Case 7:16-cv-00108-O Document 121 Filed 12/11/18 Page 1 of 7 PageID 2919

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION

FRANCISCAN ALLIANCE, INC.;

SPECIALTY PHYSICIANS OF
ILLINOIS, LLC;
CHRISTIAN MEDICAL & DENTAL
ASSOCIATIONS;

- and -

STATE OF TEXAS;
STATE OF WISCONSIN;
STATE OF NEBRASKA;
COMMONWEALTH OF
KENTUCKY, by and through
Governor Matthew G. Bevin;
STATE OF KANSAS; NO. 7:16-CV-00108
STATE OF LOUISIANA;
STATE OF ARIZONA; and PLAINTIFFS’ UNOPPOSED
STATE OF MISSISSIPPI, by and MOTION FOR STATUS
through Governor Phil Bryant, CONFERENCE

Plaintiffs,

v.

ALEX M. AZAR II, Secretary of the

United States Department of Health
and Human Services; and
UNITED STATES DEPARTMENT
OF HEALTH AND HUMAN
SERVICES,

Defendants.

1
 Case 7:16-cv-00108-O Document 121 Filed 12/11/18 Page 2 of 7 PageID 2920

Plaintiffs respectfully ask the Court to schedule a status conference to consider

whether to lift the stay of this litigation and proceed to final judgment. Counsel for

Plaintiffs have conferred with counsel for the Defendants, and Defendants do not

oppose this request. Both parties are available for a telephonic status conference

during the week of December 17-21.

I. Procedural background
Plaintiffs are eight states, a religious hospital network, and an association of over

19,000 Christian healthcare professionals. They filed this lawsuit on August 23, 2016,

challenging a Rule issued by the U.S. Department of Health and Human Services

(HHS) pursuant to the Patient Protection and Affordable Care Act (ACA). Although

the ACA forbids discrimination on the basis of “sex,” 42 U.S.C. § 18116(a), HHS issued

a Rule interpreting this provision to forbid discrimination on the basis of “gender

identity” and “termination of pregnancy.” 45 C.F.R. § 92.4. The Rule would require

Plaintiffs to perform and provide insurance coverage for gender transitions and

abortions contrary to their religious beliefs and medical judgment. ECF No. 21 (Am.

Compl.).

On December 31, 2016, the day before the Rule was to take effect, this Court

concluded that the Rule likely violates the Administrative Procedure Act (APA) and

Religious Freedom Restoration Act (RFRA) and issued a preliminary injunction. ECF

No. 62. On March 14, 2017, noting the absence of any factual disputes, Plaintiffs

moved for summary judgment. ECF No. 82.

In response, HHS did not attempt to defend the Rule on the merits. Instead, it

moved for a “stay” of the litigation and a “voluntary remand” to “reconsider” “the

2
 Case 7:16-cv-00108-O Document 121 Filed 12/11/18 Page 3 of 7 PageID 2921

reasonableness, necessity, and efficacy of the two aspects of the regulation that are

challenged in this case.” ECF No. 92.

Over Plaintiffs’ opposition, ECF No. 94, this Court granted HHS’s request for a

stay and voluntary remand, ECF No. 105. Although the Court acknowledged that

HHS had “not confessed error, identified new evidence, or cited any intervening

events to support [its] remand request,” it concluded that a stay was warranted

because “some or all of Plaintiffs’ claims” “may” be rendered moot by HHS’s

“impending review of the Rule.” ECF 7-9.

It has now been 17 months since the Court issued its stay, and 23 months since

the Court issued its preliminary injunction. HHS has filed seven nearly identical

status reports, all stating that HHS is “reevaluating the reasonableness, necessity,

and efficacy of the Rule,” and all requesting “an opportunity to continue reconsidering

the Rule.” ECF Nos. 109, 110, 111, 113, 114, 115, 119.

II. Argument
Plaintiffs respectfully ask the Court to schedule a status conference to consider

whether to lift the stay of this litigation and proceed to summary judgment. Plaintiffs

have been living under the uncertainty of an unlawful Rule for almost two years.

Although the Court’s preliminary injunction remains in place, multiple lawsuits have

been filed against entities like the Plaintiffs in other jurisdictions, seeking a ruling

that the term “sex” in the ACA (or the Equal Protection Clause itself) requires them

to perform controversial and sometimes harmful transgender medical procedures in

violation of their religious beliefs and medical judgment. See, e.g., Tovar v. Essentia

Health, No. CV 16-100 (DWF/LIB), 2018 WL 4516949, at *3 (D. Minn. Sept. 20, 2018);

Minton v. Dignity Health, No. 17-558259 (Calif. Super. Ct. Apr. 19, 2017) (appeal

3
 Case 7:16-cv-00108-O Document 121 Filed 12/11/18 Page 4 of 7 PageID 2922

filed); Enstad v. PeaceHealth, No. 2:17-cv-01496 (W.D. Wash filed Oct. 5, 2017);

Conforti v. St. Joseph’s Healthcare System, No. 2:17-cv-00050 (D.N.J. filed Jan. 5,

2017). These lawsuits have not been stayed to give HHS time to reconsider its Rule.

And if they are resolved contrary to this Court’s preliminary-injunction ruling,

Plaintiffs face the risk of conflicting legal requirements.

Even assuming HHS moves forward with its rulemaking process, it has stated

that it is contemplating only a “proposed rule,” which will require “a public comment

period”—and the “time required to complete the notice-and-comment phase and to

publish a final rule” is indefinite. ECF No. 119 at 2 (Status Report #7). Further,

rulemaking is inherently inchoate until an agency issues a final rule because the

NPRM is subject to—indeed invites—substantive revision. See Williams Nat. Gas Co.

v. FERC, 872 F.2d 438, 450 (D.C. Cir. 1989). So it may be several more years yet

before a final rule is published, if ever. Cf. Wendy Wagner et al., Rulemaking in the

Shade: An Empirical Study of EPA’s Air Toxic Emission Standards, 63 Admin. L.

Rev. 99, 144-45 (2011) (finding that the EPA regulations reviewed had an average

pre-NPRM period of four years and a post-NPRM period of 1.5 years). Plaintiffs

should not have to wait in limbo indefinitely, particularly as this issue gets litigated

to judgment in other courts across the country.

III. Conclusion
The Court should schedule a status conference to consider whether to lift the stay

of this litigation and proceed to summary judgment.

4
 Case 7:16-cv-00108-O Document 121 Filed 12/11/18 Page 5 of 7 PageID 2923

Respectfully submitted this 11th day of December, 2018.

/s/ Luke W. Goodrich KEN PAXTON

Luke W. Goodrich Attorney General of Texas
Bar No. 977736DC JEFFREY C. MATEER
Mark L. Rienzi First Assistant Attorney General
Bar No. 648377MA
Stephanie H. Barclay BRANTLEY D. STARR
Bar No. 1011476 Deputy First Assistant Attorney General
The Becket Fund for Religious Liberty DARREN MCCARTY
1200 New Hampshire Ave. NW Deputy Attorney General for
Suite 700 Civil Litigation
Washington, DC 20036
(202) 955-0095 /s/ David J. Hacker
lgoodrich@[Link] DAVID J. HACKER
Special Counsel for Civil Litigation
Counsel for Plaintiffs Christian Medical Texas Bar No. 24103323
& Dental Associations, Franciscan [Link]@[Link]
Alliance, Inc., Specialty Physicians of OFFICE OF THE ATTORNEY GENERAL
Illinois, LLC P.O. Box 12548, Mail Code 001
Austin, Texas 78711-2548
(512) 936-1414

Counsel for Plaintiff States

5
 Case 7:16-cv-00108-O Document 121 Filed 12/11/18 Page 6 of 7 PageID 2924

CERTIFICATE OF CONFERENCE

I hereby certify that on December 7, 2018, I conferred with counsel for Defendants,

who authorized me to state that Defendants do not oppose this motion.

/s/ Luke W. Goodrich

Luke W. Goodrich 

6
 Case 7:16-cv-00108-O Document 121 Filed 12/11/18 Page 7 of 7 PageID 2925

CERTIFICATE OF SERVICE

I hereby certify that on December 11, 2018, the foregoing motion was served on

all parties via ECF.

/s/ Luke W. Goodrich

Luke W. Goodrich