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 Writ of Certiorari to the United States Court of

Appeals for the District of Columbia Circuit

BRIEF OF CHRISTIAN EMPLOYERS

ALLIANCE AS AMICUS CURIAE

SUPPORTING PETITIONERS

MATTHEW S. BOWMAN

Counsel of Record

JULIE MARIE BLAKE

JOHN J. BURSCH

JAMES A. CAMPBELL

ERIN MORROW HAWLEY

ALLIANCE DEFENDING FREEDOM

440 First Street, NW, Suite 600

Washington, DC 20001

(202) 393-8690

mbowman@ADFlegal.org

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

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

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

INTRODUCTION AND SUMMARY OF THE

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

ARGUMENT .............................................................. 5

I.

Agencies

are

weaponizing

federal

healthcare laws to violate the right to life.......... 5

A. Funding abortions with taxpayer

dollars. ........................................................... 7

B. Converting veterans’ hospitals into

abortion clinics. ........................................... 10

C. Transforming emergency rooms into

abortion clinics. ........................................... 12

D. Allowing the postal service to deliver

chemical abortion drugs. ............................. 13

E. Turning pharmacies into abortion drug

dispensaries. ................................................ 15

F. Blocking enforcement of federal or

state abortion statutes. ............................... 17

G. Bringing back the contraceptive and

abortifacient mandate. ................................ 20

ii

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

ideology. ............................................................. 21

A. Coercing doctors to harm their

patients. ....................................................... 22

B. Forcing employers to pay for puberty

blockers, cross-sex hormones, and

amputating healthy organs. ....................... 24

C. Ending women’s sports. .............................. 25

D. Forcing colleges to allow men in

women’s showers and bedrooms. ................ 28

CONCLUSION ......................................................... 30

iii

TABLE OF AUTHORITIES

Cases

Alaska Association of Realtors v. HHS,

141 S. Ct. 2485 (2021)........................................ 11

Alliance for Hippocratic Medicine v. FDA,

No. 23-10362, 2023 WL 2913725 (5th Cir. Apr.

12, 2023) ............................................................. 15

American Hospital Association v. Becerra,

142 S. Ct. 1896 (2022).......................................... 5

Astrue v. Capato ex rel. B.N.C.,

566 U.S. 541 (2012)............................................ 11

Becerra v. Empire Health Foundation,

142 S. Ct. 2354 (2022).......................................... 5

Biden v. Nebraska,

143 S. Ct. 2355 (2023)............................ 18, 21, 22

Bostock v. Clayton County,

140 S. Ct. 1731 (2020)........................................ 21

Bours v. United States,

229 F. 960 (7th Cir. 1915).................................. 14

Buffington v. McDonough,

143 S. Ct. 14 (2022).............................................. 3

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014)............................................ 20

iv

Christian Employers Alliance v. Azar,

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

May 15, 2019)....................................................... 2

Christian Employers Alliance v. EEOC,

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

May 16, 2022)........................................... 2, 23, 24

Dobbs v. Jackson Women’s Health Organization,

142 S. Ct. 2228 (2022).......................................... 5

Franciscan Alliance, Inc. v. Burwell,

227 F. Supp. 3d 660 (N.D. Tex. 2016) ............... 23

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

Board,

822 F.3d 709 (4th Cir. 2016) ............................. 26

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

Board,

137 S. Ct. 1239 (2017)........................................ 26

In re MCP No. 165,

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

Kirkhuff v. Nimmo,

683 F.2d 544 (D.C. Cir. 1982) ............................ 12

Little Sisters of the Poor Saints Peter & Paul

Home v. Pennsylvania,

140 S. Ct. 2367 (2020).................................. 20, 21

National Federation of Independent Business v.

OSHA

142 S. Ct. 661 (2022).................................. 2, 7, 10

v

Neese v. Becerra,

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

Tex. Nov. 11, 2022) ............................................ 24

Ohio v. Becerra,

577 F. Supp. 3d 678 (S.D. Ohio 2021) ................. 8

Religious Sisters of Mercy v. Azar,

513 F. Supp. 3d 1113 (D.N.D. 2021) ................. 24

Rust v. Sullivan,

500 U.S. 173 (1991).............................................. 8

Sackett v. EPA,

143 S. Ct. 1322 (2023)............................ 18, 19, 24

School of the Ozarks, Inc. v. Biden,

41 F.4th 992 (8th Cir. 2022) .............................. 28

School of the Ozarks, Inc. v. Biden,

No. 22-816, 2023 WL 4065624 (U.S. June 20,

2023) ................................................................... 28

Southern Baptist Theological Seminary v. OSHA,

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

Tennessee v. United States Department of

Education,

615 F.Supp.3d 807 (E.D. Tenn. 2022) ......... 24, 25

Texas v. Becerra,

623 F. Supp. 3d 696 (N.D. Tex. 2022) ............... 13

Texas v. EEOC,

No. 2:21-CV-194-Z, 2022 WL 4835346 (N.D.

Tex. Oct. 1, 2022) ............................................... 24

vi

Texas v. HHS,

No. 7:23-cv-00022-DC, 2023 WL 4629168

(July 12, 2023) ................................................... 17

Texas v. United States,

201 F. Supp. 3d 810 (N.D. Tex. 2016) ............... 26

Tice-Harouff v. Johnson,

No. 6:22-CV-201-JDK, 2022 WL 3350375 (E.D.

Tex. Aug. 12, 2022) ............................................ 21

Tingley v. Ferguson,

47 F.4th 1055 (9th Cir. 2022) ............................ 23

Utility Air Regulatory Group v. EPA,

573 U.S. 302 (2014)............................................ 16

West Virginia v. EPA,

142 S. Ct. 2587 (2022)................................ 4, 6, 22

Zubik v. Burwell,

578 U.S. 403 (2016)............................................ 20

Statutes

1 U.S.C. 8 .................................................................. 19

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

10 U.S.C. 919a .......................................................... 18

18 U.S.C 1841 ........................................................... 18

18 U.S.C. 1461 .................................................... 14, 18

18 U.S.C. 1462 .................................................... 14, 18

vii

18 U.S.C. 1531 .......................................................... 18

18 U.S.C. 1852 .......................................................... 18

18 U.S.C. 1956 .......................................................... 18

18 U.S.C. 1957 .......................................................... 18

18 U.S.C. 1961 .......................................................... 18

19 U.S.C 1305 ........................................................... 18

20 U.S.C. 1681 .................................................... 25, 26

20 U.S.C. 1688 .......................................................... 16

26 U.S.C.A. 9802(g) .................................................. 19

29 U.S.C. 1182(f) ...................................................... 19

29 U.S.C. 794 ............................................................ 16

38 U.S.C. 1710 .......................................................... 11

42 U.S.C. 1395dd ...................................................... 12

42 U.S.C. 1395ss ...................................................... 19

42 U.S.C. 18023(c) .................................................... 16

42 U.S.C. 18116 ........................................................ 16

42 U.S.C. 300a-6......................................................... 7

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

42 U.S.C. 300gg-4 ..................................................... 19

viii

42 U.S.C. 3604 .......................................................... 28

42 U.S.C.1320d–9 ..................................................... 19

42 U.S.C.A. 2000ff-8 ................................................. 19

Comprehensive Crime Control Act of 1984, Pub.

L. No. 98-473, 98 Stat. 1837 .............................. 18

Consolidated Appropriations Act of 2010, Pub. L.

No. 111-117, 123 Stat. 3034 (2009) ..................... 9

Consolidated Appropriations Act of 2022, Pub. L.

117-103, Div. B., Tit. II, § 203, 136 Stat. 49

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

Consolidated Appropriations Act of 2022, Pub. L.

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

(2022).............................................................. 9, 17

Health Insurance Portability and Accountability

Act of 1996, Pub. L. No. 104-191, 110 Stat.

1936 (1996) ......................................................... 17

Genetic Information Nondiscrimination Act of

2008, Pub. L. 110–233, 122 Stat. 881 ............... 19

Patient Protection and Affordable Care Act, Pub.

L. No. 111-148, 124 Stat. 119, 261, 334, 343,

551, 577, 626, 650, 670, 785, 809, 873, 890,

966, 1003 (2010) ................................................. 23

Veterans Healthcare Act of 1992, Pub. L. No. 102585, § 106, 106 Stat. 4943 (1992) ...................... 10

ix

Other Authorities

Application of the Assimilative Crimes Act to

Conduct of Fed. Emps. Authorized by Fed. L.,

46 Op. O.L.C. ___ (Aug. 12, 2022) ..................... 11

Application of the Comstock Act to the Mailing of

Prescription Drugs That Can Be Used for

Abortions, 46 Op. O.L.C. __ (Dec. 23, 2022) ..... 15

Application of the Hyde Amend. to the Provision

of Transp. for Women Seeking Abortions, 46

Op. O.L.C. ___ (Sept. 27, 2022) ........................... 9

Courtney Kube & Carol E. Lee, Biden

administration may halt plans to move

Space Command to Alabama over state’s

abortion law, officials say, NBC News (May

15, 2023) ............................................................. 10

ED & DOJ, Dear Colleague Letter on Transgender

Students (May 13, 2016).................................... 26

EEOC, Protections Against Employment

Discrimination Based on Sexual Orientation

or Gender Identity (June 15, 2021) ................... 24

Equality Act, S. 5, 118th Cong. (2023) .................... 22

Equality Act, H.R. 15, 118th Cong. (2023) .............. 22

FDA, REMS Single Shared System for

Mifepristone 200 mg (Jan. 2023) ...................... 15

x

Federal Government Deems Oklahoma’s Title X

Program Non-Compliant: OSDH Responds,

News on 6 (May 25, 2023) ................................... 9

Freedom to Travel for Health Care Act, S. 2053,

118th Cong. (2023)............................................... 6

HHS, HHS Secretary Becerra’s Statement on

Supreme Court Ruling in Dobbs v. Jackson

Women’s Health Organization (June 24,

2022) ................................................................... 14

HHS, OASH, Office of Population Affairs, Title X

Family Planning Program ................................... 7

HHS, 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) ............................... 15, 16

Intergovernmental Immunity for the VA and Its

Emps. When Providing Certain Abortion

Servs., 46 Op. O.L.C. ___ (Sept. 21, 2022) ........ 11

Jocelyn Samuels & Kristen Galles, In Defense of

Title IX: Why Current Policies Are Required to

Ensure Equality of Opportunity, 14 Marq.

Sports L. Rev. 11 (2003) .................................... 27

Let Doctors Provide Reproductive Health Care

Act, H.R. 2907 118th Cong. (2023)...................... 6

Let Doctors Provide Reproductive Health Care

Act, S. 1297, 118th Cong. (2023) ......................... 6

xi

Letter from HHS Office of the Assistant Sec’y for

Health to Tenn. Dept. of Health, Re: Decision

not to fund continuation award (March 20,

2023) ..................................................................... 8

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).................................................... 28

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)............. 12

Memorandum from FDA on Review of

Supplemental Drug Applications Proposing

Modifications to the Mifepristone REMS

Program (Dec. 23, 2022) .................................... 15

Memorandum from Pamela Karlan on Application

of Bostock v. Clayton County to Title IX of the

Education Amendments of 1972 (Mar. 26,

2021) ................................................................... 25

Memorandum from Sec’y of Def. on Ensuring

Access to Reprod. Healthcare (Oct. 20, 2022) ..... 9

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) .................. 8

xii

Press Release, HHS, HHS Proposes Measures to

Bolster Patient-Provider Confidentiality

Around Reproductive Health Care (Apr. 12,

2023) ................................................................... 18

Press Release, HHS, HHS Takes Action to

Strengthen Access to Reproductive Health

Care, Including Abortion Care (Aug. 26,

2022) ..................................................................... 9

Right to Contraception Act, S. 1999, 118th Cong.

(2023).................................................................... 6

UPHOLD Privacy Act of 2023, S. 63, 118th Cong.

(2023).................................................................... 6

White House, FACT SHEET: Biden-Harris

Administration Highlights Commitment to

Defending Reproductive Rights and Actions to

Protect Access to Reproductive Health Care

One Year After Overturning of Roe v. Wade

(June 23, 2023)..................................................... 6

White House, FACT SHEET: President Biden

Announces Actions In Light of Today’s

Supreme Court Decision on Dobbs v. Jackson

Women’s Health Organization (June 24,

2022) ................................................................... 14

White House, FACT SHEET: President Biden to

Sign Executive Order Protecting Access to

Reproductive Health Care Services (July 8,

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

xiii

White House, FACT SHEET: President Biden to

Sign Memorandum on Ensuring Safe Access

to Medication Abortion (Jan. 22, 2023)............. 14

White House, FACTSHEET: The Biden-Harris

Administration’s Record on Protecting Access

to Medication Abortion (April 12, 2023) ....... 6, 16

Women’s Health Protection Act of 2021, H.R.

3755, 117th Cong. (2021) ..................................... 6

Women’s Health Protection Act of 2021, S. 1975,

117th Cong. (2021)............................................... 6

Women’s Health Protection Act of 2022, H.R.

3755, 117th Cong. (2022) ..................................... 6

Women’s Health Protection Act of 2022, S. 4132,

117th Cong. (2022)............................................... 6

Women’s Health Protection Act of 2023, H.R. 12,

118th Cong. (2023)............................................... 6

Women’s Health Protection Act of 2023, S. 701,

118th Cong. (2023)............................................... 6

Regulations

24 C.F.R. 100.50 ....................................................... 28

34 C.F.R. 106.33 ....................................................... 27

34 C.F.R. 106.34 ....................................................... 27

34 C.F.R. 106.41 ....................................................... 27

xiv

42 C.F.R. 59.5(a)(5) .................................................... 8

ED, 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) ................................................................... 25

ED, Nondiscrimination on the Basis of Sex in

Education Programs or Activities Receiving

Federal Financial Assistance, 85 Fed. Reg.

30,026 (May 19, 2020) ....................................... 26

ED, Nondiscrimination on the Basis of Sex in

Education Programs or Activities Receiving

Federal Financial Assistance: Sex-Related

Eligibility Criteria for Male and Female

Athletic Teams, 88 Fed. Reg. 22,860 (April 13,

2023) ................................................................... 26

Exec. Order 14101, Strengthening Access to

Affordable, High-Quality Contraception and

Family Planning Services, 88 Fed. Reg. 41,815

(June 28, 2023)................................................... 20

Exec. Order No. 13988, Preventing and

Combating Discrimination on the Basis of

Gender Identity or Sexual Orientation, 86

Fed. Reg. 7023 (Jan. 20, 2021) .......................... 21

xv

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) ........................ 25

Exec. Order No. 14076, Protecting Access to

Reproductive Healthcare Services, 87 Fed.

Reg. 42,053 (July 8, 2022) ................................... 5

Exec. Order No. 14079, Securing Access to

Reproductive and Other Healthcare Services,

87 Fed. Reg. 49,505 (Aug. 3, 2022)...................... 5

HHS, Ensuring Access to Equitable, Affordable,

Client-Centered, Quality Family Planning

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

HHS, HIPAA Privacy Rule To Support

Reproductive Health Care Privacy, 88 Fed.

Reg. 23,506 (Apr. 17, 2023) ......................... 17, 18

HHS, Nondiscrimination in Health Programs

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

2016) ................................................................... 22

HHS, Nondiscrimination in Health Programs

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

2022) ............................................................. 17, 22

IRS, Coverage of Certain Preventive Services

Under the Affordable Care Act, 88 Fed. Reg.

7,236 (February 2, 2023) ................................... 20

xvi

Notice of Interpretation and Enforcement of

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

2021) ................................................................... 22

Presidential Memorandum, Further Efforts To

Protect Access to Reproductive Healthcare

Services, 88 Fed. Reg. 4895 (Jan. 26, 2023) ....... 5

VA, Reproductive Health Services, 87 Fed. Reg.

55,287 (Sept. 9, 2022) ........................................ 10

1

INTEREST OF AMICUS CURIAE 1

Christian Employers Alliance (CEA) is an alliance

of Christian-owned businesses in the United States.

CEA’s mission 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 advocates concerning legal policy issues on

behalf of its members. These issues include the

principles that religious freedom should be

safeguarded, 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 often disrespect these

fundamental principles, and agency officials are far

too willing to impose their personal political agendas

despite no 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.

2

x

to pay for early abortion-causing drugs in

employer health plans, Christian Emps. All. v.

Azar, No. 3:16-CV-309, 2019 WL 2130142, at *2

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

x

to coerce unvaccinated employees to receive a

COVID-19 vaccine, despite employees’ conscientious objections, 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.

OSHA 142 S. Ct. 661 (2022) (per curiam), and

application dismissed sub nom. S. Baptist

Theological Seminary v. OSHA, 142 S. Ct. 890

(2022); 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, Christian Emps. All. v. EEOC,

No. 1:21-CV-195, 2022 WL 1573689, at *9

(D.N.D. May 16, 2022).

CEA thus knows firsthand that federal agencies

often abuse deference doctrines and take advantage

of unclear statutory language by imposing administrative rules that Congress itself would never enact.

Accordingly, CEA urges the Court to end Chevron

deference and restore separation of powers principles

that preserve fundamental rights.

3

INTRODUCTION AND SUMMARY OF THE

ARGUMENT

Chevron deference threatens more than economic

vibrancy and separation of powers principles. It also

threatens fundamental rights.

The 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 agendas that abuse the fundamental

freedoms and values of the American people. As

recounted in this brief, federal agencies routinely use

unclear statutory language to impose mandates and

spend tax dollars that Congress would never enact to

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 the requisite statutory

authority. When left to their own devices—or to the

political calculations of the White House—agencies

stretch and strain their authority to burden the

everyday lives of American citizens in ways Congress

never imagined, much less 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, 143 S. Ct. 14, 20 (2022) (Gorsuch, J.,

dissenting from the denial of certiorari).

Agencies see Chevron deference as a handy tool to

evade judicial review of their efforts to promote

abortion and to ignore the biological differences

between the sexes. Under the Biden administration,

4

the U.S. Department of Health and Human Services

(HHS) has successfully invoked Chevron to prevent

judicial review of its decision to redirect hundreds of

millions of dollars of Title X family planning funds to

abortion clinics. But for Chevron, HHS never would

have tried to change the requirements of Title X, and

there would be no litigation. The Biden administration has likewise claimed Chevron deference for its

new rule providing free, on-demand abortions

through all three trimesters in every veterans’ hospital nationwide, regardless of state laws. Courts have

even had to consider whether they must grant

Chevron deference to the Biden administration’s

attempt to force all emergency room doctors nationwide to perform and complete elective abortions. And

HHS has claimed Chevron deference for its rules

requiring doctors to act against their religious beliefs,

their consciences, and their sound medical judgment

and perform controversial, medically dangerous

“gender transition” interventions on all patients—

including on children.

Chevron deference is a bad policy for many

reasons. But it is especially dangerous to fundamental freedoms. To require federal courts to defer to

agency interpretations of the law, even when an

interpretation is not the best one, cedes to agencies an

authority the Constitution has reserved to Congress

alone: the power to resolve the most highly

contentious social and cultural “decisions of vast

economic and political significance.” West Virginia v.

EPA, 142 S. Ct. 2587, 2605 (2022).

This Court’s recent cases have rightfully

narrowed the scope of Chevron deference. They have

insisted that every tool of statutory construction must

be employed before a court may defer to agency action.

5

E.g., Becerra v. Empire Health Found., 142 S. Ct.

2354, 2361–62, 2368 (2022); Am. Hosp. Ass’n v.

Becerra, 142 S. Ct. 1896, 1906 (2022). But any extraconstitutional deference is too much. The Court

should end Chevron deference once and for all.

ARGUMENT

I.

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

Federal agencies have driven a nationwide

agenda promoting abortion—often in explicit

rejection of this Court’s decisions and of state

authority—all while imposing mandates and

programs that lack statutory authority.

For example, the Biden administration reacted to

Dobbs v. Jackson Women’s Health Organization, 142

S. Ct. 2228, 2242 (2022), by issuing a raft of abortion

mandates—even though no federal statute contains

any mandate to perform abortions. 2 Rather than wait

on Congress to respond to his call to codify Roe v.

Wade, President Biden committed federal agencies “to

doing everything in his power” to “protect access” to

abortion. 3 Agencies immediately launched initiatives

forcing states and private citizens to perform

2 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);

Presidential Memorandum, Further Efforts To Protect Access to

Reproductive Healthcare Services, 88 Fed. Reg. 4895 (Jan. 26,

2023).

3 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

abortions and spend taxpayer money to perform and

pay for abortions. 4

In each case, agency officials used their power to

brush aside their lack of statutory authority and to

claim primacy over state laws. Just as with other

major initiatives undertaken due to executive

frustration with legislative gridlock, Congress has

repeatedly decided against empowering agencies to

undertake these abortion initiatives, either in whole5

or in part. 6

These agency actions thus epitomize the kind of

transformative, “nationwide” 7 effort that this Court

flagged as contrary to the principle that Congress

ordinarily makes important policy decisions itself. Cf.

West Virginia v. EPA, 142 S. Ct. at 2604 (White House

described Clean Power Plan as “aggressive

4 See White House, FACT SHEET: Biden-Harris Administration

Highlights Commitment to Defending Reproductive Rights and

Actions to Protect Access to Reproductive Health Care One Year

After Overturning of Roe v. Wade (June 23, 2023),

https://perma.cc/66WV-EVAM (collecting actions).

5 E.g., Women’s Health Protection Act of 2023, S. 701, 118th

Cong. (2023); Women’s Health Protection Act of 2023, H.R. 12,

118th Cong. (2023); Women’s Health Protection Act of 2022, S.

4132, 117th Cong. (2022); Women’s Health Protection Act of

2022, H.R. 3755, 117th Cong. (2022); Women’s Health Protection

Act of 2021, S. 1975, 117th Cong. (2021); Women’s Health

Protection Act of 2021, H.R. 3755, 117th Cong. (2021).

6 E.g., Let Doctors Provide Reproductive Health Care Act,

S. 1297, 118th Cong. (2023); Let Doctors Provide Reproductive

Health Care Act, H.R. 2907 118th Cong. (2023); Right to

Contraception Act, S. 1999, 118th Cong. (2023); Freedom to

Travel for Health Care Act, S. 2053, 118th Cong. (2023);

UPHOLD Privacy Act of 2023, S. 63, 118th Cong. (2023).

7

White

House,

FACTSHEET:

The

Biden-Harris

Administration’s Record on Protecting Access to Medication

Abortion (April 12, 2023), https://perma.cc/RBG2-SRTR.

7

transformation in the domestic energy industry”);

NFIB, 142 S. Ct. at 663 (White House stated multiagency goal to impose vaccine requirements on 100

million Americans).

Because agencies recently imposed these abortion

efforts, their lack of statutory authority has not been

fully litigated. But so long as Chevron deference

remains good law, it provides a powerful tool to justify

this sort of executive-branch lawlessness.

A. Funding

dollars.

abortions

with

taxpayer

Federal agencies have claimed newfound

authority to redirect enormous sums of taxpayer

money into the hands of abortion clinics—dollars

appropriated to provide healthcare for the poor and

support for our military.

Even though Congress stated that no funds in the

Title X Family Planning Program can “be used in

programs where abortion is a method of family

planning,” Public Health Services Act, 42 U.S.C.

300a-6, the U.S. Department of Health and Human

Services (HHS) is giving up to $286.5 million in

taxpayer funds 8 to clinics that provide abortions,

counsel in favor of abortions, and fail to physically or

financially segregate abortion funds from federally

funded family planning. 9

HHS, OASH, Office of Population Affairs, Title X Family

Planning Program, https://perma.cc/K9CD-MAAW.

9 HHS, Ensuring Access to Equitable, Affordable, ClientCentered, 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

8

8

And thanks to the mischief of Chevron, HHS is

already receiving deference for its view of Title X.

Previously, this Court upheld Title X program

integrity requirements under Chevron, including a

prohibition on abortion counseling. Rust v. Sullivan,

500 U.S. 173, 177–179, 187–188 (1991). This Court

found that “a ban on counseling, referral, and

advocacy within the Title X project” was permissible

and “[t]he broad language of Title X plainly allows”

this “construction of the statute.” Id. at 184. But when

HHS changed its rules in 2021 to provide precisely the

opposite, removing separation requirements and

requiring abortion counseling, a lower court gave

HHS “a high degree of deference” under Chevron.

Ohio v. Becerra, 577 F. Supp. 3d 678, 688–690 (S.D.

Ohio 2021). Shockingly, the district court held that

this new interpretation is “obviously and properly a

response to shifting political winds.” Ibid. (emphasis

added).

Since then, HHS has pushed the limits of

deference for its view of Title X: HHS began using

Title X funds to force clinics to refer and counsel

women for abortions, even when state law protects

unborn life. 10 HHS cut off funding for clinics in

Oklahoma and Tennessee because these clinics do not

counsel women in favor of abortions that violate state

law. 11 HHS pays no heed to Title X’s limits or to the

Expand and Restore Access to Equitable and Affordable Title X

Family Planning Services Nationwide (Mar. 30, 2022),

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

10 42 C.F.R. 59.5(a)(5)(i) & (ii) (entities must provide “referral

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

11 Letter from HHS Office of the Assistant Sec’y for Health to

Tenn. Dept. of Health, Re: Decision not to fund continuation

award (March 20, 2023), https://perma.cc/UV9A-E39K; Federal

9

Weldon Amendment, which prohibits discriminating

against funding recipients “on the basis that the

health care entity does not provide, pay for, provide

coverage of, or refer for abortions.” 12

What’s more, HHS went on to announce 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 declaring that no HHS funds “shall

be expended for any abortion” or “for health benefits

coverage that includes coverage of abortion.” 14 Once

again, the Department of Justice’s Office of Legal

Counsel issued a post-Dobbs memo supporting this

novel statutory interpretation.15

Other agencies have likewise begun ignoring

their statutory limits on abortion funding. The

Department of Defense (DOD) announced that it

would transport service members to obtain abortions

and expend funds so its doctors could get licensed to

perform abortions 16—despite congressional restrictions on spending military money for abortion,

Government Deems Oklahoma’s Title X Program NonCompliant: OSDH Responds, News on 6 (May 25, 2023),

https://perma.cc/DMB4-XAQT.

12 Consolidated Appropriations Act of 2010, Pub. L. No. 111-117,

123 Stat. 3034 (2009).

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 Consolidated Appropriations Act of 2022, Pub. L. No. 117-103,

Div. H, §§ 506–507, 136 Stat. 49 (2022).

15 Application of the Hyde Amend. to the Provision of Transp. for

Women Seeking Abortions, 46 Op. O.L.C. ___ (Sept. 27, 2022),

https://perma.cc/QTQ3-TBT6.

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

Healthcare (Oct. 20, 2022), https://perma.cc/R4PY-R2AS.

10

10 U.S.C. 1093. DOD also appears to be using its vast

budget to retaliate against states that protect the

unborn and to relocate military installations to states

that allow abortion on demand. 17 And the

Department of Justice (DOJ) supports and defends

the administration’s many new abortion mandates

and programs—despite DOJ’s own appropriations

statute’s prohibition on using any funds to “require

any person to perform, or facilitate in any way the

performance of, any abortion.”18

B. Converting veterans’

abortion clinics.

hospitals

into

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

likewise found after Dobbs a novel abortion power

previously denied to it by Congress —a power it had

“never before adopted” or even noticed. Cf. NFIB, 142

S. Ct. at 666. The VA began performing abortions in

veterans’ hospitals—on demand through all nine

months of pregnancy in all 50 states.19

Section 106 of the Veterans Healthcare Act of

1992, Pub. L. No. 102-585, 106 Stat. 4943 (1992),

directly bans the performance of abortions in the VA

system. But the VA skipped advance notice or

comment to begin exercising that denied authority,

and it seized “a wafer-thin reed on which to rest such

sweeping power.” Ala. Ass’n of Realtors v. HHS,

17 Courtney Kube & Carol E. Lee, Biden administration may halt

plans to move Space Command to Alabama over state’s abortion

law,

officials

say,

NBC

News

(May

15,

2023),

https://perma.cc/DG2B-TY3Z.

18 Consolidated Appropriations Act of 2022, Pub. L. 117-103,

Div. B., Tit. II, § 203, 136 Stat. 49, 131 (2022).

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

9, 2022).

11

141 S. Ct. 2485, 2489 (2021). In the summer of 2022,

for the first time, the VA (alongside DOJ’s Office of

Legal Counsel) claimed that Congress had silently

negated the effect of Section 106 by implication in its

1996 amendments to the Act, 38 U.S.C. 1710.20 That

1996 amendment nowhere states that it repealed

Section 106; indeed, it says nothing about abortion.

Instead, 38 U.S.C. 1710 merely states that the VA can

give eligible veterans “medical services which the

Secretary determines to be needed”—a general power

to provide healthcare that the Biden administration

decided was good enough to empower it to perform

abortion.

The new VA rule also runs afoul of the

Assimilative Crimes Act, which provides that, in a

federal government building, such as a VA hospital,

state criminal law applies. This includes state laws

prohibiting elective abortion and regulating the

practice of medicine. 18 U.S.C. 13(a). In another postDobbs memorandum, DOJ brushed aside those

concerns as well. 21

This new abortion-on-demand VA regime was

challenged by a VA nurse practitioner whose request

for religious accommodation fell on deaf ears. To no

one’s surprise, the VA claimed that courts must defer

to the agency under Chevron. 22 The VA cited

20 Ibid.; Intergovernmental Immunity for the VA and Its Emps.

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

(Sept. 21, 2022), https://perma.cc/7TA2-HBES.

21 Application of the Assimilative Crimes Act to Conduct of Fed.

Emps. Authorized by Fed. L., 46 Op. O.L.C. ___ (Aug. 12, 2022),

https://perma.cc/HR9Q-T5CF.

22 Carter v. McDonough, No. 6:22-cv-01275, ECF No. 31 at 34–

35 (citing Astrue v. Capato ex rel. B.N.C., 566 U.S. 541, 558

(2012)).

12

precedent bowing to the agency’s “considerable

expertise” in “interpreting and applying the various

veterans’ benefits statutes.” 23

C. Transforming emergency rooms into

abortion clinics.

HHS has also sought to turn all hospital

emergency rooms into on-demand abortion clinics.

Just over a fortnight after Dobbs was decided, HHS

told all hospitals receiving Medicare funds that,

regardless of state laws protecting the unborn,

emergency room doctors must perform or complete

abortions under HHS’s novel interpretation of the

1986 Emergency Medical Treatment and Labor Act

(EMTALA), 42 U.S.C. 1395dd. 24

This EMTALA abortion mandate was a brazen

bureaucratic imposition on several levels. As a federal

district court held when it enjoined the mandate, the

mandate lacked statutory authority for at least four

reasons: (1) EMTALA says nothing about abortions,

much less mandating them; (2) four times, EMTALA

explicitly requires stabilizing the “unborn child”;

(3) EMTALA and the Social Security Act twice

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, because it seeks

instead to stop the dumping of patients unable to pay.

23 Id. (quoting Kirkhuff v. Nimmo, 683 F.2d 544, 549 (D.C. Cir.

1982)).

24 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.

13

Texas v. Becerra, 623 F. Supp. 3d 696, 724–733 (N.D.

Tex. 2022).

President Reagan signed EMTALA in 1986, and

not once until HHS’s July 2022 memorandum did a

federal agency declare that EMTALA mandates

abortions. Yet agency officials concluded that the

statute authorized them to impose that mandate, and

they imposed it without giving notice or an

opportunity to the public to comment, in violation of

the Medicare Act and the Administrative Procedure

Act (APA). Texas v. Becerra, 623 F. Supp. 3d at 733–

735.

Even though the agency failed to promulgate a

final rule, the district court considered whether it had

to defer to HHS’s interpretation of EMTALA under

Chevron. Texas v. Becerra, 623 F. Supp. 3d at 724–

725. The court rejected HHS’s interpretation, but that

case is on appeal, with Chevron still front and center.

D. Allowing the postal service to deliver

chemical abortion drugs.

Making emergency room doctors perform and

complete abortions was just the beginning. The

current administration’s main response to Dobbs has

been to skirt federal and state protections for unborn

life by creating a 50-state online mail-order abortion

economy.

Since the day Dobbs was decided, President Biden

has directed his cabinet to ensure that women have

“access” to chemical abortion drugs “no matter where

14

they live” 25 and to make these drugs “as widely

accessible as possible”—“including when prescribed

through telehealth and sent by mail.”26 HHS

Secretary Xavier Becerra has “directed every part of

my Department to do any and everything” to “double

down and use every lever we have.”27

The Comstock Act of 1873 explicitly prohibits the

use of “any express company or other common carrier

or interactive computer service” for carriage in

interstate commerce of “any drug, medicine, article,

or thing designed, adapted or intended for producing

abortion.” 18 U.S.C. 1462. The Act similarly prohibits

the mailing of any “article, instrument, substance,

drug, medicine, or thing which is advertised or

described in a manner calculated to lead another to

use or apply it for producing abortion.” 18 U.S.C.

1461. This Act has no ambiguity: it “indicates a

national policy of discountenancing abortion as

inimical to the national life.” Bours v. United States,

229 F. 960, 964 (7th Cir. 1915).

Yet, “in the wake of Dobbs,” DOJ advised the U.S.

Postal Service that these criminal statutes do not

restrict shipping chemical abortion drugs through the

mail or by common carrier and obtaining them

online—even though these drugs are “used to perform

White House, FACT SHEET: President Biden to Sign

Memorandum on Ensuring Safe Access to Medication Abortion

(Jan. 22, 2023), https://perma.cc/U9Q8-S9QT.

26 White House, FACT SHEET: President Biden Announces

Actions In Light of Today’s Supreme Court Decision on Dobbs v.

Jackson Women’s Health Organization (June 24, 2022),

https://perma.cc/53SQ-VM42.

27 HHS, HHS Secretary Becerra’s Statement on Supreme Court

Ruling in Dobbs v. Jackson Women’s Health Organization (June

24, 2022), https://perma.cc/89AZ-RFL4.

25

15

abortions”—so long as “the sender lacks the intent

that the recipient of the drugs will use them

unlawfully.” 28 Soon after, the U.S. Food & Drug

Administration (FDA) adopted this interpretation 29

to allow chemical abortion drugs to be ordered via

telehealth and shipped to women and girls

nationwide via mail or common carrier—no in-person

medical examination required. 30

The federal government’s willful defiance of

crystal-clear federal and state abortion statutes

deserves no deference from any court. See All. for

Hippocratic Med. v. FDA, No. 23-10362, 2023 WL

2913725, at *20–21 (5th Cir. Apr. 12, 2023) (observing

that HHS and FDA “argue that the Comstock Act does

not mean what it says it means”).

E. 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 chemical abortion drugs and

contraceptives. 31 This pharmacy mandate was

28 Application of the Comstock Act to the Mailing of Prescription

Drugs That Can Be Used for Abortions, 46 Op. O.L.C. __ (Dec.

23, 2022), https://perma.cc/AY4S-8UL4.

29 Memorandum from FDA on Review of Supplemental Drug

Applications Proposing Modifications to the Mifepristone REMS

Program at 144 (Dec. 23, 2022), https://perma.cc/YKA4-DGUV.

30 FDA, REMS Single Shared System for Mifepristone 200 mg

(Jan. 2023), https://perma.cc/MJT5-35LF.

31 HHS, 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.

16

another White House ploy “to protect access to

medication abortion.”32

Like the EMTALA abortion mandate, agency

officials did not subject the pharmacy abortion

mandate to a notice-and-comment process. Instead,

HHS claimed it was merely informing regulated

entities of pre-existing statutory obligations. According to HHS officials, the mandate implicitly exists

under Section 1557 of the Affordable Care Act (ACA),

42 U.S.C. 18116, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, which prohibit sex

and disability discrimination but do not mention

abortion. 33

HHS’s pharmacy mandate has the same lack of

statutory authority, and the same dubious merit, as

its other abortion efforts. All of them are increasingly

common attempts to “discover in a long-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) (cleaned up). No federal

regulation states that Sections 1557 or 504 require

pharmacies to stock and dispense first-trimester

abortion drugs, nor could it. That is because the ACA

preserves federal laws protecting conscience rights

and makes no attempt to preempt state law, including

those prohibiting abortion. 42 U.S.C. 18023(c).

Moreover, Section 1557 incorporates Title IX of the

Education Amendments of 1972, and so the pharmacy

mandate contradicts Congress’ statement that Title

IX does not require any entity to provide any service

related to abortion. 20 U.S.C. 1688. The pharmacy

mandate also conflicts with the Hyde Amendment,

32 White House, FACTSHEET, supra note 7.

33 HHS, Off. for Civ. Rts., supra note 31.

17

which prohibits any federal funding of abortions, with

limited exceptions. 34

But when HHS’s pharmacy mandate was

challenged under the Administrative Procedure Act

by a state and a Catholic pharmacy, HHS again

claimed that its interpretation of federal civil rights

statutes was within the “heartland” of its agency

expertise, so courts must give way to HHS enforcement. 35 And, if HHS includes this mandate in a future

Section 1557 rule, 36 HHS will almost certainly claim

Chevron deference. Yet the agency should not have

that tool to aid its efforts to create new abortion

demands.

F. Blocking enforcement of federal or state

abortion statutes.

After Dobbs, the Biden administration not only

seeks to mandate and enable abortion—it seeks to

block any enforcement of federal or state laws

protecting innocent human life or conscience rights.

HHS discovered a never-before-found authority in

the Health Insurance Portability and Accountability

Act of 1996 (HIPAA) 37 to privilege abortion-related

evidence from any use in court or in law enforcement

Hyde Amendment, Consolidated Appropriations Act, 2022,

Pub. L. No. 117-103, Div. H., Tit. V, §§ 506–07.

35 Defs.’ Mot. Dismiss, Texas v. HHS, No. 7:23-cv-00022-DC,

ECF No. 31 at 22–23 (W.D. Tex. May 8, 2023), motion denied,

Texas v. HHS, No. 7:23-cv-00022-DC, 2023 WL 4629168 (July

12, 2023).

36 See, e.g., HHS, Nondiscrimination in Health Programs and

Activities, 87 Fed. Reg. 47,824 (Aug. 4, 2022).

37 Pub. L. No. 104-191, 110 Stat. 1936 (1996).

34

18

investigation. Motivated by “concerns” about Dobbs, 38

HHS is finalizing a rule (with preemptive effect on

state laws) to (1) block the use of “reproductive

healthcare information” in federal or state civil or

criminal investigations or legal proceedings, even

when a court would ordinarily approve the release or

use of the information, and (2) consider unborn life

“non-persons” under HIPAA. 39 Secretary Becerra

explained that after Dobbs, President Biden had

“call[ed] on HHS to take action to meet this moment

and we have wasted no time in doing so.”40

By taking this step, HHS is hijacking HIPAA’s

broad delegation of authority so that HHS may

privilege from disclosure evidence necessary to

enforce laws protecting unborn life—creating a

practical right to do what federal and state laws

expressly forbid. 41

HHS has “never previously claimed powers of this

magnitude.” Biden v. Nebraska, 143 S. Ct. 2355, 2358

(2023). Prior HIPAA exemptions to disclosure to law

enforcement were “extremely modest and narrow in

scope.” Ibid. And it would be “odd indeed” if Congress

had tucked authority to negate the enforcement of

any abortion law in such “a relatively obscure

38 HHS, HIPAA Privacy Rule To Support Reproductive Health

Care Privacy, 88 Fed. Reg. 23,506, 23,507 (Apr. 17, 2023).

39 88 Fed. Reg. at 23,506, 23,527, 23,532, 23,552–53.

40 Press Release, HHS, HHS Proposes Measures to Bolster

Patient-Provider Confidentiality Around Reproductive Health

Care (Apr. 12, 2023), https://perma.cc/EUY5-LY86.

41 E.g., 10 U.S.C. 919a; 18 U.S.C 1841, 1461, 1462, 1531; 19

U.S.C 1305; see also 18 U.S.C. 1961(1)(b), as added by the

Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473,

98 Stat. 1837, 2143; 18 U.S.C. 1852, 1956, 1957.

19

provision” of HIPAA. Sackett v. EPA, 143 S. Ct. 1322,

1340 (2023). Of course, Congress did no such thing.

HHS lacks any authority to wield HIPAA in this

way. And the agency has no expertise in law

enforcement or in criminal law and procedure.

Congress said that HIPAA privacy rules may set forth

basic healthcare privacy standards, but HHS could

not limit public health investigations. 42 U.S.C.

1320d-7. And the only statute that HHS cites to

support defining unborn life as non-persons reads,

“Nothing in this section shall be construed to affirm,

deny, expand, or contract any legal status or legal

right applicable to any member of the species homo

sapiens at any point prior to being ‘born alive.’”

1 U.S.C. 8 (emphasis added). In fact, the Genetic

Information Nondiscrimination Act of 2008 (‘‘GINA’’),

Pub. L. 110–233, 122 Stat. 881, which amended the

HIPAA privacy rule, 42 U.S.C.1320d–9, repeatedly

states in other provisions that privacy protections for

information of an “individual or family member”

extend to information of “any fetus carried by such

pregnant woman” and “any embryo,” 26 U.S.C.A.

9802(g); 29 U.S.C. 1182(f); 42 U.S.C. 300gg–4(f),

300gg–53(f), 42 U.S.C. 1395ss(x)(4); 42 U.S.C.A.

2000ff-8(b).

Once again, HHS seeks to employ “[a]n overly

broad interpretation” of a longstanding statute to

decide for itself a major question of vast political

significance. Sackett, 143 S. Ct. at 1341. And unless

this Court sets aside Chevron deference, it remains a

shield for HHS to invoke when that interpretation is

challenged in court.

20

G. Bringing back the contraceptive and

abortifacient mandate.

Despite a decade of litigation over the ACA’s

contraceptive mandate, including multiple trips to

this Court, HHS is pursuing rulemaking to re-impose

that mandate, at least in part. 42

The federal courts were embroiled in litigation on

this issue between 2011 and 2020. E.g., Zubik v.

Burwell, 578 U.S. 403, 405 (2016) (per curiam);

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 688

(2014). The controversy subsided only when the prior

administration issued religious and moral exemptions that this Court upheld in Little Sisters of the

Poor Saints Peter & Paul Home v. Pennsylvania, 140

S. Ct. 2367, 2372 (2020).

But the President is bringing this issue back: he

says that Dobbs made expanding access to

contraception “more critical” 43 and gives HHS cause

to rescind past exemptions. 44 HHS is thus finalizing a

rule to repeal moral exemptions outright; 45 to possibly

eliminate religious exemptions by a proposal akin to

the previous “accommodation” regime; 46 and to create

an elaborate and illegal scheme to fund contraception

using inapplicable marketplace user fees (much like

IRS, Coverage of Certain Preventive Services Under the

Affordable Care Act, 88 Fed. Reg. 7,236 (February 2, 2023).

43 Exec. Order 14101, Strengthening Access to Affordable, HighQuality Contraception and Family Planning Services, 88 Fed.

Reg. 41,815 (June 28, 2023).

44 88 Fed. Reg. at 7,240, 7,243, 7,250, 7,252.

45 88 Fed. Reg. at 7,249.

46 88 Fed. Reg. at 7,248.

42

21

the appropriations clause run-around at issue in this

case). 47

No provision of the ACA requires coverage of

contraception or abortifacients, much less mandates

it over conscientious objections. 42 U.S.C. 300gg-13.

And the underlying coverage guidelines mandating

contraceptives in health insurance plans have never

satisfied the APA. See Little Sisters of the Poor, 140 S.

Ct. at 2382 n. 8 (HHS “has altered its Guidelines

multiple times since 2011, always proceeding without

notice and comment.”). One federal court has already

held that HHS’s promulgation of its contraceptive

mandate updates violated APA requirements. TiceHarouff v. Johnson, No. 6:22-CV-201-JDK, 2022 WL

3350375 (E.D. Tex. Aug. 12, 2022). But it is inevitable

that other courts will defer to HHS and rule the

opposite way, requiring this Court to review the issue

yet again.

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

ideology.

Federal officials are also undeserving of Chevron

deference because they are trying to arrogate to

themselves decisions of great “magnitude and

consequence on a matter of earnest and profound

debate across the country,” Biden v. Nebraska, 143

S. Ct. at 2374 (cleaned up). Agencies are weaponizing

federal civil rights laws to contradict important

biological distinctions based on sex, threatening

religious liberty, free speech, parental rights, and the

equal opportunities of women and girls.

47 88 Fed. Reg. 7,252–53.

22

Since day one of President Biden’s term, federal

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

by expanding Bostock v. Clayton County, 140 S. Ct.

1731, 1753 (2020), beyond all recognition. 48 Bostock

made clear that this Court’s decision did not extend

beyond situations of hiring and firing under Title VII,

and did not consider women’s sports, intimate spaces,

religious liberty, or other civil rights questions. Yet

agencies have seized on Bostock to “conveniently

enable[ௗ]” the President “‘to enact a program’ that

Congress has chosen not to enact itself௘”—indeed, a

program Congress has refused to enact. 49 Biden v.

Nebraska, 143 S. Ct. at 2373 (quoting West Virginia

v. EPA, 142 S. Ct. at 2614).

Because Chevron deference allows unaccountable

agencies to decide questions Congress should decide,

Chevron deference is a dangerous doctrine in the

hands of these officials.

A. Coercing doctors to harm their patients.

HHS reinterpreted the ACA to require healthcare

providers to harm their patients—and it has claimed

Chevron deference for this view.

The practice of medicine is biologically based, and

doctors cannot safely ignore the biological differences

between men and women. But HHS has reinterpreted

“sex” in Section 1557 of the ACA to mean “gender

identity.” Under this interpretation, HHS seeks to

Exec. Order No. 13988, Preventing and Combating

Discrimination on the Basis of Gender Identity or Sexual

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

49 E.g., Equality Act, S. 5, 118th Cong. (2023); Equality Act, H.R.

15, 118th Cong. (2023).

48

23

force doctors to administer puberty blockers and

cross-sex hormones to patients who identify as the

opposite sex—and it even coerces doctors to remove

healthy organs when those patients request it.50

Mandates like these inhibit full and frank

conversations between doctors and patients, and they

can drive conscientious healthcare professionals and

counselors out of the healing professions entirely.

E.g., Tingley v. Ferguson, 47 F.4th 1055, 1077 (9th

Cir. 2022), pet. for cert. filed, No. 22-942 (U.S. Mar.

27, 2023).

No one thought Congress required doctors to

medically assist patients to present as the opposite

sex when it passed the ACA in 2010. Section 1557

incorporates Title IX, which codified sex as a malefemale binary. And, like Title IX, the ACA itself

repeatedly refers to men and women in biologically

binary terms. See, e.g., Patient Protection and

Affordable Care Act, Pub. L. No. 111-148, 124 Stat.

119, 261, 334, 343, 551, 577, 626, 650, 670, 785, 809,

873, 890, 966, 1003 (2010).

HHS’s gender identity mandate harms children

and adults who struggle with gender dysphoria. As

one court said, this mandate “frustrate[s] the proper

care of gender dysphoria, where . . . a diagnosis occurs

following the considered involvement of medical

professionals.” Christian Emps. All. v. EEOC, No.

1:21-CV-195, 2022 WL 1573689, at *6 n.1 (D.N.D.

50 HHS, 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 HHS,

Nondiscrimination in Health Programs and Activities, 87 Fed.

Reg. 47,824 (Aug. 4, 2022) (proposed rule reinstating 2016

provisions).

24

May 16, 2022). Worse yet, by branding some

treatments “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.

Unsurprisingly, HHS has invoked Chevron

deference in defense of this mandate. Franciscan All.,

Inc. v. Burwell, 227 F. Supp. 3d 660, 677, 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), or as lacking reasoned

explanation of how it follows from the statute, Texas

v. EEOC, No. 2:21-CV-194-Z, 2022 WL 4835346, at *9

(N.D. Tex. Oct. 1, 2022). But no court should be forced

to accept HHS’s “implausible interpretation,” Sackett,

143 S. Ct. at 1340—let alone sidestep the question of

agency authority—by deferring to an agency pursuing

such mischief.

B. Forcing employers to pay for puberty

blockers, cross-sex hormones, and

amputating healthy organs.

The Equal Employment Opportunity Commission

(EEOC) likewise seeks to rewrite Title VII to force

employers to provide insurance coverage for puberty

blockers, cross-sex hormones, and surgeries. 51

CEA, among others, has already needed to obtain

judicial relief under RFRA to protect Christian

employers from this mandate. Christian Emps. All.,

2022 WL 1573689, at *3, 6; Religious Sisters of Mercy

51 E.g., EEOC, Protections Against Employment Discrimination

Based on Sexual Orientation or Gender Identity (June 15, 2021),

https://perma.cc/XUQ3-KG26.

25

v. Azar, 513 F. Supp. 3d 1113, 1131 (D.N.D. 2021).

This mandate has also been enjoined in some states

for creating a new rule without following notice-andcomment procedures. Tennessee v. U.S. Dep’t of Educ.,

615 F.Supp.3d 807, 838–840 (E.D. Tenn. 2022),

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

And the EEOC guidance establishing this mandate

was vacated by a district court for exceeding the

agency’s statutory authority. Texas v. EEOC, 2022

WL 4835346.

Still, EEOC’s enthusiastic attempt and the

ongoing litigation show the danger posed to

fundamental freedoms if courts defer to agencies that

interpret longstanding statutes to impose new and

controversial mandates on the American people.

C. Ending women’s sports.

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

transforming Title IX of the Education Amendments

of 1972, 20 U.S.C. 1681(a), and threatening to erode

the advancements women have long fought to

achieve. Fifty years ago, Congress acted to protect

equal opportunity for women by passing Title IX. But

the Department has issued “guidance” that interprets

“sex” in Title IX to mean “gender identity,” compelling

schools to allow males who identify as girls to compete

in female sports. 52 The Department issued this

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.

52

26

mandate without notice and comment, 53 and so it has

been enjoined in some states, Tennessee v. U.S. Dep’t

of Educ., 615 F.Supp.3d 807 (E.D. Tenn. 2022), appeal

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

the Department is finalizing the same mandate

through rulemaking. 54

When the Department’s final rule issues, the

agency will likely inevitably Chevron deference. In

fact, when it sought to impose the same mandate

during the Obama administration,55 the Department

claimed Auer deference for the same view of its own

binding Title IX regulations. Texas v. United States,

201 F. Supp. 3d 810, 827–28 (N.D. Tex. 2016); 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).

53 ED, 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).

54 ED, Nondiscrimination on the Basis of Sex in Education

Programs or Activities Receiving Federal Financial Assistance,

85 Fed. Reg. 30,026 (May 19, 2020); ED, Nondiscrimination on

the Basis of Sex in Education Programs or Activities Receiving

Federal Financial Assistance: Sex-Related Eligibility Criteria

for Male and Female Athletic Teams, 88 Fed. Reg. 22,860 (April

13, 2023).

55 ED & DOJ, Dear Colleague Letter on Transgender Students

(May 13, 2016), https://perma.cc/GNS3-QXXH (“Title IX’s

implementing regulations permit a school to provide sexsegregated restrooms, locker rooms, shower facilities, housing,

and athletic teams, as well as single-sex classes under certain

circumstances. When a school provides sex-segregated activities

and facilities, transgender students must be allowed to

participate in such activities and access such facilities consistent

with their gender identity.”).

27

No court should be forced by Chevron to defer to

the Department’s claim that Title IX means the

opposite of what it says. The statute deals with

discrimination on the basis of sex, not gender identity,

and Title IX’s direct reference to a male-female binary

excludes any gender identity interpretation. 20

U.S.C. 1681. Moreover, Congress specifically asked

for, and then ratified, Title IX regulations and

guidance that require separate sports teams for

women and girls. 56 Title IX has thus always been

interpreted as an equal opportunity provision that

requires women’s sports opportunities, prohibits

requiring women to compete against men in those

situations, and 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.

When government officials ignore biological

reality, people get hurt. In athletics, girls may be

physically hurt; and across the country, women and

girls are unjustly losing medals, podium spots, public

recognition, and the opportunity to compete as males

take their places. And in education, the Department’s

reinterpretation of sex harms students and teachers.

It means that grade schools must treat students as

whatever sex the child prefers, even without parents’

knowledge or consent. It requires universities to

censor and compel speech by forcing students and

professors to use pronouns and titles inconsistent

with a person’s sex, on pain of Title IX discrimination

and harassment proceedings that lack many standard

due process protections. As things stand, Chevron

56 See, e.g., Jocelyn Samuels & Kristen Galles, In Defense of Title

IX: Why Current Policies Are Required to Ensure Equality of

Opportunity, 14 Marq. Sports L. Rev. 11 (2003).

28

remains a shield for executive-branch officials

seeking to impose these harms.

D. Forcing colleges to allow men

women’s showers and bedrooms.

in

The U.S. Department of Housing and Urban

Development (HUD) has likewise sought to expand

the Fair Housing Act to diminish women’s equal

opportunities and privacy in housing. HUD issued a

“directive” that requires colleges to open female

showers, restrooms, and dorm rooms to biological

males who assert a female gender identity—without

notice or comment and without noting any

exceptions. 57

HUD 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). Under this reading of the Act, colleges and

universities may no longer keep dorm policies that

separate student housing by sex regardless of gender

identity, or that require students to refrain from sex

outside of marriage between one man and one woman.

In court, HUD has admitted that such policies are

unlawful under the directive, 58 but stated that it has

yet to enforce this mandate on religious colleges or

57 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.

58 HUD Opp’n to Prelim. Inj., Sch. of the Ozarks, Inc. v. Biden,

No. 6:21-cv-03089, ECF No. 19 at 20, 41–42, 44–45 (May 6,

2021); Tr., Sch. of the Ozarks, Inc. v. Biden, No. 6:21-cv-03089,

ECF No. 23 at 42, 57–59 (May 19, 2023).

29

consider its application to them, Sch. of the Ozarks,

Inc. v. Biden, 41 F.4th 992, 998–99, 1001 (8th Cir.

2022), cert. denied, No. 22-816, 2023 WL 4065624

(U.S. June 20, 2023).59

This transformation of housing and education,

made with no clear congressional statement of

authority, is another example of how agencies distort

separation of powers principles and act in a way

inconsistent with the democratic process. Chevron

deference emboldens agencies to persist in this

distortion.

*

*

*

When federal agencies are not actively restrained

by courts, they threaten fundamental rights by reinterpreting statutes to expand their authority. This

Court should hold that agencies do not possess blank

checks to read their policy preferences into silent or

ambiguous federal statutes or to impose broad mandates in service of nation-shaping political agendas.

The Chevron regime undoubtedly started with the

best of intentions and respect for a co-equal branch.

But time has shown that the doctrine encourages

politicized agencies to reinterpret federal laws in

ways that Congress could not have imagined,

including reinterpretations that threaten life,

religious liberty, and free speech, and that impose farreaching gender ideology throughout the nation. Only

this Court can put an end to judicial deference that

empowers executive agencies and officials to reach far

beyond their congressionally prescribed authority.

59 HUD Br., Sch. of the Ozarks, Inc. v. Biden, No. 21-2270 at 20,

23, 27–29 (Sept. 2, 2021).

30

CONCLUSION

For these reasons, and those explained by

Petitioners, the Court should end Chevron deference

and the decision below should be reversed.

Respectfully submitted,

MATTHEW S. BOWMAN

Counsel of Record

JULIE MARIE BLAKE

JOHN J. BURSCH

JAMES A. CAMPBELL

ERIN MORROW HAWLEY

ALLIANCE DEFENDING FREEDOM

440 First Street, NW, Suite 600

Washington, DC 20001

(202) 393-8690

mbowman@ADFlegal.org

JULY 24, 2023