Amicus Curiae Brief — Little Sisters of the Poor Saints Peter and Paul Home, Petitioner v. Pennsylvania, et al.

NOS. 19-431, 19-454

IN THE

Supreme Court of the United States

THE LITTLE SISTERS OF THE POOR SAINTS PETER AND

PAUL HOME,

Petitioner,

v.

COMMONWEALTH OF PENNSYLVANIA, ET AL.,

Respondents.

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,

ET AL.,

Petitioners,

v.

COMMONWEALTH OF PENNSYLVANIA, ET AL.,

Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF OF AMICUS CURIAE MARCH FOR

LIFE EDUCATION AND DEFENSE FUND IN

SUPPORT OF PETITIONERS

David A. Cortman

Rory T. Gray

Kevin H. Theriot

ALLIANCE DEFENDING

FREEDOM

1000 Hurricane Shoals

Lawrenceville, GA 30043

(770) 339-0774

Kristen K. Waggoner

John J. Bursch

Counsel of Record

ALLIANCE DEFENDING

FREEDOM

440 First Street NW, #600

Washington, DC 20001

(616) 450-4235

jbursch@ADFlegal.org

Counsel for Amicus Curiae



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TABLE OF CONTENTS



TABLE OF AUTHORITIES ..................................... iii

INTEREST OF AMICUS CURIAE ............................1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT .........................................................2

STATEMENT OF THE CASE ....................................3

A. The ACA’s “preventive care and

screenings” requirement for women. ............ 3

B. The widespread litigation sparked by the

agencies’ choice and the modifications the

agencies made pre-Zubik. ............................. 5

C. Zubik and its aftermath ................................ 9

D. After additional litigation, the agencies

reconsider and create broader conscience

exemptions. .................................................. 10

E. The plaintiff States sue, and the Third

Circuit affirms an injunction against the

final rules..................................................... 12

ARGUMENT .............................................................14

I.

The Little Sisters of the Poor have standing. ....14

A. The Little Sisters have appellate standing. 14

B. The Little Sisters also have derivative

standing as intervenors. ............................. 15



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II. Conversely, the plaintiff States lack standing.

And their inability to identity a single individual

plaintiff who is harmed by the exemptions shows

there is no compelling reason to force employers

to violate their consciences. ................................16

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. .......................................20

A. The final regulations are within the

agencies’ gap-filling authority. ................... 20

B. The agencies’ conscience exemptions are

not arbitrary or capricious. ......................... 23

CONCLUSION ..........................................................25





iii

TABLE OF AUTHORITIES

Cases

Allen v. Wright,

468 U.S. 737 (1984) .............................................. 17

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) .................................... 3, 4, 5, 7

Clapper v. Amnesty Intern. USA,

568 U.S. 398, 410 (2013) ...................................... 19

FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) ........................................ 23, 24

Gillette v. United States,

401 U.S. 437 (1971) .............................................. 21

Little Sisters of the Poor Home for the Aged,

Colorado v. Sebelius,

571 U.S. 1171 (2014) .............................................. 7

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) .................................................. 18

Mayo Foundation for Medical Education &

Research v. United States,

562 U.S. 44 (2011) ................................................ 21

Motor Vehicle Manufacturers Association of the

United States v. State Farm Mutual Automobile

Insurance Company,

463 U.S. 29 (1983) ................................................ 24

New Jersey v. Sargent,

269 U.S. 328 (1926) .............................................. 17



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Pennsylvania v. New Jersey,

426 U.S. 660 (1976) .............................................. 18

Pennsylvania v. President United States,

930 F.3d 543 (3d Cir. 2019) .................................. 15

Summers v. Earth Island Inst.,

555 U.S. 488 (2009) .............................................. 18

United States v. Mead Corp.,

533 U.S. 218 (2001) .............................................. 21

United States v. Seeger,

380 U.S. 163 (1965) .............................................. 22

Warth v. Seldin,

422 U.S. 490 (1975) .............................................. 17

Welsh v. United States,

398 U.S. 333 (1970) ........................................ 21, 22

Wheaton College v. Burwell,

573 U.S. 958 (2014) ................................................ 8

Whitmore v. Arkansas,

495 U.S. 149 (1990) .............................................. 18

Zubik v. Burwell,

135 S. Ct. 2924 (2015) ............................................ 9

Zubik v. Burwell,

136 S. Ct. 1557 (2016) .......................................... 10

Statutes

26 U.S.C. 4980D ......................................................... 5



v

26 U.S.C. 4980H ......................................................... 5

26 U.S.C. 9833 ...................................................... 4, 20

29 U.S.C. 1003(b)(2) ................................................... 6

29 U.S.C. 1132 ............................................................ 5

29 U.S.C. 1191c .................................................... 4, 20

42 U.S.C. 300gg-13 ............................................... 3, 20

42 U.S.C. 300gg-92 ............................................... 4, 20

Regulations

29 C.F.R. 2510.3-16(b)&(c)..................................... 6, 8

45 C.F.R. 147.132 ..................................................... 11

45 C.F.R. 147.133 ..................................................... 11

77 Fed. Reg. 8,725 (Feb. 15, 2012)......................... 4, 5

78 Fed. Reg. 39,870 (July 2, 2013)............................. 6

79 Fed. Reg. 51,092 (Aug. 27, 2014) ...................... 6, 8

80 Fed. Reg. 41,318 (July 14, 2015)........................... 8

81 Fed. Reg. 47,741 (July 22, 2016)......................... 10

83 Fed. Reg. 57,536 (Nov. 15, 2018) ............ 11, 18, 24

84 Fed. Reg. 7,714 (Mar. 4, 2019) ............................ 11





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Other Authorities

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

(May 4, 2017) ........................................................ 10

U.S. Department of Labor, FAQs About Affordable

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

https://bit.ly/2Sv6Q3z ........................................... 10



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INTEREST OF AMICUS CURIAE1

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

pro-life organizations in the country. It is a nonreligious, charitable organization that protects, defends, and respects human life at every stage and promotes the worth and dignity of all unborn children.

Opposition to abortion is the reason the group 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, causing an abortion, March for

Life cannot include them in its health plan. Nor would

its employees—who share those beliefs—use them.

March for Life is a proponent and beneficiary of

the religious and moral exemptions at issue here.

Indeed, March for Life filed its own petition in support

of the exemptions in March for Life Education and

Defense Fund v. California, No. 19-1040. Accordingly,

March for Life asks the Court to hold that (1) the

Little Sisters of the Poor have standing, (2) the lack

of any individual plaintiffs proves there is no

compelling reason to compel conscience violations,

and (3) the religious and moral exemptions are a

lawful, non-arbitrary exercise of agency authority.

1 Pursuant to Supreme Court Rule 37(6), March for Life

states that no party other than the amicus and its counsel

authored this brief in whole or part nor contributed money that

was intended to fund preparing or submitting this brief. Both

parties have consented in writing to the filing of this brief in

blanket consents on file with the Court



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INTRODUCTION AND SUMMARY OF THE

ARGUMENT

The Little Sisters of the Poor have standing. The

injunction that currently protects the Little Sisters is

limited and applies only to the specific health plan the

Little Sisters currently have. If the Little Sisters

change their plan, the injunction’s protection will

vanish. Because the religious and moral exemptions

provide broader protection and give the Little Sisters

greater flexibility in providing health insurance, the

Little Sisters have standing to defend the exemption.

Moreover, the Little Sisters as intervenors have

standing derivatively, as a “piggyback” to the

unquestioned standing of the federal government in

this proceeding.

Conversely, the plaintiff States lack standing.

The States have no right to a federal subsidization of

abortifacients and contraceptives. And the fact that

these States were unable to find a single individual

plaintiff who is allegedly harmed by the religious and

moral exemptions shows that contraceptives are

widely available and that the federal government

lacks a compelling reason to violate the religious and

moral convictions of organizations who oppose

abortifacients and artificial contraception.

Finally, the federal agencies who promulgated the

contraceptive mandate had authority to create the

religious and moral exemptions. In enacting the

Affordable Care Act, Congress said nothing about

requiring employers to provide abortifacients and

artificial contraception. Just as the legislation left

agencies with discretion to include such a

requirement, the agencies had concomitant discretion

to fashion religious and moral exemptions.



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The final exemptions are balanced and address

concerns on all sides. They are not arbitrary or

capricious. Accordingly, if this Court reaches the

merits, it should reverse the Third Circuit and uphold

the religious and moral exemption.

STATEMENT OF THE CASE

A. The ACA’s “preventive care and screenings” requirement for women.

The Affordable Care Act, or ACA, regulates our

Nation’s health-insurance industry in unprecedented

ways. It requires 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 like March for Life have

no quarrel with the ACA’s mandatory-coverage

provisions. They object not to the health insurance or

preventive-care-and-screening requirement but to the

initial 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



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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

counseling.” 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 other religious and nonreligious non-profits opposed to abortion—including

March for Life—the agencies initially made no

exception for them.



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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.



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To access the accommodation, religious nonprofits 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

self-insured 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 sort of 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 this did not eliminate the

requirement to execute forms and give the government information so the government could make

voluntary offers to those administrators.



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Because some objectors’ consciences were not

assuaged, 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 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,



8

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. As a result,

the agencies gave March for Life less conscience

protection than Hobby Lobby.



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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. But providing this

data imposed a burden on religious exercise because

it 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.



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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. After additional litigation, the agencies

reconsider and create broader conscience

exemptions.

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).



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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,

(4) creating an exemption for employers with moral

objections and enlarging the existing religious

exemption was justified, and (5) 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.

The agencies kept the religious accommodation,

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 objection could receive them under

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



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E. The plaintiff States sue, and the Third

Circuit affirms an injunction against the

final rules.

This truce should have brought lasting peace, but

it was not to be. Before the agencies could even

publish the revised rules, Pennsylvania sued, seeking

a nationwide injunction on the ground that the

religious and moral exemptions violated the ACA and

the Administrative Procedures Act. J.A. 194–95. The

district court held that Pennsylvania had standing,

Little Sisters Pet.App. 147a–58a, then granted the

nationwide preliminary injunction, even though only

a single state had filed suit, id. at 160a–73a, 193a–

95a.

During the appeal—and after considering more

than 56,000 comments, see 83 Fed. Reg. 57,536,

57,540 (Nov. 15, 2018)—the agencies issued their

final rule, concluding “an expanded exemption . . . is

the most appropriate administrative response to the

substantial burden identified by [this] Court in Hobby

Lobby.” Id. at 57,545. Indeed, for some objecting

entities, RFRA “required” the expanded exemption.

Id. at 57,540–541.

All this spurred Pennsylvania, joined by New

Jersey, to file an amended complaint. The district

court again held that the states had standing, Little

Sisters Pet.App. 73a–81a, and it again entered a

nationwide injunction. Id. at 97a–100a. In other

words, the agencies had the authority to create the

contraceptive mandate, but they apparently lacked

power to carve out any exemptions. This “all or

nothing” view of the agencies’ authority has no tether

to the ACA’s text.



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The Third Circuit affirmed. Little Sisters

Pet.App. 8a. It began by recognizing that the plaintiff

States’ hypothetical increase in voluntary funding

gave them standing, even though they could not

identify a single “specific woman who will be affected

by the Final Rules.” Little Sisters Pet.App.25.

Conversely, and in conflict with its earlier ruling

on intervention, the court of appeals said the Little

Sisters lacked standing to defend the rule because

they had already obtained a limited injunction from a

Colorado district court that was based on the specific

benefit plans the Little Sisters had in place. Little

Sisters Pet.App.15a n.6. The opinion did not address

the fact that under the final rules, the Little Sisters

would have much more flexibility, including the

ability to adopt different health plans without

running afoul of the mandate.

On the merits, the Third Circuit agreed that the

ACA granted limited discretion to the agencies to

create a mandate that exempted churches but

withheld discretion to exempt anyone else, Little

Sisters Pet.App. 40a, and it held that RFRA was not

in play because the mandate “did not infringe on the

religious exercise of covered employers,” Little Sisters

Pet.App. 48a, notwithstanding the contrary suggestions in Hobby Lobby and Zubik.





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ARGUMENT

I. The Little Sisters of the Poor have standing.

A. The Little Sisters have appellate

standing.

The Third Circuit’s about-face on the Little

Sisters’ standing is remarkable. To demonstrate

standing on appeal, a litigant must show that it is

seeking “relief for an injury that affects him in a

‘personal and individual way’” and possesses “a ‘direct

stake in the outcome’ of the case.” Hollingsworth v.

Perry, 570 U.S. 693, 705 (2013). The Little Sisters

easily satisfy that standard here.

For years, the Little Sisters have sought the very

protection the agencies’ final rules provide. Absent

that protection, the Little Sisters would be forced to

violate the tenets of their Catholic faith. The Third

Circuit did not disagree in theory. But it concluded

the Little Sisters no longer needed that protection in

fact because of the injunction they obtained in Little

Sisters of the Poor v. Azar, No. 1:13-cv-02611 (D.

Colo). But that order enjoined the government’s

enforcement of the contraceptive mandate only if the

Little Sisters stay in their current plan. If the Little

Sisters leave that plan for any reason, whether due to

cost, scope of coverage, or another state’s requirements, the federal government is again “free to

enforce” the mandate. Id., ECF No. 82 at 2–3. That is

a far cry from the final rules, which provide a

categorical exemption regardless of the plan provider

or the specifics of any plan provisions. That difference

easily satisfies the direct-stake and personalized

injury requirements that Article III requires.



15

B. The Little Sisters also have derivative

standing as intervenors.

Alternatively, the Little Sisters have derivative

standing based on the federal agencies’ participation

in this case. While some lower courts have required

intervenors to show independent Article III standing

even when the party they support appeals, e.g.,

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, the Little Sisters may “‘piggyback’ on

[their] undoubted standing” and are “entitled to seek

review.” Diamond v. Charles, 476 U.S. 54, 64 (1986).

Moreover, intervening in support of the agencies

does not entail invoking this Court’s jurisdiction or

require the Little Sisters to show standing

themselves. Va. House of Delegates v. Bethune-Hill,

139 S. Ct. 1945, 1951 (2019); see also Wittman v.

Personhuballah, 136 S. Ct. 1732, 1736 (2016) (only

parties “invoking a federal court’s jurisdiction” must

“demonstrate standing”).

So even if the Little Sisters were protected by a

much broader injunction than the one that actually

exists, i.e., one that is truly coextensive with the

protection the religious and moral exemptions

provide, the Little Sisters’ standing piggybacks on the

agencies’ standing. The Third Circuit erred in holding

that only the federal government as regulator has an

interest in upholding the final rules, not a regulated

party who spurred on the rules and sought for years

the relief the final rules provide.



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II.Conversely, the plaintiff States lack standing. And their inability to identity a single

individual plaintiff who is harmed by the

exemptions shows there is no compelling

reason to force employers to violate their

consciences.

Under RFRA, the federal government and its

agencies may not enforce the contraceptive mandate

to substantially burden the Little Sisters’ exercise of

religion unless doing so is the “least restrictive means

of furthering [a] compelling governmental interest.”

42 U.S.C. 2000bb-1(a), (b). Hobby Lobby establishes

that the mandate imposes a substantial burden on

religious exercise. 573 U.S. at 719. And the plaintiff

States cannot show that the mandate without the

religious and moral exemptions is the least restrictive

means of furthering the government’s interest in

ensuring that women have abortifacients and

artificial contraception. We know this, because the

plaintiff States have been unable to produce even a

single person who is likely to lose contraceptive

coverage as a result of the religious and moral

exemptions’ implementation.

As explained more fulsomely in March for Life’s

petition in Case No. 19-1040, the plaintiff States lack

standing to demand a federal contraceptive mandate

with no exemptions. The mandate 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.



17

1. 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.

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 v. Seldin, 422 U.S. 490, 509 (1975). 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 leave the States free to do what

they like. New Jersey v. Sargent, 269 U.S. 328, 334

(1926). The States may leave their voluntary

contraceptive programs as is, modify their eligibility

criteria, or cancel them altogether without federal

punishment.

So what the States seek is “not to enforce specific

legal obligations whose violation works a direct harm”

against them. Allen v. Wright, 468 U.S. 737, 761

(1984). The States want nothing less than to

“restructur[e] . . . the apparatus established by the

Executive Branch to fulfill its legal duties” under the

ACA. Ibid.



18

2. “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 v. Earth Island

Inst., 555 U.S. 488, 493 (2009). What the States are

“really complaining about [is] their own statute[s].”

Pennsylvania, 426 U.S. at 667 (Blackmun, J.,

concurring).

3. 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 v. Defenders of

Wildlife, 504 U.S. 555, 567 (1992).

The final regulations’ economic impact is not

known. 83 Fed. Reg. at 57,607–08, 57,618; 83 Fed.

Reg. at 57,550, 57,572–81. Critically, the States

cannot identify a single employer in their borders that

will drop contraceptive coverage based on the new

moral or expanded religious exemptions, much less an



19

employee of such an employer who desires abortifacient coverage. That is because many objectors were

satisfied with the accommodation and others—like

March for Life—are 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 v.

Amnesty Intern. USA, 568 U.S. 398, 410 (2013).

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.

4. The plaintiff States’ inability to produce any

evidence that a particular employer is likely to claim

the exemption that will result in the States paying

additional money after implementation of the

religious and moral exemptions is fatal on the merits.

If the mandate both with and without the exemptions

results in the same scope of coverage, the mandate

with the exemptions is necessarily the least

restrictive means of advancing the government’s

interests, however compelling. This is a separate and

independent reason to reverse the Third Circuit and

uphold the final rules.



20

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.

Congress left the preventive-care mandate a

blank slate and invested federal agencies with ample

discretion to fashion not only its content, but limited

exemptions based on the Constitution, the Religious

Freedom Restoration Act, and this Court’s decisions.

Moreover, the final rules are balanced, address all

relevant considerations, and attempt to restore

societal peace. Just because the Third 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. Congress said 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 the

agencies also issued regulations exempting moral or

religious objectors that were necessary or appropriate

based on constitutional or statutory concerns.



21

“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 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).

As the Little Sisters explain, RFRA provides an

independent ground justifying the religious exemption. And it is irrational and violates equal protection

for the government to refuse to give an exemption to

non-religious nonprofits whose employees share the

same pro-life beliefs as the Little Sisters. So, it makes

sense to pair religious and moral exemptions.



22

Federal agencies do this all the time. The general

Medicare Advantage rule “does not require the MA

plan to cover, furnish, or pay for a particular

counseling or referral service if the MA organization

that offers the plan . . . [o]bjects to the provision of

that service on moral or religious grounds.” 42 C.F.R.

422.206(b)(1). Information requirements do not apply

“if the MCO, PIHP, or PAHP objects to the service on

moral or religious grounds.” 42 C.F.R. 438.102(a)(2).

“[H]ealth plan sponsoring organizations are not

required to discuss treatment options that they would

not ordinarily discuss in their customary course of

practice because such options are inconsistent with

their professional judgment or ethical, moral or

religious beliefs.” 48 C.F.R. 1609.7001(c)(7). And 48

C.F.R. 352.270-9 has a “Non-Discrimination for Conscience” clause for receipt of HIV or malaria funds.

Other federal regulations similarly respect moral

convictions alongside religious beliefs. The Equal

Employment Opportunity Commission “define[s]

religious practices to include moral or ethical beliefs

as to what is right and wrong which are sincerely held

with the strength of traditional religious views,”

consistent with the “standard . . . developed in United

States v. Seeger, 380 U.S. 163 (1965) and Welsh v.

United States, 398 U.S. 333 (1970).” 29 C.F.R. 1605.1

And the Department of Justice provides that “[n]o

officer or employee [of the department] shall be

required to be in attendance at or to participate in any

execution if such attendance or participation is

contrary to the moral or religious convictions of the

officer or employee, or if the employee is a medical

professional who considers such participation or

attendance contrary to medical ethics.” 28 C.F.R.

26.5.



23

As these and other federal regulations demonstrate, federal agencies have long been cognizant of

the distinction between congressional lawmaking and

agency regulation. And agencies regularly exercise

their rule-making discretion to protect non-religious

and religious consciences alike. That practice

supports the federal agencies’ creation of both a

religious and a moral exemption here. See 83 Fed.

Reg. at 57,601–02.

In sum, if Congress gave the agencies discretion

to require some employers to provide abortifacients

and artificial contraceptives, it also gave those

agencies discretion to craft both the religious and

moral exemptions. Accordingly, the agencies had

authority to enact the final rules.

B. The agencies’ conscience exemptions are

not arbitrary or capricious.

The agencies’ moral and religious exemptions are

the culmination of historic litigation, negotiation, and

many rounds of rulemaking. Pennsylvania and New

Jersey may dislike the result. But self-evidently, the

final rules 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).



24

Here, the Third 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].” Motor Vehicle Mfrs. Assoc.

of the United States v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 43 (1983). But the agencies “need not

demonstrate to a court’s satisfaction that the reasons

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. Motor

Vehicle, 463 U.S. at 43.

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.



25

CONCLUSION

The judgments of the court of appeals should be

reversed.

Respectfully submitted,

David A. Cortman

Rory T. Gray

Kevin H. Theriot

ALLIANCE DEFENDING

FREEDOM

1000 Hurricane Shoals

Lawrenceville, GA 30043

(770) 339-0774

Kristen K. Waggoner

John J. Bursch

Counsel of Record

ALLIANCE DEFENDING

FREEDOM

440 First Street SW #600

Washington, DC 20001

(616) 450-4235

jbursch@ADFlegal.org

MARCH 2020