On May 4, 2017, President Trump issued an executive order seeking to “restore religious freedom.” The order suggested that federal agencies amend regulations within the preventative care mandate of the ACA that would increase the pool of employers allowed to claim exemption from providing contraceptive coverage. The agencies then issued two Interim Final Rules (IFRs) expanding the scope of the religious and moral exemptions. Any employer or health insurer with religious or moral objections could opt out of the ACA's contraceptive-coverage requirement with no assurances that the federal government would provide the oversight.

On October 6, 2017, California filed this lawsuit in the U.S. District Court for the Northern District of California. The state challenged the IFRs by suing the U.S. Department of Health and Human Services, the U.S. Department of Labor, and the U.S. Department of the Treasury under the Administrative Procedure Act (APA) and other federal law. Seeking declaratory and injunctive relief, the state claimed that the IFRs drastically reduced women’s access to contraceptive coverage and violated the APA, the Establishment Clause of the First Amendment, and the Equal Protection Clause of the Fifth Amendment. On November 1, the plaintiffs filed an amended complaint, which added Delaware, Maryland, New York, and Virginia as plaintiffs.

On November 9, 2017, the plaintiffs filed a motion for a preliminary injunction to enjoin the IFRs and preserve the status quo pending litigation. The plaintiffs argued that the defendants failed to provide notice and comment as required by the APA, violated the APA because the IFRs exceeded their statutory authority under the ACA, and violated the Constitution.

On December 21, 2017, District Judge Haywood S. Gilliam granted the plaintiffs' motion and issued a nationwide injunction enjoining implementation of the IFRs. 281 F. Supp. 3d 806 (N.D. Cal. 2017). The Court found that the plaintiffs were likely to able to show that the process that passed the IFRs bypassed the typical rule-making procedure, violating the APA and causing them imminent harm. The Court noted that the defendants had completely changed their position on contraceptive coverage taken during the litigation of Zubik v. Burwell, There, the defendants recognized the need to balance the compelling interest in ensuring that women covered by all health plans receive full and equal health coverage (including contraceptive coverage) with the goal of minimizing the burden on religious exercise. Here, however, the defendants refused to recognize any such compelling interest.

On December 29, 2017, Judge Gilliam granted a motion to intervene as a defendant filed by the Little Sisters of the Poor Jeanne Jugan Residence—a Roman Catholic order of nuns that serves the elderly poor. 2017 WL 6731640. On January 26, 2018, Judge Gilliam also granted the March for Life Education and Defense Fund's motion to intervene as defendants.

The defendants each appealed the District Court's decision granting the plaintiffs' preliminary injunction to the U.S. Court of Appeals for the Ninth Circuit. The District Court stayed the proceedings pending resolution of the defendants' appeals.

Once the federal defendants issued Final Rules, set to take effect on January 14, 2019 and largely identical to the IFRs, the plaintiffs argued that these new rules meant that the defendants' appeals were moot. The plaintiffs asked the Court to lift the stay so that they could amend their complaint in order to challenge the final rules. On December 13, 2018, however, Judge Gilliam denied the plaintiffs' motion to lift the stay, holding that it did not have jurisdiction to do so given the broad scope of issues before the Ninth Circuit at that time.

On December 13, 2018, the Ninth Circuit issued its opinion on all three appeals at once. (Circuit Judges J. Clifford Wallace, Andrew J. Kleinfeld, and Susan P. Graber). The Court affirmed the preliminary injunction insofar as it barred enforcement of the IFRs in the plaintiff states, but found that the scope of the injunction was overbroad. The Court vacated the portion of the injunction barring enforcement in other states and remanded to the District Court. 911 F.3d 558.

The plaintiffs filed a second amended complaint on December 18, 2018, which added Connecticut, the District of Columbia, Hawaii, Illinois, Minnesota, North Carolina, Rhode Island, Vermont, and Washington as plaintiffs. The amended complaint alleged that both the IFRs and the Final Rules violated the APA, the Establishment Clause, and the Equal Protection Clause. At that same time, the plaintiffs filed another motion for a preliminary injunction, seeking to enjoin the implementation of the Final Rules.

On December 26, 2018, the federal defendants filed a motion to stay all proceedings given the lapse in appropriations funding for the Department of Justice. In the alternative, they asked for an extension of the deadline to respond to the second amended complaint. Judge Gilliam denied the defendants' motion to stay proceedings given the impending effective date of the Final Rules (January 14), but granted the defendants an extension of time to submit their answer. Judge Gilliam also granted extensions to the Little Sisters and the March for Life.

On January 13, 2019, Judge Gilliam granted the plaintiffs' motion for a preliminary injunction. 2019 WL 178555. The Court found that, as to both Final Rules, the plaintiffs had shown that they were likely to succeed, or at a minimum raised serious questions going to the merits, on their claim that the religious and moral exemptions violated the APA. The Court also found that the plaintiffs were likely to suffer irreparable harm as a result of this violation, that the balance of hardships tipped sharply in their favor, and that the public interest favored granting the injunction.

As of January 15, 2019, the Little Sisters had appealed the District Court's decision to grant the preliminary injunction to the Ninth Circuit. The case is ongoing.

Eva Richardson - 01/15/2019
Raul Noguera-McElroy - 03/03/2019


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