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

Supreme Court briefApr 8, 2020

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Nos. 19-431 & 19-454

IN THE

Supreme Court of the United States

LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME ,

Petitioner,

—v.—

COMMONWEALTH OF PENNSYLVANIA AND STATE OF NEW JERSEY,

Respondents.

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES , ET AL .,

Petitioners,

—v.—

COMMONWEALTH OF PENNSYLVANIA AND STATE OF NEW JERSEY,

Respondents.

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF OF AMICUS CURIAE YALE LAW SCHOOL PROGRAM

FOR THE STUDY OF REPRODUCTIVE JUSTICE

IN SUPPORT OF THE RESPONDENTS

PRISCILLA J. SMITH

Counsel of Record

REPRODUCTIVE RIGHTS

AND JUSTICE PROJECT CLINIC

YALE LAW SCHOOL

319 Sterling Place

Brooklyn, New York 11238

(347) 262-5177

priscilla.smith@yale.edu

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF CONTENTS .............................................. i

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

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT .................................... 1

ARGUMENT ............................................................... 3

Congress Had a Compelling Interest Under

RFRA in Remedying Historical Sex

Discrimination Caused by Restrictions on

Contraceptive Access. ........................................... 3

A. Restrictions on Contraceptives Have

Been Used Historically to Entrench

Stereotypes of What Women Should Be. ...... 4

B. Greater

Access

Contraception

Promotes Gender Equity and Combats

Unconstitutional Sex Stereotypes. .............. 11

C. Congress Adopted the Women’s Health

Amendment to Promote Gender Equity

in Health Care, and thus Women’s

Equality in Economic and Social Life. ........ 13

D. Enactment of the Women’s Health

Amendment and its Requirement that

Contraceptives are Available Without

Cost Serves Congress’s Compelling

Interest in Preventing Discrimination

on the Basis of Sex. ...................................... 14

II. The Agencies Lack Statutory Authority To

Issue the Final Rule. .......................................... 19

III. The Rule Is Arbitrary and Capricious in

Violation of the Administrative Procedure

Act........................................................................ 21

A. The Agencies’ Explanations For Their

Decision to Adopt the Rule Run Counter

to the Evidence in the Record, Are

Implausible, and Cause the Agency to

Ignore Important Aspects of the

Problem. ........................................................ 22

B. The Agencies Acted Arbitrarily and

Capriciously in Failing to Justify Their

Deviation from the Original Rule................ 28

CONCLUSION .......................................................... 31

TABLE OF AUTHORITIES

Cases

Allied-Signal, Inc. v. Nuclear Reg. Comm’n,

988 F.2d 146 (D.C. Cir. 1993) ............................ 29

ANR Pipeline Co. v. FERC, 71 F.3d 897

(D.C. Cir. 1995) ................................................... 30

Bd. of Dirs. of Rotary Int’l v. Rotary Club of

Duarte, 481 U.S. 537 (1987) ............................... 16

Bradwell v. Illinois, 83 U.S. 130 (1872) ..................... 6

Burwell v. Hobby Lobby Stores, Inc., 573

U.S. 682 (2014) ....................................... 16, 17, 25

Chem. Mfrs. Ass’n v. EPA, 217 F.3d 861

(D.C. Cir. 2000) ................................................... 24

Chevron v. Nat. Res. Def. Council, 467 U.S.

837 (1984) ...................................................... 18, 20

Commonwealth v. Allison, 116 N.E. 265

(Mass. 1917) .......................................................... 9

Commonwealth v. Corbett, 29 N.E.2d 151

(Mass. 1940) .......................................................... 9

FCC v. Fox Television Stations, Inc., 556

U.S. 502 (2009) ............................................. 21, 29

Gresham v. Azar, 950 F.3d 93 (D.C. Cir.

2020) .................................................................... 22

Griswold v. Connecticut, 381 U.S. 479

(1965) ................................................................... 10

Md. Dep’t of Health & Mental Hygiene v.

Ctrs. for Medicare & Medicaid Servs.,

542 F.3d 424 (4th Cir. 2008) .............................. 22

Michigan v. EPA, 135 S. Ct. 2699 (2015) ................ 26

iii

Motor Vehicle Mfrs. Ass’n v. State Farm

Mut. Auto Ins. Co., 463 U.S. 29 (1983)21, 22, 23, 25

Nev. Dep’t of Human Res. v. Hibbs, 538 U.S.

721 (2003) ...................................................... 15, 16

Pacific Gas & Elec. Co. v. Energy Res.

Conserv. & Dev. Comm’n, 461 U.S. 190

(1983) ................................................................... 18

Pennsylvania v. Trump, 351 F. Supp. 3d

791 (E.D. Pa. 2019) ............................................... 3

People v. Byrne, 163 N.Y.S. 682 (N.Y. 1917) .............. 8

Planned Parenthood of Se. Pa. v. Casey,

505 U.S. 833 (1992) ............................................ 15

Priests for Life v. U.S. Dep’t of Health &

Human Servs, 808 F.3d 1 (D.C. Cir.

2015) .................................................. 17, 18, 23, 25

Priests for Life v. U.S. Dep’t of Health and

Human Servs., 772 F.3d 229 (D.C. Cir.

2014), vacated by Zubik v. Burwell, 136

S. Ct. 1557 (2016) ............................................... 16

Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ........... 16

Small Refiner Lead Phase-Down Task Force

v. EPA, 705 F.2d 506 (D.C. Cir. 1983) ......... 24, 28

Tileston v. Ullman, 26 A.2d 582 (Conn.

1942) .................................................................... 10

United States v. One Package, 86 F.2d 737

(2d Cir. 1936) ........................................................ 8

United States v. Virginia, 518 U.S. 515

(1996) ................................................................... 15

Util. Air. Reg. Grp. v. EPA, 573 U.S. 302

(2014) ................................................................... 20

Wis. Valley Improvement v. FERC, 236 F.3d

738 (D.C. Cir. 2001) ............................................ 30

Statutes

42 U.S.C. § 2000bb (2018).............................. i, 2, 3, 18

42 U.S.C. § 300gg-13(a)(4) (2018) ................... 3, 13, 14

5 U.S.C. § 706(2)(C)................................................... 18

5 U.S.C. §§ 701-706 (2018).......................................... 2

Comstock Act, ch. 258, 17 Stat. 598-99

(1873) ..................................................................... 7

Patient Protection and Affordable Care Act,

Pub. L. No. 111-148, 124 Stat. 119

(2010) ..................................................... 1, 3, 13, 20

Rules

78 Fed. Reg. 39,870 ................................................... 28

78 Fed. Reg. 39,871 ................................................... 28

82 Fed. Reg 47,792 .................................................... 24

82 Fed. Reg. 47,804 ............................................. 24, 26

82 Fed. Reg. 47,805 ................................................... 29

83 Fed. Reg. 57,592 ................................................... 26

83 Fed. Reg. 57,610 ................................................... 26

Articles & Treatises

Adam Sonfield, et al., The Social and

Economic Benefits of Women’s Ability To

Determine Whether and When to Have

Children, GUTTMACHER INSTITUTE (Mar.

2013), https://bit.ly/2JLGLHX ........................... 12

Aileen M. Gariepy et al., The Impact of Outof-Pocket Expense on IUD Utilization

Among Women with Private Insurance,

84 CONTRACEPTION 39 (2011) ............................. 12

Ashley H. Snyder et al., The Impact of the

Affordable Care Act on Contraceptive

Use and Costs Among Privately Insured

Women, 28 WOMEN’S HEALTH ISSUES

219 (2018) .............................................................. 3

C. Thomas Dienes, LAW, POLITICS AND

BIRTH CONTROL (1972).......................................... 7

Carol Flora Brooks, The Early History of the

Anti-Contraceptive Laws in

Massachusetts and Connecticut, 18 AM.

Q. 3 (1966) ............................................................. 7

Claudia Goldin & Lawrence F. Katz, The

Power of the Pill: Oral Contraceptives

and Women’s Career and Marriage

Decisions, 110 J. POL. ECON. 730 (2002) ............ 11

David Eisenberg, Colleeen McNicholas, &

Jeffrey Peipert, Cost as a Barrier to

Long-Acting Reversible Contraceptive

(LARC) Use in Adolescents, 52 J.

ADOLESCENT HEALTH 59 (2013) ......................... 12

Lara Marks, SEXUAL CHEMISTRY: A HISTORY

OF THE CONTRACEPTIVE PILL (2001) ..................... 5

LJ Havrilesky et al., Oral Contraceptive Use

for the Primary Prevention of Ovarian

Cancer, Agency for Healthcare Research

and Quality, Report No. 13-E002-EF

(June 2013) ......................................................... 26

Neil S. Siegel & Reva B. Siegel, Pregnancy

and Sex Role Stereotyping: From Struck

to Carhart, 70 OHIO ST. L.J. 1095 (2009)........... 14

Note, Judicial Regulation of Birth Control

Under Obscenity Laws, 50 YALE L.J. 682

(1941) ..................................................................... 7

Oral Contraceptives and Cancer Risk,

National Cancer Institute (Mar. 21,

2012), https://bit.ly/2UQEGkf ............................ 26

Priscilla J. Smith, Contraceptive

Comstockery: Reasoning from

Immorality to Illness in the Twenty-first

Century, 47 CONN. L. REV. 971 (2015) ................. 4

Congressional Records

155 Cong. Rec. 12052 (2009) ..................................... 24

155 Cong. Rec. 176 (2009) ......................................... 24

155 Cong. Rec. S11987 .............................................. 27

155 Cong. Rec. S12025 (daily ed. Dec. 1,

2009) .................................................................... 14

155 Cong. Rec. S12027 (2009) .................................. 14

155 Cong. Rec. S12052 (daily ed. Dec. 1,

2009) .................................................................... 14

158 Cong. Rec. S1162 (daily ed. Mar. 1,

2012) .................................................................... 19

158 Cong. Rec. S1169 (daily ed. Mar. 1,

2012) .................................................................... 20

158 Cong. Rec. S1171 (daily ed. Mar. 1,

2012). ................................................................... 20

158 Cong. Rec. S1173 (daily ed. Mar. 1,

2012) .................................................................... 19

158 Cong. Rec. S538-539 (daily ed. Feb. 9,

2012) .................................................................... 19

vii

Other Authorities

Alison Cuellar, Adelle Simmons & Kenneth

Finegold, The Affordable Care Act:

Promoting Better Health for Women,

Off. of the Assistant Secretary for

Planning and Evaluation, Dep’t of

Health & Hum. Servs. (June 14, 2016) ............. 27

Brief for Appellants, Poe v. Ullman, 367

U.S. 497 (1961) (No. 60) ....................................... 5

Div. of Reprod. Health & Nat’l Ctr. For

Chronic Disease Prevention and Health

Promotion, U.S. Medical Eligibility

Criteria for Contraceptive Use, 2010, 59

MORBIDITY & MORTALITY WEEKLY

REPORT (June 18, 2010),

https://bit.ly/39MviSY .......................................... 5

Hearing Before the Institute of Medicine

Committee on Preventive Services for

Women (2011) (written testimony of Dr.

Hal C. Lawrence, Vice President of

Practical Activities of the American

College of Obstetrics and

Gynecologists), https://bit.ly/3c2ggda ................ 12

HRSA, Women’s Preventive Services

Guidelines ........................................................... 28

Refusing to Provide Health Services, The

Guttmacher Institute,

https://bit.ly/3c7zRZL (last updated Apr.

1, 2020) ................................................................ 27

Senate Democrats, Women’s Preventive Care

Addressed in First Democratic Health

Amendment, YOUTUBE (Dec. 1, 2009),

viii

https://www.youtube.com/watch?v=at2QLaLDtc .............................................................. 13

Women’s Preventive Care Addressed in First

Democratic Health Amendment,

YouTube (Dec. 1, 2009),

https://bit.ly/34lJK30 .......................................... 27

INTEREST OF AMICI CURIAE1

Amicus is the Program for the Study of

Reproductive Justice (“PSRJ”) at Yale Law School, a

national center for academic research and

development of new ideas to promote justice with

respect to reproductive health issues. Many of the

scholars associated with the PSRJ are especially

concerned with how restrictions on access to

contraception

reinforce

unconstitutional

sex

stereotypes in violation of the Fourteenth

Amendment.2

SUMMARY OF ARGUMENT

First, the Affordable Care Act’s (“ACA”)3

contraceptive

coverage

requirement

(the

“contraceptive

mandate”)

serves

Congress’s

compelling interest in combatting unconstitutional

sex discrimination and satisfies the compelling

interest prong of the Religious Freedom Restoration

The parties have granted blanket consent to amicus briefs,

proof of which is filed with the Court. No counsel for a party

authored the brief in whole or in part; no party or party’s

counsel contributed money to fund preparing or submitting the

brief; and no person other than the amicus curiae or its counsel

contributed money intended to fund preparing or submitting

the brief.

2 This brief has been filed on behalf of a Center affiliated with

Yale Law School but does not purport to present the school’s

institutional views, if any.

3 Patient Protection and Affordable Care Act, Pub. L. No. 111-

148, 124 Stat. 119 (2010).

Act (“RFRA”).4 as part of a broader effort to combat

sex discrimination in health care. Congress ensured

access to contraception with no out-of-pocket costs in

the ACA as part of a broader effort to combat sex

discrimination in health care delivery. Eliminating

restrictions on access to contraceptives combats the

unconstitutional sex role stereotyping that motivated

the first government restrictions on contraceptive

access in the United States, and that continues to

motivate efforts to restrict access today.

Second, the Final Rule violates the

Administrative Procedure Act (“APA”)5 for two

reasons. First, the Agencies6 do not have the

statutory authority to issue the Final Rule because

Congress rejected exactly the broad exemption

scheme proposed here. Second, the Agencies’ refusal

to give sufficient consideration to Congressional

intent and scientific evidence indicating the

importance of contraceptive coverage render its

decision arbitrary and capricious under the APA.

4 42 U.S.C. § 2000bb (2018).

5 5 U.S.C. §§ 701-706 (2018).

6 “Agencies” refers to the Agencies that issued the Final Rule:

the Internal Revenue Service, Department of the Treasury,

Department of Labor, and Department of Health and Human

Services.

ARGUMENT

CONGRESS HAD A COMPELLING INTEREST

UNDER RFRA IN REMEDYING HISTORICAL

SEX

DISCRIMINATION

CAUSED

RESTRICTIONS ON CONTRACEPTIVE ACCESS.

Congress adopted the Women’s Health

Amendment (“WHA”) to the ACA,7 and the

contraceptive mandate that grew out of the WHA, to

promote comprehensive access to health care for

women as part of a broader effort to promote gender

equity.8 Preliminary data indicate that the fully

enforced contraceptive mandate has been successful

so far: it has led to decreased out-of-pocket costs for

contraceptives as well as increased usage.9 The new

Rule threatens to undermine this progress and

directly contravene Congress’s explicit intent to

promote women’s equality through broad access to

preventive care, including contraceptives. The

sweeping new exemptions10 in the Rule reinforce

outdated and unconstitutional stereotypes of

women’s roles in social and economic life, which have

7 42 U.S.C. § 300gg-13(a)(4) (2018).

8 See infra § I.C.

9 Ashley H. Snyder et al., The Impact of the Affordable Care Act

on Contraceptive Use and Costs Among Privately Insured

Women, 28 WOMEN’S HEALTH ISSUES 219, 222 (2018).

10 The District Court’s opinion in Pennsylvania v. Trump details

the original rules and the changes proposed by the Agencies.

351 F. Supp. 3d 791, 798-805 (E.D. Pa. 2019).

long motivated restrictions on access to reproductive

care for women.

A. Restrictions on Contraceptives Have

Been Used Historically to Entrench

Stereotypes of What Women Should

Be.

State and federal laws blocking access to

contraceptives were adopted to use women’s fear of

procreation to enforce the view that sex was

appropriate only in the context of marriage and only

for the purpose of procreation.11 The justifications for

these laws and their selective enforcement, as

outlined below, demonstrate that politicians and

judges viewed contraceptives as a dangerous means

of diverting women from their purported natural

destiny to become mothers and their responsibility to

control male sexual desire.

For millennia, women used various methods to

control reproduction free from formal legal barriers.

In the ancient world, long before humans understood

the most basic facts about the human reproductive

process, people used homemade folk remedies to

See generally Linda Gordon, THE MORAL PROPERTY OF

WOMEN: A HISTORY OF BIRTH CONTROL POLITICS IN AMERICA 79, 13-14 (3d ed. 2002); Priscilla J. Smith, Contraceptive

Comstockery: Reasoning from Immorality to Illness in the

Twenty-first Century, 47 CONN. L. REV. 971 (2015).

prevent conception, with some success.12 These

remedies included: homemade suppositories to coat

the cervix and prevent sperm from passing into the

uterus, various spermicidal agents made with acidic

liquids like citrus juices or vinegar, rudimentary

diaphragms or other devices placed over the cervical

opening, various medicines or “potions,” douching or

other attempts to “wash” sperm out of the vagina

after intercourse, rudimentary condoms using

animal skins or plants, withdrawal prior to

ejaculation, and the “rhythm” method.13 While these

methods improved over millennia, the effectiveness

of contraceptives did not significantly improve until

the development of rubber condoms and diaphragms

in the nineteenth century,14 the introduction of

hormonal contraceptives in the twentieth century,15

and most recently the invention of both hormonal

and

non-hormonal

long-acting

reversible

contraceptives

(“LARCs”).16

Despite

the

See Gordon, supra note 11, at 13 (“Birth control was not

invented by scientists or doctors. It is part of folk culture, and

women’s folklore in particular, in nearly all societies.”).

13 See id. at 14, 16, 18–21 (outlining and describing all of the

aforementioned pre-modern contraception practices).

14 See id. at 14, 32.

15 See also Lara Marks, SEXUAL CHEMISTRY: A HISTORY OF THE

CONTRACEPTIVE PILL 3–4 (2001); Brief for Appellants at 12, Poe

v. Ullman, 367 U.S. 497 (1961) (No. 60) (citing Alan

Guttmacher et al., Contraception Among Two Thousand Private

Obstetric Patients, 140 J. AM. MED. ASSOC. 1265, 1267 (1949)).

16 The effectiveness of modern contraceptives has taken a huge

leap forward in the last fifty years, with some methods now

condemnation of contraceptives by many, though not

all, religious authorities,17 in post-Revolutionary

America birth control techniques were widespread.

Their use appears to have increased significantly

from the late eighteenth century—when women on

average gave birth to eight children—through the

start of the twentieth century, when the average

married woman gave birth to three children.18

While social disapproval drove contraceptive

use underground, a legal framework restricting

contraceptives was not established in the United

States until the Victorian Era, with its particularly

regressive views of women’s roles. For example, it

was during this time that the Supreme Court upheld

a prohibition on women joining the bar, reasoning

that “[t]he constitution of the family organization,

which is founded in the divine ordinance, as well as

approaching 100% effectiveness, even with typical use. See Div.

of Reprod. Health & Nat’l Ctr. For Chronic Disease Prevention

and Health Promotion, U.S. Medical Eligibility Criteria for

Contraceptive Use, 2010, 59 MORBIDITY & MORTALITY WEEKLY

REPORT, 1, 5 (June 18, 2010), https://bit.ly/39MviSY (reporting

rates of effectiveness with typical use of certain contraceptives,

including 99.2% and 99.8% for the two forms of intra-uterine

devices, 99.95% for the implant, 92% for the combined oral

contraceptive pills and 92% for the pill (99.78% if use is

perfect)).

See Gordon, supra note 11, at 7, 9, 14 (discussing the

condemnation of birth control by Judaism, Christianity, and

Islam on the theory that interference with the procreative

function of sex was immoral) .

18 See id. at 22–23.

in the nature of things, indicates the domestic sphere

as that which properly belongs to the domain and

functions of womanhood.” Bradwell v. Illinois, 83

U.S. 130, 141 (1872). Just one year later, Congress

adopted the Comstock Act,19 a federal law banning,

among other things, the manufacture, sale,

advertisement, distribution through the mail, and

importation of contraceptives. Because the Comstock

Act only pertained to materials sent through mail,

the vast majority of states soon enacted their own

laws banning contraception.20

Although attitudes towards the immorality of

contraception began to change in the twentieth

century,21 and the Comstock law itself lost its teeth

19 The Comstock Act, ch. 258, 17 Stat. 598-99 (1873)) (naming

the law “An Act for the Suppression of Trade in, and

Circulation of, obscene Literature and Articles of immoral

Use.”), was named after the well-known “moral crusader”

Anthony Comstock.

Carol Flora Brooks, The Early History of the AntiContraceptive Laws in Massachusetts and Connecticut, 18 AM.

Q. 3, 4 (1966) (noting that forty-six states had anticontraceptive laws and obscenity statutes). See also C. Thomas

Dienes, LAW, POLITICS AND BIRTH CONTROL 42-47 (1972)

(discussing state laws restricting contraception).

See Note, Judicial Regulation of Birth Control Under

Obscenity Laws, 50 YALE L.J. 682, 685-86 & n.35 (1941)

(describing poll results which indicated public opposition to

birth control laws had decreased). In addition, studies

confirmed a rise in sexual activity. See Gordon, supra note 11,

at 130–31 (describing a study of college-educated women which

found that women born between 1890–1899 had “twice as high

a percentage of premarital intercourse as those born before

in 1936,22 state laws banning contraception enacted

during the Comstock era remained in place well into

the twentieth century. While these laws applied on

their face to both men and women, and were upheld

to protect “public morality,” courts often explicitly

relied on now-outdated stereotypes of men and

women’s proper sex roles, and specifically the notion

that women’s proper role was to have sex within

marriage, and produce and raise children. Indeed,

some courts cited women’s fear of childbirth outside

of marriage as a useful mechanism for deterring

“illicit” sex. See, e.g., People v. Byrne, 163 N.Y.S. 682,

686 (N.Y. Sup. Ct. 1917).

For example, in New York, a court described

contraceptive information pamphlets titled “What

Every Girl Should Know” as containing information

“which not only should not be known by every girl,

but which perhaps should not be known by any.” Id.

at 684. The court upheld New York’s law as

protecting “public morals” noting that information

suggesting that individuals engaging in sexual

1890,” and the trend continued. Of those born before 1890,

13.5% experienced intercourse before marriage; of those born

between 1890–99, the percentage increased to 26%; of those

born between 1900–1909, 48.8% had premarital intercourse;

and of those born after 1909, 68.3% had intercourse prior to

marriage).

22 United States v. One Package, 86 F.2d 737, 739 (2d Cir. 1936)

(holding Act no longer applied to the use of contraception

“employed by conscientious and competent physicians for the

purpose of saving life or promoting the well being of their

patients.”).

intercourse “without the fear of resulting pregnancy .

. . would unquestionably result in an increase of

immorality.” Id. at 685-86. Massachusetts similarly

upheld a law prohibiting the advertising of

contraceptives on moral grounds, noting that the

law’s “plain [and legitimate] purpose” was to “protect

purity, to preserve chastity, to encourage continence

and self-restraint, to defend the sanctity of the home,

and thus to engender in the state and nation a virile

and virtuous race of men and women.”

Commonwealth v. Allison, 116 N.E. 265, 266 (Mass.

1917). In upholding these laws, courts endorsed sex

stereotypes, promoted by state legislatures, that

viewed the sexuality of women—those who would be

subject to pregnancy without contraception—as

legitimate only in the context of marriage and for the

purpose of procreation.

States’ selective relaxation of these laws in the

decades that followed provides further evidence that

they were based on sex role stereotypes. In many

jurisdictions,

condoms—the

only

form

contraception controlled by men—were exempted

from the ban on contraception, ostensibly to prevent

the spread of sexually transmitted diseases. In

Massachusetts, for example, the Supreme Judicial

Court held that condoms were not covered by the

contraception ban because “it does not appear to be

any part of the public policy of the Commonwealth,

as declared by the Legislature, to permit venereal

disease to spread unchecked even among those who

indulge in illicit sexual intercourse.” Commonwealth

v. Corbett, 29 N.E.2d 151, 152 (Mass. 1940). The

Court recognized that two years earlier it had

“refused to read into the statutory prohibition in

question any exception permitting the prescription in

good faith by physicians, in accordance with

generally accepted medical practice.” Id. In other

words, the Court was willing to allow contraceptives

for the purposes of preventing venereal disease—

which affects men, as well as women—but not to

protect women from the risk of life- and/or healthendangering pregnancy.

In Connecticut, too, contraceptives became

available for prevention of disease instead of

conception. Griswold v. Connecticut, 381 U.S. 479,

498 (1965) (Goldberg, J., concurring). Nevertheless, a

Connecticut court refused to recognize an exception

from the ban for women with a medical need for

contraception, advising women instead to abstain

from sex altogether. Tileston v. Ullman, 26 A.2d 582,

586 (Conn. 1942). It left to the legislature the

question of whether “the frailties of human nature

and the uncertainties of human passions render it

impracticable . . . that the husband and wife would

and should refrain when they both knew that

intercourse would very likely result in a pregnancy

which might bring about the death of the wife.” Id.

In these ways, courts revealed the sex stereotypes

underlying the efforts to block access to

contraceptives.

The rationales for state laws and their

selective enforcement had a common theme: blocking

women’s access to contraceptives was viewed as a

legitimate way to preserve the traditional conception

of American women as chaste and pure and as only

engaging in sexual activity for the purpose of

reproduction within marriage. Legislatures, run

exclusively by men, viewed women as purer than

men, in need of paternalistic protection from

contraceptive devices that could tempt them into

deviating from their preordained path toward

motherhood.23

B. Greater Access to Contraception

Promotes Gender Equity and Combats

Unconstitutional Sex Stereotypes.

state

legislative

restrictions

contraceptive access loosened, women with the

ability to afford contraceptives were able to choose

paths other than motherhood and increased their

economic earning power. Allowing women to control

when and whether they have children has

empowered generations of women to advance

professionally and obtain greater economic power on

par with their male colleagues. Methodologically

rigorous studies have found that access to

contraceptives is related to increased enrollment in

professional programs, which in turn allows women

to access professions such as law and medicine in

23 See Gordon, supra note 12 at 9 (“C]onservatives . . . typically

acceded to the notion that women were purer than men and

that the only worthy purpose of sexual activity was

reproduction.”).

unprecedented numbers. See generally Claudia

Goldin & Lawrence F. Katz, The Power of the Pill:

Oral Contraceptives and Women’s Career and

Marriage Decisions, 110 J. POL. ECON. 730 (2002).

Recent studies have linked access to contraceptives

to higher graduation rates, increased labor

participation, and increased wages for women. Adam

Sonfield, et al., The Social and Economic Benefits of

Women’s Ability To Determine Whether and When to

Have Children, 7-14 GUTTMACHER INSTITUTE (Mar.

2013), https://bit.ly/2JLGLHX.

Unfortunately, not all women have been able

to access contraceptives and the attendant

professional and economic benefits equally. Longacting reversible contraceptives, the most effective

and reliable form of contraception, cost well over

$1,000 for uninsured women. David Eisenberg,

Colleeen McNicholas, & Jeffrey Peipert, Cost as a

Barrier to Long-Acting Reversible Contraceptive

(LARC) Use in Adolescents, 52 J. ADOLESCENT

HEALTH 59, 60 (2013). Even for insured women, outof-pocket costs such as deductibles and co-pays

directly impact whether women choose LARCs.

Aileen M. Gariepy et al., The Impact of Out-of-Pocket

Expense on IUD Utilization Among Women with

Private Insurance, 84 CONTRACEPTION 39 (2011).

Because of these high out-of-pocket costs, low-income

women and, disproportionately, women of color have

lacked equal access to contraception and the gender

equity facilitated by women’s ability to time and plan

their pregnancies. Hearing Before the Institute of

Medicine Committee on Preventive Services for

Women (2011) (written testimony of Dr. Hal C.

Lawrence, Vice President of Practical Activities of

the

American

College

Obstetrics

and

Gynecologists), https://bit.ly/3c2ggda.

C. Congress Adopted the Women’s Health

Amendment

Promote

Gender

Equity in Health Care, and thus

Women’s Equality in Economic and

Social Life.

In enacting the Affordable Care Act, Congress

explicitly sought to promote gender equity by

ensuring access to contraception for all women

regardless of income. The original bill included a

provision prohibiting the practice by insurers of

charging women higher premiums than men.

Additionally, Congress adopted the Women’s Health

Amendment to build on the ACA’s overall objective to

promote women’s equality. Senator Barbara

Mikulski, the sponsor of the WHA, stated that “what

the overall bill does is end gender discrimination” in

health care. She viewed her amendment as a

guarantee that “preventive and screening services

are comprehensive and available to women.” Senate

Democrats, Women’s Preventive Care Addressed in

First Democratic Health Amendment, YOUTUBE (Dec.

1, 2009), https://bit.ly/3c2lXb7. Senator Kirsten

Gillibrand echoed Senator Mikulski’s concerns,

noting that:

In America today, too many women are

delaying or skipping preventive care

because of the costs of copays and

limited access. In fact, more than half of

women delay or avoid preventive care

because of its cost. This fundamental

inequity in the current system is

dangerous and discriminatory and we

must act. The prevention section of the

bill before us must be amended so

coverage of preventive services takes

into account the unique health care

needs of women throughout their

lifespan.

155 Cong. Rec. S12027 (daily ed. Dec. 1, 2009).

Senators Gillibrand, Boxer, and Franken explicitly

mentioned family planning as a critical component of

comprehensive preventive care that women require,

see 155 Cong. Rec. S12025, S12027, and S12052

(daily ed. Dec. 1, 2009), and Senator Feinstein

framed the stakes of the WHA in terms of the

historical fight for gender equity, comparing

discriminatory lack of health care access to historical

bars on the right to vote, inherit property and receive

a higher education. 155 Cong. Rec. S12114 (daily ed.

Dec. 2, 2009).

D. Enactment of the Women’s Health

Amendment and its Requirement that

Contraceptives are Available Without

Cost Serves Congress’s Compelling

Interest in Preventing Discrimination

on the Basis of Sex.

For almost fifty years, this Court has

recognized that state policies that entrench

stereotypes

what

women

should

unconstitutionally discriminate on the basis of sex. 24

See, e.g., United States v. Virginia, 518 U.S. 515, 519,

533 (1996) (the state “must not rely on overbroad

generalizations

about

the

different

talents,

capacities, or preferences of males and females”).

And in Planned Parenthood of Southeastern

Pennsylvania v. Casey, 505 U.S. 833 (1992), the

Court specifically recognized the relationship

between regulation of reproduction and sex

inequality, explaining that laws restricting

reproductive control that are grounded in and

further entrench unfounded stereotypes about

women are unconstitutional:

The ability of women to participate

equally in the economic and social life of

the Nation has been facilitated by their

ability to control their reproductive

lives.

505 U.S. at 856. The Court recognized that

Pennsylvania’s spousal notification requirement

“embodie[d] a view of marriage consonant with the

common-law status of married women but repugnant

to our present understanding of marriage and of the

24 See generally Neil S. Siegel & Reva B. Siegel, Pregnancy and

Sex Role Stereotyping: From Struck to Carhart, 70 OHIO ST. L.J.

1095 (2009).

nature of the rights secured by the Constitution.” Id.

at 898.

Applying these principles, in Nevada

Department of Human Resources v. Hibbs, 538 U.S.

721, 736 (2003), Chief Justice Rehnquist recognized

that parental leave policies denying equal access to

leave violated the Equal Protection Clause. The

Chief Justice recognized that “mutually reinforcing

stereotypes create[] a self-fulfilling cycle of

discrimination that force[s] women to continue to

assume the role of primary family caregiver.” Id. at

736.

As this Court held, preventing gender

discrimination qualifies as a compelling state

interest. Roberts v. U.S. Jaycees, 468 U.S. 609, 625

(1984).25 Because limited access to contraceptives

undermines gender equity and has historically been

based on enforcing gender stereotypes, Congress has

a compelling interest in ensuring access to

contraception without cost-sharing in order to

combat sex discrimination. Priests for Life v. U.S.

Dep’t of Health & Human Servs., 772 F.3d 229, 263

(D.C. Cir. 2014), vacated by Zubik v. Burwell, 136 S.

Ct. 1557 (2016)) (“the government has overlapping

See also, e.g., Bd. of Dirs. of Rotary Int’l v. Rotary Club of

Duarte, 481 U.S. 537 (1987) (holding that the State was

justified in enacting protections for persons, regardless of sex,

to full and equal privileges in all business establishments

because it had a compelling interest in preventing

discrimination against women).

and mutually reinforcing compelling interests in

promoting public health and gender equality.”). See

also Burwell v. Hobby Lobby Stores, Inc., 573 U.S.

682, 728 (2014) (assuming without deciding that the

governmental interest in “guaranteeing cost-free

access” to contraception was “compelling.”). As thenJudge Kavanaugh wrote:

Justice Kennedy strongly suggested in

his Hobby Lobby concurring opinion—

which appears to be controlling de facto

if not also de jure on this particular

issue—that the Government generally

has a compelling interest in facilitating

access to contraception for women

employees.

Priests for Life v. U.S. Dep’t of Health & Human

Servs., 808 F.3d 1, 22 (D.C. Cir. 2015) (Kavanaugh,

J., dissenting from denial of reh’g en banc) (citing

Hobby Lobby, 573 U.S. at 735-36 (Kennedy, J.,

concurring)); see also Hobby Lobby at 725-27

(majority opinion); id. at 760-763 (Ginsburg, J.,

dissenting)). Specifically, then-Judge Kavanaugh

recognized that the Government had a compelling

interest in facilitating access to contraception to,

inter alia, advance women’s equality interests:

It is not difficult to comprehend why a

majority of the Justices in Hobby Lobby

(Justice Kennedy plus the four

dissenters) would suggest that the

Government has a compelling interest

in facilitating women’s access to

contraception. . . . It is commonly

accepted that reducing the number of

unintended pregnancies would further

women’s health, advance women’s

personal and professional opportunities,

reduce the number of abortions, and

help break a cycle of poverty that persists

when women who cannot afford or

obtain contraception become pregnant

unintentionally at a young age.

808 F.3d at 22-23 (emphasis added). Consequently,

for this reason and others, the contraceptive

mandate satisfies the compelling interest prong of

RFRA’s test. 42 U.S.C. § 2000bb–1(b) (allowing

incidental burdens on religion where federal

government action is “in furtherance of a compelling

governmental interest” and narrowly tailored to “the

least restrictive means of furthering that compelling

governmental interest”).

Moreover, the limited exemptions available

before the Rule at issue here ensured that the

mandate was tailored as narrowly as possible

without undermining Congress’ compelling interest,

which

requires

comprehensive

coverage.

Consequently, the contraceptive mandate satisfies

RFRA. 42 U.S.C. § 2000bb–1(b).

II.

THE AGENCIES LACK STATUTORY AUTHORITY

TO ISSUE THE FINAL RULE.

The APA requires a reviewing court to “hold

unlawful and set aside agency action” found to be “in

excess of statutory jurisdiction, authority, or

limitations, or short of statutory right.” 5 U.S.C. §

706(2)(C). It is “improper . . . to give a reading to [an]

Act that Congress considered and rejected.” Pacific

Gas & Elec. Co. v. Energy Res. Conserv. & Dev.

Comm’n, 461 U.S. 190, 220 (1983); see also Chevron

v. Nat. Res. Def. Council, 467 U.S. 837, 842 (1984)

(noting that where Congress has already directly

spoken to the issue, no deference is due to a

conflicting Agency interpretation). But that is exactly

what happened here.

In 2012, Congress considered and rejected the

Blunt Amendment, a proposal to create the very

same broad religious and moral exemption to the

WHA embodied in the Final Rule. See 158 Cong. Rec.

S538-539 (daily ed. Feb. 9, 2012) (granting

exemption from mandate for those for whom

mandate is contrary to “religious beliefs” or “moral

convictions”).26 Numerous Senators called for the

Senate to reject the Amendment to uphold equal

access to comprehensive healthcare for women.

Senator Frank Lautenberg specifically tied the

proposed Amendment to previous damaging

26 See 158 Cong. Rec. S1173 (daily ed. Mar. 1, 2012) (rejecting

Blunt Amendment).

stereotypes about women’s lack of autonomy in

society, explaining that the amendment would:

[A]llow a woman’s employer to deny

coverage for any medical service that

they, the employer, have a moral

problem with. Imagine that. Your boss

is going to decide whether you are

acting morally. The Republicans want to

take us forward to the Dark Ages again

when women were property that they

could easily control and even trade if

they wanted to. It is appalling that we

are having this debate in the 21st

century.

158 Cong. Rec. S1162 (daily ed. Mar. 1, 2012).

Senator Patrick Leahy argued that the Blunt

Amendment would undermine Congress’s intent to

combat sex discrimination in health care when it

enacted the ACA:

At the core of the Affordable Care Act

was the principle that all Americans,

regardless of health history or gender,

have the right to access health care

services. This amendment turns that

belief around . . . This serves only to put

businesses and insurance companies in

the driver’s seat, allowing them to

capriciously deny women coverage of

health care services.

158 Cong. Rec. S1171 (daily ed. Mar. 1, 2012). And

Senator Bernie Sanders opined: “Members of

Congress—mostly men, I should add—are trying to

roll back the clock on women’s reproductive rights.”

158 Cong. Rec. S1169 (daily ed. Mar. 1, 2012).

Congress’s rejection of the Blunt Amendment

is “the end of the matter,” and courts must enforce

“the unambiguously expressed intent of Congress.”

Chevron, 467 U.S. at 842-43. To do otherwise, to

allow an agency with delegated authority to violate

the unambiguous will of Congress, would violate

separation of powers principles. See Util. Air. Reg.

Grp. v. EPA, 573 U.S. 302, 327 (2014) (allowing an

agency to act inconsistently with an “unambiguous

statue” violates separation of powers).

III.

THE RULE IS ARBITRARY AND CAPRICIOUS IN

VIOLATION

THE

ADMINISTRATIVE

PROCEDURE ACT.

An agency rulemaking

capricious when the agency:

arbitrary

[R]elied on factors which Congres has

not intended it to consider, entirely

failed to consider an important aspect of

the problem, offered an explanation for

its decision that runs counter to the

evidence before the agency, or is so

implausible that it could not be ascribed

to a difference in view or the product of

agency expertise.

and

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto

Ins. Co., 463 U.S. 29, 43 (1983); see also 5 U.S.C. §

706(2)(A) (2018)). In this case, the Agencies violated

these fundamental rules.

A. The Agencies’ Explanations For Their

Decision to Adopt the Rule Run

Counter to the Evidence in the

Record, Are Implausible, and Cause

the Agency to Ignore Important

Aspects of the Problem.

Where empirical evidence is in the Record or

can be readily obtained, it is a crucial factor for

judicial review. See, e.g., FCC v. Fox Television

Stations, Inc., 556 U.S. 502, 519 (2009). The Rule is

arbitrary and capricious because the Agencies’

explanations for their decision directly contradict the

evidence in the Record and are implausible. See State

Farm, 463 U.S. at 43 (holding that a Rule is

arbitrary and capricious where the Agency “fail[s] to

consider an important aspect of the problem” or

“offer[s] an explanation for its decision that runs

counter to the evidence”); Md. Dep’t of Health &

Mental Hygiene v. Ctrs. for Medicare & Medicaid

Servs., 542 F.3d 424, 428 (4th Cir. 2008) (citation

omitted). The Agencies’ failure to grapple with the

data in the record contradicting their justifications

for the Rule, or to give a satisfactory explanation for

ignoring it, render the Rule arbitrary and capricious.

See State Farm, 463 U.S. at 43; Gresham v. Azar, 950

F.3d 93, 103 (D.C. Cir. 2020) (Sentelle, J.) (“Nodding

to concerns raised by commenters only to dismiss

them in a conclusory manner is not a hallmark of

reasoned decisionmaking.”). Moreover, because the

Agencies dismiss the evidence in the Record that

establishes the need for the contraceptive mandate

and the harm the Rule will impose, the Agencies

make the additional error of failing to consider an

important aspect of the problem the mandate was

designed to address. State Farm, 463 U.S. at 43 (a

Rule is arbitrary and capricious where the Agency

“fail[s] to consider an important aspect of the

problem”). The Agencies’ justifications for the Rule

fail for four reasons.

First, as discussed more extensively supra at

§ I.C, Congress recognized that contraceptive

coverage is necessary to remedy sex discrimination

and promote gender equity. It also recognized that

significant scientific evidence establishes, without

doubt, the existence of considerable barriers to

contraceptive access, particularly for low-income

women, and that reducing these access-barriers

would improve women’s ability to participate as

equal citizens in public and private lives. As thenJudge Kavanaugh recognized:

It is commonly accepted that reducing

the number of unintended pregnancies

would further women’s health, advance

women’s personal and professional

opportunities, . . . and help break a cycle

of poverty that persists when women

who

cannot

afford

obtain

contraception

become

pregnant

unintentionally at a young age.

Priests for Life v. U.S. Dep’t of Health & Human

Servs., 808 F.3d, 1, 22-23 (Kavanaugh, J., dissenting

from denial of reh’g en banc) (emphasis added). The

Agencies wholly failed to address this vital

motivation behind the contraceptive mandate

rendering the Rule arbitrary and capricious. See

State Farm, 463 U.S. at 43.

Second, the evidence before the Agencies

established

without

doubt

that

access

contraceptives reduces the rates of unintended

pregnancies and, as a result, the numbers of

abortions. But the Agencies appear to deny the

causal

link

between

increased

access

contraceptives provided by the contraceptive

mandate and the reduction of unintended pregnancy.

See, e.g., Religious Exemptions and Accommodations

for Coverage of Certain Preventive Services Under

the Affordable Care Act, 82 Fed. Reg. 47,792, 47,804

(Oct. 6, 2017) (to be codified at 26 C.F.R. pt. 54, 29

C.F.R. pt. 2590, 45 C.F.R. pt. 147) (“Programs that

increase access to contraception are found to

decrease teen pregnancies in the short run but

increase teen pregnancies in the long run.”). This

claim is simply wrong. The evidence in the Record

definitively establishes that increased contraceptive

access reduces unintended pregnancies in the

general population and specifically does not increase

teen pregnancies in the short or the long term.

The Congressional Record similarly indicates

that Congress understood that contraceptive access

reduces unintended pregnancies. See 155 Cong. Rec.

176, 12052 (Oct. 1, 2009) (“Access to contraception is

fundamental, a fundamental right of every adult

American, and when we fulfill this right, we are able

to accomplish a goal we all share—all of us on both

sides of the aisle to reduce the number of unintended

pregnancies.”). The Agencies’ rejection of express

Congressional intent emphasizes the arbitrariness

and capriciousness of the Agencies’ action because its

“reasons and policy choices” deviate “from or ignore

the ascertainable legislative intent.” See Small

Refiner Lead Phase-Down Task Force v. EPA, 705

F.2d 506, 520 (D.C. Cir. 1983); accord Chem. Mfrs.

Ass’n v. EPA, 217 F.3d 861, 865-67 (D.C. Cir. 2000).

Once again, then-Judge Kavanaugh’s insights

are useful:

It is not difficult to comprehend why a

majority of the Justices in Hobby Lobby

(Justice Kennedy plus the four

dissenters) would suggest that the

Government has a compelling interest

in facilitating women’s access to

contraception. . . . It is commonly

accepted that reducing the number of

unintended pregnancies would further

women’s health, [and, inter alia], reduce

the number of abortions.

Priests for Life, 808 F.3d at 22 (D.C. Cir. 2015)

(Kavanaugh, J., dissenting from denial of reh’g en

banc). The Agencies’ decision-making on this issue

“runs counter to the evidence” before it and “is so

implausible that it could not be ascribed to a

difference in view or the product of agency

expertise.” State Farm, 463 U.S. at 43.

Third, the Agencies fail to adequately grapple

with the evidence that health benefits to women of

oral contraceptives greatly outweigh any health

risks. In fact, the Agencies fail to mention that the

very sources they cited to support their claim that

oral contraceptives cause health harms include

findings that contraceptives cause a decreased risk of

endometrial, ovarian, and colorectal cancers, findings

which are consistent with numerous other studies.

See, e.g., Oral Contraceptives and Cancer Risk,

National Cancer Institute (Mar. 21, 2012),

https://bit.ly/2UQEGkf; LJ Havrilesky et al., Oral

Contraceptive Use for the Primary Prevention of

Ovarian Cancer, Agency for Healthcare Research

and Quality, Report No. 13-E002-EF (June 2013).

Moreover, the weight the Agencies place on

the claimed health risks of contraceptives compared

to their health benefits is inconsistent with the

factual record. For example, the Agencies cited a

study finding a link between oral contraceptives and

breast

cancer.

Religious

Exemptions

and

Accommodations, 82 Fed. Reg. at 47,804. Despite

overwhelming evidence in the Record establishing

that these studies were flawed and contradicted all

other studies on the issue, the Agencies affirmed

their reliance on the study in the Final Rule. Moral

Exemptions and Accommodations for Coverage of

Certain Preventive Services Under the Affordable

Care Act, 83 Fed. Reg. 57,592, 57,610 (Jan. 14, 2019)

(to be codified at 26 C.F.R. pt. 54, 29 C.F.R. pt. 2590,

45 C.F.R. pt. 147). The Rule is therefore arbitrary

and capricious because “reasonable regulation

ordinarily requires paying attention to the

advantages and the disadvantages of agency

decisions” which the Agencies did not do here.

Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015). The

Agencies failed to conduct an even-handed analysis

and thus violated the standards of the APA.

Fourth, the Agencies’ explanation for its

decision that the exemption will be inconsequential

to nearly all women of childbearing age is also

inconsistent with the facts before it. In fact, the very

studies relied on by the Agencies in promulgating

this rule demonstrate significant gaps in coverage

filled by the contraceptive mandate. The Rule—

allowing anyone with any objection to the mandate

to opt out—will cause these gaps to reemerge,

defeating the very purpose of the law. The Agencies’

claim that the Rule will have only a limited impact

on women’s access is inconsistent with common

sense, as well as the factual record before the

Agencies.27

See, e.g., Refusing to Provide Health Services, The

Guttmacher Institute, https://bit.ly/3c7zRZL (last updated Apr.

This finding also deviates from factual

assessments made by Congress. Senator Gillibrand

testified that women lack preventative and

contraceptive care “because of the costs of copays and

limited access. In fact, more than half of women

delay or avoid preventive care because of its cost,”

155 Cong. Rec. S11987 (Nov. 30, 2009), and Senator

Mikulski stated that “[w]omen are often faced with

the punitive practices of insurance companies.”

Women’s Preventive Care Addressed in First

Democratic Health Amendment, YouTube (Dec. 1,

2009), https://bit.ly/34lJK30. Once again, the

Agencies ignored Congress’s intent rendering the

Agencies’ actions arbitrary and capricious. See, e.g.,

Small Refiner Lead, 705 F.2d at 520.

B. The Agencies Acted Arbitrarily and

Capriciously in Failing to Justify

Their Deviation from the Original

Rule.

Finally, the Agencies’ actions are also

arbitrary and capricious because the Agencies have

not offered sufficient justification for their deviation

from their original interpretation of the Women’s

Health Amendment. Congress did not itself

enumerate the “preventative care” mandated by the

1, 2020); Alison Cuellar, Adelle Simmons & Kenneth Finegold,

The Affordable Care Act: Promoting Better Health for Women,

Off. of the Assistant Secretary for Planning and Evaluation,

Dep’t of Health & Hum. Servs. (June 14, 2016).

Women’s Health Amendment. Instead, in 2011,

HRSA commissioned the Institute of Medicine to

provide recommendations, which it then adopted.

These recommendations interpret “preventative

care” to include all FDA-approved contraceptive

methods. See HRSA, Women’s Preventive Services

Guidelines, https://bit.ly/34mX33y. In 2013, the

Agencies issued a Rule providing accommodations to

those with religious objections to contraception. See

generally Coverage of Certain Preventive Services

Under the Affordable Care Act, 78 Fed. Reg. 39,870,

39,871 (July 2, 2013). This Rule presented four

criteria organizations had to meet in order to qualify

for the accommodation. And the accommodation

ensured that women would nonetheless receive

seamless coverage for contraception.

The 2017 Rule significantly expanded

eligibility for accommodations and exemptions by

introducing protections for moral convictions;

offering accommodations to for-profit entities,

whether closely held or publicly traded; removing the

self-certification requirement; and eliminating the

notice requirement. The new Rule allowed any

covered entity to select an exemption, which would

prevent seamless coverage for women, unlike the

accommodation available under the old Rule.

When changing a rule, an agency must

provide “a reasoned explanation . . . for disregarding

facts and circumstances that underlay or were

engendered by the prior policy.” Fox Television, 556

U.S. 502, 516. In the Interim Final Rule, the

Agencies merely concluded:

Our review is sufficient to lead us to

conclude

that

significantly

uncertainty and ambiguity exists in the

record than the Departments previously

acknowledged when we declined to

extend the exemption to certain

objecting organizations and individuals

as set forth herein, and that no

compelling interest exists to counsel

against us extending the exemption.

82 Fed. Reg. 47,805. But agencies must justify their

decisions with evidence beyond a “conclusory

statement.” Allied-Signal, Inc. v. Nuclear Reg.

Comm’n, 988 F.2d 146, 152 (D.C. Cir. 1993). In fact,

the majority of the studies cited in the Interim Final

Rule were available when the more narrowly-tailored

accommodations were originally put forth in 2011.

The Agencies’ assessment that there is “significantly

more uncertainty”—relying on studies that were

available at the time the previous rule was

adopted— is a conclusory and therefore an

insufficient explanation for this drastic policy

change. For this reason also, the Rule is arbitrary

and capricious. See, e.g., ANR Pipeline Co. v. FERC,

71 F.3d 897, 901 (D.C. Cir. 1995); Wis. Valley

Improvement v. FERC, 236 F.3d 738, 748 (D.C. Cir.

2001).

CONCLUSION

Therefore, amici respectfully request that the

Court affirm the opinion below and vacate the Rule.

Respectfully submitted,

PRISCILLA J. SMITH

(Counsel of Record)

REPRODUCTIVE RIGHTS AND

JUSTICE PROJECT CLINIC

YALE LAW SCHOOL

319 STERLING PLACE

BROOKLYN, NY 11238

(347) 262-5177

priscilla.smith@yale.edu

Counsel for Amicus Curiae

April 8, 2020

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.