the challenged portions of the Rule took effect—the district court entered
a nationwide preliminary injunction barring HHS from enforcing the ban
F. Supp. 3d 660, 670 (N.D. Tex. 2016). The court held HHS’s “imple-
ment[ation] of Section 1557” likely violated RFRA by “plac[ing] substan-
procedures” and by not satisfying strict scrutiny. Id. at 671, 691-93. The
court also held HHS likely violated the APA by defining “sex” discrimi-
of the 2016 Rule against Plaintiffs. SA298. The court noted that the Fran-
enforcing the 2016 Rule and found the order “thorough and well-rea-
soned.” SA299. Following these decisions, both this case and Franciscan
court lifted its stay. And in October 2019, the Franciscan court granted
summary judgment for the plaintiffs. Franciscan All., Inc. v. Azar, 414 F.
Supp. 3d 928 (N.D. Tex. 2019). The court found “no reason to depart from
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its” preliminary-injunction analysis on the merits, holding that the 2016
Rule violated both RFRA and the APA. Id. at 942. However, the court
concluded that the proper remedy was vacatur of “the unlawful portions
of” the 2016 Rule, “not a permanent injunction.” Id. at 944-45; see Order
at 2, Franciscan, No. 16-cv-108 (N.D. Tex. Nov. 21, 2019), ECF 182 (va-
cating the 2016 Rule “insofar as [it] defines ‘On the basis of sex’ to include
gender identity and termination of pregnancy”). HHS did not appeal the
court’s ruling on the merits. But the plaintiffs appealed the denial of in-
37,160 (June 19, 2020) (“the 2020 Rule”). The 2020 Rule omitted the 2016
definition. Instead, the 2020 Rule reasoned that the Supreme Court’s
definition of ‘on the basis of sex’ under Title IX,” so repealing the prior
tion.” Id. at 37,168, 37,178. The 2020 Rule also stated it “shall be con-
strued consistently with,” inter alia, Title IX’s religious exemption, id. at
37,243, but suggested that, to the extent it applied, the exemption would
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Three days later, the Supreme Court decided Bostock. 140 S.Ct. 1731
(2020). The Court held that when “an employer … fires someone simply
serving the promise of the free exercise of religion,” and noted that RFRA
After Bostock, various plaintiffs filed five lawsuits against HHS, chal-
lenging the 2020 Rule and seeking restoration of the 2016 Rule. See Whit-
man-Walker Clinic, Inc. v. HHS, No. 20-cv-01630 (D.D.C. filed June 22,
2020); Walker v. Azar, No. 20-cv-02834 (E.D.N.Y. filed June 26, 2020);
BAGLY v. HHS, No. 20-cv-11297 (D. Mass. filed July 9, 2020); Washing-
ton v. HHS, No. 20-cv-01105 (W.D. Wash. filed July 16, 2020); New York
HHS defended against these suits on the ground that the 2020 Rule,
interpreted “in light of Bostock,” likely imposed the same prohibition on
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gender-identity discrimination as did the 2016 Rule. Resp. to Show Cause
Order at 6-7, Washington v. HHS, No. 20-1105 (W.D. Wash. Aug. 26,
stated that, due to Bostock, efforts to apply Section 1557 to prohibit “gen-
der identity” discrimination are “more likely to bear fruit under the 2020
Rule than under the 2016 Rule.” Mem. in Supp. of MTD at 14, BAGLY,
No. 20-11297 (D. Mass. Oct. 14, 2020), ECF 22 (“BAGLY Memo”). One
district court agreed with HHS’s argument and dismissed the case for
lack of standing, reasoning that under Bostock, the 2020 Rule may al-
(D.D.C. 2020) (cleaned up), preventing the 2020 Rule “from becoming op-
erative” and reinstating portions of the 2016 Rule, Walker v. Azar, 480 F.
In Walker, the court initially said it had “no power to revive a rule
vacated” by the Franciscan court. Id. at 427. Nevertheless, the court “pre-
dict[ed] that either the district court or some higher authority w[ould]
revisit the vacatur,” and then specifically held that portions of the 2016
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the basis of sex,’ ‘gender identity,’ and ‘sex stereotyping’”—“remain in ef-
nation based on … gender identity.” 485 F. Supp. 3d at 38, 42. The court
therefore enjoined the 2020 Rule’s repeal of this portion of the 2016 Rule
in light of Bostock, “le[aving] … the 2016 Rule’s prohibition on … sex ste-
reotyping” in effect. Id. at 26, 64. The Whitman-Walker court also en-
joined the 2020 Rule to whatever extent it incorporated Title IX’s reli-
gious exemption, id. at 43-46, even though the Franciscan court had held
that the 2016 Rule was arbitrary and capricious for not incorporating
the stay in this case, which was granted. Plaintiffs and North Dakota
then filed an amended complaint and motion for partial summary judg-
tion under RFRA prohibiting HHS from enforcing Section 1557 to compel
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Section 1557 on behalf of “the LGBTQ+ community” and “reverse” “reli-
gious exemptions” for “medical providers.” A738. North Dakota also re-
On January 19, 2021, the district court issued a 57-page opinion grant-
ing in part and denying in part Plaintiffs’ motions for partial summary
judgment. A809. The court first considered whether Plaintiffs had stand-
by the First Amendment.” A782. HHS did not dispute this point.
currently proscribed under the 2016 Rule, because the “overlapping pre-
as “HHS admit[s]” and recent “[c]ase law vindicates.” A783-84. And given
Bostock, Plaintiffs’ conduct “arguably falls within the ambit of Section
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1557” itself, regardless of the governing HHS rule. A783-84. Thus, there
because “the plain text” of Section 1557 “expose[s] the Plaintiffs to liabil-
ity,” and “there is no ‘evidence—via official policy or a long history of dis-
A784 (quoting Jones v. Jegley, 947 F.3d 1100, 1104 (8th Cir. 2020)). Ra-
ther, “HHS has undertaken two rulemakings to refine enforcement pa-
The court also held that the case was ripe for adjudication. The court
found the issues fit for judicial resolution, because they “present ‘purely
And the court found that withholding judicial review would impose hard-
violation of conscience “or risk the loss of critical federal healthcare fund-
Turning to the merits, the court held HHS had violated RFRA. By at-
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imposed a substantial burden on Plaintiffs’ religious exercise. A798-99
(quoting Sharpe Holdings, Inc. v. HHS, 801 F.3d 927, 937 (8th Cir. 2015),
vacated on other grounds, HHS v. CNS Int’l Ministries, No. 15-775, 2016
WL 2842448 (May 16, 2016)). And HHS did not even “attempt” to demon-
strate that this burden was the least restrictive means of furthering a
Nor, as the court explained, could it. In the 2016 Rule, HHS asserted
a generalized interest in “ensuring nondiscriminatory access to
“the Supreme Court has instructed [courts] to look ‘beyond broadly for-
mulated interests’” and instead “‘scrutinize the asserted harm of granting
431 (2006); Holt v. Hobbs, 574 U.S. 352, 363 (2015)). Here, “[n]either HHS
nor the EEOC has articulated how granting specific exemptions for the
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those ‘unable to obtain them under their health-insurance policies due to
Lobby Stores, Inc., 573 U.S. 682, 728 (2015)). “Other options include
Holdings, 801 F.3d at 945). “ACA exchanges offer yet another viable al-
ternative,” and “if broadening access to gender-transition procedures
themselves is the goal, then the government could assist transgender in-
those services.” A801-02 (cleaned up). Because HHS has “not shown that
icies use the least restrictive means to burden the Catholic Plaintiffs’ ex-
court analyzed the remaining injunction factors. The court held Plaintiffs
690 F.3d 996, 1000 (8th Cir. 2012)). The court also found “[t]he balance
of harms tilts decisively in [Plaintiffs’] favor,” because “they will either
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be ‘forced to violate their sincerely held religious beliefs’ … ‘or to incur
Holdings, 801 F.3d at 945). Lastly, the court concluded an injunction pro-
The district court, however, did not accept some of Plaintiffs’ and
ination. A804. And although Plaintiffs had also challenged HHS’s appli-
cation of Section 1557 to the extent it would require them to perform and
insure abortions, the Court found they lacked standing to press this
claim, reasoning that unlike with gender transitions, Section 1557, “[a]s
tions.” A779. 3
On February 16, 2021, HHS filed a motion to modify the court’s in-
junction. SA717. Despite its prior claim that Plaintiffs and their members
faced no risk of enforcement under Section 1557, HHS now claimed that
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it was at “risk of violating the [court’s] Order” and being found in “con-
proceed further to enforce Section 1557” against them. Id. This, HHS
Order.” SA722.
their remaining claims, the court entered final judgment, and HHS ap-
pealed.
H. Subsequent Developments
The day after the district court’s order, on his first day in office, Pres-
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13,988, 86 Fed. Reg. 7023 (Jan. 20, 2021). The Order announced the Ad-
on the basis of gender identity.” Id. And it ordered HHS and other agen-
27,985 (May 25, 2021). HHS said this interpretation will “guide [HHS] in
processing complaints and conducting investigations,” and HHS will en-
Meanwhile, the Fifth Circuit held oral argument in the Franciscan ap-
peal. There, the Court specifically asked HHS if it would disavow enforce-
ment of Section 1557 against the religious plaintiffs, but HHS refused:
“[Q.] Are you able to tell us that … you’re not going to enforce? [A.] No
your honor.” Oral Arg. at 15:46-19:27, Franciscan All., Inc. v. Azar, No.
The Fifth Circuit then remanded the case, noting that “the legal land-
scape ha[d] shifted considerably”—citing the 2020 Rule, Bostock, the
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Walker and Whitman-Walker injunctions, and the new Administration’s
actions. Franciscan All., Inc. v. Becerra, 843 Fed. App’x 662, 662-63 (5th
3492338 (N.D. Tex., Aug. 9, 2021). The court held the case was justiciable
because HHS could “enforce[] Section 1557 against Christian Plaintiffs
in the same religion-burdening way as the 2016 Rule,” and “the current
and risking serious financial and civil penalties, or else violating their
religious beliefs.” Id. at *8-9 (cleaned up). The court also held that injunc-
tive relief was warranted because Section 1557 “forces Christian Plain-
STANDARD OF REVIEW
and grants of summary judgment.” City of Kennett v. EPA, 887 F.3d 424,
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SUMMARY OF ARGUMENT
stitutional interest”; (2) that this “conduct is arguably proscribed by” the
challenged law; and (3) that there exists “a credible threat of enforce-
ment.” Driehaus, 573 U.S. at 161-67 (cleaned up). As the district court
tock; and by Section 1557 itself, independent of any rule. This under-
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two, except in “extreme cases approaching desuetude.” 281 Care, 638
F.3d at 628. Here, Section 1557 is far from defunct. HHS has vowed to
vigorously enforce it, has conducted multiple rulemakings, and has is-
F.2d at 429-30. Here, HHS has done the opposite: It has repeatedly re-
fused to disavow enforcement against religious plaintiffs, and it told the
II. The district court also correctly held this case is ripe. A case is ripe
when (1) the issues are fit for judicial decision and (2) withholding court
review would result in hardship for plaintiffs. Pub. Water Supply Dist.
No. 10 v. City of Peculiar, 345 F.3d 570, 572-73 (8th Cir. 2003). Here, the
issues are fit for judicial decision because the legality of HHS’s actions is
“largely a legal question,” 281 Care, 638 F.3d at 631—as even HHS ad-
mitted below. SA640 n.1. And withholding review would result in hard-
ship for Plaintiffs, because they “must either immediately alter their be-
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III. Finally, the district court did not abuse its discretion in concluding
reparable harm.
ARGUMENT
I. The district court correctly held Plaintiffs have standing.
tween the injury and the challenged law; and (3) that a favorable decision
is likely to redress the[] injury.” Telescope Media, 936 F.3d at 749. HHS
this requirement.
[statute] has caused him injury.’” Gaertner, 439 F.3d at 485 (quoting
Minn. Citizens, 113 F.3d at 131). That is this case. It’s undisputed that
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Plaintiffs run “health program[s]” that “receiv[e] Federal financial assis-
1557. It’s also undisputed that Plaintiffs are “covered entities” under
HHS’s 2016 and 2020 Rules and are therefore the “object” of those Rules.
81 Fed. Reg. at 31,466; 85 Fed. Reg. at 37,226, 37,244. Thus, they pre-
Moreover, it’s settled law that “a plaintiff need not wait for an actual
prosecution or enforcement action before challenging a law’s constitution-
ality.” Telescope Media, 936 F.3d at 749. Rather, a “plaintiff satisfies the
[2] proscribed by a statute, and [3] there exists a credible threat of pros-
That, too, is this case, as the district court correctly concluded. A782-
ance with their religious beliefs, which forbid performing or insuring gen-
from doing business with the federal government, False Claims Act law-
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774, 777 (8th Cir. 2019); see A757. Thus, Plaintiffs easily satisfy the in-
protected by RFRA and the First Amendment. SA640 n.1; SA808 (collect-
the precise legal theory.” Telescope Media, 936 F.3d at 750. HHS doesn’t
contest this factor.
by the 2016 Rule. This Rule formally interprets Section 1557 to prohibit
Fed. Reg. at 31,467, 31,429; id. at 31,435-36, 31,455 (providers must per-
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expectation that individuals consistently identify with only one of two
genders”).
In response, HHS says the 2020 Rule “rescinded” the 2016 Rule’s def-
inition of “sex” discrimination. Br.23. But as the district court found, this
attempted rescission was unsuccessful. A783. Instead, two federal courts
enjoined the relevant portions of the 2020 Rule and held that the 2016
3190492, at *16 (D. Md. July 28, 2021) (“those ‘regulatory changes’ have
been enjoined” (citing Walker and Whitman-Walker)).
Specifically, Walker enjoined the 2020 Rule’s “repeal of the 2016 defi-
nition of discrimination on the basis of sex,” such that, “[a]s a result,” the
2016 Rule’s “definitions of ‘on the basis of sex,’ ‘gender identity,’ and ‘sex
separated from” the former. 485 F. Supp. 3d at 26-27, 38, 64. Thus, de-
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cording to HHS itself, they must “revise [their] polic[ies] to provide [tran-
31,455.
2020 Rule. The district court also held that, “even without the injunc-
tions” reviving the 2016 Rule, Plaintiffs still face “potential consequences
from the 2020 Rule.” A783. Specifically, while the 2020 Rule omits any
at 37,168, 37,178. And in Bostock, the Supreme Court held that a prohi-
and so proscribes Plaintiffs’ conduct in the same way as the 2016 Rule.
HHS’s own position in the cases challenging the 2020 Rule confirms
as much. HHS defended the 2020 Rule on the ground that “in light of
Bostock,” covered entities may interpret the 2020 Rule to impose the
argument). Indeed, HHS stated that efforts to apply Section 1557 to pro-
hibit “gender identity” discrimination are now even “more likely to bear
fruit under the 2020 Rule than under the 2016 Rule.” BAGLY Memo at
14 (emphasis added). And HHS recently told the Second Circuit that pro-
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viders would be “run[ning a] risk” in declining to perform gender-transi-
tion procedures under the 2020 Rule. HHS Br. at 23, Walker v. Cochran,
No. 20-3580 (2d Cir. Feb. 19, 2021), ECF 46. This is exactly the sort of
duct is also arguably proscribed by Section 1557 itself, which HHS can
(emphasis added)). Even before Bostock, multiple courts had held Section
947, 952-53 (D. Minn. 2018); Prescott v. Rady Children’s Hosp.-San Di-
ego, 265 F. Supp. 3d 1090, 1098-1100 (S.D. Cal. 2017). After Bostock,
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these lawsuits have multiplied—with at least two more courts now hold-
ing that Section 1557 prohibits specifically Catholic insurance plans and
cv-06145, 2021 WL 1758896, at *1-2, 4-5 (W.D. Wash. May 4, 2021)), and
courts have held that conduct identical to Plaintiffs’ is not only arguably
Since the district court’s decision, HHS has only confirmed this point.
it agrees with these courts: “Consistent with the Supreme Court’s deci-
gender identity.” 86 Fed. Reg. 27,985. And in June, DOJ filed a brief ex-
Ark. June 17, 2021), ECF 19—as Plaintiffs do. These actions simply con-
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firm what the district court already concluded: Plaintiffs’ conduct re-
mains “arguably … within the ambit of Section 1557” under HHS’s “pre-
cases approaching desuetude.” 281 Care, 638 F.3d at 628. That is, “as
long as there is no ‘evidence—via official policy or a long history of dis-
Here, Section 1557 is far from moribund. It was enacted only eleven
years ago and is the subject of two major rulemakings in the last five
years. Br.15-16. In comparison, this Court found the law in 281 Care non-
Court called “comparatively recently”) “and was amended fewer than five
years before this suit was filed.” 638 F.3d at 628. Beyond that, HHS is-
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on discrimination on the basis of sex to include … discrimination on the
basis of gender identity.” 86 Fed. Reg. at 27,985. And there are multiple
against one Catholic hospital, see SA679 n.1; indicated it would investi-
Texas for maintaining the same policies, see SA679 n.2—and the only
reason it didn’t do more is that the relevant portions of the 2016 Rule
vate parties can file complaints. 573 U.S. at 164-65. This Court said the
same thing in 281 Care, where it noted plaintiffs’ “reasonable worry” that
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file complaints under the statute—will interpret the[ir] actions as violat-
ing the statute.” 638 F.3d at 630; Balogh v. Lombardi, 816 F.3d 536, 542
(8th Cir. 2016) (“[A] credible threat that private parties will enforce a
WL 67114 ¶¶80-81. And multiple parties and activist groups have not
only filed complaints with HHS, but also sued covered entities directly
under Section 1557 for declining to perform or insure gender transitions,
see, e.g., Cruz, 116 F. Supp. 3d 334; Tovar, 342 F. Supp. 3d 947—includ-
cv-1630 (D.D.C. June 22, 2020), ECF 1 (seeking to require all “hospitals
Even where the government has “never prosecuted anyone under the
this Court has also found a credible threat of enforcement if the defend-
ant refuses to “disavow[] an intent to enforce the statute[] in the future.”
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Gaertner, 439 F.3d at 485 (emphasis added; cleaned up). And even a
429-30; cf. Rodgers v. Bryant, 942 F.3d 451, 455 (8th Cir. 2019) (“[I]n-
court assurances do not rule out the possibility that it will change its
the 2016 Rule, 81 Fed. Reg. at 31,440; it vowed in the 2020 Rule to “vig-
orously enforce [Section 1557’s] prohibitions on discrimination based
dent Biden issued a day-one Executive Order declaring that Bostock pro-
Fed. Reg. 7023; and HHS has issued a Notification of Enforcement stat-
ing its intent to “enforce” Section 1557 specifically with respect to “gender
Perhaps most telling of all, HHS was asked point blank during the Fifth
against religious objectors and answered, “No your honor.” Oral Arg. at
15:46-19:27, Franciscan, No. 20-10093 (5th Cir. Mar. 3, 2021).
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Far from disavowing enforcement, HHS has in this litigation repre-
like Plaintiffs. Specifically, after the district court entered its injunction,
HHS moved to modify it, stating that HHS was at “risk of violating the
[court’s] Order” and being found in “contempt” because it might enforce
tempt for “enforc[ing] Section 1557” against a CBA member for “failure
notified HHS of its membership. Id. But if HHS worries that it will un-
tion of the district court’s injunction, then Plaintiffs obviously face a cred-
forcement.
First, HHS says “it is not enough [to show] that Section 1557 ‘arguably
proscribes’” Plaintiffs’ conduct. Br.25. Indeed, it says the mere fact the
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speculative nature of plaintiffs’ injuries.” Id. But the “arguably pro-
Court said courts must assess whether plaintiffs’ conduct “is ‘arguably
proscribed’ by the law” they are challenging. 573 U.S. at 162. This Court
and others have repeatedly used the same language. See also, e.g., Turtle
Island Foods, SPC v. Thompson, 992 F.3d 694, 700 (8th Cir. 2021); Wood-
hull Freedom Found. v. United States, 948 F.3d 363, 371-73 (D.C. Cir.
2020); Kiser v. Reitz, 765 F.3d 601, 608 (6th Cir. 2014).
HHS cites no case applying Driehaus differently. Cf. Br.25. Indeed, all
the ‘relevant inquiry is whether the policy actually prohibits the speech
638 F.3d at 627-30 (plaintiff need not concede actual proscription because
is arguably proscribed by statute); Majors v. Abell, 317 F.3d 719, 721 (7th
Cir. 2003) (same). Thus, far from indicating “the speculative nature of
plaintiffs’ injuries,” Br.25, the district court’s use of this language simply
cause the 2020 Rule “rescinded” the 2016 Rule’s prohibition on gender-
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identity discrimination, so no law or regulation currently prohibits Plain-
tiffs’ conduct. Br.22-23. But this argument is triply flawed, for reasons
already explained. First, the 2016 Rule has been revived by other litiga-
tion, and its provisions “remain in effect.” Walker, 480 F. Supp. 3d at 430;
Whitman-Walker, 485 F. Supp. 3d at 26-27, 38, 64. Second, regardless of
the 2016 Rule, the 2020 Rule, as HHS interprets it under Bostock, has
the same effect. 85 Fed. Reg. at 37,168, 37,178. And third, multiple
courts, along with HHS in its own Notification of Enforcement, have con-
any HHS regulation, see supra at 35-36. So there remains “a clear path
for the Plaintiffs to incur liability under Section 1557,” with or without
vived only the “sex stereotyping,” not the “gender identity,” portions of
the 2016 Rule, and thus the district court’s opinion “rests on [an] errone-
ous factual premise[].” Br.26. But the Walker opinion expressly revived
the 2016 Rule’s “definitions of ‘on the basis of sex,’ ‘gender identity,’ and
trict court simply took Walker at its word. A783. In any event, this dis-
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Rule has been revived (as all parties agree), then so has the 2016 Rule’s
Nor does HHS even mention the most analogous body of precedent,
which the district court discussed at length: the widespread RFRA litiga-
Little Sisters of the Poor v. Pennsylvania, 140 S.Ct. 2367, 2372-73 (2020).
There, as here, the Obama Administration issued regulations applying
Id. at 2373-75. There, as here, many courts (including this Court) held
the requirement violated RFRA. See Sharpe Holdings, 801 F.3d at 945-
attempting to repeal the mandate. See Sharpe Holdings, Inc. v. HHS, No.
12-CV-92, 2018 WL 1520031, at *2 (E.D. Mo. Mar. 28, 2018). But there,
as here, the new regulations were themselves enjoined by two other dis-
trict courts as violating the APA, thus bringing the mandate back “in[to]
lawsuits challenging the mandate. See id. And not one of those cases was
dismissed for lack of standing. Rather, over a dozen courts across the
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government … dropped its mootness challenge”); see also Christian
Emps. All. v. Azar, No. 3:16-cv-00309, 2019 WL 2130142 (D.N.D. May 15,
2016 Rule been revived by other litigation, but HHS has issued a Notifi-
case.
Unable to deny this fact, HHS admits it “has now taken the position
standing” because it was issued after the filing of the operative com-
plaint. Br.22-23.
simply confirms what was already true at the time of filing—that under
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“beside the point, as Bostock already made clear that the position stated
Falling back, HHS asserts that even if it does interpret Section 1557
But this simply misstates the law. Plaintiffs of course don’t have to
wait for HHS to initiate enforcement activity; that’s the whole point of a
e.g., Jones, 947 F.3d at 1104 (this Court has “repeatedly rejected the ar-
ute under the First Amendment” (collecting cases)). Nor must Plaintiffs
show HHS specifically threatened them; they just need to show the law
arguably proscribes protected conduct “by the class to which [they] be-
long[].” Gaertner, 439 F.3d at 486; see also id. at 485-87 (standing found
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“[a]lthough Appellants have [not] been threatened by Appellees with
formal threat … is not required.” Animal Legal Def. Fund v. Vaught, No.
Committee, Inc. v. Tooker, Br.24, but that case found no credible threat
F.3d 576, 585-86 (8th Cir. 2013). Meanwhile, in Hughes v. City of Cedar
Rapids (see Br.22), the plaintiff wasn’t challenging any law arguably pro-
scribing his conduct; he was challenging one of the city’s means of enforc-
ing its traffic laws, which he couldn’t allege would be “imminent[ly]” used
Finally, HHS claims Plaintiffs lack standing because HHS says it “will
comply with [RFRA]”; and although HHS “has not to date evaluated
5 Lacking support from this Circuit, HHS reaches for Lopez v. Candaele,
630 F.3d 775 (9th Cir. 2010). But even Lopez is inapposite. There, the
plaintiff failed to show that the challenged policy “even arguably applies
to his past or intended future” conduct, id. at 790—which is exactly what
Plaintiffs have shown here.
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made-for-litigation “assurance” doesn’t even rise to the level of assur-
ances this Court has rejected in other cases. The government in Rodgers
promised “it would never enforce its anti-loitering law” against non-har-
assing panhandlers like the plaintiffs. 942 F.3d at 455 (emphasis added).
The government in Alexis showed that it had already granted numerous
exemptions and “has never yet denied one.” 931 F.3d at 778 (emphasis
Yet this Court found standing each time. In Rodgers, it said the gov-
ernment’s “in-court assurances do not rule out the possibility that it will
change its mind and enforce the law more aggressively in the future.” 942
F.3d at 455. In Alexis, it said the past grant of exemptions provided “no
United Food, it said the sworn affidavits offered “‘no more than a hesi-
ecute,’ the clear implication of which was that the state’s position could
intention not to prosecute.” Id. It says only that it hasn’t, “to date,” “eval-
uated” RFRA. But that is just another way of saying it hasn’t “rule[d] out
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such prosecution.” United Food, 857 F.2d at 427. In fact, HHS has repeat-
see 85 Fed. Reg. at 37,207 (“This final rule does not craft a religious ex-
the district court to revise its injunction so it wouldn’t face contempt for
federal law. Little Sisters of the Poor, 140 S.Ct. at 2383 (citing 42 U.S.C.
§ 2000bb-3(a)). Yet courts across the country have resolved scores of pre-
enforcement RFRA challenges. E.g., Hobby Lobby, 573 U.S. 682. As the
commands does not diminish the possibility that HHS will review the
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First Amendment” would have defeated standing in, e.g., Driehaus, Tel-
escope Media, or 281 Care. See also Speech First, 979 F.3d at 333-34 (de-
lihood that [its] policies arguably cover [the plaintiff’s] intended speech”).
In short, Plaintiffs have standing, and the district court’s decision
should be affirmed.
ness, courts consider two factors: “the fitness of the issues for judicial
rather than factual.” Minn. Citizens, 113 F.3d at 132. Here, the district
court correctly held that this case “present[s] ‘purely legal questions.’”
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A795. HHS interprets Section 1557 to prohibit gender-identity discrimi-
ceive federal healthcare funding. Thus, the only question is a legal one:
“whether the challenged interpretations of federal law violate [RFRA].”
A795. Indeed, HHS admitted in the district court “that the issues in these
And the 2016 Rule explains exactly what that means: a provider who
1557 violates RFRA. But again, HHS has not “to date” exempted Plain-
tiffs or any other religious organizations. Br.16. And its actions show the
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opposite: an intent to enforce Section 1557 against all covered entities,
merits analysis that reached out to address arguments that HHS previ-
ously made in defending” the 2016 Rule. Br.32. But there are two good
reasons the court addressed HHS’s arguments on the 2016 Rule. First,
that Rule is still operative, given the injunctions in Walker and Whitman-
Walker. Br.26. And second, HHS failed to make any argument on the
merits of the RFRA claim here—meaning its 2016 arguments are the best
injury in fact prong.” Iowa League of Cities, 711 F.3d at 870. And ripe-
ness, like standing, “do[es] not require parties to operate beneath the
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sword of Damocles until the threatened harm actually befalls them.” Id.
at 867. Accordingly, Plaintiffs’ claims are fit for review. See also 281 Care,
638 F.3d at 627-28, 631 (case was fit for review where the challenged
statute, “by its very existence, chill[ed] the exercise of the Plaintiffs’ First
Amendment rights”) (internal quotation marks omitted).
B. Plaintiffs would suffer hardship absent court review.
The hardship factor also favors Plaintiffs. This factor “asks whether
rish v. Dayton, 761 F.3d 873, 875 (8th Cir. 2014) (quoting Ohio Forestry
Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998)). Practical harm in-
cludes “both financial[]” harms and harms suffered due to “uncertainty-
The district court held that “[p]ractical harm is manifest here because
the Plaintiffs must either alter their policies for providing and covering
Dist. v. MidAm. Energy Co., 234 F.3d 1032, 1039 (8th Cir. 2000). And “the
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size of the threatened harm” also favors Plaintiffs, Iowa League of Cities,
711 F.3d at 867, since they risk “losing millions of dollars in federal
538 U.S. 803, 811 (2003)). But this case isn’t about “mere uncertainty”;
HHS’s actions also cause “practical harm.” Id. at 810-811; see Reckitt
Benckiser Inc. v. EPA, 613 F.3d 1131, 1140 (D.C. Cir. 2010) (distinguish-
ing National Park on this ground). For one thing, HHS’s interpretation
their policies “or play an expensive game of Russian roulette” and risk
Indeed, the harm Plaintiffs face isn’t static but increasing as this case
ing [them] to civil penalties,” treble damages, and the possibility of “up
to five years’ imprisonment.” A757 n.1. Thus, Plaintiffs can’t just sit back
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Alternatively, HHS says Plaintiffs face no hardship because they
“could raise these same RFRA arguments in” future enforcement pro-
ceedings. Br.33. But if this made a case unripe, plaintiffs could never
the case unripe because the challenged regulation was ambiguous and
HHS doesn’t argue here. 558 F.3d 1112, 1125-27 (9th Cir. 2009). And Col-
well concluded the plaintiffs didn’t face substantial hardship because the
to private parties.” Id. at 1129. Indeed, the regulations did “not contem-
funding.” Id. Here, by contrast, HHS may enforce Section 1557 not only
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lawsuits under the False Claims Act, … criminal penalties[, and] a pri-
vate right of action for damages and attorney’s fees.” A757. Colwell there-
harm. Of the four injunction factors—(1) success on the merits, (2) threat
has repeatedly held that “[t]he loss of First Amendment freedoms, for
jury.” Diocese of Brooklyn, 141 S.Ct. at 67 (cleaned up). Lower courts have
Amendment free-exercise rights.” Korte, 735 F.3d at 666; see also, e.g.,
Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1146 (10th Cir.
2013), aff’d, 573 U.S. 682 (2014) (“[O]ur case law analogizes RFRA to a
F.3d 279, 298 (5th Cir. 2012) (similar). Thus, as the district court found,
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HHS doesn’t even mention the district court’s analysis. Nor does it ad-
tion 1557” against Plaintiffs. Br.50. But that argument fails for the same
reasons its justiciability argument fails.
In fact, the district court’s finding of irreparable harm isn’t just sup-
ported by this Court’s precedent. See, e.g., Swanson, 692 F.3d at 870
(“When a plaintiff has shown a likely violation of his or her First Amend-
Holdings, 801 F.3d at 945 (success on the merits of RFRA is “the most
result in every case in which the Supreme Court has found a violation of
U.S. at 692, 701-04; O Centro, 546 U.S. at 427; Sharpe Holdings, 801 F.3d
CONCLUSION
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Respectfully submitted,
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CERTIFICATE OF COMPLIANCE
fender has been run on the files containing the electronic version
of this brief and the addendum and no virus has been detected.
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CERTIFICATE OF SERVICE
I certify that on the date indicated below, I filed the foregoing docu-
ment with the Clerk of the Court, using the CM/ECF system, which will
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