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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
COMMONWEALTH OF
PENNSYLVANIA ,
Plaintiff,

CIVIL ACTION

v.
NO. 17-4540
DONALD J. TRUMP, DONALD J.
WRIGHT, UNITED STATES
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, STEVEN T.
MNUCHIN, UNITED STATES
DEPARTMENT OF THE TREASURY,
RENE ALEXANDER ACOSTA AND THE
UNITED STATES DEPARTMENT OF
LABOR,
Defendants.

OPINION
The interests at stake in this litigation are great, but the issues that must be decided here
on Plaintiff’s Motion for a Preliminary Injunction are narrow. This case implicates access to
healthcare, religious freedom, women’s rights, and executive power. However, the Court
currently addresses only two precise questions: Did the Defendants here follow the proper
procedure in issuing new rules that greatly expand exemptions to the law requiring health plans
to cover women’s preventive services at no cost, and do the new rules contradict the text of the
statute that they are meant to interpret?
Plaintiff, the Commonwealth of Pennsylvania (“Commonwealth”), seeks to enjoin
enforcement of two Interim Final Rules (“New IFRs”), referred to as the Moral Exemption Rule
and the Religious Exemption Rule, modifying the Affordable Care Act. The New IFRs were
issued by the Departments of Health and Human Services, the Department of Treasury, and the

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Department of Labor on October 6, 2017. They permit employers to opt out of providing no-cost
contraceptive coverage on the basis of sincerely held religious beliefs or sincerely held moral
convictions. The parties here have vastly different perspectives on the import of the New IFRs.
The Defendants assert that they are meant to permit a small number of religious objectors to opt
out of covering contraceptive services in their employer-sponsored health plans because the
requirement to provide contraceptive coverage imposes a substantial burden on their exercise of
religion. Quite to the contrary, the Commonwealth argues that the Rules allow almost any
employer to withhold insurance coverage for contraceptive services from their female
employees, thus impacting millions of women – all in contravention of the Affordable Care Act
and the United States Constitution.
The Commonwealth has sued President Donald J. Trump, United States Secretary of
Health and Human Services Donald J. Wright,1 United States Secretary of the Treasury Steven
T. Mnuchin, and United States Secretary of Labor Rene Alexander Acosta in their official
capacities, as well as each of their agencies (collectively, “Defendants”). It now seeks to enjoin
the Defendants from enforcing the New IFRs for a variety of constitutional and statutory
violations. For the reasons explained below, the Motion for a Preliminary Injunction shall be
granted.
I.

Background2
In March 2010, Congress enacted the Affordable Care Act. See Patient Protection and

Affordable Care Act (ACA), Pub. L. No. 111-148, 124 Stat. 119 (2010). The ACA included a
provision called the Women’s Health Amendment, which mandated that group health plans and

1

Eric D. Hargan substitutes Donald J. Wright pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.

2

The factual statements found here and elsewhere in the opinion constitute this Court’s findings of fact, as required
under Rule 52(a) of the Federal Rules of Civil Procedure, regardless of any heading or lack thereof.

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health insurance issuers offering group or individual health insurance provide coverage for
preventive health services and screenings for women without cost-sharing responsibilities. The
preventive services that must be covered include, “with respect to women, such additional
preventive care and screenings . . . as provided for in comprehensive guidelines supported by the
Health Resources and Services Administration (HRSA).” See 42 U.S.C. § 300gg-13(a)(4).
Thus, Congress left the decision about which preventive care and screenings should be covered
by the ACA up to the HRSA, which is an agency of the Department of Health and Human
Services (HHS).
The HRSA commissioned the Institute of Medicine (“the Institute”) to issue
recommendations identifying what specific preventive women’s health services should be
covered under the ACA’s mandate. See 77 Fed. Reg. 8725-26. The Institute is an arm of the
National Academy of Sciences, an organization that Congress established for the explicit
purpose of furnishing advice to the federal government. See Pub. Citizen v. Dep’t of Justice, 491
U.S. 440, 460 n.11 (1989). The Institute, in turn, convened a committee of sixteen members (the
“Committee”), including specialists in disease prevention, women’s health issues, adolescent
health issues, and evidence-based guidelines, to formulate specific recommendations. The
Committee defined preventive health services to include measures “shown to improve well-being
and/or decrease the likelihood or delay the onset of a targeted disease or condition.” Institute,
Clinical Prevention Services for Women: Closing the Gaps 23 (2011) (“Institute Report”).
On July 19, 2011, the Institute, through the Committee, issued a comprehensive report
that identified health services that should be covered under the Women’s Health Amendment.
Id. at 8-12. It recommended that the ACA cover “the full range of [FDA]-approved
contraceptive methods, sterilization procedures, and patient education and counseling for women

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with reproductive capacity.” Id. at 109-10. The Committee considered: (1) the prevalence of
unintended pregnancy in the United States; (2) potential health risks of pregnancy; (3) that
decreased intervals between pregnancies lead to an “increased risk of adverse pregnancy
outcomes”; (4) the effectiveness of contraceptives in preventing unintended pregnancy; (5) the
health benefits of contraceptives for other diseases and conditions; and (6) the barrier to
contraceptive access presented by its cost. See id. at 104-10.
Original Religious Exemption
On August 1, 2011, HRSA adopted the Institute’s recommendations in guidelines, which
required, among other things, that plans must cover all FDA-approved contraceptive methods
(“Contraceptive Mandate”). 45 C.F.R. § 147.130(a)(1)(iv); 29 C.F.R. § 2590.7152713(a)(1)(iv); 26 C.F.R. § 54.9815-2713(a)(1)(iv). This requirement applied to all health
insurers offering individual or group insurance, as well as all group health plans, with the
exception of certain “grandfathered” plans. See 29 C.F.R. § 2590.715-1251. Simultaneously,
the Departments of HHS, Labor, and the Treasury (“the Agencies” or “Defendant Agencies”)
also promulgated an Interim Final Rule (“IFR”) exempting certain religious employers from
providing contraceptive services (“Original Religious Exemption”). See 76 Fed. Reg. 46621. To
take advantage of that exemption, an employer must: (1) have the inculcation of religious values
as its purpose; (2) primarily employ people who share its religious tenets; (3) primarily provide
services to persons who share its religious tenets; and, (4) be a church, its integrated auxiliary, or
a convention or association of a church, all of which are exempt from taxation under 26 U.S.C. §
501(a). See id. at 46623.
Second Religious Exemption and Accommodation Process

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Following several legal challenges to the Contraceptive Mandate, the Agencies began to
consider changes to the religious exemptions. In March 2012, they issued an Advanced Notice
of Proposed Rulemaking concerning a potential accommodation process for religious objectors
to the Contraceptive Mandate. 77 Fed. Reg. 16501. After a comment period, they then issued a
Notice of Proposed Rulemaking proposing changes to the definition of religious organizations in
the exemption and creating an accommodation process for religious objectors to the
Contraceptive Mandate. 78 Fed. Reg. 8456. The Agencies published final regulations on July 2,
2013 (“Second Religious Exemption”). See 78 Fed. Reg. 39870. These regulations redefined a
religious employer to only refer to churches, their integrated auxiliaries, and conventions or
associations of churches, eliminating the need to fulfill the first three requirements of the prior
regulations of the exemption. Upon a covered entity claiming the exemption, the provider or
administrator would then have to provide the legally required contraceptive services directly to
women covered under the employer’s plan (“Accommodation Process”).
Third Religious Exemption and Accommodation Process
Following enactment of the ACA and the Second Religious Exemption, the Supreme
Court granted certiorari to decide whether the Contraceptive Mandate violated the Religious
Freedom Restoration Act, 42 U.S.C. § 2000bb-1 (RFRA). In Burwell v. Hobby Lobby Stores,
Inc., 134 S. Ct. 2751 (2014), the Supreme Court concluded that applying the Contraceptive
Mandate to closely held corporations violated RFRA. In Wheaton Coll. v. Burwell, 134 S. Ct.
2806 (2014), the Court identified an alternative process by which Wheaton College could
comply with the Contraceptive Mandate without informing its health insurer or third-party
administrator: The Court permitted Wheaton College to “inform[] the Secretary of Health and
Human Service in writing that it . . . has religious objections to providing coverage for

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contraceptive services. Id. at 2807. In response to Hobby Lobby and Wheaton College, the
Agencies issued a third set of IFRs to augment the Accommodation Process to comply with the
Supreme Court’s orders. See 79 Fed. Reg. 51092, 51118 (expanding the Accommodation
Process to include for-profit corporations and to adjust the Accommodation Process). The
Agencies finalized the IFRs on July 14, 2015 (“Third Religious Exemption”). See 80 Fed. Reg.
41318, 41324.
One year later, the Supreme Court granted certiorari to decide whether the
Accommodation Process violated RFRA. The question before the Supreme Court was whether
the requirement to notify plaintiffs’ insurers of their religious objections substantially burdened
their exercise of religion in violation of RFRA. The Supreme Court did not address the question
head on. Rather, it vacated the judgments of the courts of appeals and remanded the cases to
provide the parties “an opportunity to arrive at an approach going forward that accommodates
petitioners’ religious exercise while at the same time ensuring that women covered by
petitioners’ health plans ‘receive full and equal health coverage, including contraceptive
coverage.’” Zubik v. Burwell, 136 S. Ct. 1557, 1560 (2016). The Agencies then issued a
Request for Information (“RFI”) seeking public comment on options for modifying the
Accommodation Process in light of Zubik. See 81 Fed. Reg. 47741. On January 9, 2017, the
Department of Labor announced that it was unable to develop an approach that could “resolve
the concerns of religious objectors, while still ensuring that the affected women receive full and
equal health coverage, including contraceptive coverage.” Department of Labor, FAQs about
Affordable Care Act Implementation Part 36 (Jan. 9, 2017).
Executive Order 13798: “Promoting Free Speech and Religious Liberty”

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On May 4, 2017, President Trump issued an Executive Order “Promoting Free Speech
and Religious Liberty.” Exec. Order No. 13798, 82 Fed. Reg. 21675. The Order directed the
Agencies to “consider issuing amended regulations, consistent with applicable law, to address
conscience-based objections to the preventive-care mandate promulgated under [the Women’s
Health Amendment.]” Id. § 3.
Fourth Religious Exemption and Accommodation Process
The Agencies issued the New IFRs on October 6, 2017, citing a goal of being “consistent
with the President’s Executive Order and the Government’s desire to resolve the pending
litigation and prevent future litigation from similar plaintiffs.” See 82 Fed. Reg. 47792
(“Religious Exemption Rule”); 82 Fed. Reg. 47838 (“Moral Exemption Rule”). The New IFRs
embodied two exemptions to the Contraceptive Mandate. First, under the Religious Exemption
Rule, any non-profit or for-profit entity, whether closely held or publicly traded, may claim the
exemption based on sincerely held religious beliefs. Second, under the Moral Exemption Rule,
any non-profit or for-profit entity, so long as it is closely held, may claim the exemption based
on sincerely held moral convictions.
The Religious Exemption and Moral Exemption Rules make significant changes from
prior exemptions. First, the new rules greatly expand the scope of who may opt out of the
Contraceptive Mandate. Second, the rules render the Accommodation Process optional. Third,
they eliminate requirements to provide notice of an intent to take advantage of either exemption.
In other words, entities that stop providing contraceptive care “do not need to file notices or
certifications of their exemption and [the Exemption Rules] do not impose any new notice
requirements on them.”3 See 82 Fed. Reg. 47850, 47858. Fourth, the New IFRs permit

3

The Employee Retirement Income Security Act of 1974 (ERISA) still requires group health plans to notify plan
participants of any change in coverage at least 30 or 60 days in advance. See 77 Fed. Reg. 8667.

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employers to opt out of coverage on the basis of “sincerely held” religious beliefs and moral
convictions.
The Agencies issued the new rules as IFRs and requested post-issuance comments by
December 5, 2017, 60 days after they were issued. The Commonwealth filed this suit in the
interim seeking to enjoin enforcement of the New IFRs because: (1) they fail to comply with the
notice-and-comment procedures required by the Administrative Procedure Act (“APA”), 5
U.S.C. § 551, et seq.; (2) they are “arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law” in violation of the substantive provisions of the APA, 5 U.S.C. §
706(2)(A); (3) they violate Title VII of the Civil Rights Act, 42 U.S.C. § 2000-2(a); (4) they
violate the Equal Protection Guarantee of the Fifth Amendment, U.S. Const. amend. V; and, (5)
they violate the Establishment Clause. U.S. Const. amend. I.
II.

Standing
A threshold question is whether the Commonwealth has standing. Standing is a litigant’s

ticket to federal court. It is a constitutional requirement, “limit[ing] the category of litigants
empowered to maintain a lawsuit in federal court to seek redress for a legal wrong.” Spokeo, Inc.
v. Robins, 136 S. Ct. 1540, 1547 (2016); U.S. Const. art. III, § 2, cl. 2. The Commonwealth
contends that it is properly before the Court because the New IFRs are causing, or will
imminently cause, direct harm to its sovereign, quasi-sovereign and proprietary interests.
Additionally, it asserts that it has parens patriae standing to protect the health, safety and wellbeing of its residents in ensuring that they enjoy access to healthcare services. The Defendants,
on the other hand, contend that the Commonwealth has not suffered any legal wrong that would
allow it to step foot into federal court.

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“No principle is more fundamental to the judiciary’s proper role in our system of
government than the constitutional limitation of federal-court jurisdiction to actual cases or
controversies.” Raines v. Byrd, 521 U.S. 811, 818 (1997). The doctrine of standing ensures that
federal judicial power is properly limited to these cases or controversies. See Finkleman v. Nat’l
Football League, 810 F.3d 187, 203 (3d Cir. 2016). Thus, if a plaintiff lacks standing, the case
must be dismissed. See id. at 195. And, as Plaintiff, the Commonwealth has the burden of
establishing that it has standing. See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 411-12
(2013).
To do so, it must satisfy “the irreducible constitutional minimum of standing,” which
“contains three elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). First, the
Commonwealth must have suffered an “injury in fact,” defined as “an invasion of a legally
protected interest which is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical.” Id. (internal quotation marks and citations omitted). Second, the
Commonwealth must show that there is a “causal connection between the injury and the conduct
complained of.” Id. That is, the injury must be “fairly traceable” to the “challenged action of the
defendant.” Id. Third, the Commonwealth must show that it is “likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.” Id. at 561 (internal
quotation marks omitted). “Each element [of standing] must be supported in the same way as
any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and
degree of evidence required at the successive stages of the litigation.” Id. Thus, because the
Commonwealth here seeks a preliminary injunction, it must adduce evidence demonstrating
more than a mere possibility of injury in support of standing. Doe v. Nat’l Bd. of Med. Exam’rs,
199 F.3d 146, 152 (3d Cir. 1999).

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a. Special Solicitude
This standing inquiry must be made in the context of a clear recognition that States, like
the Commonwealth here, “are not normal litigants for the purposes of invoking federal
jurisdiction.” Massachusetts v. EPA, 549 U.S. 497, 518 (2007). Accordingly, a State is “entitled
to special solicitude in [the] standing analysis” if it has: (1) a procedural right that authorizes it to
challenge the conduct at issue; and, (2) a “stake in protecting its quasi-sovereign interests.”
Massachusetts, 549 U.S. at 520; see also Texas v. United States, 809 F.3d 134, 151 (5th Cir.
2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016).
In determining whether the Commonwealth has met these conditions, both Massachusetts
v. EPA and Texas v. United States are instructive. In Massachusetts v. EPA, Massachusetts sued
the Environmental Protection Agency (EPA), alleging that global warming was “the most
pressing environmental challenge of our time,” and that the EPA had “abdicated its responsibility
under the Clean Air Act” when it failed to issue rules regulating the emission of greenhouse
gases coming from cars. 549 U.S. at 505. The EPA challenged Massachusetts’ standing to bring
the suit because greenhouse gas emissions are a widespread and generalized harm not unique to
any specific plaintiff. See id. at 517. The Supreme Court nonetheless held that Massachusetts
had special solicitude in the standing inquiry to challenge the EPA’s inaction: First,
Massachusetts had a procedural right under the relevant statute, the Clean Air Act, which
allowed it to “challenge agency action unlawfully withheld.” Id. (citing 42 U.S.C. § 7607(b)(1)).
Second, Massachusetts had a quasi-sovereign interest – a “well-founded desire to preserve its
sovereign territory” from the effects of global warming. Id. at 519. Indeed, Massachusetts
“own[ed] a great deal of the ‘territory alleged to be affected.’” Id.; see also id. at 522 (affidavits
noting that “rising seas have already begun to swallow Massachusetts’ coastal land.”). After

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concluding that Massachusetts was entitled to special solicitude in the standing analysis, the
Supreme Court ultimately held that it had Article III standing to sue the EPA based on an injury
to its territory that stemmed from global warming. See id. at 526.
In Texas v. United States, the Fifth Circuit, relying on Massachusetts v. EPA, similarly
concluded that Texas, as a State, was entitled to special solicitude in seeking to enjoin
implementation of the Deferred Action for Parents of Americans and Lawful Permanent
Residents program (DAPA). 809 F.3d at 154. In that case, non-citizens in Texas could apply for
a driver’s license if they presented “documentation issued by the appropriate United States
agency that authorizes the applicant to be in the United States.” See id. at 155 (quoting TEX.
TRANSP. CODE § 521.142(a)). DAPA would have permitted at least 500,000 non-citizens to
qualify for these driver’s licenses. Id. Because Texas subsidized its licenses, it would have lost
money for each license issued to a DAPA beneficiary. Id. Texas therefore sought injunctive
relief to prevent DAPA’s implementation. See id. at 149.
Applying the Massachusetts v. EPA framework, the Fifth Circuit first considered whether
Texas had a procedural right to challenge DAPA. It concluded that Texas’ use of the APA to
challenge an “affirmative decision” made by a federal agency was similar to Massachusetts’ use
of the judicial review provision in the Clean Air Act to challenge the EPA’s inaction. Id. at 152.
Second, as to Texas’ quasi-sovereign interest, the Fifth Circuit held that DAPA imposed
“substantial pressure” on the State to change its laws to avoid bearing further costs from
subsidizing additional driver’s licenses. See id. at 153. The Fifth Circuit thus concluded that
Texas had special solicitude in suing the federal government under the APA for injunctive relief.
Id. at 154-55.

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On writ of certiorari, the Supreme Court summarily affirmed the Fifth Circuit’s decision
without opinion but with a notation that the affirmance was “by an equally divided Court.”
United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam). Notably, one question certified by
the Supreme Court included whether Texas had standing. See United States v. Texas, 136 S. Ct.
906 (2016) (granting petition for writ of certiorari for, among other things, whether Texas had
standing). Affirmances by an equally divided Supreme Court typically do not constitute binding
precedent. See Eaton v. Price, 364 U.S. 263, 264 (1960). However, when the Supreme Court is
equally divided on an issue of subject matter jurisdiction, it has determined that the proper course
is to remand the issue of jurisdiction to a lower court. See Silliman v. Hudson River Bridge Co.,
66 U.S. 582, 584-85 (1861). In other words, if the Supreme Court were equally divided on
whether Texas had standing to enjoin DAPA, it would have remanded that issue to the Fifth
Circuit. The Supreme Court did not and instead affirmed the Fifth Circuit. It therefore follows
logically that a majority of the Supreme Court decided that Texas had standing to pursue its APA
claim.4
There is no daylight between the 2015 Texas suit against the federal government and the
current Commonwealth suit against the federal government. Like Texas, the Commonwealth
challenges agency action in issuing regulations – here, the New IFRs. See Texas, 809 F.3d at
152. It is all the more significant that the Commonwealth, like Texas before it, sues to halt
affirmative conduct made by a federal agency. See id. Whereas Massachusetts v. EPA
concerned regulatory inaction – the EPA’s order denying a rulemaking petition – the
Commonwealth’s case here challenges regulatory action that, it contends, affects its legally
cognizable interests. See 549 U.S. at 514. Thus, it is especially appropriate to accord the
4

Even if the affirmance by an equally divided Supreme Court as it relates to subject matter jurisdiction were not
binding, the Court is persuaded by the reasoning of the Fifth Circuit in Texas v. United States as it pertains to state
standing.

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Commonwealth “special solicitude.” Texas, 809 F.3d at 152-53. Furthermore, like Texas and
Massachusetts, the Commonwealth seeks to protect a quasi-sovereign interest – the health of its
women residents. See Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 600-01 (1982)
(holding that a State has a “quasi-sovereign interest in the health and wellbeing – both physical
and economic – of its residents in general.”). As the Commonwealth observes, contraceptives
offer significant health benefits, including the prevention of unintended pregnancies, and the
treatment of menstrual disorders, acne or hirsutism, and pelvic pain. This quasi-sovereign
interest in safeguarding the health and wellbeing of its women residents is inextricably
intertwined with the Commonwealth’s alleged future fiscal injury that, as will be discussed later,
goes to the heart of its Article III standing. See Texas, 809 F.3d at 153 (concluding that DAPA
affected quasi-sovereign interest by “imposing substantial pressure” on Texas to change its laws
to avoid losing more money from driver license subsidies). According to the Commonwealth
(and as addressed more fully below), the Agencies’ New IFRs will allow more employers to
exempt themselves from the ACA’s Contraceptive Mandate. Consequently, the Commonwealth
contends that Pennsylvanian women will seek state-funded sources of contraceptive care. Such a
course of action will likely cause the Commonwealth to expend more funds to protect its quasisovereign interest in ensuring that women residents receive adequate contraceptive care. The
Commonwealth, then, meets the two conditions outlined in Massachusetts v. EPA and shall be
accorded special solicitude in the standing analysis.
b. Article III Standing
As previously stated, the three pillars of standing are injury in fact, causation, and
redressability. Lujan, 504 U.S. at 560. First, an agency rule that has “a major effect on the
states’ fiscs” is sufficient to find injury in fact. Texas, 809 F.3d at 152; id. at 155 (Texas

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“satisfied the first standing requirement by demonstrating that it would incur significant costs in
issuing driver’s licenses to DAPA beneficiaries.”); see also Wyoming v. Oklahoma, 502 U.S.
437, 448 (1992) (holding that Wyoming had Article III standing because it undisputedly suffered
a “direct injury in the form of a loss of specific tax revenues”); Danvers Motor Co., Inc. v. Ford
Motor Co., 432 F.3d 286, 291 (3d Cir. 2005) (“While it is difficult to reduce injury-in-fact to a
simple formula, economic injury is one of its paradigmatic forms.”).
The New IFRs will likely inflict a direct injury upon the Commonwealth by imposing
substantial financial burdens on State coffers. Specifically, the Commonwealth will have to
increase its expenditures for State and local programs providing contraceptive services. This is
not a speculative harm. As the Defendants themselves noted in issuing one of the New IFRs,
“there are multiple Federal, State, and local programs that provide free or subsidized
contraceptives for low-income women.” 82 Fed. Reg. 47803. As more women residents of the
Commonwealth are deprived of contraceptive services through their insurance plans and turn to
these State and local programs, the Commonwealth will likely make greater expenditures to
ensure adequate contraceptive care. And although Defendants point out that the Commonwealth
has not yet identified a woman resident of Pennsylvania who has lost contraceptive coverage as a
result of the New IFRs, the Commonwealth need not sit idly by and wait for fiscal harm to befall
it. See McNair v. Synapse Group Inc., 672 F.3d 213, 223 (3d Cir. 2012) (“When, as in this case,
prospective relief is sought, the plaintiff must show that he is “likely to suffer future injury” from
the defendant’s conduct.”) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983)). As
the New IFRs themselves estimate, they will cause at least 31,700 women to lose contraceptive
coverage. 82 Fed. Reg. 47821.

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Indeed, the Commonwealth’s affidavits confirm that its women residents will come to
rely more on State-funded sources. The Acting Executive Deputy Secretary for the
Commonwealth’s Department of Human Services concludes that it would not be unreasonable to
expect women who do not receive contraceptive care from their insurers to rely on governmentfunded programs. See Decl. of Leesa Allen ¶ 23 (“Allen Decl.”). The Executive Deputy
Insurance Commissioner for the Commonwealth echoes a similar view, expecting women who
lose contraceptive coverage to seek coverage from State-funded programs (or pay for the
contraceptives themselves). See Decl. of Seth A. Mendelsohn (“Medelsohn Decl.”) ¶ 15. The
CEO of Planned Parenthood Southeastern Pennsylvania also expects that, as a result of the New
IFRs, many low-income women will have to rely on government-funded programs to obtain
contraceptive care. See Decl. of Dayle Steinberg (“Steinberg Decl.”) ¶¶ 24-25. The
Commonwealth has furthermore provided evidence from a doctor who practices in Pennsylvania
acknowledging that she directs uninsured, low-income women to State programs for
contraceptive services. See Tr. 177-78. At bottom, just as Texas’ estimated loss due to DAPA
supported injury in fact, so too does the Commonwealth’s estimated loss due to the New IFRs
support injury in fact. See Texas, 809 F.3d at 155.
Second, the Commonwealth’s financial injury is “fairly traceable” to issuance of the New
IFRs. By their terms, they expand the scope of the existing religious exemption rule as well as
allow employers a new rationale for refusing to provide employees with contraceptive coverage
if the refusal is “based on sincerely held moral convictions.” In short, the New IFRs allow more
employers to stop providing contraceptive coverage. And as the Commonwealth’s various
affidavits show, State officials expect that once employers take advantage of the New IFRs more
women residents will seek contraceptive care through State-funded programs. The

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Commonwealth has thus shown a causal connection between the New IFRs and its financial
injury.
Defendants, however, cite to Pennsylvania v. New Jersey, 426 U.S. 660, 664 (1976), and
argue that the injury is not “fairly traceable” to the New IFRs because the Commonwealth’s
fiscal injury is “self-inflicted.” According to Defendants, the Commonwealth cannot shoot itself
in the foot and then hobble into federal court by premising injury in fact on costs that flow from
elective State programs that offer contraceptive care services to residents.
Pennsylvania v. New Jersey is distinguishable. In that case, Pennsylvania voluntarily
gave tax credits to Pennsylvania residents who paid taxes in New Jersey. Id. at 663.
Pennsylvania proceeded to sue New Jersey, contending that the New Jersey tax injured
Pennsylvania’s fiscs and was constitutionally impermissible. Id. at 662. The Supreme Court
found that Pennsylvania lacked standing because the injuries to its fiscs were “self-inflicted,”
resulting, as they did, from a decision of its state legislature. Id. at 664. Pennsylvania was not
allowed to “complain about damage inflicted by its own hand” when it enacted a law that
incorporated the legislative choices of New Jersey. Id. The harm could have been avoided if
Pennsylvania simply changed the law so that it no longer extended credits for taxes paid to New
Jersey. See id. Here, by contrast, funding for the Commonwealth’s programs does not explicitly
incorporate the legislative choices of the federal government. Rather, the Commonwealth’s
described injuries flow from the unilateral decision by the Agencies to issue the New IFRs,
which will likely cause Pennsylvanian women to seek contraceptive care from other sources,
particularly state-funded sources. Consequently, the injunction that the Commonwealth seeks –
to enjoin that unilateral federal agency decision – is untethered to any state law that the
Commonwealth itself has enacted. See Texas, 809 F.3d at 158 (“The fact that Texas sued in

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response to a significant change in the defendants’ policies shows that its injury is not selfinflicted.”).
Third, the Commonwealth has satisfied the redressability requirement. Because the
Commonwealth is asserting a procedural right under the APA to protect its interests, it “can
assert that right without meeting all the normal standards for redressability and immediacy.” See
Massachusetts, 549 U.S. at 517-18. If, as here, the litigant is “vested with a procedural right, that
litigant has standing if there is some possibility that the requested relief will prompt the injurycausing party to reconsider the decision that allegedly harmed the litigant.” Id. at 518.
Enjoining the Agencies’ New IFRs based on APA claims should prompt them to reconsider the
propriety of the Religious and Moral Exemptions Rules, “which is all a plaintiff must show when
asserting a procedural right.” Texas, 809 F.3d at 161. In sum, the Commonwealth has shown
that it has standing to pursue injunctive relief through its APA claims based on an injury to its
fiscs.5
III.

Legal Standard
As the Commonwealth has standing to pursue a preliminary injunction, the next step is to

determine whether one is appropriate. A preliminary injunction is an extraordinary remedy; it
“should be granted only in limited circumstances.” American Tel. & Tel. Co. v. Winback &
Conserve Program, Inc., 42 F.3d 1421, 1426-27 (3d Cir. 1994). “A plaintiff seeking a
preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to
suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 20 (2008). The “failure to establish any element . . . renders a preliminary injunction

5

Because the Commonwealth has identified an imminent, direct injury to its state coffers that result from the New
IFRs, the Court does not need to address whether it has sovereign or parens patriae standing.

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inappropriate.” NutraSweet Co. v. Vit–Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir. 1999). The
movant bears the burden of showing that these four factors weigh in favor of granting the
injunction. See Opticians Ass’n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 192 (3d Cir.
1990).
While the movant must show that each of these factors weighs in favor of granting an
injunction, an injunction might be appropriate where a movant makes a particularly strong case
on some factors, but not others. Thus, “courts must balance the competing claims of injury and
must consider the effect on each party of the granting or withholding of the requested relief.”
Reilly v. City of Harrisburg, 858 F.3d 173, 177-78 (3d Cir. 2017), as amended (June 26, 2017)
(quoting Winter, 555 U.S. at 24). “[I]n a situation where factors of irreparable harm, interests of
third parties and public considerations strongly favor the moving party, an injunction might be
appropriate even though plaintiffs did not demonstrate as strong a likelihood of ultimate success
as would be generally required.” Constructors Ass’n of W. Pa. v. Kreps, 573 F.2d 811, 815 (3d
Cir. 1978). In addition, the court must weigh “[a]ll of [the four preliminary injunction] factors

. . . together in the final decision and the strength of the plaintiff’s showing with respect to one
may affect what will suffice with respect to another.” Marxe v. Jackson, 833 F.2d 1121, 1128
(3d Cir. 1987). The Third Circuit recently clarified in Reilly that a “movant for preliminary
equitable relief must meet the threshold for the first two ‘most critical’ factors [– likelihood of
success and irreparable harm]. If these gateway factors are met, a court then considers the
remaining two factors and determines in its sound discretion if all four factors, taken together,
balance in favor of granting the requested preliminary relief.” Reilly, 858 F.3d at 179. “How
strong a claim on the merits is enough depends on the balance of the harms: the more net harm

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an injunction can prevent, the weaker the plaintiff’s claim on the merits can be while still
supporting some preliminary relief.” Id.
a. Likelihood of Success on the Merits
In demonstrating the likelihood of success on the merits, a plaintiff need not show that it
is more likely than not that he will succeed. Singer Mgmt. Consultants, Inc. v. Milgram, 650
F.3d 223, 229 (3d Cir. 2011) (en banc). Instead, a plaintiff must “show[] a reasonable
probability of success on the merits.” American Express Travel Related Svcs., Inc. v. Sidamon–
Eristoff, 669 F.3d 359, 366 (3d Cir. 2012). This requires a showing “significantly better than
negligible, but not necessarily more likely than not.” Reilly, 858 F.3d at 179.
Because “courts should be extremely careful not to issue unnecessary constitutional
rulings,” American Foreign Serv. Ass’n v. Garfinkel, 490 U.S. 153, 161 (1989) (per curiam), the
Court addresses the statutory claims at issue – that Defendants violated the notice-and-comment
procedures of the APA and that the New IFRs are “arbitrary, capricious, or not in accordance
with law” – and finds it unnecessary, at this juncture, to proceed to the constitutional issues.
i. Administrative Procedure Act
1. Procedural Safeguards
The APA provides any interested party the right to participate in the rulemaking process
by submitting data, views or arguments. See 5 U.S.C. § 553. “The APA provisions reflect a
judgment by Congress that the public interest is served by a careful and open review of proposed
administrative rules and regulations.” Phila. Citizens in Action v. Schweiker, 669 F.2d 877, 881
(3d Cir. 1982). “Section 553 was enacted to give the public an opportunity to participate in the
rule-making process. It also enables the agency promulgating the rule to educate itself before

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establishing rules and procedures which have a substantial impact on those regulated.” Texaco,
Inc. v. Fed. Power Comm’n, 412 F.2d 740, 744 (3d Cir. 1969).
Accordingly, prior to promulgating regulations, administrative agencies must follow a
procedure called “notice and comment rulemaking.” See 5 U.S.C. § 553. First, an agency must
issue a general notice of proposed rulemaking. See 5 U.S.C. §§ 552(b), 553(b). Then the agency
must “give interested persons an opportunity to participate in the rule making through
submission of written data, views or arguments. . . .” Id. § 553(c). Last, “[a]fter consideration of
the relevant matter presented, the agency shall incorporate in the rules adopted a concise general
statement of their basis and purpose.” Id. Defendants bypassed each of these procedures when
issuing the New IFRs.
The APA requires a court to set aside agency action “found to be . . . without observance
of procedure required by law.” 5 U.S.C. § 706(2)(D). Thus, if Defendants did not comply with
notice and comment provisions, the Court must preliminarily enjoin Defendants from enforcing
the New IFRs unless there is a statutorily countenanced reason for their non-compliance. See
Minard Run Oil Co. v. U.S. Forest Serv., 2009 WL 4937785, at *34 (W.D. Pa. 2009), aff’d, 670
F.3d 236 (3d Cir. 2011).
Although “[e]xemption from the terms of the Administrative Procedure Act are not
lightly to be presumed. . . ,” Marcello v. Bonds, 349 U.S. 302, 310 (1955), there are limited
exceptions to the requirement that all rules must be issued pursuant to notice-and-comment
rulemaking. Defendants contend that two of those exceptions apply here. First, they argue that
Congress expressly and impliedly authorized the Secretaries of HHS, Labor, and the Treasury to
bypass notice and comment rulemaking with respect to the New IFRs. 5 U.S.C. § 559. Second,
they argue that there is no need for notice-and-comment rulemaking because they have found

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“good cause” that the notice and comment procedure is, in this instance, “impracticable,
unnecessary, or contrary to the public interest.” Id. § 553(b)(B).
i. Statutory Authorization to Bypass Notice and Comment
At the outset, it should be noted that the ACA contains no provision expressly
authorizing the Defendant Agencies or their respective Secretaries to bypass the APA’s notice
and comment requirements, and indeed, Defendants cite none. Rather, in justifying their
sidestep of the strictures of the notice and comment procedure, they find express and implied
authorizations for their actions through various statutes besides the ACA. Defendants’ argument,
matryoshkanesque in its construction, proceeds as follows: In 1996, Congress passed the Health
Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. No. 104-191 (1996),
which regulates group health plans and some individual health insurance policies. HIPAA
amended certain provisions of the United States Code to provide that “[t]he [respective]
Secretary may promulgate any interim final rules as the Secretary determines are appropriate to
carry out this [chapter.]” See 29 U.S.C. § 1191c; 26 U.S.C. § 9833; 42 U.S.C. § 300gg-92.6 In
2010, Congress passed the ACA, which also amended those same sections of the United States
Code to require health plans to cover certain preventive women’s services. HHS interpreted the
preventive service requirement to include contraceptive services. The requirement to provide
contraceptive services was thus codified in the chapters of the United States Code as modified by
HIPAA in 1996. Thus, according to Defendants, HIPAA’s amendments, which permit issuance
of IFRs “appropriate to carry out this [chapter],” also encompass authorization to issue IFRs to
carry out the ACA.

6

Specifically, HIPAA amended various portions of ERISA, which is administered by the Secretary of Labor, the
Internal Revenue Code, which is administered by the Secretary of Treasury, and the Public Health Services Act,
which is administered by the Secretary of Health and Human Services.

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The argument is creative, but not supported by law. As to express authorization, in order
to authorize an agency to bypass notice and comment, a subsequent statute must be clear that it
abrogates the APA. See 5 U.S.C. § 559; Coalition for Parity, Inc. v. Sebelius, 709 F. Supp. 2d
10, 18 (D.D.C. 2010). And as Coalition for Parity held, the provision of HIPAA that Defendants
here rely on says nothing about overruling the APA, let alone notice and comment procedures.
Id. HIPAA, then, does not provide express authorization to bypass the notice and comment
requirements of the APA in this case. See id.
As to implied authorization, the relevant standard to determine if Congress sub silentio
allowed an agency to avoid notice and comment is “whether Congress has established
procedures so clearly different from those required by the APA that it must have intended to
displace the norm.” Asiana Airlines v. FAA, 134 F.3d 393, 397 (D.C. Cir. 1998). Defendants
rely on two cases, Asiana Airlines and Methodist Hospital of Sacramento v. Shalala, 38 F.3d
1225, 1237 (D.C. Cir. 1994), for the proposition that Congress has impliedly authorized the
Agencies here to bypass notice and comment and issue IFRs.
In both Asiana Airlines and Methodist Hospital, the D.C. Circuit held that certain IFRs
could be issued without complying with notice and comment, but both cases are inapposite. The
statutory language from those cases, involving respectively the Federal Aviation Reauthorization
Act and the Social Security Amendments of 1983, expressly abrogated APA notice and comment
procedures because Congress, through its use of the mandatory word “shall” in both pieces of
legislation, commanded the agencies to issue interim final rules. See Asiana Airlines, 134 F.3d
at 395 (“the Administrator shall publish . . . interim final rule[s]”) (citing 49 U.S.C. §
45301(b)(2)) (emphasis added); Methodist Hosp., 38 F.3d at 1236 n.18 (“[t]he Secretary shall
cause to be published . . . a notice of the interim final DRG prospective payment rates . . .

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without the necessity for consideration of comments. . . .”) (citing 97 Stat. 168-69) (emphasis
added). By contrast, the HIPAA provision here states that a “Secretary may promulgate any
interim final rules as the Secretary determines are appropriate. . . .” See 29 U.S.C. § 1191c; 26
U.S.C. § 9833; 42 U.S.C. § 300gg-92 (emphasis added). The use of the term “may” is
permissive rather than mandatory. See Barlow v. Collins, 397 U.S. 159, 165-66 (1970) (statute
authorizing Secretary of Agriculture to promulgate regulations “as he may deem proper” does
not preclude judicial review).7 There is, accordingly, no support in HIPAA for the Agencies’
avoidance of the notice and comment procedure.
ii. Good Cause Exception to Bypass Notice and Comment
The second exception to notice-and-comment rulemaking permits agencies to utilize IFRs
“for good cause.” See 5 U.S.C. § 553. More specifically, the APA provides that notice and
comment may be waived “when the agency for good cause finds (and incorporates the finding
and a brief statement of reasons therefor in the rules issued) that notice and public procedure
thereon are impracticable, unnecessary, or contrary to the public interest.” Id. The
“circumstances justifying reliance on the good cause exception are ‘indeed rare’ and will be
accepted only after the court has examined closely proffered rationales justifying the elimination
of public procedures.” Natural Res. Def. Council, Inc. v. EPA, 683 F.2d 752, 764 (3d Cir. 1982).
The Third Circuit has cautioned that the good cause exception should be “narrowly construed.”
United States v. Reynolds, 710 F.3d 498, 507 (3d Cir. 2013) (citations omitted).
Since the APA requires agencies availing themselves of the good cause exception to state
their “finding[s] and a brief statement of reasons” for good cause “in the rules issued,” the Court

7

Asiana Airlines and Methodist Hospital are further distinguishable still. In both cases, Congress imposed an
expeditious timetable on the agencies in issuing the IFRs which justified bypassing notice and comment. See
Methodist Hosp., 38 F.3d at 1237; Asiana Airlines, 124 F.3d at 398. By contrast, the supposed statutory
authorization in HIPAA provides no timetable for the Agencies to issue IFRs.

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will examine the proffered “good cause” reasons as stated in the New IFRs. See 82 Fed. Reg. at
47813-15; 82 Fed. Reg. at 47855-59. First, the Agencies found that excessive delay caused by
notice and comment rulemaking would be contrary to public interest. Id. Second, the Agencies
determined that the New IFRs were important to resolve ongoing litigation and ease the burdens
imposed by them in order to prevent “continued uncertainty, inconsistency, and cost.” Id. Third,
the Agencies determined that they had already received significant comments in past rounds of
rulemaking as well as from the 2016 RFI, and therefore there was no need to repeat the noticeand-comment process again. Id. These arguments are considered seriatim.
As to their “excessive delay” justification, the Agencies contend that, because the
Accommodation Process (in their view) violated RFRA, it was a matter of urgency to issue the
New IFRs without going through the APA’s time-consuming notice and comment process.8 See
id. However, urgency is not sufficient in the absence of a deadline imposed by Congress, the
executive, or courts. See Reynolds, 710 F.3d at 511 (“Our prior decisions have recognized
urgency alone as sufficient only when a deadline imposed by Congress, the executive, or the
judiciary requires agency action in a timespan that is too short to provide a notice and comment
period.”). None of the three branches of government have imposed any urgent deadline that
could support circumventing notice and comment rulemaking. First, Congress has not spoken on
this issue. Second, far from compelling any immediate action, President Trump’s Executive

8

The Agencies also justify their use of IFRs rather than regulations promulgated through APA’s proscribed
procedures by reference to their use of IFRs in three earlier updates to regulations concerning the Women’s Health
Amendment. This fact does not, of course, warrant a conclusion that the New IFRs were appropriately issued – the
facts of one case do not necessarily transfer wholesale to another. Defendants argue that as the D.C. Circuit upheld
the Defendants’ use of IFRs in Priests for Life v. U.S. Dep’t of Health and Human Servs., 772 F.3d 229, 276 (D.C.
Cir. 2014), vacated on other grounds, Zubik v. Burwell, 136 S. Ct. 1557 (2016), this Court should do so here. In that
case, however, the D.C. Circuit reasoned that good cause existed to bypass notice and comment because “the
regulations the interim final rule modifies were recently enacted pursuant to notice and comment rulemaking, []
present virtually identical issues, . . . the modifications made in the interim final rule are minor,” and the Supreme
Court “obligat[ed] [HHS] to take action.” Id. By contrast, the issues presented in the New IFRs are not identical to
prior regulations, they make significant changes in the law, and the Supreme Court did not require immediate action.

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Order 13798 merely asks the Secretaries to “consider issuing amended regulations, consistent
with applicable law, to address conscience-based objections to the preventive care mandate.”
Executive Order 13798 § 3. Last, the Supreme Court has not imposed any deadline or called for
urgent action either. In fact, the Supreme Court remanded the latest challenge to the
Accommodation Process to give the parties “an opportunity to arrive at an approach going
forward.” Zubik, 136 S. Ct. at 1560. Though Defendants cite many cases in which courts have
pressured them to resolve uncertainty regarding the Contraceptive Mandate, none of those courts
have imposed any actual deadlines for issuing regulations.
“The desire to eliminate uncertainty, by itself, cannot constitute good cause.” Reynolds,
710 F.3d at 510. Even if it could, the Agencies’ stated need to resolve uncertainty is undercut by
the request, contained in the New IFRs, for post-issuance comments regarding “whether these
regulations expanding the exemption should be made permanent or subject to modification.” See
82 Fed. Reg. at 47814-15; 82 Fed. Reg. at 47855-56. The request for comments particularly as
to whether the New IFRs should be modified “implicitly suggests that the rule[s] will be
reconsidered [and] means the level of uncertainty is, at best, unchanged. . . .” Reynolds, 710
F.3d at 511.
The Agencies stated in the New IFRs that the clarity offered by the expanded exemptions
will decrease insurance costs; they hypothesize that groups with grandfathered health plans will
wish to make changes to other components of their health plans in order to reduce costs, while
still avoiding coverage for contraceptive services. See 82 Fed. Reg. 47815, 47856. Under the
ACA, as long as grandfathered plans do not make any changes to their health coverage, they
need not cover women’s preventive services. However, the New IFRs do not cite a single
comment from an employer with a grandfathered plan which suggests that they will make

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changes to health plans in light of the new agency interpretation.9 This is merely speculation,
unsupported by the record.
Last, the Agencies asserted in the New IFRs that notice and comment was unnecessary
because the Agencies considered past comments and requested post-issuance comments. The
Agencies received multiple rounds of comments on the first set of interim final regulations in
2010, on the interim final regulations in 2011, on the proposed changes to the religious employer
exemption in 2012 and 2013, on the modifications to the Accommodation Process in 2015, and
on the RFI issued in July 2016. And the Agencies received over 54,000 public comments in
response to the July 2016 RFI which sought ways to expand the Accommodation Process.
Defendants cite no case, and research has not disclosed any, finding that notice and
comment is unnecessary where an agency has received ample commentary on its prior
interpretations of the same law. In fact, the significance of this issue and the outpouring of
public comments reflect the opposite: the overwhelming public interest demonstrates that notice
and comment is critical. “The unnecessary prong of the exception . . . ‘is confined to those
situations in which the administrative rule is a routine determination, insignificant in nature and
impact, and inconsequential to the industry and to the public.’” Utility Solid Waste Activities
Grp. v. EPA, 236 F.3d 749, 755 (D.C. Cir. 2001) (quoting South Carolina v. Block, 558 F. Supp.
1004, 1016 (D.S.C. 1983)). The significance of this litigation and the stakes involved, including
9

Indeed, a search of “grandfather” in the hundreds of thousands of pages of the Administrative Record filed with the
Court does not reveal a single comment from a policy holder with a grandfathered health plan who sought to change
their health coverage without risking their grandfathered status. During Oral Argument, the Court asked Defendants
to find comments in the Administrative Record demonstrating that group health plans with grandfathered status
sought to change their health plans without forgoing their grandfathered status. Defendants admitted that they “have
identified no particular comments.” Tr. 206. Instead, Defendants looked outside of the Administrative Record and
cited just two cases from 2012 in which the litigating parties wanted to retain their grandfathered health plans
without covering contraceptive services. See Roman Catholic Archdiocese of Atlanta v. Sebelius, No. 1:12-CV03489-WSD (N.D. Ga. 2014); Diocese of Fort Wayne-S. Bend, Inc. v. Sebelius, 988 F. Supp. 2d 958 (N.D. Ind.
2013). However, neither case shows that those entities sought to change their coverage in order to maintain their
grandfathered status in 2017.

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hundreds of lawsuits, and several appeals to the Supreme Court, belies the Agencies’ purported
reliance on the “unnecessary,” good cause exception for notice and comment.
The Agencies also assert that their provision for a post-issuance commentary period does
away with the need for pre-issuance notice and comment. They solicited comments for 60 days
following the issuance of the New IFRs. See 82 Fed. Reg. at 47792. None of the cases that
Defendants cite support that position. Instead, each of them stand for the proposition that an
agency may seek post-issuance commentary only if and only after having shown that it had good
cause to avoid notice and comment rulemaking, a situation that is not present here.10
There are several reasons why post-issuance comments do not comply with the notice
and comment provisions of the APA. First, there is nothing in the APA that provides for postissuance commentary. Second, participants are less likely to influence agency action in later
stages of the agency decision-making process. This is especially the case where an agency has
already issued interim rules which suggest that it has decided what federal policy should be.
Post-issuance commentary does not ameliorate the need for notice and comment because by the
time agencies issue interim rules, they are less likely to heed public input. See United States v.
Johnson, 632 F.3d 912, 929 (5th Cir. 2011) (“[P]arties will have a greater opportunity for
influencing agency decision making if they participate at an early stage.”). Last, permitting postissuance commentary carte blanche would write the notice and comment requirements out of the
APA. See id.; United States v. Gould, 568 F.3d 459, 479 (4th Cir. 2009) (“[R]equesting postpromulgation comments makes a sham of the APA’s rulemaking procedures.”); Paulsen v.
10

In Petry v. Block, 737 F.2d 1193 (D.C. Cir. 1984), the D.C. Circuit held that the Department of Agriculture had
good cause to avoid notice and comment rulemaking before it held that remand to the agency for further proceedings
was unnecessary in light of a post-promulgation comment period. In Republic Steel Corp v. Costle, 621 F.2d 797
(6th Cir. 1980), another case cited by Defendants, the court countenanced post-promulgation comments after finding
good cause for avoiding notice-and-comment. Prior to Petry, the D.C. Circuit has held that “[p]ermitting
submission of views after the effective date is no substitute for the right of interested persons to make their views
known to the agency.” State of N.J., Dep’t of Envtl. Prot. v. U.S. Envtl. Prot. Agency, 626 F.2d 1038, 1049 (D.C.
Cir. 1980). Petry did not alter this rule.

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Daniels, 413 F.3d 999, 1005 (9th Cir. 2005) (“[I]t is antithetical to the structure and purpose of
the APA for an agency to implement a rule first, and then seek comment later.”).
Grasping at straws, Defendants argue that even if a single justification “standing alone”
does not constitute good cause, the “combined effect” of several factors justified the Agencies’
reliance on the good cause exception. An underlying assumption of this argument is that “[e]ach
of the factors” provides at least some support for a finding that the Agencies had good cause to
dispense with notice and comment. They do not. The three proffered factors to dispense with
notice and comment offer no support. There was no deadline, much less an urgent one, to
implement new rules. The New IFRs did not resolve any uncertainty and, as this case
demonstrates, have not prevented ongoing litigation. And the blizzard of prior comments that
the Agencies have received in past rounds of notice and comment rulemaking actually
demonstrates that further comments are necessary given the public interest in this matter.
Certainly, an inquiry into whether an agency has “properly invoked ‘good cause’
proceeds case-by-case, sensitive to the totality of the factors at play.” Alcaraz v. Block, 746 F.2d
593, 612 (9th Cir. 1984). And a court may consider the “combined effect” of multiple factors,
which standing alone might not suffice to demonstrate “good cause.” See Nat’l Women, Infants,
& Children Grocers Ass’n v. Food & Nutrition Serv., 416 F. Supp. 2d 92, 107 (D.D.C. 2006).
But Defendants’ arguments – even when viewed in their totality – provide no support for their
proposition.11

11

Defendants’ failure to follow the APA’s notice and comment procedures was also not “harmless.” “[T]he ‘utter
failure’ to comply with notice and comment cannot be considered harmless if there is any uncertainty at all as to the
effect of that failure.” Reynolds, 710 F.3d at 516. Rather, failure to abide by notice and comment rulemaking will
only be found harmless in instances such as “when the administrative record demonstrates that the conclusion
reached in the administrative rule was the only possible conclusion.” Id. at 518. This is not the case here. In
addition, the Defendant Agencies have never sought comments on whether publicly traded companies should be
allowed to opt out of the Contraceptive Mandate for sincerely held religious reasons, whether a “moral exemption”
should apply to the Mandate for all closely held corporations, or whether to exempt entities from additional notice
requirements before opting out of providing contraceptive coverage for their employees.

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For the above reasons, it is likely that the Commonwealth will succeed on its claim that
the Defendants did not follow proper procedures in issuing the New IFRs.
2. Substantive Provision
Under the APA, an administrative rule has no legal effect if it is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Pursuant
to this standard, it is likely that the Commonwealth will also succeed on its substantive challenge
against the New IFRs because they contradict the text of the statute that they purport to interpret.
While an agency’s interpretation of a statute is generally accorded great deference, an
interpretation that conflicts with the statute’s plain language is not. See Chevron U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). Chevron and its progeny dictate the
appropriate framework for analyzing whether an agency’s interpretation of a statute is
permissible. First, a court must determine whether Chevron applies. Chevron deference is only
appropriate in situations where Congress delegated rulemaking authority to a particular agency.
See Swallows Holding, Ltd. v. C.I.R., 515 F.3d 162, 168 (3d Cir. 2008). Next, “if the statutory
language is clear and unambiguous, our inquiry ends and the plain meaning of the statute
governs the action.” Id. at 170. While review of an agency’s interpretation under the “arbitrary
and capricious” standard is decidedly narrow, an agency may not exercise its authority in a
manner “inconsistent with the administrative structure that Congress enacted into law.” Food &
Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 126 (2000). Last, “[i]f the
statute is ambiguous on the point, we defer at step two to the agency’s interpretation so long as
the construction is ‘a reasonable policy choice for the agency to make.’” National Cable &
Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967, 986 (2005) (quoting
Chevron, 467 U.S. at 845).

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i. Scope of HHS’ Statutory Authority
The takeaway is that Chevron deference does not extend to all agency action. In United
States v. Mead, the Supreme Court explained that Chevron deference is only appropriate in
situations where “Congress would expect the agency to be able to speak with the force of law.”
553 U.S. 218, 229 (2001). Here, Congress delegated authority to the HRSA, a division of HHS,
to interpret the scope of “preventive care” as defined by the ACA. The problem is that HHS, the
Department of Labor, and the Department of Treasury have, through the New IFRs, interpreted
the statute in a manner inconsistent with its text.
It bears mentioning, at this time, the remarkable breadth of the New IFRs. They are the
proverbial exception that swallows the rule. The New IFRs permit various entities, on the basis
of sincerely held religious beliefs or moral convictions, to opt out of providing contraceptive
coverage – coverage that, under the text of the ACA as interpreted by the HRSA in August 2011,
is supposedly mandatory. The Religious Exemption Rule allows all non-profit and for-profit
entities, whether closely held or publicly traded, to deny contraceptive coverage based on
sincerely held religious beliefs. The Moral Exemption Rule allows any non-profit or for-profit
organization that is not publicly traded to deny contraceptive coverage for its employees for any
sincerely held moral conviction. This means that boards of closely held corporations can vote, or
their executives can decide, to deny contraceptive coverage for the corporation’s women
employees not just for religious reasons but also for any inchoate – albeit sincerely held – moral
reason they can articulate. Who determines whether the expressed moral reason is sincere or not
or, for that matter, whether it falls within the bounds of morality or is merely a preference choice,
is not found within the terms of the Moral Exemption Rule. If one assumes that it is the Agency
Defendants – or, indeed, any agency – then the Rule has conjured up a world where a

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government entity is empowered to impose its own version of morality on each one of us. That
cannot be right. It “run[s] afoul of this country’s vast history of legislative protections that single
out and safeguard religious freedom but not moral philosophy.” Real Alternatives, Inc. v. Sec’y
Dep’t of Health & Human Servs., 867 F.3d 338, 350 (3d Cir. 2017) (emphasis added).
A simple hypothetical illustrates the insidious effect of the Moral Exemption Rule. It
would allow an employer with a sincerely held moral conviction that women do not have a place
in the workplace to simply stop providing contraceptive coverage. And, it may do so in an effort
to impose its normative construct regarding a woman’s place in the world on its workforce,
confident that it would find solid support for that decision in the Moral Exemption Rule. It is
difficult to comprehend a rule that does more to undermine the Contraceptive Mandate or that
intrudes more into the lives of women.
ii. The Text of the ACA
Before analyzing whether the Agencies had authority to create the Moral and Religious
Exemption Rules, a brief aside to RFRA is necessary. RFRA provides that government action
cannot “substantially burden” the exercise of religion. It states that laws passed after 1993 are
subject to RFRA “unless such law explicitly excludes such application. . . .” 42 U.S.C. § 2000bb3(b). The ACA was passed after 1993 and is thus subject to RFRA.12 In Hobby Lobby, the
Supreme Court held that the ACA does not explicitly exclude application of RFRA. See Hobby
Lobby, 134 S. Ct. at 2775 n.30. It follows that any exception to the ACA required by RFRA is
permissible. Bearing that in mind – and putting the issue of RFRA’s application to the New

12

Congress enacted RFRA in 1993 in response to Employment Div., Dep’t of Human Resources of Ore. v. Smith,
494 U.S. 872 (1990), which held that “the Constitution does not require judges to engage in a case-by-case
assessment of the religious burdens imposed by facially constitutional laws.” Gonzales v. O Centro Espirita
Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2000).

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IFRs on ice for now – the Court turns whether there is any language in the text of the ACA itself
that would authorize the Agencies to issue the New IFRs – and concludes that there is not.
Congress created only a single exemption from the ACA’s statutory mandate to cover
women’s preventive care and that is for “grandfathered health plans.” 42 U.S.C. § 18011(e).
“When Congress provides exceptions in a statute . . . [t]he proper inference . . . is that Congress
considered the issue of exceptions and, in the end, limited the statute to the ones set forth.”
United States v. Johnson, 529 U.S. 53, 58 (2000). Given that there is no religious or moral
exemption in the explicit text of the statute and there is one for grandfathered health plans, it
cannot be assumed that Congress authorized the Agencies to create any additional exemptions.
The fact that the statute does not contain language specifically precluding the Agency
Defendantsfrom developing exemptions does not change this result. Even absent the maxim that
the inclusion of an exemption in a statute must be interpreted to mean that Congress intended no
additional exemptions, “[n]ot every silence is pregnant.” Burns v. United States, 501 U.S. 129,
136 (1991). Here, the mandatory language “shall” – found in the ACA’s requirement that
covered health plans “shall cover . . . with respect to women, such additional preventive care” as
provided for in the HRSA guidelines – indicates quite the opposite: no exemptions created by
HHS are permissible (unless they are required by RFRA). “An inference drawn from
congressional silence certainly cannot be credited when it is contrary to all other textual and
contextual evidence of congressional intent.” Id. That conclusion carries particular weight here,
because, in 2012, Congress explicitly rejected an attempt to add to the ACA an exemption
similar to the Moral and Religious Rules. See S. Amdt. 1520, 112th Cong. (2011-2012); see also
Brown & Williamson, 529 U.S. at 147 (rejection of an agency’s interpretation by Congress is a
factor courts consider when determining the meaning of a statute).

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Nevertheless, Defendants argue that the textual structure of the ACA permits HHS to
proscribe the “manner or reach of the coverage.” They compare two subsections of the ACA,
both of which provide for no-cost preventive care and screenings. The first concerns children,
the second, women. Defendants then focus on the language in each subsection which authorizes
the agency to issue guidelines regarding that subsection.13 The subsection concerning children
refers to “preventive care and screenings provided for in the comprehensive guidelines” from the
HRSA. 42 U.S.C. § 300gg-13(a)(3). In contrast, the subsection concerning women refers to
“such additional preventive care and screenings . . . as provided for in the comprehensive
guidelines” from the HRSA. 42 U.S.C. § 300gg-13(a)(4) (emphasis added). Defendants note
that the word “as” precedes the words “provided for in the comprehensive guidelines” in the
women’s subsection, but not the children’s subsection. Proceeding from the statutory maxim
that statutes should be interpreted, if possible, to give each word operative effect, see Walters v.
Metropolitan Educ. Enter., Inc., 519 U.S. 202, 209 (1997), Defendants conclude that the
inclusion of the word “as” in the women’s subsection means that HRSA may determine not only
the services covered by the ACA, but also the manner or reach of that coverage.
This extrapolation from the statutory inclusion of the word “as” must, pursuant to another
principle of statutory interpretation, be analyzed by looking to the dictionary definition of the

13

The full text of the two subsections are as follows:

A group health plan and a health insurance issuer offering group or individual health insurance coverage
shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for – [the
following services] . . .
(3) with respect to infants, children, and adolescents, evidence-informed preventive care and
screenings provided for in the comprehensive guidelines supported by the Health Resources and
Services Administration;
(4) with respect to women, such additional preventive care and screenings not described in
paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and
Services Administration for purposes of this paragraph.
42 U.S.C. § 300gg-13(a)(3)–(4) (emphasis added).

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word. See Bonkowski v. Oberg Indus., Inc., 787 F.3d 190, 200 (3d Cir. 2015). The term “as” in
this context is “[u]sed to indicate that something happens during the time when something else is
taking place.” As, Oxford English Dictionary Online, June 2017. At the time Congress passed
the ACA, the HRSA had already promulgated guidelines interpreting children’s preventive care.
The HRSA had not promulgated such guidelines for women’s preventive care. Thus, the ACA
requires coverage “provided for” in HRSA guidelines for children’s care and “as provided for” in
HRSA guidelines for women’s care. Giving effect to the use of the word “as” leads to the
conclusion that the “as” is used in anticipation of HRSA issuing such guidelines and not to the
conclusion that the ACA implicitly provides the Agencies with the authority to create nonstatutory exemptions.
In sum, the ACA contains no statutory language allowing the Agencies to create such
sweeping exemptions to the requirements to cover “preventive services,” which, as interpreted
by those same agencies, include mandatory no-cost coverage of contraceptive services. Nor does
any rule of statutory construction warrant these exemptions.
iii. Religious Freedom and Restoration Act
The Agency Defendants also argue that they were compelled by RFRA to create the
Religious Exemption Rule. It should be noted at the outset that they specifically do not
propound this argument with respect to the Moral Exemption Rule. Thus, since the text of the
statute is clear that non-statutory exemptions are not permitted, and Defendants admit that RFRA
provides no support for it, the Moral Exemption Rule is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law” under the APA. 5 U.S.C. § 706(2)(A). As
set forth below, upon consideration of Defendants’ argument regarding RFRA, the Court reaches
the same conclusion with respect to the Religious Exemption Rule.
a. RFRA Does Not Support the Agencies’ Interpretation
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Turning now – finally – to the RFRA issue. One of the reasons the Agencies gave for
issuing the New IFRs is that the Accommodation Process imposes a substantial burden on the
exercise of religion. The Accommodation Process, as discussed earlier, allows religious
objectors to notify their healthcare administrator of their religious objection, and the
administrator would then have to provide the legally required contraceptive services directly to
women covered under the employer’s plan. The Agencies’ stated belief that the Accommodation
Process now imposes a substantial burden on the exercise of religion led them to create the
broader exemptions set forth in the New IFRs. See 82 Fed. Reg. 47800. But their view that the
Accommodation Process imposes a substantial burden on the exercise of religion has been
specifically rejected by the Third Circuit, which found exactly to the contrary in Geneva Coll. v.
Sec’y U.S. Dep’t of Health & Human Servs., 778 F.3d 422, 442 (3d Cir. 2015), vacated and
remanded on other grounds sub nom. Zubik v. Burwell, 136 S. Ct. 1557 (2016).14 There, the
Third Circuit decisively and clearly held that the Accommodation Process does not impose a
“substantial burden” under RFRA. And, in Real Alternatives, it reaffirmed that the
Accommodation Process does not impose a substantial burden on religious exercise. See 867
F.3d at 356 n.18 (“[W]e continue to believe . . . that the regulation at issue . . . did not impose a
substantial burden.”). Therefore, the Agency Defendants’ interpretation of RFRA – that issuance
of the Religious Exemption Rule is proper because the “substantial burden” that the
Accommodation Process places on a person’s exercise of religion – is erroneous as a matter of

14

While Zubik subsequently vacated Geneva College, it did so on other grounds. The Supreme Court expressly
stated that “the Court does not decide whether petitioners’ religious exercise has been substantially burdened. . . .”
Zubik, 136 S. Ct. at 1561.

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law. See Williams v. Meltzler, 132 F.3d 937, 946 (3d Cir. 1997) (on questions of law,
administrative judgment is subject to plenary judicial review).15
Defendants make much of having issued exemptions under prior regulations. For
example, the Original Religious Exemption allowed churches and their integrated auxiliaries to
opt out of the Contraceptive Mandate. However, the Supreme Court has held that exemptions
like the one for churches and their integrated auxiliaries are required under RFRA and the First
Amendment’s free exercise protections. See Hobby Lobby, 134 S. Ct. at 2794 & n.14 (citing
cases requiring exemptions for certain religious organizations). In Real Alternatives, the Third
Circuit confirmed that the Original Religious Exemption was plainly required by federal and
constitutional law in holding that exemptions and accommodations “may be extended to houses
of worship and religious denominations without applying to all nonprofit entities in order to
‘alleviate significant governmental interference with the ability of religious organizations to
define and carry out their religious missions.’” 867 F.3d at 352 (quoting Corp. of Presiding
Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987). In contrast,
the New IFRs are not required under RFRA because the Third Circuit – twice now – has
foreclosed the Agencies’ legal conclusion that the Accommodation Process imposes a substantial
burden.

15

Although the Agencies asserted in the New IFRs that “[t]he Departments believe that agencies charged with
administering a statute or associated regulations or guidance that imposes a substantial burden on the exercise of
religion under RFRA have discretion in determining how to avoid the imposition of such burden,” 82 Fed. Reg.
47800, Defendants now suggest otherwise. Defendants concede that the Agencies’ interpretations of RFRA are not
entitled to deference under RFRA. See Tr. 45 (“We are not arguing that the Agencies are entitled to Chevron
deference writ large.”). In any event, the Agencies’ opinion is foreclosed by Snoqualmie Indian Tribe v. F.E.R.C.,
545 F.3d 1207 (9th Cir. 2008), in which the Ninth Circuit held that an agency’s interpretation of RFRA is not
accorded deference. They do argue that deference is appropriate for the Agencies’ opinion that the Contraceptive
Mandate does not serve a compelling interest as applied to religious objectors. However, this is beside the point
because this question only becomes relevant if a court finds, first, that a government action imposes a substantial
burden on the exercise of religion. As noted, the Accommodation Process does not impose a substantial burden on
the exercise of religion so the Court need not conduct the compelling state interest analysis.

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For these reasons, the Commonwealth has shown a likelihood of success on the merits of
its APA claim that the New IFRs are arbitrary, capricious, and contrary to established law.
b. Irreparable Harm
As explained earlier, the second factor to consider in deciding the Commonwealth’s
motion is whether it has demonstrated that it is likely to suffer irreparable harm in the absence of
a preliminary injunction. “Issuing a preliminary injunction based only on a possibility of
irreparable harm is inconsistent with the characterization of injunctive relief as ‘an extraordinary
remedy’ that may be awarded only upon a clear showing that the plaintiff is entitled to such
relief.” Winter, 555 U.S. at 21& 22 (“Our frequently reiterated standard requires plaintiffs
seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an
injunction.”).
The Commonwealth asserts that it will suffer two harms in the absence of an injunction:
First, significant damage to the Commonwealth’s fiscal integrity; and second, harm to the health,
safety, and wellness of the Commonwealth’s female residents.
The Commonwealth offered the testimony of Doctors Carol Weisman, Samantha Butts,
and Cynthia Chuang, as well as several declarations and exhibits to support its allegation of
irreparable harm. From this testimony and from other evidence and affidavits in the record, the
Court finds that it is likely that the New IFRs will result in direct and irreparable harm to the
Commonwealth’s fiscal integrity: The Commonwealth will become obligated to shoulder much
of the burden of providing contraceptive services to those women who lose it because their
health plans will opt out of coverage. See Steinberg Decl. ¶¶ 27-29; Medelsohn Decl. ¶ 15.
Such women will seek contraceptive services elsewhere and, as Defendants noted in issuing the
New IFRs, may turn to “multiple Federal, State, and local programs that provide free or

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subsidized contraceptives for low-income women” as alternative coverage. See 82 Fed. Reg.
47813, 47850. These programs in the Commonwealth include Medicaid, called “Medical
Assistance,” which relies on funding from both the State and federal governments; Family
Planning Services Program; and the Commonwealth’s network of clinics funded under the Title
X grant program. See Allen Decl. ¶¶ 3-18; Steinberg Decl. ¶ 16. Indeed, Dr. Chuang testified
that she counsels patients without coverage for contraceptive services to seek coverage from
Medicaid. Tr. 177-78. As women in Pennsylvania lose contraceptive coverage through their
health insurance plans and turn to State programs, it is likely that the Commonwealth will bear
the added financial burden occasioned by the increase in women who need contraceptive care
coverage. See Decl. of Seth A. Mendelsohn ¶ 15; Allen Decl. ¶ 23.
Of course, “loss of money” is generally insufficient to merit a preliminary injunction
because “monetary damages . . . are capable of ascertainment and award at final judgment. . . .”
Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989). Here,
however, the Commonwealth will not be able to recover any economic damages traceable to the
implementation of the New IFRs. This is because a party – including the Commonwealth – may
not seek monetary damages from the federal government. See 5 U.S.C. § 702 (providing that the
federal government is immune from a suit for money damages). Therefore, if the New IFRs are
ultimately struck down, the Commonwealth will be unable to recoup the money it expends on
contraceptive care in the interim. In such circumstances, a preliminary injunction is appropriate.
See, e.g., N.J. Retail Merchants, 669 F.3d at 388 (holding that a preliminary injunction is
appropriate where a movant could not recover damages from a State due to sovereign immunity).
The Commonwealth’s harm is not merely speculative; it is actual and imminent. See
Adams v. Freedom Forge Corp., 204 F.3d 475, 488 (3d Cir. 2000). The New IFRs estimate that

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at least 31,700 women will lose contraceptive coverage under the New Rules – and, as Plaintiff
and amici persuasively argue, there are reasons to believe the number is significantly higher. See
82 Fed. Reg. 47,821. Thus, the only serious disagreement is not whether the Commonwealth
will be harmed, but how much the Commonwealth will be harmed. Though Defendants argue
that the Commonwealth has not identified any individual who has lost coverage already, there is
no need to wait for the axe to fall before an injunction is appropriate, particularly where
Defendants have estimated that it is about to fall on tens of thousands of women.16 And the
financial burden is impending. The Commonwealth anticipates that on January 1, 2018, when
open enrollment begins for health plans regulated by ERISA, some health plans will remove nocost contraceptive services pursuant to the New IFRs, and it is likely that Pennsylvanian women
will seek contraceptive services through services funded by the State fisc.
While the legal harm to the integrity of the State fisc is important to obtain a preliminary
injunction, of parallel importance is the significant harm to the Commonwealth’s interest in
protecting the health, safety, and well-being of its citizens. See In re Oxycontin Antitrust Litig.,
821 F. Supp. 2d 591, 601 (S.D.N.Y. 2011) (citing Alfred L. Snapp, 458 U.S. at 601-02). The
potential harm faced by Pennsylvanian women and across the nation is enormous and
irreversible. As employers take advantage of the New IFRs, access to no-cost contraceptive
services for many women will be severely curtailed.
The Commonwealth’s concern is that absent available cost-effective contraception,
women will either forego contraception entirely or choose cheaper but less effective methods –
individual choices which will result in an increase in unintended pregnancies. That, in turn, will
inflict economic harm on the Commonwealth because unintended pregnancies are more likely to

16

Since the New IFRs eliminate requirements to notify HHS of any decision to opt out, it is nearly impossible to
know whether employers have already availed themselves of the New IFRs.

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impose additional costs on Pennsylvania’s State-funded health programs. See Steinberg Decl., ¶
30 (discussing study finding that 68% of unplanned births are paid for by public insurance
programs, compared to only 38% of planned births).
The record evidence in support of this position is compelling. Contraceptives are,
without question, effective at preventing unintended pregnancies. See Institute Report at 106.
Eighty five percent of women who do not use any form of contraceptive services and who do not
want to become pregnant, become pregnant in one year. See id. Those women who do use
contraception are far less likely to have an unplanned pregnancy. Id. But, even for those who do
use contraception, there is some chance of an unplanned pregnancy higher or lower depending
upon the chosen contraceptive method. For example, a pamphlet issued by the Centers for
Disease Control entitled “Effectiveness of Family Planning Methods” shows there are 6 to 12
pregnancies per 100 women who are on the contraceptive pill in any given year. See Exh. 17.
Yet, for those who have an Intrauterine Device (“IUD”) implanted there is less than one
pregnancy per 100 women per year. Id. Thus, it is clear that an IUD is more effective than the
pill at preventing unintended pregnancy. A reasonable conclusion from that is women, all else
being equal, would make the contraceptive choice of an IUD rather than the pill. But, three
doctors testified that an IUD can be cost-prohibitive for many women because it has higher
upfront costs than the contraceptive pill. Tr. 90; 132-33; 176-78. Dr. Butts testified that, prior
to the implementation of the ACA’s Contraceptive Mandate, it was common for her patients not
to have prescribed IUDs implanted, but since the Contraceptive Mandate, use of IUDs has
increased dramatically. Tr. 132; 153. She testified that after the Mandate went into effect,
making no-cost contraception services available to all women, the number of her patients who

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declined an IUD dropped significantly. Id. Meanwhile, she recorded a five-fold increase in the
number of IUDs she inserted in the course of her medical practice. Tr. 153.
Dr. Chuang and Dr. Weisman also testified about a study (“MyNewOptions Study”) they
and others conducted between 2014 and 2016 of more than 900 Pennsylvanian women who were
actively avoiding pregnancy. Reviewing insurance claims data, they found that the number of
women using IUDs and other implants – contraceptive methods that carry the highest up-front
costs but are the most effective – doubled in two years after the Contraceptive Mandate took
effect. Tr. 178-87. Meanwhile, the number of women who did not use contraceptive services
decreased by roughly 50% in the two years following the Mandate’s effect.17 Id. Doctors
Chuang, Weisman, and Butts all attributed these changes to the effect of the Contraceptive
Mandate, Tr. 90; 134; 187, and concluded that with the reduction in no-cost contraceptive
insurance that will result from employer utilization of the New IFRs, more women will lose nocost contraceptive coverage and the cost of their contraceptive services, to them, will rise. See
Tr. 94. Thus, women will likely forgo contraceptive services or seek out less expensive and less
effective types of contraceptive services in the absence of no-cost insurance coverage. See id.;
Weisman Decl. ¶ 47; Chuang Decl. ¶¶ 36-39. Indeed, women cite cost as a significant factor in
determining whether to purchase contraceptive services and which contraceptive services to use.
See Adam Sonfield, What is at Stake with the Federal Contraceptive Coverage Guarantee? 20
Guttmacher Policy Review 8, 9 (2017).

17

Defendants cited a study from the Guttmacher Institute which found no changes in contraceptive use patterns
among sexually active women. See Bearak, J.M. and Jones, R.K., “Did Contraceptive Use Patterns Change after the
Affordable Care Act? A descriptive analysis,” 27 Women’s Health Issues 316 (Guttmacher Inst. May-June 2017).
Unlike the MyNewOptions Study presented by Plaintiff, the Guttmacher study used survey data, which is less
reliable than the claims data used in the MyNewOptions study. And, unlike the MyNewOptions study, the
Guttmacher study did not focus on Pennsylvania where the rate of unintended pregnancy is significantly greater than
the national average, and which is the focus of the preliminary injunction.

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The real life consequences, as amici point out, are significant: roughly 41% of unintended
pregnancies in America are caused by inconsistent use of contraceptives.18 These problems are
particularly acute in Pennsylvania, where the rate of unintended pregnancy is 53%, significantly
higher than the national average. Tr. 152. The negative effects of even a short period of
decreased access to no-cost contraceptive services are irreversible.
c. Balance of the Equities
The third factor that the Commonwealth must show is that the balance of the equities tips
in favor of granting a preliminary injunction. “Balancing the equities” is jurisprudential “jargon
for choosing between conflicting public interests.” Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 609 (1943) (Frankfurter, J., concurring). Here, Congress has already struck the
balance: Its passage of the Women’s Health Amendment was to bridge the significant gender
gap in healthcare costs between men and women. Senator Feinstein explained that “[w]omen of
childbearing age spend 68 percent more in out-of-pocket health care costs than men.” 155 Cong.
Rec. 29302. And part of this problem stems from unintended pregnancies – an issue faced only
by women. Senator Durbin explained that the purpose of the Women’s Health Amendment was
to “expand health insurance coverage to the vast majority of [the 17 million women of
reproductive age in the United States who are uninsured and] . . . reduce unintended
pregnancies.” Id. at 26768. Where, as here, “Congress itself has struck the balance, has defined

18

The Contraceptive Mandate also affects women’s health in other contexts as well. The Institute’s Report, which
recommended no-cost contraceptive coverage under the ACA, explained that contraceptive services are used to treat
menstrual disorders, acne, hirsutism, and pelvic pain, in addition to assisting family planning and birth spacing. See
Institute Report at 107. Contraceptive services are essential for women who face high-risk pregnancies or those for
whom pregnancy may lead to significant complications. Even a short period of interrupted coverage will lead to
irreparable harm because, as the Institute Report notes, women face severe complications, including death, from
high-risk pregnancy. Dr. Butts also testified that decreased access to contraceptives will “increase pain and
suffering for women who have [disorders such as pelvic pain and other medical conditions] . . . and to the extent that
some of those unintended pregnancies are in women with very serious medical disorders for whom pregnancy may
be contraindicated [it] can increase risks in a life-threatening way.” Tr. 140.

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the weight to be given the competing interests, a court of equity is not justified in ignoring that
pronouncement under the guise of exercising equitable discretion.” Youngstown Sheet, 343 U.S.
at 609-10.
Here, given the Commonwealth’s clear interest in securing the health and well-being of
its women residents and containing its costs for contraceptive services, the balance of the
equities heavily weighs in its favor. Defendants’ assertion that there is “inherent harm to an
agency in preventing it from implementing regulations that Congress found to be in the public
interest to direct that agency to develop” does not change that balance. Defendants will not be
prejudiced by a preliminary injunction. If the New IFRs were issued in violation of applicable
law, they will have suffered no harm. If Defendants ultimately prevail, then a preliminary
injunction will have merely delayed their preferred regulatory outcome.
d. Public Interest
When considering the public interest, a court is limited to evaluating “how such interest
and conveniences are affected by the selection of an injunction over other enforcement
mechanisms.” United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483, 498 (2001).
Here, a preliminary injunction is unquestionably in the public interest because it maintains the
status quo pending the outcome of a trial on the merits. The New IFRs permit any entity to opt
out of coverage within 30 to 60 days’ notice to plan members. A trial on the merits will not
conclude in that short span. A preliminary injunction will maintain the status quo: those with
exemptions or accommodations prior to October 6, 2017 will maintain their status, those with
injunctions preventing enforcement of the Contraceptive Mandate will maintain their injunctions,
but those with coverage will maintain their coverage as well.

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IV.

Conclusion
Plaintiff, the Commonwealth of Pennsylvania, has demonstrated that it has met all four

factors necessary to obtain a preliminary injunction. In this case, the Commonwealth is likely to
succeed on the merits of its two APA claims; the Commonwealth is likely to suffer serious and
irreparable harm in the absence of a preliminary injunction; the balance of the equities tips in
favor of granting an injunction, and the public interest favors granting it as well. After weighing
these four factors, as stated above, the Court concludes that a preliminary injunction is
warranted. The Commonwealth’s Motion for Preliminary Injunction will be granted and
Defendants shall be enjoined from enforcing the New IFRs.
An appropriate order follows.

BY THE COURT:

/s/Wendy Beetlestone, J.
_______________________________
WENDY BEETLESTONE, J.
December 15, 2017

44