Petition for Writ of Certiorari — March for Life Education and Defense Fund, Petitioner v. California, et al.

Supreme Court briefFeb 19, 2020

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NO. __________

IN THE

Supreme Court of the United States

MARCH FOR LIFE EDUCATION AND DEFENSE FUND,

Petitioner,

CALIFORNIA, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

KEVIN H. THERIOT

KENNETH J. CONNELLY

ALLIANCE DEFENDING

FREEDOM

15100 N. 90th Street

Scottsdale, AZ 85260

(480) 444-0020

BRIAN R. CHAVEZ-OCHOA

CHAVEZ-OCHOA LAW

OFFICES, INC.

4 Jean Street, Suite 4

Valley Springs, CA 95252

(209) 772-3013

KRISTEN K. WAGGONER

JOHN J. BURSCH

Counsel of Record

DAVID A. CORTMAN

RORY T. GRAY

ALLIANCE DEFENDING

FREEDOM

440 First Street, N.W.

Suite 600

Washington, D.C. 20001

(616) 450-4235

jbursch@ADFlegal.org

Counsel for Petitioner

QUESTIONS PRESENTED

This Court recently granted review in Little

Sisters of the Poor Saints Peter and Paul Home v.

Pennsylvania, No. 19-431, and Trump v. Pennsylvania, No. 19-454, to determine whether the federal

government lawfully exempted religious and moral

objectors from federal regulatory requirements to

provide health plans that include abortifacient and

contraceptive coverage. This case raises the identical

issue for Petitioner March for Life, which holds a nonreligious, moral conviction that all humans have

worth and all abortions are wrong. If the Court rules

for the petitioners in Little Sisters and Trump, the

decision will be outcome dispositive of the second

question presented here, warranting a GVR. But

there is also a threshold standing issue that the Court

could address either in Little Sisters and Trump or

here.

The questions presented are:

1. Whether states have Article III standing to

challenge the religious and moral exemptions based

on a hypothetical increase in their discretionary,

voluntary healthcare spending.

2. Whether the federal government lawfully

exempted religious and moral objectors from the

federal regulatory requirement to provide health

plans that include abortifacient and contraceptive

coverage.

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE

Petitioner is March for Life Education and

Defense

Fund,

Intervenor-Defendant-Appellant

below.

The state Respondents are the States of

California, Connecticut, Delaware, Hawaii, Illinois,

Maryland, Minnesota, New York, North Carolina,

Rhode Island, Washington, and Vermont, the

Commonwealth of Virginia, and the District of

Columbia, Plaintiffs-Appellees below.

The federal Respondents are the U.S. Department

of Health & Human Services; Alex M. Azar II, in his

official capacity as Secretary of the U.S. Department

of Health & Human Services; U.S. Department of

Labor; R. Alexander Acosta, in his official capacity as

Secretary of the U.S. Department of Labor; U.S.

Department of the Treasury; and Steven Terner

Mnuchin, in his official capacity as Secretary of the

U.S. Department of the Treasury; DefendantsAppellants below.

The private Respondent is the Little Sisters of the

Poor Jeanne Jugan Residence, Intervenor-DefendantAppellant below.

Petitioner March for Life Education and Defense

Fund is a non-profit corporation with no parent

entities that does not issue stock.

iii

LIST OF ALL PROCEEDINGS

U.S. Court of Appeals for the Ninth Circuit, Nos.

19-15072, 19-15118, 19-15150, California v. U.S.

Department of Health & Human Services, judgment

entered October 22, 2019.

U.S. Court of Appeals for the Ninth Circuit, Nos.

18-15144, 18-15166, 18-15255, California v. Azar,

judgment entered December 13, 2018.

U.S. District Court for the Northern District of

California, No. 17-cv-05783-HSG, California v.

Health & Human Services, final judgment entered

January 13, 2019.

U.S. District Court for the Northern District of

California, No. 17-cv-05783-HSG, California v.

Health & Human Services, final judgment entered

December 21, 2017.

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE .............................. ii

LIST OF ALL PROCEEDINGS ................................ iii

TABLE OF AUTHORITIES ................................... viii

DECISIONS BELOW................................................. 1

STATEMENT OF JURISDICTION .......................... 2

PERTINENT CONSTITUTIONAL,

STATUTORY, AND REGULATORY

PROVISIONS........................................................ 2

INTRODUCTION ...................................................... 3

STATEMENT OF THE CASE ................................... 7

A. The ACA’s “preventive care and

screenings” requirement for women. .............. 7

B. The widespread litigation sparked by the

agencies’ choice and the modifications the

agencies made pre-Zubik. ............................... 9

C. Zubik and its aftermath ................................ 13

D. March for Life and its lawsuit ...................... 15

E. The agencies reconsider and create broader

conscience exemptions................................... 16

F. The plaintiff States sue, and the Ninth

Circuit affirms an injunction against the

final rules. ...................................................... 18

REASONS FOR GRANTING THE WRIT............... 20

I. Article III standing is a basic constitutional

requirement, and this Court has an

independent duty to ensure it exists.................. 21

II. The States lack standing to challenge the final

rules, and the Ninth Circuit erred in refusing

to dismiss their suit. ........................................... 22

A. The States bear the burden of proving

standing’s three elements. ............................ 22

B. Because the States have no rights or

obligations at stake, and their standing

theory depends on rank speculation and

self-imposed harm, they cannot show an

injury in fact. ................................................. 23

1. The States have no right to an indirect

financial windfall. .................................... 24

2. Any injury to the States’ fiscs is entirely

self-imposed…….… .................................. 25

3. The States’ claimed fiscal injury is

abstract and not certainly impending. .... 26

4. The States allege a non-particularized

harm that treats federal courts as

general complaint bureaus. ..................... 28

C. Because the States’ alleged injury is selfinflicted and depends on the presumed

choices of multiple third parties, they

cannot show causation or redressability. ..... 29

III.The agencies had statutory authority to issue

the moral and religious exemptions, which are

legally permissible (if not required) and not

arbitrary or capricious. ....................................... 30

A. The final regulations are within the

agencies’ gap-filling authority. ..................... 31

B. The agencies’ conscious exemptions are not

arbitrary or capricious................................... 33

IV.The questions presented require this Court’s

resolution. ........................................................... 34

CONCLUSION ......................................................... 36

APPENDIX TABLE OF CONTENTS

United States Court of Appeals

for the Ninth Circuit,

Opinion in 19-15072, 19-15118, and 19-15150

Issued October 22, 2019 ........................................... 1a

United States District Court

Northern District of California,

Opinion in 17-cv-05783-HSG

Issued January 13, 2019 ........................................ 53a

U.S. Constitutional Provisions ............................ 122a

vii

5 U.S.C. 706(2)(A) ................................................ 123a

26 U.S.C. 4980D ................................................... 124a

26 U.S.C. 4980H ................................................... 131a

26 U.S.C. 5000A ................................................... 139a

42 U.S.C. 300gg-13(a) .......................................... 154a

42 U.S.C. 2000bb-1............................................... 156a

42 U.S.C. 2000bb-2(1) .......................................... 157a

42 U.S.C. 2000bb-3(a) .......................................... 157a

45 C.F.R. 147.131(a) (2013) ................................. 158a

45 C.F.R. 147.131 ................................................. 159a

45 C.F.R. 147.132 ................................................. 167a

45 C.F.R. 147.133 ................................................. 171a

Excerpt from 83 Fed. Reg. 57592

(Nov. 15, 2018) ..................................................... 175a

Excerpt from 83 Fed. Reg. 57536

(Nov. 15, 2018) ..................................................... 179a

viii

TABLE OF AUTHORITIES

Cases

Alfred L. Snapp & Son, Inc. v. Puerto Rico

exrel. Barez,

458 U.S. 592 (1982) .............................................. 28

Allen v. Wright,

468 U.S. 737 (1984) ....................................... passim

Arizona Christian School Tuition Organization

v. Winn,

563 U.S. 125 (2011) ........................................ 21, 26

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997) .......................................... 21, 22

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) .................................. 7, 8, 9, 11

California v. Azar,

911 F.3d 558 (9th Cir. 2018) .................... 18, 19, 24

Clapper v. Amnesty International USA,

568 U.S. 398 (2013) ....................................... passim

Department of Commerce v. New York,

139 S. Ct. 2551 (2019) .......................................... 19

Diamond v. Charles,

476 U.S. 54 (1986) .................................... 27, 28, 35

Doe v. Bolton,

410 U.S. 179 (1973) ................................................ 3

FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) .............................................. 33

Gill v. Whitford,

138 S. Ct. 1916 (2018) .......................................... 28

Gillette v. United States,

401 U.S. 437 (1971) .............................................. 32

Hein v. Freedom From Religion Foundation, Inc.,

551 U.S. 587 (2007) .............................................. 28

Little Sisters of the Poor Home for the Aged,

Colorado v. Sebelius,

571 U.S. 1171 (2014) ............................................ 11

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ....................................... passim

March for Life v. Azar,

No. 15-5301, 2018 WL 4871092

(Sept. 17, 2018) .................................................... 17

March for Life v. Burwell,

128 F. Supp. 3d 116 (D.D.C. 2015) ...................... 16

Mayo Foundation for Medical Education &

Research v. United States,

562 U.S. 44 (2011) .......................................... 31, 32

New Jersey v. Sargent,

269 U.S. 328 (1926) .............................................. 24

Pennsylvania v. New Jersey,

426 U.S. 660 (1976) .............................................. 25

Pennsylvania v. President United States,

930 F.3d 543 (3d Cir. 2019) ................................. 35

Roe v. Wade,

410 U.S. 113 (1973) ................................................ 3

Spokeo, Inc. v. Robins,

136 S. Ct. 1540 (2016) .......................................... 22

Steel Company v. Citizens for a Better

Environment,

523 U.S. 83 (1998) ................................................ 21

Summers v. Earth Island Institute,

555 U.S. 488 (2009) .............................21, 23, 25, 27

Town of Chester v. Laroe Estates, Inc.,

137 S. Ct. 1645 (2017) .......................................... 21

United States v. Mead Corp.,

533 U.S. 218 (2001) .............................................. 31

United States v. Texas,

136 S. Ct. 906 (2016) ............................................ 34

United States v. Texas,

136 S. Ct. 2271 (2016) .......................................... 34

Vermont Agency of Natural Resources v. United

States ex rel. Stevens,

529 U.S. 765 (2000) ................................................ 6

Virginia House of Delegates v. Bethune-Hill,

139 S. Ct. 1945 (2019) .............................. 21, 23, 35

Warth v. Seldin,

422 U.S. 490 (1975) .............................21, 22, 24, 27

Welsh v. United States,

398 U.S. 333 (1970) .............................................. 32

Wheaton College v. Burwell,

573 U.S. 958 (2014) .............................................. 12

Whitmore v. Arkansas,

495 U.S. 149 (1990) ........................................ 26, 27

Wittman v. Personhuballah,

136 S. Ct. 1732 (2016) .................................... 23, 35

Zubik v. Burwell,

135 S. Ct. 2924 (2015) .......................................... 13

Zubik v. Burwell,

136 S. Ct. 1557 (2016) .......................................... 14

Statutes

26 U.S.C. 4980D ......................................................... 9

26 U.S.C. 4980H ......................................................... 9

26 U.S.C. 9833 ...................................................... 8, 31

28 U.S.C. 1254(1) ....................................................... 2

28 U.S.C. 1291 ............................................................ 2

28 U.S.C. 1331 ............................................................ 2

29 U.S.C. 1003(b)(2) ................................................. 11

29 U.S.C. 1132 ............................................................ 9

29 U.S.C. 1191c .................................................... 8, 31

xii

42 U.S.C. 300gg-13 ........................................... 7, 8, 31

42 U.S.C. 300gg-92 ............................................... 8, 31

42 U.S.C. 2000bb et seq. ............................................. 9

Other Authorities

U.S. Department of Labor, FAQs About

Affordable Care Act Implementation Part 36

(Jan. 9, 2017), https://bit.ly/2Sv6Q3z .................. 14

Regulations

29 C.F.R. 2510.3-16(b)&(c)................................. 10, 12

45 C.F.R. 147.132 ..................................................... 17

45 C.F.R. 147.133 ..................................................... 17

77 Fed. Reg. 8,725 (Feb. 15, 2012)......................... 8, 9

78 Fed. Reg. 39,870 (July 2, 2013)..................... 10, 15

79 Fed. Reg. 51,092 (Aug. 27, 2014) .................. 11, 12

80 Fed. Reg. 41,318 (July 14, 2015)......................... 13

81 Fed. Reg. 47,741 (July 22, 2016)......................... 14

83 Fed. Reg. 57,536 (Nov. 15, 2018) .......16, 17, 26, 33

83 Fed. Reg. 57,592 (Nov. 15, 2018) ................. passim

84 Fed. Reg. 7,714 (Mar. 4, 2019) ............................ 17

Executive Order No. 13,798, 82 Fed. Reg. 21,675

(May 4, 2017)........................................................ 16

DECISIONS BELOW

The district court’s decision granting the States’

motion for a preliminary injunction enjoining the

final rules is reported at 351 F. Supp. 3d 1267 (N.D.

Cal. 2019) and reprinted in the Appendix (“App.”) at

App.53a–121a.

The Ninth Circuit’s ruling affirming the

preliminary injunction is reported at 941 F.3d 410

(9th Cir. 2019) and reprinted at App.1a–52a.

STATEMENT OF JURISDICTION

On October 22, 2019, the Ninth Circuit issued its

opinion affirming the preliminary injunction. Lower

courts had jurisdiction under 28 U.S.C. 1331 and

28 U.S.C. 1291. On January 8, 2020, Justice Kagan

extended the time to file a petition for a writ of

certiorari to February 19, 2020. This Court has

jurisdiction under 28 U.S.C. 1254(1).

PERTINENT CONSTITUTIONAL,

STATUTORY, AND REGULATORY

PROVISIONS

Pertinent constitutional, statutory, and regulatory

provisions appear in the Appendix at App.122a–84a.

INTRODUCTION

This petition presents two questions arising out of

a multi-state lawsuit challenging the federal

government’s decision to exempt religious and moral

objectors from federal regulatory requirements to

provide health plans that include abortifacient and

contraceptive coverage. The second question—about

the validity of the exemptions—is likely to be

definitively resolved by this Court’s decision in Little

Sisters of the Poor Saints Peter and Paul Home v.

Pennsylvania, No. 19-431, and Trump v. Pennsylvania, No. 19-454. If so, a GVR is appropriate. But

either in Little Sisters and Trump or here, a threshold

question is also ripe for this Court’s review: whether

the plaintiff States have Article III standing to

challenge the religious and moral exemptions based

on a hypothetical increase in their discretionary,

voluntary healthcare spending. Because the States

have no legal right to a federal regulatory rule that

compels employers to provide abortifacients and

contraception, the States lack standing.

Many conflicts are unavoidable after this Court

created a constitutional right to abortion in Roe v.

Wade, 410 U.S. 113 (1973). The conflict here is wholly

avoidable. Moral or religious objections to abortion

are millennia old, and our country has always

respected them. In fact, the same day this Court

decided Roe, it lauded Georgia’s statutory exemption

for hospitals and employees with “moral or religious”

objections from facilitating or carrying out abortions.

Doe v. Bolton, 410 U.S. 179, 197–98 (1973). Corporate

and individual conscience protections like these kept

peace in Roe’s wake and served as a groundwork of

our Nation’s social policy for almost 40 years.

Earthshattering change came in 2011 when the

U.S. Department of Health and Human Services

(HHS) issued guidelines under the Affordable Care

Act that forced many employers to cover all

contraceptive methods approved by the Food and

Drug Administration (FDA) in their private health

plans. Some of these methods—including “emergency

contraception”—may stop an embryo from implanting

in the uterine wall, ending an early human life.

Appalled by this requirement to deliver abortifacient

drugs, dozens of employers with religious, pro-life

convictions sued, as did March for Life and one other

non-profit with equivalent moral beliefs.

Initially, objectors’ pleas fell on deaf ears. Federal

agencies’ religious exemptions were sparing and their

moral protections non-existent. But after years of

litigation, multiple trips to this Court, and mounting

legal losses, federal agencies returned to the Nation’s

status quo ante. They issued interim and then final

regulations exempting private employers with moral

or religious objections from offering objectionable

forms of contraception and counseling in their health

plans. The agencies retained a less protective “accommodation” that satisfied some, but not all, objectors

by authorizing their health plan issuer or third-party

administrator to provide contraception through their

health plans in their stead. HHS also ensured access

to government-subsidized contraception to any

woman who lacked it based on her employers’ moral

or religious beliefs.

This compromise should have ended the conflict.

But states that favor abortion subsidies and oppose

freedom of conscience could not let it rest and sued.

In ruling for the plaintiff States, the Ninth Circuit

made two critical mistakes. First, the Ninth Circuit

erred in holding that the States had Article III

standing. App.20a–22a. The States’ theory is that

when the federal government first promulgated the

abortifacient and contraceptive mandate, it shifted

the cost of providing abortifacients and contraceptives

from the States to private employers. When the

federal government created the limited religious and

moral exemptions, some small percentage of those

costs might shift back, because the States would

provide free abortifacients and contraceptives to

employees who no longer received them from their

employers. Those hypothetical “exemption costs,”

claim the States, are enough to create Article III

standing.

Not so. To begin, the States had no credible

evidence that exempting moral and religious objectors

would lead to the States voluntarily spending more

discretionary funds on optional healthcare programs.

Nobody knows how many employers the regulations

will impact, or in which states. Employers who invoke

the exemption are likely to have employees who also

object to abortifacients and contraceptives. And the

States have no obligation to provide abortifacients

and contraceptives anyway. The States’ “harm” was

only ever a theory.

More important, the States had no right to this

financial windfall in the first place. States have no

entitlement to a federal-government abortifacient

and contraceptive mandate. If the federal agencies

had eliminated the mandate, the States would have

no legal basis to complain. What the federal

government gives, it can also take away.

Instead, the Ninth Circuit should have asked

whether the States were seeking “compensation for,

or preventing, the violation of a legally protected

right.” Vt. Agency of Nat. Res. v. United States ex rel.

Stevens, 529 U.S. 765, 772 (2000) (emphasis added).

And the answer is an obvious no. HHS had no

obligation to force employers to cover all FDAapproved contraceptives; the mandate was a matter

of agency discretion, as was the agencies’ decision not

to impose it on conscientious objectors.

The States lack standing to challenge every

adjustment federal agencies make to discretionary

regimes that may collaterally aid the States’ voluntary social welfare spending. The regulations at issue

are not aimed at the States and do not require—or

prevent—the States from doing anything. The States

have a free hand to increase or decrease funding,

change eligibility requirements, eliminate their

healthcare programs altogether, or take any number

of intermediate steps without federal penalty. Thus,

any harm to the States’ fiscs is entirely self-imposed,

and they lack standing.

Second, the Ninth Circuit said that the federal

agencies probably lacked authority to issue the moral

and religious exemptions, and those rules are likely

arbitrary and capricious. App.28a–43a. Again, not so.

In enacting the Affordable Care Act, Congress said

nothing about requiring employers to provide abortifacients and contraception. Though the legislation left

agencies with discretion to include such a requirement, the agencies had concomitant discretion to

fashion religious and moral exemptions based on the

Constitution, the Religious Freedom Restoration Act,

and this Court’s decisions.

The final exemptions are balanced and address

concerns on all sides. They are not arbitrary or

capricious. This Court should so hold in the Trump

and Little Sisters cases and, at the very least, grant,

vacate, and remand this case to the Ninth Circuit so

that it can conform its views to this Court’s decision.

STATEMENT OF THE CASE

A. The

ACA’s

“preventive

care

and

screenings” requirement for women.

The Affordable Care Act, commonly referred to as

the ACA, regulates our Nation’s health-insurance

industry in unprecedented ways. It requires many

employers not just to offer health insurance but plans

that cover certain (1) items or services, (2) immunizations, (3) child preventive care and screenings, and

(4) preventive care and screenings for women,

without cost sharing. 42 U.S.C. 300gg-13. Exempt

from these requirements are employers with fewer

than 50 employees, who are not required to offer

health coverage, and employers with grandfathered

health plans that predated the ACA and have not

undergone certain changes. Burwell v. Hobby Lobby

Stores, Inc., 573 U.S. 682, 699 (2014).

Conscientious objectors have no quarrel with the

ACA’s mandatory-coverage provisions. They object

not to the health insurance or preventive-care-andscreening requirement but to the agency gap filling

that followed.

In the ACA itself, Congress provided that health

plans offer “with respect to women, such additional

preventive care and screenings . . . as provided for in

comprehensive guidelines supported by the Health

Resources and Services Administration,” a division of

HHS. 42 U.S.C. 300gg-13(a)(4). This discretionary

grant of authority is buttressed by provisions giving

federal agencies the power to “promulgate such

regulations as may be necessary or appropriate to

carry out” Congress’ broad decree. 42 U.S.C. 300gg92; 29 U.S.C. 1191c; 26 U.S.C. 9833.

In turn, HHS delegated the job of fleshing out the

women’s preventive-care-and-screenings requirement

to the Institute of Medicine, “a nonprofit group of

volunteer advisers.” Hobby Lobby, 573 U.S. at 697.

These consultants urged HHS to mandate free

coverage of all FDA “approved contraceptive methods,

sterilization procedures, and patient education and

counselling.” 77 Fed. Reg. 8,725, 8,725 (Feb. 15, 2012).

HHS generally followed this recommendation and

required many private employers to cover contraceptive methods that “may have the effect of preventing an already fertilized egg from developing any

further by inhibiting its attachment to the uterus.”

Hobby Lobby, 573 U.S. at 697–98.

Simultaneously, HHS and the Departments of

Labor and the Treasury granted the Health

Resources and Services Administration “discretion to

establish an exemption for group health plans

established or maintained by certain religious

employers,” i.e., churches and their integrated

auxiliaries. 77 Fed. Reg. at 8,726.

The agencies’ rationale was that churches’

employees “would be less likely to use contraceptives

even if contraceptives were covered under their

health plans.” Id. at 8,728. Though the same is true of

the employees of many religious and non-religious

non-profits opposed to abortion—including March for

Life—the agencies made no exception for them.

No state ever challenged the agencies’ church

exemption, which does not require qualifying entities

to do anything to obtain an exception. Hobby Lobby

573 U.S. at 698. In fact, many states provide similar

or broader religious exemptions to their own

contraceptive mandates. 77 Fed. Reg. at 8,726.

Originally, employers like March for Life who

offered health insurance but refused to cover

abortifacients in their health plans faced public or

private lawsuits under ERISA and fines up to $100

per plan participant per day. 29 U.S.C. 1132; 26

U.S.C. 4980D. While employers who dropped health

coverage altogether faced potential penalties of

$2,000 per employee each year. 26 U.S.C. 4980H.

B. The widespread litigation sparked by the

agencies’ choice and the modifications

the agencies made pre-Zubik.

The agencies’ decision to exempt only churches

and their integrated auxiliaries from the contraception mandate sparked intense backlash. Dozens of

non-profit organizations and closely held, for-profit

businesses sued, primarily under RFRA, the

Religious Freedom Restoration Act of 1993. 42 U.S.C.

2000bb et seq.

Because the agencies’ extreme position was legally

indefensible, they quickly began making regulatory

changes. They staunchly refused to exempt religious

non-profits opposed to abortion from the contraception mandate—as they did churches. But they

agreed to provide a regulatory “accommodation” or

alternative means of compliance by which religious

non-profits’ health insurance issuers or third-party

administrators could provide abortifacients and

contraceptives in their stead.

To access the accommodation, religious non-profits

had to submit a form to their health insurance issuer

or third-party administrator. This form was more

than just notice of a religious objection. It was an

instrument under which objectors’ health plans were

operated. 29 C.F.R. 2510.3-16(b)&(c). And for selfinsured plans, it served as a special designation of the

third-party administrator as plan and claims administrator for making payments for contraceptive

services. 78 Fed. Reg. 39,870, 39,880 (July 2, 2013).

Under this iteration of the regulatory scheme,

(1) churches and their integrated auxiliaries were

exempt from the contraception mandate, (2) religious

non-profits with objections to abortion could

authorize others to provide abortifacients via the nonprofits’ own health plans, (3) non-religious non-profits

with objections to abortion—like March for Life—had

to cover abortifacients directly, and (4) for-profit

businesses also had to cover abortifacients directly no

matter if their owners objected to abortion and their

companies were closely held.

Because the agencies imposed a third-party

administrator’s duty to provide contraceptives under

ERISA, and ERISA does not apply to church plans, 29

U.S.C. 1003(b)(2), the agencies effectively exempted

certain church-affiliated non-profits from the contraceptive mandate, including some hospitals and

universities. The agencies lacked any basis for

compelling these entities’ third-party administrators

to deliver contraceptives. 79 Fed. Reg. 51,092, 51,095

n.8 (Aug. 27, 2014).

But some objectors’ consciences were not

assuaged, and this Court was forced to intervene. It

first enjoined the agencies from enforcing the

contraceptive mandate or the accommodation against

a religious order pending appeal to the Tenth Circuit.

Expressing no view on the merits, this Court allowed

Little Sisters of the Poor to obtain an exemption by

informing the Secretary of HHS, in writing, that it

holds itself out as religious and has religious

objections to covering contraceptives. Little Sisters of

the Poor Home for the Aged, Colo. v. Sebelius, 571 U.S.

1171 (2014).

Several months later, this Court ruled on the

merits that it violated RFRA for the agencies to

impose the contraceptive mandate on closely-held,

for-profit businesses whose owners objected to

abortion on religious grounds. Hobby Lobby, 573 U.S.

at 736. Whether or not the accommodation satisfied

“RFRA for purposes of all religious claims,” it satisfied

Hobby Lobby’s and Conestoga’s objections and proved

that the agencies had less restrictive means of

obtaining their goals. Id. at 730–31.

This Court’s ruling in Hobby Lobby made two

things clear. First, the agencies could not impose the

mandate directly on religious objectors, either forprofit or non-profit. And second, the accommodation

suffices for those with no objection to it.

Not long after, this Court granted an injunction

pending appeal barring the agencies from enforcing

either the contraceptive mandate or the accommodation against a religious college. Wheaton College

could obtain an exemption by informing the Secretary

of HHS, in writing, that it is a non-profit that holds

itself out as religious and has religious objections to

covering contraceptives. Wheaton Coll. v. Burwell,

573 U.S. 958 (2014). Though this Court expressed no

view on the merits, ibid., this trend of granting

interim relief to objectors suggested the existing

accommodation could not pass muster.

The agencies went back to the drawing board. Still

refusing to exempt religious non-profits from the

mandate, they revised the accommodation. Religious

non-profits could comply with the mandate either by

submitting the official form to their health insurance

issuer/third-party administer or sending a “notice” to

HHS. The notice had to contain: (1) the entities’ name

and the reason it qualifies for the accommodation,

(b) a description of its religious objection to covering

contraceptives, (c) the name and type of its health

plan, and (d) the name and contact information of its

health insurance issuer or third-party administrator.

79 Fed. Reg. 51,092, 51,094–95 (Aug. 27, 2014). Then

HHS would notify a religious non-profit’s insurer or

third-party administrator, on the non-profit’s behalf,

of its new obligation to provide contraceptive coverage

to employees. Id. at 51,095; 29 C.F.R. 2510.3-16(b).

The agencies also made closely-held, for-profits

whose owners objected to covering abortifacients

eligible for the new accommodation. 80 Fed. Reg.

41,318, 41,324 (July 14, 2015). But they still offered

no exemption or accommodation to non-religious, nonprofits with moral objections to abortion. This gave

March for Life less conscience protection than Hobby

Lobby.

C. Zubik and its aftermath

Not all objectors’ consciences were assuaged by the

revised accommodation because it still required them

to authorize use of their own health plans to provide

abortifacient drugs. Dozens of lawsuits continued,

and this Court granted emergency relief to a group of

Catholic dioceses and related entities pending the

filing and disposition of their cert. petition. Zubik v.

Burwell, 135 S. Ct. 2924 (2015). Ultimately, this

Court took and consolidated seven cases brought

chiefly by religious non-profits.

Before this Court, the agencies admitted several

key facts about the accommodation. First, contraceptive services provided by a religious non-profit’s

health insurance issuer or third-party administrator

are “part of the same [health] plan as the coverage

provided by the employer.” Br. for Resp’ts at 38, Zubik

v. Burwell, 136 S. Ct. 1557 (2016) (No. 14-1418). They

are not “separate,” as the agencies had long claimed.

Second, the agencies claimed that they could not

ensure the delivery of abortifacients without religious

non-profits turning over the name and contact

information of their health insurance issuer or thirdparty administrator. Id. at 87–88. Providing this

data, besides stating a religious objection, was a “but

for” cause of abortifacients’ delivery.

Third, the agencies confessed the need for

religious non-profits to submit a written document

legally authorizing others to provide abortifacients

through their own private health plans. Id. at 16 n.4.

Either the official form or notice to HHS served as

religious non-profits’ designation of someone else to

provide abortifacients in their stead. Ibid.

Fourth, in a supplemental brief ordered by this

Court, the agencies admitted that the regulatory

scheme “could be modified” to better accommodate

objectors’ concerns. Suppl. Br. for Resp’ts at 3, 14,

Zubik v. Burwell, 136 S. Ct. 1557 (2016) (No. 141418). The accommodation was not the least

restrictive means of accomplishing their goals.

Given this, and religious non-profits’ assurance

they did not object to their health insurers providing

contraceptives without them, this Court vacated the

judgments below and remanded the cases. Zubik v.

Burwell, 136 S. Ct. 1557, 1560 (2016) (per curiam). It

gave the agencies “an opportunity” to better

accommodate religious non-profits’ objections. Ibid.

The agencies solicited public comments on options

to revise the accommodation yet again. 81 Fed. Reg.

47,741, 47,741 (July 22, 2016). But no regulatory

changes resulted. Shortly after the 2016 presidential

election, the agencies stated that it was impossible to

modify the accommodation to resolve objectors’

concerns. U.S. Dep’t of Labor, FAQs About Affordable

Care Act Implementation Part 36 (Jan. 9, 2017),

https://bit.ly/2Sv6Q3z. Dozens of lawsuits remained

pending, including one March for Life filed in 2014.

D. March for Life and its lawsuit

March for Life is one of the oldest and best-known

pro-life organizations in the country. It is a nonreligious, charitable organization that exists to

protect, defend, and respect human life at every stage,

and to promote the worth and dignity of all unborn

children. To say that March for Life opposes abortion

is an understatement: that opposition is the reason

the organization exists.

One of March for Life’s basic moral convictions is

that human life begins at conception/fertilization and

that a human embryo is a human life that should be

protected. Because hormonal oral and implantable

contraceptives, IUDs, and so-called “emergency

contraception” may prevent a human embryo from

implanting in the uterus, thereby causing an

abortion, March for Life cannot include them in its

health plan. Nor would its employees—all of whom

share those beliefs—use these abortifacients.

Yet the agencies required March for Life to violate

its reason for existence by paying for coverage of

abortifacient drugs. They made no allowance for

moral objections to abortion. So, March for Life was

forced to sue in the U.S. District Court for the District

of Columbia. It made a straightforward equalprotection claim. The agencies could not exempt

churches from the contraceptive mandate because

their employees were “more likely” to share their

religious, pro-life beliefs, 78 Fed. Reg. at 39,874

(emphasis added), but apply the mandate to March

for Life whose employees certainly do share its moral,

pro-life convictions.

The district court agreed and permanently

enjoined the agencies from enforcing the mandate

against March for Life. March for Life v. Burwell, 128

F. Supp. 3d 116, 134 (D.D.C. 2015). But the agencies

appealed and persuaded the D.C. Circuit to hold the

case in abeyance for years. Eventually, March for

Life’s lawsuit partially inspired the agencies to

reconsider their regulatory scheme. 83 Fed. Reg.

57,592, 57,595–96, 57,602–03 (Nov. 15, 2018).

E. The agencies reconsider and

broader conscience exemptions.

create

After prevailing in an election where the contraceptive mandate was a major matter, President

Trump issued an executive order directing the

agencies to consider regulatory changes “to address

conscience-based objections.” Exec. Order No. 13,798,

82 Fed. Reg. 21,675 (May 4, 2017).

The agencies later revisited the matter and issued

final rules concluding: (1) Congress has protected

moral and religious objectors in the healthcare

context for decades, (2) the agencies had exempted

many employers from the contraceptive mandate

from its inception, (3) the mandate and revised

accommodation violated RFRA in many instances,

(3) creating an exemption for employers with moral

objections and enlarging the existing religious

exemption was justified, and (4) these carve outs were

preferable to eliminating the contraceptive mandate

altogether. 83 Fed. Reg. 57,536 (Nov. 15, 2018); 83

Fed. Reg. 57,592 (Nov. 15, 2018).

The final rules, issued after notice and comment,

establish moral and religious exemptions from the

contraceptive mandate for which March for Life and

others had long advocated in court and the public

square. The agencies agreed to no longer force entities

such as churches, non-profits, for-profits that are not

publicly traded, and private colleges to establish,

maintain, provide, offer, or arrange for abortifacient

drugs. But the mandate otherwise remains in place

and qualifying employers must provide any FDAapproved contraceptive or sterilization items, procedures, services, and counseling to which they have no

moral or religious objection. 45 C.F.R. 147.132; 45

C.F.R. 147.133.

Furthermore, the agencies kept the religious

accommodation, which satisfied many employers, as

a voluntary option and made it available to moral

objectors. 83 Fed. Reg. at 57,561; 83 Fed. Reg. at

57,623–24. HHS also ensured that any low-income

woman who might lose access to contraceptives due to

her employer’s moral or religious objection could

receive them under Title X. 84 Fed. Reg. 7,714 (Mar.

4, 2019).

These regulatory changes eventually caused the

agencies to voluntarily dismiss the appeal in March

for Life’s case. The D.C. Circuit granted that motion,

leaving the district court’s permanent injunction in

place. March for Life v. Azar, No. 15-5301, 2018 WL

4871092, at *1 (Sept. 17, 2018).

F. The plaintiff States sue, and the Ninth

Circuit affirms an injunction against the

final rules.

This truce should have brought lasting peace. But

California, 12 other states, and the District of

Columbia (collectively, the “States”), sued to overturn

the agencies’ moral and religious exemptions,

claiming they violated the Administrative Procedure

Act (“APA”), Establishment Clause, and equal

protection. March for Life intervened to defend the

moral exemption.

The U.S. District Court for the District of

Northern California ruled that the States had Article

III standing because the final regulations were

reasonably probable to damage the States’ fiscs

“through increased reliance on [voluntarily] statefunded family-planning programs and through the

[voluntary] state-borne costs of unintended pregnancies.” App.78a. After reimagining the contraceptive

mandate as a statutory requirement, the district

court preliminarily enjoined the agencies from enforcing the final rules because (1) RFRA did not require

the religious exemption; (2) the religious accommodation was enough; and (3) the moral exemption was

inconsistent with the ACA. App.84a–111a.

A divided Ninth Circuit panel affirmed. The States

brought a substantive—not procedural—APA challenge to the final rules. Yet the Ninth Circuit held the

States had Article III standing based on an earlier

ruling that hinged on the States raising a procedural

APA claim. App.21a–22a; see also California v. Azar,

911 F.3d 558, 571 (9th Cir. 2018) (“We hold that the

states have standing to sue on their procedural APA

claim.”); id. at 573 (“causation and redressability

requirements are relaxed once a plaintiff has

established a procedural injury”) (cleaned up). The

only new grounds the majority gave for identifying

standing was that the States’ causation theory relied

on the “predictable effect of Government action on the

decisions of third parties.” App.22a (quoting Dep’t of

Commerce v. New York, 139 S. Ct. 2551, 2566 (2019)).

On the merits, the majority held that the agencies

likely (1) lacked statutory authority to establish the

moral or religious exemptions; (2) had no business

pre-emptively avoiding serial violation of RFRA,

which courts must litigate case-by-case; and

(3) successfully avoided any RFRA violation by

establishing the religious accommodation. App.28a–

42a.

Judge Kleinfeld dissented because he believed

that the Third Circuit’s affirmance of a nationwide

injunction against enforcing the final rules had

mooted the case. App.45a–52a. Judge Kleinfeld also

concluded that the States lacked Article III standing

because any fiscal harm they might experience was

entirely self-inflicted. App.50a (citing California, 911

F.3d at 585–88 (Kleinfeld, J., dissenting)).

On remand, the district court canceled summary

judgment proceedings due to the nationwide

injunction affirmed by the Third Circuit in Little

Sisters and Trump, and it effectively put this case on

hold.

REASONS FOR GRANTING THE WRIT

“Relaxation of standing requirements is directly

related to the expansion of judicial power.” Clapper v.

Amnesty Int’l USA, 568 U.S. 398, 408–09 (2013). The

Ninth Circuit’s decision all but erased Article III’s

criteria for suit, then redirected executive-branch

policy on conscientious objections to abortion. It is

hard to think of a recent federal case that has set the

standing bar lower.

The reality is that the States are just concerned

bystanders; no rights or obligations flow from the

ACA to them. The States’ standing theory is grounded

in speculation and choice: in theory, the agencies’

contraceptive mandate relieves them of healthcare

costs they voluntarily assumed and may stop paying

without consequence. And the States have no right to

the federal government continuing to force any

employer to cover abortifacients and contraception.

Besides the States’ lack of standing, certiorari is

warranted to correct the Ninth Circuit’s merits

analysis of the moral and religious exemptions. This

is the issue squarely before the Court in Little Sisters

and Trump, and any ruling in those cases should also

be applied here to protect those like March for Life.

I. Article III standing is a basic constitutional

requirement, and this Court has an independent duty to ensure it exists.

Article III asks if a litigant has standing to invoke

a federal court’s jurisdiction and obtain a ruling on

the merits. Warth v. Seldin, 422 U.S. 490, 498 (1975).

No inquiry is more central to sustaining federal

courts’ limited role in a democratic society. Summers

v. Earth Island Inst., 555 U.S. 488, 492–93 (2009).

Without it, courts would run roughshod over other

governmental branches, deciding not cases or controversies but “questions and issues” about hot-button

political topics. Ariz. Christian Sch. Tuition Org. v.

Winn, 563 U.S. 125, 132 (2011) (“ACSTO”). Standing,

then, is more than an academic concern. It guards the

separation of powers. Allen v. Wright, 468 U.S. 737,

752 (1984). Article III “preserves the tripartite

structure of our Federal Government, prevents the

Federal Judiciary from intruding upon the powers

given to the other branches, and confines the federal

courts to a properly judicial role.” Town of Chester v.

Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017)

(cleaned up).

When a litigant lacks standing, “courts have no

charter to review and revise legislative and executive

action.” Summers, 555 U.S. at 492. They may only

dismiss the case. Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 94 (1998). And given its crucial

importance, standing “cannot be waived or forfeited.”

Va. House of Delegates v. Bethune-Hill, 139 S. Ct.

1945, 1951 (2019). Courts have a duty to ensure

jurisdiction, regardless whether the parties question

or concede it. Arizonans for Official English v.

Arizona, 520 U.S. 43, 73 (1997).

II. The States lack standing to challenge the

final rules, and the Ninth Circuit erred in

refusing to dismiss their suit.

Federal courts must ask, “Is this conflict really

necessary?” Arizonans for Official English, 520 U.S.

at 75. But the Ninth Circuit failed to take that Article

III question seriously, turning it into “a mechanical

exercise” that states may swiftly bypass. Allen, 468

U.S. at 751. Only this Court can stop lower courts

from overstepping their bounds to “decide abstract

questions of wide public significance even though

other governmental institutions may be more

competent to address [them] and . . . judicial intervention [is] unnecessary to protect individual rights.”

Warth, 422 U.S. at 500.

A. The States bear the burden of proving

standing’s three elements.

Under Article III, federal courts “may exercise

power only in the last resort, and as a necessity.”

Allen, 468 U.S. at 752 (cleaned up). So plaintiffs, like

the States, bear the burden of proving that they have

standing to sue. Clapper, 568 U.S. at 408.

Establishing courts’ jurisdiction requires the States to

show (1) an injury in fact, (2) fairly traceable to the

moral and religious exceptions (3) that is likely to be

redressed by a favorable judicial decision. Spokeo, Inc.

v. Robins, 136 S. Ct. 1540, 1547 (2016).

Claiming a nonobvious harm related to the final

regulations is insufficient for the States to show

standing. Bethune-Hill, 139 S. Ct. at 1951. They must

prove “an injury by submitting affidavits or other

evidence.” Wittman v. Personhuballah, 136 S. Ct.

1732, 1737 (2016) (cleaned up). But all the States can

muster are political grievances. None can prove

standing’s three elements. Thus, the Ninth Circuit

should have dismissed this case.

B. Because the States have no rights or

obligations at stake, and their standing

theory depends on rank speculation and

self-imposed harm, they cannot show an

injury in fact.

Injury in fact “is a hard floor of Article III

jurisdiction.” Summers, 555 U.S. at 497. Standing

cannot exist without it. A litigant must have “a legally

protected” or “cognizable interest” in the matter at

hand. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 562

(1992). That interest must be real and urgent or

“actual or imminent,” as well as specific to the litigant

or “concrete and particularized.” Id. at 560.

Yet the States’ alleged injuries are none of the

above. States have no cognizable interest in the

agencies’ contraceptive mandate, which operates

against private employers to benefit employees.

Nothing gives the States a legal right to force the

agencies to redirect contraceptive payments they

voluntarily assumed to conscientious objectors. All

the States claim is self-imposed financial harm based

on the hypothetical actions of employers and

employees that is speculative and remote.

1. The States have no right to an indirect

financial windfall.

To articulate the States’ novel theory of standing

is to refute it. It goes as follows: (1) the States

voluntarily instituted programs that provide contraceptives to low-income women, (2) the religious and

moral exemptions will cause some employed women

to lose access to contraceptives, and (3) those women

will turn back to the States’ voluntary contraceptive

programs, costing the States money. App.21a (citing

California, 911 F.3d at 570–74).

This logic shows no injury in fact. The States have

no “personal right under the Constitution or any

statute to be free of action by [federal agencies] that

may have some incidental adverse effect” on them.

Warth, 422 U.S. at 509. Any indirect fiscal benefit the

contraceptive mandate provided to States was purely

serendipitous, not a matter of right.

Virtually every federal policy increases or reduces

the States’ costs. That does not give them standing to

freeze any beneficial administrative act. Federal

agencies owe the States nothing under the ACA.

The agencies’ contraceptive mandate and moral

and religious exemptions accord the States no rights

or duties. Nor do they “affect prejudicially any

proprietary or other right of the state subject to

judicial cognizance.” New Jersey v. Sargent, 269 U.S.

328, 334 (1926). In fact, they leave the States free to

do what they like. Id. at 338. The States may leave

their voluntary contraceptive programs as is, modify

their eligibility criteria, or cancel them altogether

without federal punishment.

What the States seek is “not to enforce specific

legal obligations whose violation works a direct harm”

against them, but to “restructure[e] . . . the apparatus

established by the Executive Branch to fulfill its legal

duties” under the ACA. Allen, 468 U.S. at 761. And

the Ninth Circuit allowed that improper gambit. But

the States lack Article III standing to commandeer

the federal government to support their social welfare

spending, particularly as the judiciary grants the

federal government “the widest latitude in the

dispatch of its own internal affairs.” Ibid.

2. Any injury to the States’ fiscs is

entirely self-imposed.

“No State can be heard to complain about damage

inflicted by its own hand.” Pennsylvania v. New

Jersey, 426 U.S. 660, 664 (1976). Yet that is precisely

the complaint the States make here. Any possible

injury to the State’s fiscs results “from decisions by

their respective state legislatures” to pay for women’s

contraception. Ibid. That decision is unrelated to the

federal agencies’ contraceptive mandate.

If the States are concerned about the costs of their

discretionary programs, “nothing prevents” them

from altering or eliminating them. Ibid. (Just as the

federal government is free to alter or eliminate its

own program.) But self-inflicted injury in the form of

voluntary spending does not open the door to federal

court. The agencies “neither require nor forbid any

action on” the States’ part. Summers, 555 U.S. at 493.

What the States are “really complaining about [is]

their own statute[s].” Pennsylvania, 426 U.S. at 667

(Blackmun, J., concurring).

The Ninth Circuit’s logic would allow the States

to “manufacture standing” at will. Clapper, 568 U.S.

at 416. States could draw the judiciary into the middle

of almost any federal regulatory change, remaking

courts as “continuing monitors of the wisdom and

soundness of Executive action,” Allen, 468 U.S. at 760,

and undermining “the public’s confidence in an

unelected but restrained Federal Judiciary,” ACSTO,

563 U.S. at 133.

3. The States’ claimed fiscal injury is

abstract and not certainly impending.

Though the States could formerly rely on the

lower standard of immediacy that applies to

procedural claims, Lujan, 504 U.S. at 572 n.7, they

raise no procedural challenge to the final rules. So

Article III’s requirements apply in full force: the

States’ “threatened injury must be certainly impending to constitute injury in fact.” Whitmore v.

Arkansas, 495 U.S. 149, 158 (1990) (cleaned up). The

problem is that the States’ alleged fiscal harm is “pure

speculation and fantasy.” Lujan, 504 U.S. at 567.

The final regulations’ economic impact is not

known to the States or anyone else. 83 Fed. Reg. at

57,607–08, 57,618; 83 Fed. Reg. at 57,550, 57,572–81.

For example, the States cannot cite a single employer

that likely intends to rely on the new moral or

expanded religious exemptions. That is because many

objectors were satisfied with the accommodation and

others—like March for Life—are already covered by

injunctions. And that is just the start of the “highly

attenuated chain of possibilities,” all of which must

align perfectly before the States could realize a

financial hit. Clapper, 568 U.S. at 410.

Even if a relevant employer exists within the

States’ bounds, the States do not know what specific

contraceptives it objects to and what contraceptives

its health plan beneficiaries want. Assuming a real

conflict, the States still cannot prove that it is likely:

(1) plan beneficiaries have no other coverage or way

to access their contraceptive of choice, (2) plan

beneficiaries will turn to State healthcare programs,

(3) plan beneficiaries will satisfy the States’ programs’ eligibility requirements, and (4) the States

will leave their programs the same and spend more

money on contraceptives or unintended pregnancies.

In short, the States claim an injury that is

nothing “more than an ingenious academic exercise in

the conceivable.” Warth, 422 U.S. at 509 (cleaned up).

Yet “standing theories that rest on speculation about

the decisions of independent actors” generally

collapse. Clapper, 568 U.S. at 414. Because this

litigation is merely the flip side of the coin presented

in Diamond v. Charles, 476 U.S. 54, 66 (1986), the

Ninth Circuit erred in holding that the States have

standing based on unmoored hypothesis.

No convincing evidence shows that “the string of

occurrences [the States] alleged would [ever]

happen”—let alone “immediately.” Whitmore, 495

U.S. at 159. Thus, the States lack Article III standing,

as even realistic threats are not enough to prove

imminent harm. Summers, 555 U.S. at 499–500.

4. The States allege a non-particularized

harm that treats federal courts as

general complaint bureaus.

One-third of states have lodged suits against the

moral and religious exemptions. That is strong

evidence that the States lack a particularized interest

and are simply airing their support for abortion in

federal court. Yet the Ninth Circuit turned the federal

judiciary into “general complaint bureaus” for those

unhappy with the democratic process. Hein v.

Freedom From Religion Found., Inc., 551 U.S. 587,

593 (2007).

The States have not tried to hide the true reason

they sued: they want a ruling that federal agencies

violated the ACA by exempting moral and religious

objectors from the contraceptive mandate. But “the

alleged violation of a right to have the Government

act in accordance with law [is] not judicially cognizable.” Lujan, 504 U.S. at 575. Article III requires

more than a “general interest common to all members

of the public.” Gill v. Whitford, 138 S. Ct. 1916, 1931

(2018) (cleaned up). That is all the States possess, as

the final rules do not impact them in any particularized way. They may be able to claim parens patriae

standing, but not in a lawsuit against the federal

government. Alfred L. Snapp & Son, Inc. v. Puerto

Rico ex rel. Barez, 458 U.S. 592, 610 n.16 (1982).

Though the States’ policy disagreement may be

more “sharp and acrimonious” than most, Diamond,

476 U.S. at 62, fervor alone does not satisfy Article

III. Standing requires more than the States’ general

“desire to vindicate [a pro-abortion] value interest[].”

Id. at 66.

C. Because the States’ alleged injury is selfinflicted and depends on the presumed

choices of multiple third parties, they

cannot show causation or redressability.

States must do a cost-benefit analysis whenever

they offer a discretionary benefit, such as providing

contraceptives. Nothing requires federal agencies to

insulate the States from the fiscal consequences of

their own unconstrained choice. Societal and market

conditions are always changing and the States, no

less than others, must adapt. A stubborn refusal to do

so creates nothing but manufactured harm. It is not

enough for the States to throw open courts’ doors and

attempt to convince the judiciary to block any federal

policy change the States dislike. Because any fiscal

injury the States may experience is entirely “selfinflicted,” their asserted “injuries are not fairly

traceable” to the final rules, Clapper, 568 U.S. at 418,

and they lack standing to sue.

What’s more, the States’ causation theory

“involves numerous third parties . . . who may not

even exist in [their] communities and whose independent decisions may not collectively have a significant

effect on” their healthcare costs. Allen, 468 U.S. at

759. Any standing theory that relies “on the unfettered choices made by independent actors not before

the courts” is highly suspect. Lujan, 504 U.S. at 562.

The States must do more than hypothesize: they must

“adduce facts showing” that employers’ and employees’ autonomous choices will align in a particular way

that actually costs the States money. Ibid.

But the States cannot name a single employer

inside their bounds who is likely to invoke the final

rules’ moral or religious exemption, let alone a woman

whose access to contraception is likely to be hindered

by that choice. It is impossible for the States to prove

that either outcome is anything more than rank

speculation. See Part II.B.3, above. The Ninth Circuit

erred in concluding otherwise, as there is nothing

“‘predictable’” about the States’ foretelling. App.22a.

Employers’ and employees’ “exercise of broad and

legitimate discretion” is not something that federal

“courts can[ ] presume either to control or to predict.”

Lujan, 504 U.S. at 562.

III.The agencies had statutory authority to

issue the moral and religious exemptions,

which are legally permissible (if not

required) and not arbitrary or capricious.

On the merits, the Ninth Circuit ruled that the

agencies probably lacked authority to issue the moral

and religious exemptions and those rules are likely

arbitrary and capricious. Neither holding bears

scrutiny. Congress left the preventive-care mandate a

blank slate and invested the agencies with ample

discretion to fashion not only its content, but limited

exemptions based on the Constitution, RFRA, and

this Court’s decisions. Moreover, the final rules are

balanced, address all relevant considerations, and

attempt to restore societal peace. Just because the

Ninth Circuit disagrees with objectors’ views does not

make accommodating them arbitrary or capricious.

A. The final regulations are within the

agencies’ gap-filling authority.

Any argument that the ACA does not allow the

agencies much, if any, discretion is based on cherrypicked legislative history and value judgments—not

the statute’s text. App.29a–33a. What Congress

actually said is that a component of HHS will enact

“comprehensive guidelines” fleshing out what the

ACA’s preventive-care requirement means, 42 U.S.C.

300gg-13(a)(4), and that the agencies could “promulgate such regulations as may be necessary or

appropriate to” accomplish that task, 42 U.S.C.

300gg-92; 29 U.S.C. 1191c; 26 U.S.C. 9833.

The agencies have done precisely what Congress

asked: they enacted comprehensive guidelines that

generally require employers to include all FDAapproved contraceptives in their health plans, but

then issued regulations exempting moral or religious

objectors that were necessary or appropriate based on

constitutional or statutory concerns.

“The power of an administrative agency to

administer a congressionally created program necessarily requires the formulation of policy and the

marking of rules to fill any gap left, implicitly or

explicitly, by Congress.” Mayo Found. for Med. Educ.

& Research v. United States, 562 U.S. 44, 55–56

(2011) (cleaned up). The ACA’s preventive-care gap is

explicit, and the discretion Congress granted the

agencies to fill it is broad. Congress expressly

delegated authority to the agencies to craft regulations interpreting the ACA’s preventive-care

provision. United States v. Mead Corp., 533 U.S. 218,

227 (2001).

“Regulation, like legislation, often requires

drawing lines.” Mayo Found., 562 U.S. at 59. The only

question is whether Congress would have expected

courts to treat the final regulations as within the

agencies’ gap-filling authority. Id. at 58. Congress

must have so expected because: (1) Congress is wellversed in the Constitution’s limits, (2) Congress

broadened those limits by enacting RFRA, and

(3) this Court has long afforded conscience protections

to those—like March for Life—whose moral

convictions are held with the strength of traditional

religious beliefs based on constitutional concerns,

Gillette v. United States, 401 U.S. 437, 445 (1971);

Welsh v. United States, 398 U.S. 333, 340 (1970)

(plurality); id. at 344 (Harlan, J., concurring).

The Ninth Circuit’s contrary decision directs

executive officials to ignore the Constitution and this

Court’s precedents until each individual employer

obtains a court judgment. App.34a–37a. That cannot

be right, which is why the Ninth Circuit admitted the

agencies may have authority to establish the church

exemption. App.32a–33a. But if Congress gave the

agencies discretion to craft that exemption, it

necessarily gave them the power to enact the final

rules too.

Under the Ninth Circuit’s logic, the agencies

lacked authority to address non-profits’ religious

liberty arguments proactively. App.34a–37a. Their

only option to address the serial RFRA violations that

Hobby Lobby unmasked would be to remove contraceptives from the preventive-care guidelines altogether. Nothing suggests that Congress intended to put

the agencies to this all-or-nothing choice.

B. The agencies’ conscious exemptions are

not arbitrary or capricious.

The agencies’ moral and religious exemptions are

the culmination of years of rulemaking, litigation, and

negotiation. Self-evidently, they are the agencies’

good-faith effort to bring peace to a fractured society.

All the APA demands is “good reasons for the new

policy” and the agencies’ belief it is better than the old

one. FCC v. Fox Television Stations, Inc., 556 U.S.

502, 515 (2009).

Here, the Ninth Circuit held that the final rules

were likely arbitrary and capricious by ignoring this

history and substituting the States’ policy “judgment

for that of the agenc[ies].” Id. at 513. App.37a–42a.

But the agencies “need not demonstrate to a court’s

satisfaction that the reason[s] for the new policy are

better than the reasons for the old one.” Fox

Television, 556 U.S. at 515. They must simply

“examine the relevant data and articulate a

satisfactory explanation” for their actions. Id. at 513.

Nothing lacks in the agencies’ inquiry or

reasoning here. The final rules are a balanced

attempt to provide FDA-approved contraceptives to

as many women as possible through employer-based

health plans, while respecting the freedom of

conscience on which our Nation was founded. Even a

cursory review of the final rules shows that the

agencies paid close heed to: (1) the ACA’s text and

structure, (2) Congress’ and our Nation’s history of

protecting freedom of conscience, (3) judicial

decisions, and (4) the likely benefits and burdens

associated with their chosen path. 83 Fed. Reg. at

57,594–57,613; 83 Fed. Reg. at 57,538–57,582.

IV.The questions presented

Court’s resolution.

require

this

The agencies and conscientious objectors have

been in litigation for years. Though the final rules

should have ended this conflict, the Ninth Circuit

invalidated the truce. If the decision is left in place,

federal courts (not the agencies) will force pro-life

non-profits like March for Life to violate their only

reason for existence. This Court should prevent that.

No doubt exists that the questions presented

deserve this Court’s attention. The Court has already

granted review in Little Sisters and Trump. Hobby

Lobby and Zubik also involved the agencies’

contraceptive mandate, which has long been a

national flashpoint. Moreover, the Court granted

review to decide a similar standing question in United

States v. Texas, 136 S. Ct. 906 (2016), but was unable

to do so because the Court was equally divided, 136 S.

Ct. 2271 (2016) (per curiam). Answering the standing

question is a matter of critical importance, as states

now often turn to courts to achieve outcomes voters

did not support at the polls.

This is also an appropriate vehicle to fix the

standing mess. First, March for Life raised the States’

lack of standing below and includes standing as a

fully briefed question presented.

Second, the Ninth Circuit affirmed enjoining the

final rules’ moral exemption without requiring the

States to identity a single pro-life non-profit within

their bounds that is likely to invoke it. Only two nonreligious charities sued, 83 Fed. Reg. at 57,595–96,

57,602, 57,617, and neither falls into this category.

Third, the Ninth Circuit’s holding that executive

officials have no duty to uphold the constitutional or

statutory rights of conscientious objectors absent a

court order is wrong. App.34a–37a. It is hard to

imagine courts requiring executive officials to

disregard any other legal obligation in this way.

Fourth, March for Life has standing to file this

petition. While some lower courts have required

intervenors to show independent Article III standing

even when the party they support appeals,

Pennsylvania v. President United States, 930 F.3d

543, 559 n.6 (3d Cir. 2019), this Court has rejected

that position. Because the agencies are petitioners in

this Court, March for Life may “‘piggyback’ on [their]

undoubted standing” and is “entitled to seek review.”

Diamond, 476 U.S. at 64. Intervening in support of

the agencies does not entail invoking this Court’s

jurisdiction or require March for Life to show

standing itself. Bethune-Hill, 139 S. Ct. at 1951; see

also Wittman, 136 S. Ct. at 1736 (only parties

“invoking a federal court’s jurisdiction” must

“demonstrate standing”). That a permanent

injunction protects March for Life against the

contraceptive mandate is irrelevant: the agencies’

standing fulfills Article III.

At a minimum, the Court should hold this case and

GVR it after issuing an opinion in Little Sisters and

Trump so that the Ninth Circuit can conform its views

to this Court’s decision.

CONCLUSION

The petition for a writ of certiorari should be

granted or held for the decision in Little Sisters and

Trump.

Respectfully submitted,

KRISTEN K. WAGGONER

JOHN J. BURSCH

Counsel of Record

DAVID A. CORTMAN

RORY T. GRAY

ALLIANCE DEFENDING

FREEDOM

440 First Street, N.W.

Suite 600

Washington, D.C. 20001

(616) 450-4235

jbursch@ADFlegal.org

KEVIN H. THERIOT

KENNETH J. CONNELLY

ALLIANCE DEFENDING

FREEDOM

15100 N. 90th Street

Scottsdale, AZ 85260

(480) 444-0020

BRIAN R. CHAVEZ-OCHOA

CHAVEZ-OCHOA LAW

OFFICES, INC.

4 Jean Street, Suite 4

Valley Springs, CA 95252

(209) 772-3013

FEBRUARY 2020

Counsel for Petitioner

APPENDIX