Amicus Curiae Brief — Loper Bright Enterprises, et al., Petitioners v. Gina Raimondo, Secretary of Commerce, et al.

NO. 22-451

IN THE

Supreme Court of the United States

LOPER BRIGHT ENTERPRISES, INC., ET AL.,

Petitioners,

v.

GINA RAIMONDO, IN HER OFFICIAL CAPACITY AS

SECRETARY OF COMMERCE, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

MOTION FOR LEAVE TO FILE BRIEF AS

AMICUS CURIAE AND BRIEF OF CHRISTIAN

EMPLOYERS ALLIANCE AS AMICUS CURIAE

SUPPORTING PETITIONERS

MATTHEW S. BOWMAN

Counsel of Record

JULIE MARIE BLAKE

JOHN J. BURSCH

ALLIANCE DEFENDING FREEDOM

440 First Street, NW, Suite 600

Washington, DC 20001

(202) 393-8690

mbowman@ADFlegal.org

Counsel for Amicus Curiae

1

MOTION FOR LEAVE TO FILE BRIEF AS

AMICUS CURIAE

Pursuant to Supreme Court Rule 37.2(b),

Christian Employers Alliance (CEA) respectfully

moves this Court for leave to file the accompanying

amicus curiae brief supporting Petitioners. Christian

Employers Alliance’s counsel requested the consent of

the parties to the filing of its proposed amicus curiae

brief with the required 10-day notice on November 21,

2022, and again on December 8, 2022. Counsel for

Petitioners consented to the brief’s filing. Counsel for

Respondents failed to provide a response at all, even

though counsel for Respondents consented to the

filing of briefs by some other amici.

CEA is an alliance of Christian-owned businesses

in the United States. CEA’s mission as a ministry is

to unite, equip, and represent Christian-owned

businesses to protect religious freedom and provide

the opportunity for employees, businesses, and

communities to flourish. CEA members are for-profit

and nonprofit, hail from different states, represent

different industries, and vary in size. They share a

deep commitment to living out their Christian faith in

everyday life.

CEA provides advocacy on legal policy issues on

behalf of its members. These issues include the

principles of religious freedom, that human life is

sacred from the moment of conception to natural

death, and that male and female are immutable

realities defined by biological sex.

Federal agencies frequently disrespect these

fundamental principles, and agency officials are far

too willing to impose their personal political agendas

despite the lack of clear statutory authority from

2

Congress. In just the past few years, CEA has had to

go to court, and has won injunctions, against federal

agencies.

CEA knows firsthand that federal agencies do not

deserve the trust or deference of federal courts when

they impose rules based on unclear statutory

language, especially when it affects the most

important issues. For all these reasons, it is

important to the interests of CEA and its members,

and to facilitate the Court’s consideration of this

matter, that leave be granted for CEA to file this

amicus brief.

Therefore, CEA respectfully requests that the

motion be granted.

MATTHEW S. BOWMAN

Counsel of Record

JULIE MARIE BLAKE

JOHN J. BURSCH

ALLIANCE DEFENDING FREEDOM

440 First Street, NW

Suite 600

Washington, DC 20001

(202) 393-8690

mbowman@ADFlegal.org

DECEMBER 2022

i

TABLE OF CONTENTS

MOTION FOR LEAVE TO FILE BRIEF AS

AMICUS CURIAE ............................................... 1

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

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

INTRODUCTION AND SUMMARY OF THE

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

ARGUMENT .............................................................. 4

I.

Agencies

are

weaponizing

federal

healthcare laws to violate the right to life. ......... 4

A. Transforming Hospitals into Abortion

Clinics. ........................................................... 5

B. Turning Pharmacies into Abortion

Drug Dispensaries. ........................................ 7

C. Turning Veterans’ Hospitals into

Abortion Clinics. ............................................ 8

D. Funding Abortions with Taxpayer

Dollars. ........................................................ 10

E. Bringing Back the Contraceptive and

Abortifacient Mandate on Businesses

and Non-Profits. .......................................... 11

II. Agencies are weaponizing federal civilrights laws to impose radical gender

ideology. ............................................................. 13

ii

A. Coercing Religious Colleges to Put Men

in Women’s Dorm Rooms by Expanding

the Fair Housing Act. .................................. 14

B. Ending Women’s Sports by Hijacking

Title IX. ........................................................ 16

C. Coercing Doctors to Amputate Healthy

Organs by Rewriting the Affordable

Care Act. ...................................................... 18

D. Forcing Employers to Pay for

Amputating Healthy Organs by

Reinterpreting Title VII. ............................. 21

CONCLUSION ......................................................... 23

iii

TABLE OF AUTHORITIES

Cases

Page

American College of Pediatricians v. Becerra,

No. 1:21-cv-195, 2022 WL 17084365 (E.D.

Tenn. Nov. 18, 2022) .......................................... 19

Bostock v. Clayton County,

140 S. Ct. 1731 (2020)........................................ 13

Buffington v. McDonough,

No. 21-972, 2022 WL 16726027 (U.S. Nov. 7,

2022) ..................................................................... 3

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014)............................................ 12

Christian Employers Alliance v. Azar,

No. 3:16-CV-309, 2019 WL 2130142

(D.N.D. May 15, 2019) ......................................... 2

Christian Employers Alliance v. United States

Equal Opportunity Commission,

No. 1:21-CV-195, 2022 WL 1573689

(D.N.D. May 16, 2022) ........................2, 19, 20, 21

Dobbs v. Jackson Women’s Health Organization,

142 S. Ct. 2228 (2022).......................................... 4

Franciscan Alliance, Inc. v. Burwell,

227 F. Supp. 3d 660 (N.D. Tex. 2016) ............... 19

Franciscan Alliance, Inc. v. Becerra,

No. 7:16-cv-00108-O, 2021 WL 3492338

(N.D. Tex. Aug. 9, 2021) .................................... 19

iv

G.G. ex rel. Grimm v. Gloucester County School

Board,

137 S. Ct. 1239 (2017)........................................ 17

G.G. ex rel. Grimm v. Gloucester County School

Board,

822 F.3d 709 (4th Cir. 2016) ............................. 17

In re MCP No. 165,

21 F.4th 357 (6th Cir. 2021) ................................ 2

Little Sisters of the Poor Saints Peter & Paul

Home v. Pennsylvania,

140 S. Ct. 2367 (2020)........................................ 12

National Federation of Independent Business v.

Department of Labor, Occupational Safety &

Health Admininstration,

142 S. Ct. 661 (2022).................................... 2, 5, 8

Neese v. Becerra,

No. 2:21-CV-163-Z, 2022 WL 16902425

(N.D. Tex. Nov. 11, 2022) .................................. 19

Religious Sisters of Mercy v. Azar,

513 F. Supp. 3d 1113 (D.N.D. 2021) ........... 19, 21

School of the Ozarks v. Biden,

No. 21-2270, 2022 WL 4589688

(8th Cir. Sept. 30, 2022) .................................... 15

School of the Ozarks, Inc. v. Biden,

41 F.4th 992 (8th Cir. 2022) .............................. 15

v

Tennessee v. United States Department of

Education,

No. 3:21-CV-308, 2022 WL 2791450

(E.D. Tenn. July 15, 2022) ........................... 16, 21

Texas v. Becerra,

No. 5:22-CV-185-H, 2022 WL 3639525

(N.D. Tex. Aug. 23, 2022) ................................ 6, 7

Texas v. EEOC,

No. 2:21-cv-00194, 2022 WL 4835346

(N.D. Tex. Oct. 1, 2022) ..................................... 21

Texas v. United States,

201 F. Supp. 3d 810 (N.D. Tex. 2016) ............... 17

The Southern Baptist Theological Seminary v.

Department of Labor,

142 S. Ct. 890 (2022)............................................ 2

Tingley v. Ferguson,

47 F.4th 1055 (9th Cir. 2022) ............................ 20

Utility Air Regulatory Group v. EPA,

573 U.S. 302 (2014).............................................. 8

West Virginia v. EPA,

142 S. Ct. 2587 (2022)...................................... 4, 5

Zubik v. Burwell,

578 U.S. 403 (2016)............................................ 12

Statutes

10 U.S.C. 1093 .......................................................... 11

vi

20 U.S.C. 1681 .................................................... 16, 17

20 U.S.C. 1681(a) ..................................................... 16

20 U.S.C. 1686 .......................................................... 17

20 U.S.C. 1688 ............................................................ 8

29 U.S.C. 794 .............................................................. 7

38 U.S.C. 1710 ............................................................ 9

42 U.S.C. 1395dd ........................................................ 6

42 U.S.C. 18023(c) ...................................................... 8

42 U.S.C. 18116 .......................................................... 7

42 U.S.C. 300gg-13 ................................................... 12

42 U.S.C. 3604 .......................................................... 14

42 U.S.C. 3611–3614 ................................................ 14

42 U.S.C. 3631 .......................................................... 14

Pub. L. No. 102-585, 106 Stat. 4943 .......................... 9

Pub. L. No. 111-148, 124 Stat. 119 .................... 18, 19

Pub. L. No. 117-103, Div. H, §§ 506–507,

136 Stat. 49 ........................................................ 10

vii

Other Authorities

Department of Justice, Application of the

Assimilative Crimes Act to Conduct of

Federal Employees Authorized by Federal

Law, 46 Op. O.L.C. ___ (Aug. 12, 2022) .............. 9

Department of Justice, Application of the Hyde

Amendment to the Provision of

Transportation for Women Seeking Abortions,

46 Op. O.L.C. ___ (Sept. 27, 2022) .................... 10

Department of Justice, Intergovernmental

Immunity for the Department of Veterans

Affairs and Its Employees When Providing

Certain Abortion Services, 46 Op. O.L.C. ___

(Sept. 21, 2022) .................................................... 9

EEOC, Protections Against Employment

Discrimination Based on Sexual Orientation

or Gender Identity (June 15, 2021) ................... 21

HHS, Office for Civil Rights, Guidance to Nation’s

Retail Pharmacies: Obligations under Federal

Civil Rights Laws to Ensure Access to

Comprehensive Reproductive Health Care

Services (July 13, 2022) ....................................... 7

John McCormack, Biden Says He Would Rescind

Exemption for Little Sisters of the Poor,

National Review (July 9, 2020) ......................... 12

viii

Memorandum from Acting Assistant Secretary for

Fair Housing & Equal Opportunity on

Implementation of Executive Order 13988 on

the Enforcement of the Fair Housing Act

(Feb. 11, 2021).................................................... 14

Memorandum from Centers for Medicare &

Medicaid Services on Reinforcement of

EMTALA Obligations Specific to Patients Who

Are Pregnant or Are Experiencing Pregnancy

Loss (July 11, 2022) (revised Aug. 25, 2022) ...... 6

Memorandum from Pamela Karlan on Application

of Bostock v. Clayton County to Title IX of the

Education Amendments of 1972 (Mar. 26,

2021) ................................................................... 16

Memorandum from Secretary of Defense on

Ensuring Access to Reproductive Healthcare

(Oct. 20, 2022) .................................................... 11

Office of Management & Budget, Executive Office

of the President, Pending EO 12866

Regulatory Review: Coverage of Certain

Preventive Services Under the Affordable

Care Act (CMS-9903) (2022) ............................. 12

Office of Management & Budget, Executive Office

of the President, Unified Agenda, Coverage of

Certain Preventive Services Under the

Affordable Care Act (CMS-9903), RIN: 0938AU94 (2022) ....................................................... 12

ix

Press Release, HHS, HHS Awards $256.6 Million

to Expand and Restore Access to Equitable

and Affordable Title X Family Planning

Services Nationwide (Mar. 30, 2022) ................ 11

Press Release, HHS, HHS Takes Action to

Strengthen Access to Reproductive Health

Care, Including Abortion Care (Aug. 26,

2022) ................................................................... 10

White House, FACT SHEET: President Biden to

Sign Executive Order Protecting Access to

Reproductive Health Care Services (July 8,

2022) ..................................................................... 5

White House, Statement by President Joe Biden

on Supreme Court Ruling on Texas Law SB8

(Sept. 2, 2022) ...................................................... 5

Regulations

24 C.F.R. 100.50 ....................................................... 14

24 C.F.R. 103.215 ..................................................... 14

24 C.F.R. 180.671 ..................................................... 14

24 C.F.R. 180.705 ..................................................... 14

34 C.F.R. 106.33 ....................................................... 17

34 C.F.R. 106.34 ....................................................... 17

34 C.F.R. 106.41 ....................................................... 17

42 C.F.R. 59.5 ........................................................... 11

x

Department of Veterans Affairs (VA), Interim

Final Rule, Reproductive Health Services, 87

Fed. Reg. 55,287 (Sept. 9, 2022) .......................... 8

Enforcement of Title IX of the Education

Amendments of 1972 With Respect to

Discrimination Based on Sexual Orientation

and Gender Identity in Light of Bostock v.

Clayton County, 86 Fed. Reg. 32,637

(June 22, 2021)................................................... 16

Ensuring Access to Equitable, Affordable, ClientCentered, Quality Family Planning Services,

86 Fed. Reg. 56,144, 56,145 (Oct. 7, 2021) ........ 11

Executive Order No. 13988, Preventing and

Combating Discrimination on the Basis of

Gender Identity or Sexual Orientation, 86

Fed. Reg. 7023 (Jan. 20, 2021) .......................... 13

Executive Order No. 14021, Guaranteeing an

Educational Environment Free From

Discrimination on the Basis of Sex, Including

Sexual Orientation or Gender Identity, 86

Fed. Reg. 13,803 (Mar. 8, 2021) ........................ 16

Executive Order No. 14079, Securing Access to

Reproductive and Other Healthcare Services,

87 Fed. Reg. 49,505 (Aug. 3, 2022) ...................... 4

Executive Order No. 14076, Protecting Access to

Reproductive Healthcare Services, 87 Fed.

Reg. 42,053 (July 8, 2022) ................................... 4

xi

Nondiscrimination in Health Programs and

Activities, 81 Fed. Reg. 31,375 (May 18,

2016) ................................................................... 18

Nondiscrimination in Health Programs and

Activities, 87 Fed. Reg. 47,824 (Aug. 4,

2022) ................................................................... 18

Nondiscrimination on the Basis of Sex in

Education Programs or Activities Receiving

Federal Financial Assistance, 85 Fed. Reg.

30,026 (May 19, 2020) ....................................... 16

Notice of Interpretation and Enforcement of

Section 1557, 86 Fed. Reg. 27,984 (May 25,

2021) ................................................................... 18

1

INTEREST OF AMICUS CURIAE 1

Christian Employers Alliance (CEA) is an alliance

of Christian-owned businesses in the United States.

CEA’s mission as a ministry is to unite, equip, and

represent Christian-owned businesses to protect

religious freedom and provide the opportunity for

employees, businesses, and communities to flourish.

CEA members are for-profit and nonprofit, hail from

different states, represent different industries, and

vary in size. They share in common a deep

commitment to living out their Christian faith in

everyday life.

CEA provides advocacy on legal policy issues on

behalf of its members. These issues include the

principles of religious freedom, that human life is

sacred from the moment of conception to natural

death, and that male and female are immutable

realities defined by biological sex.

Federal agencies frequently disrespect these

fundamental principles, and agency officials are far

too willing to impose their personal political agendas

despite the lack of clear statutory authority from

Congress. In just the past few years, CEA has had to

go to court, and has won injunctions, against federal

agencies that illegally sought to force Christian

employers:

1 No counsel for a party authored this brief in whole or in part,

and no person other than amicus and its counsel made any

monetary contribution intended to fund the preparation or

submission of this brief. Counsel were timely notified of this brief

as required by Supreme Court Rule 37.2, and the petitioners

consented. Counsel for the government had not responded at the

time this brief was printed, so a motion for leave to file

accompanies this brief.

2

x

to pay for early abortion-causing drugs in

employer health plans2;

x

to coerce unvaccinated employees to receive a

COVID-19

vaccine,

despite

employees’

conscientious objections3; and

x

to provide health insurance coverage for, and

in healthcare settings to perform, life-altering

medical procedures that remove or impair the

healthy organs of persons who identify as the

opposite sex.4

CEA thus knows firsthand that federal agencies

do not deserve the trust or deference of federal courts

when they impose rules based on unclear statutory

language, especially when it affects the most

important issues. CEA urges the Court to grant the

petition and rein in unaccountable bureaucrats in the

executive branch.

Christian Emps. All. v. Azar, No. 3:16-CV-309, 2019 WL

2130142, at *2 (D.N.D. May 15, 2019).

3 In re MCP No. 165, 21 F.4th 357, 384 (6th Cir. 2021),

application granted sub nom. Nat’l Fed’n of Indep. Bus. v. Dep’t

of Lab., Occupational Safety & Health Admin., 142 S. Ct. 661

(2022) (per curiam), and application dismissed sub nom. The S.

Baptist Theological Seminary v. Dep’t of Lab., 142 S. Ct. 890

(2022).

4 Christian Emps. All. v. U.S. Equal Opportunity Comm’n, No.

1:21-CV-195, 2022 WL 1573689, at *9 (D.N.D. May 16, 2022).

2

3

INTRODUCTION AND SUMMARY OF THE

ARGUMENT

Chevron deference threatens fundamental rights

and deeply important political concerns, in addition to

its threat to economic vibrancy.

The general absence of accountability for federal

agency officials, combined with immense pressure on

the executive branch to placate its political base, has

made the federal administrative state increasingly

susceptible to inflicting abuses against the freedom

and fundamental values of American citizens and

businesses. As recounted in this brief, federal

agencies routinely use unclear or inapposite statutory

language to impose mandates and spend tax dollars

that injure the right to life, devalue religious freedom,

and contradict important biological distinctions based

on sex.

Many of this Court’s highest-profile disputes have

stemmed from administrative agencies advancing

their own agendas without apparent statutory

authority or concern for its absence. When left to their

own devices—or to the political calculations of the

White House—agencies stretch and strain their

authority to impose on the everyday lives of American

citizens in ways Congress never prescribed. As one

justice of this Court recently put it, federal agencies

now regularly “write ever more ambitious rules on the

strength of ever thinner statutory terms.” Buffington

v. McDonough, No. 21-972, 2022 WL 16726027, at *6

(U.S. Nov. 7, 2022) (Gorusch, J., dissenting from the

denial of certiorari).

Chevron deference is a bad idea for many reasons.

But it is especially dangerous to fundamental

freedoms. The idea that bureaucrats know better

4

than judges how to interpret the law cedes to agencies

the authority this Court has reserved to Congress: the

ability to resolve the most highly contentious social

and cultural “decisions of vast economic and political

significance.” See West Virginia v. EPA, 142 S. Ct.

2587, 2605 (2022). The petition should thus be

granted to overrule Chevron deference.

ARGUMENT

I.

Agencies are weaponizing federal healthcare laws to violate the right to life.

Federal agencies have recently shown they can be

used to drive a nationwide, politicized agenda in

explicit rejection of this Court’s decisions, and of the

authority of States, by imposing mandates and

programs that lack clear statutory authority.

The Biden administration reacted to this Court’s

decision in Dobbs v. Jackson Women’s Health

Organization, 142 S. Ct. 2228, 2242 (2022), by issuing

a raft of abortion mandates—even though the

statutes that the agencies cite contain no such

authorizations.5 Agencies launched huge new

programs forcing states and private citizens to

perform abortions and spend taxpayer money to

perform and pay for abortions. In each case, agency

officials used their positions to brush aside the

absence of federal authority and to claim primacy over

See, e.g., Exec. Order No. 14076, Protecting Access to

Reproductive Healthcare Services, 87 Fed. Reg. 42,053 (July 8,

2022); Exec. Order No. 14079, Securing Access to Reproductive

and Other Healthcare Services, 87 Fed. Reg. 49,505 (Aug. 3,

2022).

5

5

state laws to which this Court deferred in Dobbs as a

matter of federalism.

These agency actions epitomize the kind of

“whole-of-government”6 and “nationwide”7 effort that

this Court warned is an inadequate substitute for

clear statutory authority. Cf. West Virginia, 142 S. Ct.

at 2604 (White House described Clean Power Plan as

“aggressive transformation in the domestic energy

industry”); Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab.,

Occupational Safety & Health Admin., 142 S. Ct. 661,

663 (2022) (per curiam) (White House stated multiagency goal to impose vaccine requirements on about

100 million Americans).

Because these abortion mandates are new, their

statutory authority has not been fully litigated. But

whether agencies cite Chevron deference in their

defense, the policies show agencies are not good

candidates for judicial deference in interpreting their

own authorities.

A. Transforming Hospitals into Abortion

Clinics.

The U.S. Department of Health and Human

Services (HHS) has sought to turn practically all

hospitals into on-demand abortion clinics. As part of

its anti-Dobbs campaign, HHS told all hospitals

receiving Medicare funds that have emergency rooms,

that regardless of state laws protecting the unborn

6 White House, Statement by President Joe Biden on Supreme

Court Ruling on Texas Law SB8 (Sept. 2, 2022),

https://perma.cc/VX9M-YWYH.

7 White House, FACT SHEET: President Biden to Sign

Executive Order Protecting Access to Reproductive Health Care

Services (July 8, 2022), https://perma.cc/NHE6-D5J9.

6

they must perform abortions under HHS’s novel

interpretation of the 1986 Emergency Medical

Treatment and Labor Act (EMTALA), 42 U.S.C.

1395dd.8

This was a brazen bureaucratic imposition on

several levels. As a federal district court held when it

preliminary enjoined the mandate in Texas, and for

members of certain pro-life medical organizations

represented by undersigned counsel, the mandate

lacked statutory authority for several reasons:

(1) EMTALA says nothing about abortions or mandating them; (2) four times, EMTALA explicitly requires

stabilizing the “unborn child”; (3) EMTALA and the

Social Security Act disavow any preemption of state

laws unless there is a direct conflict with the language

of EMTALA; and (4) lower courts have widely held

that EMTALA imposes no medical standard of care,

but instead is a statute designed to stop the dumping

of patients unable to pay. See Texas v. Becerra, No.

5:22-CV-185-H, 2022 WL 3639525, at *19–26 (N.D.

Tex. Aug. 23, 2022).

President Reagan signed EMTALA in 1986, and

not once until HHS’s post-Dobbs memorandum did a

federal agency declare that EMTALA mandates

abortions. Yet the agency officials not only concluded

that the statute authorized them to impose that

mandate, they imposed it without giving notice or an

opportunity to the public to comment, in violation of

the Medicare Act and the APA. Id. at *27–28.

8 Memorandum from Ctrs. for Medicare & Medicaid Servs. on

Reinforcement of EMTALA Obligations Specific to Patients Who

Are Pregnant or Are Experiencing Pregnancy Loss (July 11,

2022) (revised Aug. 25, 2022), https://perma.cc/ND68-86SK.

7

Notably, the district court considered whether

Chevron deference applies because HHS claimed that

EMTALA had given it authority to force doctors and

hospitals to provide abortions. Id. at *19. The court

rejected HHS’s interpretation. But this Court should

clarify the legal standard so lower courts do not have

to defer to federal agencies that engage in this kind of

politicized “statutory interpretation.”

B. Turning Pharmacies into Abortion Drug

Dispensaries.

HHS also told the nation’s pharmacies—all

60,000 of them—that because they serve patients

covered by a federally funded plan, they must stock

and dispense first-trimester chemical abortion

drugs.9 Like the EMTALA abortion mandate, the

agency officials did not subject that mandate to the

notice-and-comment process, and they claimed that

they were merely informing regulated entities of

obligations that already existed under statutory law.

In this instance, HHS officials asserted their mandate

exists, sotto voce, under Section 1557 of the Affordable

Care Act, 42 U.S.C. 18116, and Section 504 of the

Rehabilitation Act of 1973, 29 U.S.C. 794, which

merely prohibit sex and disability discrimination and

do not mention abortion. Id.

HHS’s Pharmacy Mandate has the same lack of

clear statutory authority, and the same dubious

merit, as its EMTALA memorandum. Both are

increasingly common attempts to “discover in a longHHS, Off. for Civ. Rts., Guidance to Nation’s Retail

Pharmacies: Obligations under Federal Civil Rights Laws to

Ensure Access to Comprehensive Reproductive Health Care

Services (July 13, 2022), https://perma.cc/KTQ5-M7FP.

9

8

extant statute an unheralded power to regulate ‘a

significant portion of the American economy.’” Util.

Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)

(citation omitted). Both show why this Court should

reject Chevron deference to agency interpretations in

furtherance of their mandates.

The Pharmacy Mandate suffers from familiar

flaws. No federal regulation states that Sections 504

or 1557 require pharmacies to stock and dispense

first-trimester abortion drugs, nor could it. That is

because the Affordable Care Act explicitly states that

nothing in it negates federal laws regarding “refusal

to provide abortion” or state laws prohibiting

abortion. 42 U.S.C. 18023(c). And where Section 1557

only bans sex discrimination by incorporation of that

ban under Title IX of the Education Amendments of

1972, the Pharmacy Mandate contradicts Congress’

explicit statement in Title IX that it does not require

any entity to provide any service related to an

abortion. 20 U.S.C. 1688.

C. Turning

Veterans’

Abortion Clinics.

Hospitals

into

The U.S. Department of Veterans’ Affairs (VA)

likewise found a new power to promote abortion—a

power it had “never before adopted” or even noticed.

Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 666.

In response to Dobbs, the VA began performing

abortions in veterans’ hospitals—on demand through

all nine months of pregnancy—no matter what prolife state laws say.10 Just as with HHS, the VA seized

Dep’t of Veterans Affairs (VA), Interim Final Rule,

Reproductive Health Services, 87 Fed. Reg. 55,287 (Sept. 9,

2022).

10

9

on the flimsiest of statutory reeds to support its new

assertion of power.

In the VA’s underlying statute, Congress

explicitly banned the performance of abortions in the

VA system. See Section 106 of the Veterans Health

Care Act of 1992, Pub. L. No. 102-585, 106 Stat. 4943.

But in the summer of 2022, for the first time, the VA

(in conjunction with the Department of Justice’s

Office of Legal Counsel) claimed that Congress had

silently negated the effect of Section 106 by

implication of its 1996 amendments to the Act.11 That

1996 amendment did not actually repeal Section 106,

and it said nothing about abortion. 38 U.S.C. 1710

merely states that the VA can give eligible veterans

“medical services which the Secretary determines to

be needed.”

And in the Assimilative Crimes Act, Congress

declared that in a federal government building, such

as a VA hospital, state criminal law will apply—

meaning, pro-life state laws banning elective abortion

will apply, along with other state laws regulating the

practice of medicine. But in another post-Dobbs

memorandum, DOJ brushed aside those concerns as

well.12

When an agency, including DOJ, is determined to

implement and justify a White House priority, the

lack of clear statutory authority is ultimately no

11 Ibid.; Dep’t of Justice, Intergovernmental Immunity for the

Department of Veterans Affairs and Its Employees When

Providing Certain Abortion Services, 46 Op. O.L.C. ___, 7–8

(Sept. 21, 2022).

12 Dep’t of Justice, Application of the Assimilative Crimes Act to

Conduct of Federal Employees Authorized by Federal Law, 46

Op. O.L.C. ___ (Aug. 12, 2022).

10

obstacle. This is so even in the presence of contrary

language in other laws. Deferring to government

officials in such circumstances makes no sense.

D. Funding

Dollars.

Abortions

with

Taxpayer

Federal agencies are also claiming newfound

authority to redirect enormous sums of taxpayer

money into the hands of abortion clinics—dollars

appropriated to provide healthcare for the poor and

funding meant to support our military.

HHS announced that it would begin spending

Medicaid funds to pay for patients to travel to obtain

abortions,13 despite over 40 years of explicit

Congressional language in the Hyde Amendment,

Pub. L. No. 117-103, Div. H, §§ 506–507, 136 Stat. 49,

insisting that no HHS funds “shall be expended for

any abortion” or “for health benefits coverage that

includes coverage of abortion.” Once again, DOJ’s

Office of Legal Counsel issued a post-Dobbs memo

supporting this novel statutory interpretation.14

The Department of Defense announced it would

transport service members to obtain abortions and

expend funds so its doctors could get licensed in

jurisdictions to perform abortions—despite congres-

13 Press Release, HHS, HHS Takes Action to Strengthen Access

to Reproductive Health Care, Including Abortion Care (Aug. 26,

2022), https://perma.cc/JH79-NBEB.

14 Dep’t of Justice, Application of the Hyde Amendment to the

Provision of Transportation for Women Seeking Abortions, 46

Op. O.L.C. ___ (Sept. 27, 2022).

11

sional restrictions on spending military money for

abortion. See 10 U.S.C. 1093.15

And even though Congress explicitly stated that

no funds in the Title X family planning program can

“be used in programs where abortion is a method of

family planning,” HHS is giving those funds to

abortion clinics that engage in no physical or financial

separation of their abortions and their federally

funded family planning.16 HHS is even using the

funds to require entities to refer women for

abortions.17

E. Bringing Back the Contraceptive and

Abortifacient Mandate on Businesses

and Non-Profits.

Despite over a decade of litigation about the

Affordable Care Act’s contraceptive and early

abortifacient mandate, including multiple trips to

this Court, HHS is pursuing rulemaking yet again to

re-impose that mandate and repeal religious and

Memorandum from Sec’y of Def. on Ensuring Access to

Reproductive Healthcare (Oct. 20, 2022), https://perma.cc/R4PYR2AS.

16 Ensuring Access to Equitable, Affordable, Client-Centered,

Quality Family Planning Services, 86 Fed. Reg. 56,144, 56,145

(Oct. 7, 2021) (repealing requirement of physical and financial

separation of abortion and funded family planning); Press

Release, HHS, HHS Awards $256.6 Million to Expand and

Restore Access to Equitable and Affordable Title X Family

Planning

Services

Nationwide

(Mar.

30,

2022),

https://perma.cc/LM9A-NFPU.

17 42 C.F.R. 59.5(a)(5)(i) & (ii) (entities must provide “referral

upon request” for “[p]regnancy termination”).

15

12

moral objections put in place by the last administration.18

This Court and the lower courts were embroiled

in litigation on this issue between 2011 and 2020.

E.g., Little Sisters of the Poor Saints Peter & Paul

Home v. Pennsylvania, 140 S. Ct. 2367, 2372 (2020);

Zubik v. Burwell, 578 U.S. 403, 405 (2016) (per

curiam); and Burwell v. Hobby Lobby Stores, Inc., 573

U.S. 682, 688 (2014). The Trump administration

issued religious and moral exemptions that this Court

upheld in Little Sisters of the Poor, and the

controversy subsided.

But in keeping with a campaign promise to

reimpose the mandate, President Biden’s HHS has

sent a rule to the White House for final review.19 As

with so many cases of government overreach against

life, no provision of the ACA requires coverage of

contraception, much less mandates it over conscientious objections. 42 U.S.C. 300gg-13.

18 Off. of Mgmt. & Budget, Exec. Off. of the President, Unified

Agenda, Coverage of Certain Preventive Services Under the

Affordable Care Act (CMS-9903),

RIN: 0938-AU94 (2022),

https://perma.cc/NX7L-WZSA (“This rule would propose

amendments to the final rules regarding religious and moral

exemptions and accommodations regarding coverage of certain

preventive services under title I of the Patient Protection and

Affordable Care Act.”).

19 John McCormack, Biden Says He Would Rescind Exemption

for Little Sisters of the Poor, National Review (July 9, 2020),

https://perma.cc/RAK8-TKJX; Off. of Mgmt. & Budget, Exec. Off.

of the President, Pending EO 12866 Regulatory Review:

Coverage of Certain Preventive Services Under the Affordable

Care Act (CMS-9903) (2022), https://perma.cc/H3K3-G2UM.

13

II. Agencies are weaponizing federal civilrights laws to impose radical gender

ideology.

Federal agencies are also undeserving of Chevron

deference because they are weaponizing federal civil

rights laws to impose radical gender ideology, thereby

threatening religious liberty, free speech, parental

rights, and the basic recognition of biological

differences between men and women.

Bostock v. Clayton County, 140 S. Ct. 1731, 1753

(2020), made clear that this Court’s decision did not

interpret Title VII beyond situations of hiring and

firing to questions of intimate spaces. It did not

interpret other civil rights statutes. And it did not

resolve religious liberty questions. Nevertheless,

since day one of President Biden’s term, federal

agencies have been implementing a whole-ofgovernment agenda to redefine “sex” discrimination

to impose mandates far outside the narrow bounds

established in Bostock.

On taking office, President Biden ordered every

federal agency to enforce every sex discrimination law

as though it covers sexual orientation and gender

identity—with no regard for religious freedom, free

speech, the rights of women and girls, and parental

rights.20

Every federal agency involved in civil rights

enforcement has thus been weaponizing Bostock to

impose far-reaching mandates. These agency actions

have no clear authorization from their underlying

Exec. Order No. 13988, Preventing and Combating

Discrimination on the Basis of Gender Identity or Sexual

Orientation, 86 Fed. Reg. 7023 (Jan. 20, 2021).

20

14

statutes—which simply prohibit sex discrimination—

and in many cases explicitly rely on rather than reject

the biological binary between men and women.

Chevron deference would be a dangerous doctrine in

the hands of these agency officials run amok.

A. Coercing Religious Colleges to Put Men

in Women’s Dorm Rooms by Expanding

the Fair Housing Act.

The U.S. Department of Housing and Urban

Development (HUD) issued a “directive” that requires

private religious colleges to open female showers,

restrooms, and dorm rooms to biological males who

assert a female gender identity—without notice or

comment and with no mention of the impact on

religious liberty.21 As with many other agency

mandates discussed here, HUD issued the directive

without public notice or an opportunity for comment.

HUD has directed that the 1974 Fair Housing

Act’s sex-discrimination provisions be understood to

include sexual orientation and gender identity even

though those provisions say nothing about those

subjects. 42 U.S.C. 3604 (a) & (b); 24 C.F.R.

100.50(b)(1)–(3). This reinterpretation of the Fair

Housing Act triggers its crippling punishments for

violations, including six-figure civil penalties,

unlimited punitive damages, and even prison time. 42

U.S.C. 3611–3614, 3631; 24 C.F.R. 103.215, 180.671,

180.705. HUD’s directive orders federal, state, and

private officials to “fully enforce” this new standard

21 Memorandum from Acting Assistant Sec’y for Fair Housing &

Equal Opportunity on Implementation of Executive Order 13988

on the Enforcement of the Fair Housing Act (Feb. 11, 2021),

https://perma.cc/V7DV-E797.

15

on virtually all housing nationwide—including college

dorms.

This new mandate diminishes women’s privacy

and safety. Religious schools like the College of the

Ozarks in Point Lookout, Missouri, which filed a

lawsuit against the mandate, seek to keep their

religiously motivated dorm policies and faith-based

policies on sexuality and student conduct, and to

speak about those policies to their students. Their

policies separate student housing by sex regardless of

gender identity, and require students to refrain from

sex outside of marriage between one man and one

woman. Parents and students want the freedom to

select schools that have such rules about college

housing and behavior. But HUD’s new directive

precludes colleges from maintaining these policies

unless they wish to risk catastrophic penalties.

In court, HUD has admitted its directive applies

to religious colleges, but claims that federal courts

have no power to examine whether HUD has the

authority to issue this directive. Sch. of the Ozarks,

Inc. v. Biden, 41 F.4th 992 (8th Cir. 2022), pet. for

rehearing denied, No. 21-2270, 2022 WL 4589688, at

*1 (8th Cir. Sept. 30, 2022).

A petition for certiorari by College of the Ozarks

is forthcoming on this extraordinary assertion of

federal agency power without giving regulated

entities an opportunity to comment. Chevron

deference should not extend to benefit agencies like

those willing to issue directives so clearly at odds with

statutory enabling language.

16

B. Ending Women’s Sports by Hijacking

Title IX.

The U.S. Department of Education (ED) likewise

issued “guidance” that interpreted “sex” in Title IX of

the Education Amendments of 1972, 20 U.S.C.

1681(a), to address new protected classes—

compelling schools to enact many new policies,

including to allow men to compete in women’s

sports.22

Once again, ED issued this mandate without

notice and comment,23 and so it has been enjoined in

some states. Tennessee v. U.S. Dep’t of Educ., No.

3:21-CV-308, 2022 WL 2791450 (E.D. Tenn. July 15,

2022), appeal docketed, No. 22-5807 (6th Cir. Sept. 13,

2022). But the agency is now also promulgating the

mandate through rulemaking.24

When its final rule issues, Chevron deference

should not exist as a defense to this redefinition of

Title IX. Instead, federal courts—not politically

motivated officials at ED—should determine whether

Congress meant to end women’s sports when it passed

Exec. Order No. 14021, Guaranteeing an Educational

Environment Free From Discrimination on the Basis of Sex,

Including Sexual Orientation or Gender Identity, 86 Fed. Reg.

13,803 (Mar. 8, 2021); Memorandum from Pamela Karlan on

Application of Bostock v. Clayton County to Title IX of the

Education Amendments of 1972 (Mar. 26, 2021),

https://perma.cc/CWW8-7DM9.

23 Enforcement of Title IX of the Education Amendments of 1972

With Respect to Discrimination Based on Sexual Orientation

and Gender Identity in Light of Bostock v. Clayton County, 86

Fed. Reg. 32,637 (June 22, 2021).

24 Nondiscrimination on the Basis of Sex in Education Programs

or Activities Receiving Federal Financial Assistance, 85 Fed.

Reg. 30,026 (May 19, 2020).

22

17

Title IX. That may sound like a far-fetched position.

But when the agency sought to impose the same

mandate during the Obama administration, it

claimed Chevron deference for its view of Title IX.

Texas v. United States, 201 F. Supp. 3d 810 (N.D. Tex.

2016). It also claimed Auer deference for its view of its

own binding regulations. G.G. ex rel. Grimm v.

Gloucester Cnty. Sch. Bd., 822 F.3d 709, 721 (4th Cir.

2016), vacated and remanded, 137 S. Ct. 1239 (2017).

Title IX provides no clear statutory authority for

this mandate. The statute deals with discrimination

on the basis of sex, not gender identity or sexual

orientation. In fact, Title IX’s direct statutory

reference to a male-female binary excludes the gender

identity interpretation being imposed by ED. 20

U.S.C. 1681, 1686. Congress enacted Title IX to

ensure women had equal opportunity in academics

and athletics. Thus, Title IX has always been

interpreted as an equal opportunity provision that

prohibits requiring women to compete against men

and that reflects that women have the right to privacy

and safety in intimate spaces like locker rooms. 34

C.F.R. 106.33, 106.34, 106.41.

Of course, rewriting Title IX does more than

threaten to erode the advancements women have long

fought to achieve. It threatens the rights of parents,

students,

and

teachers.

Under

this

new

interpretation, the agency would require grade

schools to treat students as whatever sex the child

prefers, even without parents’ knowledge or consent.

This policy undermines parents’ authority to make

vital decisions about their child’s emotional, mental,

and physical health. What is more, public universities

will be able—indeed, will be federally required—to

censor and compel speech by forcing students and

18

professors, on pain of discrimination and harassment

proceedings lacking due process protections—to use

pronouns and titles that are inconsistent with a

person’s sex—even compelling religious students and

teachers. No court should defer to such an

interpretation of an otherwise clear statutory regime.

C. Coercing Doctors to Amputate Healthy

Organs by Rewriting the Affordable

Care Act.

HHS has also issued a mandate interpreting “sex”

in Section 1557 of the Affordable Care Act to prohibit

gender identity discrimination in virtually all

healthcare settings. Under this mandate, HHS

requires doctors to perform, refer for, and affirm

many life-altering medical procedures, such as

mastectomies,

testosterone

suppression,

and

hormone administration, to remove or impair the

healthy organs of persons who identify as the opposite

sex.25

No one thought Congress required this when it

passed the ACA in 2010. Section 1557 derives from

Title IX, where, as mentioned above, Congress

codified sex as a male-female binary. The ACA itself

likewise and repeatedly refers to men and women in

biologically binary terms. See, e.g., Pub. L. No. 111148, 124 Stat. 119, 551 (referring to “pregnant

women”); id. at 577 (providing reasonable break time

25 Nondiscrimination in Health Programs and Activities, 81 Fed.

Reg. 31,375 (May 18, 2016) (codified at 45 C.F.R. pt. 92); Notice

of Interpretation and Enforcement of Section 1557, 86 Fed. Reg.

27,984, 27,985 (May 25, 2021); see also Nondiscrimination in

Health Programs and Activities, 87 Fed. Reg. 47,824 (Aug. 4,

2022) (proposed rule reinstating 2016 provisions).

19

for nursing mothers); id. at 261, 334, 343, 577, 626,

650, 670, 785, 809, 873, 890, 966, 1003. The very

practice of medicine is biologically based, and it is

impossible to practice if doctors are required to treat

biological differences between men and women as if

they are ideological constructs changeable by

personal preference.

Again, HHS has asserted Chevron deference in its

attempt to shield its reinterpretation of Section 1557

from direct review. Franciscan All., Inc. v. Burwell,

227 F. Supp. 3d 660, 687 (N.D. Tex. 2016). This

interpretation was rejected by some courts as

contrary to the statute, ibid.; Neese v. Becerra, No.

2:21-CV-163-Z, 2022 WL 16902425, at *1 (N.D. Tex.

Nov. 11, 2022). But other courts, rather than hold that

HHS lacks statutory authority, issued injunctions

against this mandate under the Religious Freedom

Restoration

Act—something

that

would

be

unnecessary if the statutory question was properly

resolved in the absence of a looming Chevron analysis.

Religious Sisters of Mercy v. Azar, 513 F. Supp. 3d

1113, 1139 (D.N.D. 2021); see also Franciscan All.,

Inc. v. Becerra, No. 7:16-cv-00108-O, 2021 WL

3492338 (N.D. Tex. Aug. 9, 2021), as amended (Aug.

16, 2021) (also entering RFRA injunction). CEA itself

had to seek, and has so far obtained, preliminary

injunctive relief against the mandate, which the court

ordered under RFRA. Christian Emps. All. v. U.S.

Equal Opportunity Comm’n, No. 1:21-CV-195, 2022

WL 1573689 (D.N.D. May 16, 2022). Meanwhile, HHS

successfully persuaded another district court that it

lacks the power to review this healthcare mandate.

Am. Coll. of Pediatricians v. Becerra, No. 1:21-cv-195,

2022 WL 17084365, at *18 (E.D. Tenn. Nov. 18, 2022).

20

HHS’s gender identity mandate harms children

and adults who struggle with gender dysphoria. It

coerces doctors to perform dangerous and life-altering

medical procedures, even if doing so violates their

medical judgment, their conscience, or their religious

beliefs. It inhibits full and frank conversations

between doctors and patients, driving Christian

healthcare professionals and counselors out of the

healing professions entirely. Tingley v. Ferguson, 47

F.4th 1055, 1077 (9th Cir. 2022). And it precludes

parents, children, and patients from seeking the

medical treatment in their best interest.

As one court said, “Beyond the religious

implications, the Biden HHS Notification and

resulting HHS Guidance frustrate the proper care of

gender dysphoria, where even among adults who

experience the condition, a diagnosis occurs following

the considered involvement of medical professionals.”

Christian Emps. All., 2022 WL 1573689, at *6 n.1. “By

branding the consideration as ‘discrimination,’ the

HHS prohibits the medical profession from

evaluating what is best for the patient in what is

certainly a complex mental health question.” Ibid.

21

D. Forcing

Employers

to

Pay

Amputating

Healthy

Organs

Reinterpreting Title VII.

for

by

Although Bostock did not reach any questions

under Title VII other than hiring and firing, the

Equal Employment Opportunity Commission (EEOC)

has ignored the explicit parameters of Bostock to

impose a broad sexual orientation and gender identity

mandate covering all aspects of the employment

relationship.26 The mandate extends to intimate

spaces and to such practices as health insurance

coverage

for

the

above-mentioned

medical

procedures. CEA, among others, has needed to obtain

judicial relief under RFRA to protect its members

from the health insurance coverage mandate.

Christian Emps. All., 2022 WL 1573689, at *3.

This mandate, too, has been enjoined under

RFRA for Christian employers. Id. at *6; Religious

Sisters of Mercy, 513 F. Supp. 3d at 1131. It has also

been enjoined in some states for creating a new rule

without following notice-and-comment procedures.

Tennessee, 2022 WL 2791450, at *22. And it was

vacated by a district court in Texas for exceeding

EEOC’s statutory authority. Texas v. EEOC, No. 2:21cv-00194, 2022 WL 4835346 (N.D. Tex. Oct. 1, 2022).

Nevertheless, EEOC’s enthusiastic attempt and

the ongoing litigation show yet again the danger

posed to fundamental freedoms if this Court

continues to require federal courts to defer to federal

See, e.g., EEOC, Protections Against Employment

Discrimination Based on Sexual Orientation or Gender Identity

(June 15, 2021), https://perma.cc/XUQ3-KG26.

26

22

agencies that interpret unclear statutes to impose

mandates on the American people.

*

*

*

When they are not actively restrained by courts,

agencies regularly threaten fundamental rights by reinterpreting statutes that do not say what agencies

want them to say, to impose mandates in service of

nation-shaping political agendas. This Court should

hold once and for all that agencies are not entitled to

blank checks to read their policy preferences into

silent or even ambiguous federal statutes. The

Chevron regime may have originated with the best of

intentions and a proper respect for agency expertise.

But time has shown that the doctrine has encouraged

political bureaucrats to reinterpret federal laws in a

way that threatens life, religious liberty, free speech,

parental rights, and common sense about men and

women. It is well past time for that judicial deference

to end.

23

CONCLUSION

For the foregoing reasons, and those explained by

Petitioners, the petition should be granted.

Respectfully submitted,

MATTHEW S. BOWMAN

Counsel of Record

JULIE MARIE BLAKE

JOHN J. BURSCH

ALLIANCE DEFENDING FREEDOM

440 First Street, NW

Suite 600

Washington, DC 20001

(202) 393-8690

mbowman@ADFlegal.org

DECEMBER 2022