Case: 20-10093 Document: 00515573352 Page: 1 Date Filed: 09/21/2020

No. 20-10093

In the United States Court of Appeals for the Fifth Circuit

FRANCISCAN ALLIANCE, INCORPORATED; CHRISTIAN MEDICAL AND DENTAL
SOCIETY; SPECIALTY PHYSICIANS OF ILLINOIS, L.L.C.,
Plaintiffs-Appellants,
v.
ALEX M. AZAR II, SECRETARY U.S. DEPARTMENT OF HEALTH AND
HUMAN SERVICES; UNITED STATES
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Defendants-Appellees,
v.
AMERICAN CIVIL LIBERTIES UNION OF TEXAS;
RIVER CITY GENDER ALLIANCE
Intervenors-Appellees
On Appeal from the United States District Court for the
Northern District of Texas
No. 7:16-cv-00108-O

BRIEF OF PLAINTIFFS-APPELLANTS FRANCISCAN

ALLIANCE, INC., CHRISTIAN MEDICAL & DENTAL SOCIETY,
AND SPECIALTY PHYSICIANS OF ILLINOIS, LLC

LUKE W. GOODRICH
MARK L. RIENZI
LORI H. WINDHAM
JOSEPH C. DAVIS
The Becket Fund for Religious Liberty
1200 New Hampshire Ave. NW
Suite 700
Washington, DC 20036
(202) 955-0095
[email protected]
Counsel for Plaintiffs-Appellants
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CERTIFICATE OF INTERESTED PERSONS

Counsel of record certifies that the following persons and entities as
described in the fourth sentence of Fifth Circuit Rule 28.2.1 have an in-
terest in the outcome of this case. These representations are made in or-
der that the judges of this Court may evaluate possible disqualification
or recusal.

Counsel for
Plaintiffs-Appellants
Plaintiffs-Appellants

The Becket Fund for Religious

• Franciscan Alliance, Inc.
Liberty:
• Christian Medical & Dental Luke W. Goodrich
Society
Mark L. Rienzi
• Specialty Physicians of Illinois, Lori H. Windham
LLC
Joseph C. Davis

Counsel for
Defendants-Appellees
Defendants-Appellees

• Alex M. Azar II, in his official U.S. Department of Justice:

capacity as Secretary of the
Joshua Dos Santos
U.S. Department of Health and
Human Services Marleigh D. Dover
Alexander K. Haas
• U.S. Department of Health and
Human Services Bradley Philip Humphreys

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Counsel for
Intervenors-Appellees
Intervenors-Appellees

• American Civil Liberties Union American Civil Liberties Union

of Texas Foundation:

• River City Gender Alliance Joshua A. Block

American Civil Liberties Union

of Texas:
Kali Cohn
Brian Klosterboer
Andre Segura

American Civil Liberties Union

Foundation Center for Liberty:
Lindsey Kaley

American Civil Liberties Union

of Nebraska:
Scout Richters

/s/ Joseph C. Davis

Joseph C. Davis
Counsel for Plaintiffs-Appellants

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STATEMENT REGARDING ORAL ARGUMENT

Appellants believe oral argument will be helpful because this appeal

presents important questions about the appropriate scope of relief for the

federal government’s violation of a federal civil-rights law, the Religious

Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.

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TABLE OF CONTENTS

Page

CERTIFICATE OF INTERESTED PERSONS .......................................... i

STATEMENT REGARDING ORAL ARGUMENT ..................................iii
TABLE OF AUTHORITIES ...................................................................... vi
STATEMENT OF JURISDICTION ........................................................ xiii
STATEMENT OF ISSUES PRESENTED ............................................. xiv
INTRODUCTION ....................................................................................... 1
STATEMENT OF THE CASE ................................................................... 4
A. Appellants .......................................................................................... 4
B. The Government’s Actions ................................................................ 7
C. This Lawsuit .................................................................................... 12
D. The Ruling Below ............................................................................ 15
E. This Appeal ...................................................................................... 18
SUMMARY OF THE ARGUMENT ......................................................... 22
STANDARD OF REVIEW........................................................................ 25
ARGUMENT ............................................................................................. 26
I. Appellants satisfied the requirements for injunctive
relief. .............................................................................................. 26
II. Appellants’ proposed injunction would have a
meaningful practical effect............................................................ 38
A. An injunction would protect Appellants from
imposition of the same unlawful burden
by other means. ...................................................................... 38
B. Controlling authority requires injunctive relief. .................. 46
III. At minimum, this Court should remand for
consideration of the proper remedy in light of
changed circumstances. ................................................................. 54
CONCLUSION ......................................................................................... 55

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CERTIFICATE OF SERVICE.................................................................. 57
CERTIFICATE OF COMPLIANCE ........................................................ 58
ADDENDUM ............................................................................................ 59

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TABLE OF AUTHORITIES

Page(s)

Cases

Allina Health Servs. v. Sebelius,

746 F.3d 1102 (D.C. Cir. 2014) ............................................................ 51

Art Midwest Inc. v. Atl. Ltd. P’ship XII,

742 F.3d 206 (5th Cir. 2014) ................................................................ 27

Ass’n of Christian Schs. v. Azar,

No. 1:14-cv-02966 (D. Colo. Dec. 10, 2018) ......................................... 53

Ave Maria Sch. of Law v. Sebelius,

No. 2:13-cv-00795 (M.D. Fla. Jul. 11, 2018) ....................................... 53

Ave Maria Univ. v. Sebelius,

No. 2:13-cv-00630 (M.D. Fla. Jul. 11, 2018) ....................................... 53

A.A. ex rel. Betenbaugh v. Needville Indep. Sch. Dist.,

611 F.3d 248 (5th Cir. 2010) ................................................................ 37

Bostock v. Clayton County,

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

Boston All. of Gay, Lesbian, Bisexual and Transgender Youth

v. U.S. Dep’t of Health & Human Servs.,
No. 1:20-cv-11297 (D. Mass. filed July 9, 2020) ................................. 21

Burwell v. Hobby Lobby Stores,

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

Califano v. Yamasaki,
442 U.S. 682 (1979) .............................................................................. 38

Canal Auth. of Fla. v. Callaway,

489 F.2d 567 (5th Cir. 1974) ................................................................ 35

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Carmichael v. Galbraith,
574 F. App’x 286 (5th Cir. 2014) ......................................................... 44

Catholic Benefits Ass’n LCA v. Hargan,

No. 5:14-cv-00240 (W.D. Okla. Mar. 7, 2018) ..................................... 53

Christian Emp’rs All. v. Azar,

No. 3:16-cv-00309 (D.N.D. May 15, 2019) ........................................... 53

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520 (1993) .............................................................................. 30

City of Mesquite v. Aladdin’s Castle, Inc.,

455 U.S. 283 (1982) .............................................................................. 50

Colo. Christian Univ. v. Health & Human Servs.,

No. 1:13-cv-02105 (D. Colo. July 11, 2018) ......................................... 53

Conestoga Wood Specialties Corp. v. Burwell,

No. 5:12-cv-06744 (E.D. Pa. Oct. 2, 2014) ........................................... 53

Conforti v. St. Joseph’s Healthcare Sys.,

No. 2:17-cv-00050 (D.N.J. filed Jan. 5, 2017) ....................................... 8

ConocoPhillips Co. v. U.S. E.P.A.,

612 F.3d 822 (5th Cir. 2010) ................................................................ 39

Cruz v. Zucker,
116 F. Supp. 3d 334 (S.D.N.Y. 2015)..................................................... 8

DeOtte v. Azar,
393 F. Supp. 3d 490 (N.D. Tex. 2019) ................................................. 52

Dep’t of Commerce v. New York,

139 S. Ct. 2551 (2019) .......................................................................... 49

Dobson v. Azar,
No. 13-cv-03326 (D. Colo. Mar. 26, 2019) ........................................... 53

Dordt Coll. v. Azar,

No. 5:13-cv-04100 (N.D. Iowa June 14, 2018)..................................... 53

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Dresser-Rand Co. v. Virtual Automation, Inc.,

361 F.3d 831 (5th Cir. 2004) ................................................................ 26

E. Tex. Baptist Univ. v. Azar,

No. 4:12-cv-03009 (S.D. Tex. Aug. 10, 2020)....................................... 53

Eastman Chem. Co. v. Plastipure, Inc.,

775 F.3d 230 (5th Cir. 2014) ................................................................ 26

eBay Inc. v. MercExchange, L.L.C.,

547 U.S. 388 (2006) .............................................................................. 35

Elrod v. Burns,
427 U.S. 347 (1976) .............................................................................. 34

Flack v. Wis. Dep’t of Health Servs.,

328 F. Supp. 3d 931 (W.D. Wis. 2018) ................................................ 40

Geneva Coll. v. Sebelius,

No. 2:12-cv-00207 (W.D. Pa. Jul. 5, 2018) .......................................... 54

Gibson v. Collier,
920 F.3d 212 (5th Cir. 2019) .............................................. 12, 29, 31, 32

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal

546 U.S. 418 (2006) .................................................................... 1, 27, 37

Grace Schs. v. Azar,

No. 3:12-cv-00459 (N.D. Ind. June 1, 2018) ........................................ 54

Grimm v. Gloucester Cty. Sch. Bd.,

No. 19-1952, 2020 WL 5034430 (4th Cir. Aug. 26, 2020) ................... 45

Guedes v. Bureau of Alcohol, Tobacco, Firearms &

Explosives,
140 S. Ct. 789 (2020) ............................................................................ 39

Hobby Lobby Stores v. Sebelius,

723 F.3d 1114 (10th Cir. 2013) ............................................................ 26

Adams ex rel. Kasper v. Sch. Bd. of St. John’s Cty.,

968 F.3d 1286 (11th Cir. 2020) ............................................................ 45

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Kennecott Utah Copper Corp. v. U.S. Dep’t of Interior,

88 F.3d 1191 (D.C. Cir. 1996) .............................................................. 46

Korte v. Health & Human Servs.,

No. 3:12-cv-1072 (S.D. Ill. Nov. 7, 2014) ............................................. 54

Korte v. Sebelius,
735 F.3d 654 (7th Cir. 2013) ................................................................ 26

Little Sisters of the Poor v. Azar,

No. 1:13-cv-02611 (D. Colo. May 29, 2018) ......................................... 54

Merced v. Kasson,
577 F.3d 578 (5th Cir. 2009) ............................................................ 1, 37

Monsanto Co. v. Geertson Seed Farms,

561 U.S. 139 (2010) ...................................................................... passim

Ne. Fla. Chapter of Associated Gen. Contractors of Am. v.

City of Jacksonville,
508 U.S. 656 (1993) ........................................................................ 24, 50

New York v. U.S. Dep’t of Commerce,

351 F. Supp. 3d 502 (S.D.N.Y. 2019)....................................... 48, 49, 50

New York v. U.S. Dep’t of Health & Human Servs.,

No. 1:20-cv-05583 (S.D.N.Y. filed July 20, 2020) ........................... 2, 21

O Centro Espirita Beneficente Uniao do Vegetal v. Ashcroft,

389 F.3d 973 (10th Cir. 2004) .............................................................. 37

Opulent Life Church v. City of Holly Springs,

697 F.3d 279 (5th Cir. 2012) .............................................. 27, 34, 35, 36

Prescott v. Rady Children’s Hosp.-San Diego,

265 F. Supp. 3d 1090 (S.D. Cal. 2017) ................................................ 40

Reaching Souls Int’l, Inc. v. Azar,

No. 5:13-cv-01092 (W.D. Okla. Mar. 15, 2018) ................................... 54

S. Nazarene Univ. v. Hargan,

No. 5:13-cv-01015 (W.D. Okla. May 15, 2018) .................................... 54

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Salazar v. Buono,
559 U.S. 700 (2010) ......................................................................... 24-25

Scott v. Schedler,
826 F.3d 207 (5th Cir. 2016) ................................................................ 25

Sharpe Holdings, Inc. v. Health & Human Servs.,

No. 2:12-cv-00092 (E.D. Mo. Mar. 28, 2018) ....................................... 54

Spell v. Edwards,
962 F.3d 175 (5th Cir. 2020) ................................................................ 50

Spencer v. Schmidt Elec. Co.,

576 F. App’x 442 (5th Cir. 2014) ......................................................... 55

Stenberg v. Carhart,
530 U.S. 914 (2000) .............................................................................. 49

Swann v. Charlotte-Mecklenburg Bd. of Educ.,

402 U.S. 1 (1971) ............................................................................ 51, 52

Tanvir v. Tanzin,
894 F.3d 449 (2d Cir. 2018) ................................................................. 51

United States v. Varner,

948 F.3d 250 (5th Cir. 2020) ................................................................ 40

Veasey v. Abbott,
888 F.3d 792 (5th Cir. 2018) ................................................................ 51

VRC LLC v. City of Dallas,

460 F.3d 607 (5th Cir. 2006) .......................................................... 26, 36

Walker v. Azar,
No. 20-CV-2834, 2020 WL 4749859 (E.D.N.Y. Aug. 17,
2020) ................................................................................... 21, 41, 42, 43

Washington v. U.S. Dep’t of Health & Human Servs.,

No. C20-1105JLR, 2020 WL 5095467 (W.D. Wash. Aug.
28, 2020) ............................................................................................... 44

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Wheaton Coll. v. Azar,

No. 1:13-cv-08910 (N.D. Ill. Feb. 22, 2018) ......................................... 54

Whitman-Walker Clinic, Inc. v. U.S. Dep’t of Health &

Human Servs.,
No. 20-1630, 2020 WL 5232076 (D.D.C. Sept. 2, 2020) .............. passim

Zubik v. Burwell,
136 S. Ct. 1557 (2016) .......................................................................... 52

Zubik v. Sebelius,
No. 2:13-cv-01459 (W.D. Pa. Dec. 20, 2013)........................................ 54

Statutes

5 U.S.C. § 702 ........................................................................................... 51

5 U.S.C. § 706 ............................................................................... 13, 15, 22

20 U.S.C. § 1681 et seq. ........................................................................ 7, 11

20 U.S.C. § 1687........................................................................................ 11

20 U.S.C. § 1688........................................................................................ 11

42 U.S.C. § 300gg-13 .................................................................... 52, 53, 54

42 U.S.C. § 2000bb et seq. ................................................................ passim

42 U.S.C. § 18116............................................................................ 7, 11, 39

Regulations

38 C.F.R. § 17.38 ....................................................................................... 30

45 C.F.R. § 92.6 ................................................................................... 19, 45

77 Fed. Reg. 8725 (Feb. 15, 2012) ............................................................ 52

81 Fed. Reg. 31,376 (May 18, 2016) ................................................. passim

85 Fed. Reg. 37,160 (June 19, 2020) ................................................ passim

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Other Authorities

American Heritage Dictionary (1969) ....................................................... 7

Correction to Bränström and Pachankis, Am. J. Psychiatry

(Aug. 1, 2020) ....................................................................................... 31

Joe Biden (@JoeBiden), Twitter (Jan. 25, 2020), .................................... 40

Richard Bränström & John E. Pachankis, Reduction in

Mental Health Treatment Utilization Among Transgender
Individuals after Gender-Affirming Surgeries: A Total
Population Study, Am. J. Psychiatry 177:8, 727 (Aug.
2020) ............................................................................................... 31, 32

James Kirkup, The NHS has quietly changed its trans

guidance to reflect reality, The Spectator (June 4, 2020) ................... 32

Louise Melling, 12 Things Other Countries Have Done to

Promote Gender Equity, ACLU (Aug. 13, 2018) ................................. 32

Mark Regnerus, New Data Show “Gender-Affirming”

Surgery Doesn’t Really Improve Mental Health. So Why
Are the Study’s Authors Saying It Does?, Public Discourse
(Nov. 13, 2019) ..................................................................................... 31

Mila Sohoni, The Power to Vacate a Rule, 88 Geo. Wash. L.

Rev. (forthcoming September 2020) .................................................... 51

Treatment: Gender Dysphoria, National Health Service ........................ 32

United States Conference of Catholic Bishops, Ethical and Religious

Directives for Catholic Health Care Services (6th ed. 2018) ..................... 5

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STATEMENT OF JURISDICTION
The district court had subject-matter jurisdiction under 28 U.S.C.

§§ 1331 and 1361. The district court’s judgment of October 15, 2019, mod-

ified on November 21, 2019, disposed of all parties’ claims not severed.

This Court has jurisdiction under 28 U.S.C. § 1291. Appellants appeal

from the order and final judgment entered on October 15, 2019, modified

on November 21, 2019. Appellants timely noticed this appeal on January

21, 2020.

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STATEMENT OF ISSUES PRESENTED

This case arose when the U.S. Department of Health and Human Ser-

vices (HHS) interpreted the Affordable Care Act (ACA) to require reli-

gious doctors and hospitals (including Appellants), on pain of massive fi-

nancial penalties, to perform gender transitions and abortions in viola-

tion of their religious beliefs and medical judgment. The district court

correctly held that HHS’s actions violated the Religious Freedom Resto-

ration Act (RFRA). Nevertheless, the court refused to enjoin HHS from

continuing to engage in this conduct, instead merely vacating portions of

HHS’s then-existing interpretive rule. And since the district court’s rul-
ing, both HHS and other federal courts have taken steps to reimpose the

same RFRA-violating requirements.

The question presented is: After finding that HHS violated RFRA by

requiring religious doctors and hospitals to perform and pay for gender

transitions and abortions in violation of conscience and medical judg-

ment, did the district court err by refusing to enter an injunction, where

all the traditional factors for an injunction were satisfied, where an in-

junction is the standard remedy for a RFRA violation, and where an in-

junction is necessary to protect Appellants from ongoing and future

harms?

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INTRODUCTION
Some cases arising under RFRA require the court to engage in a “dif-

ficult” “task of balancing” religious liberty against competing government

interests. Merced v. Kasson, 577 F.3d 578, 592 (5th Cir. 2009) (citing Gon-

zales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 439

(2006)). Not this one. Here HHS attempted to require religious doctors

and hospitals (including Appellants), on pain of massive financial penal-

ties, to perform gender-transition and abortion procedures contrary to

their religious beliefs and medical judgment—a straightforward “sub-

stantial[] burden” under Supreme Court precedent. 42 U.S.C. § 2000bb-

1(a). And HHS made no effort to show that it had a “compelling govern-

mental interest” in doing so, much less that its actions were the “least

restrictive means” of furthering that interest. Id. § 2000bb-1(b). The dis-

trict court therefore had no difficulty finding a RFRA violation, in a deci-

sion neither HHS nor Intervenors (including the ACLU of Texas) elected

to appeal.
So why is this case here? Because although the district court correctly

identified the RFRA violation, it failed to provide an adequate remedy.

Even though the standard remedy for a RFRA violation is an injunction,

the district court refused Appellants’ request for an injunction barring

HHS in the future from taking the action that led to the RFRA violation

in the first place—i.e., from interpreting Section 1557 of the Affordable

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Care Act to require Appellants to perform and provide insurance cover-

age for gender transitions and abortions. Instead, the district court held

that an injunction was unnecessary because it had decided to vacate part

of the rule HHS was using to implement Section 1557 at the time. Given
that vacatur, the court concluded, an injunction would have no “mean-

ingful practical effect.” RE.067-68 (quoting Monsanto Co. v. Geertson

Seed Farms, 561 U.S. 139, 165 (2010)).

That reasoning was wrong when the district court wrote it, and it’s

only worsened with age. In the 11 months since the district court ren-

dered its opinion, HHS has already issued a new rule that it admits “may
be interpreted” to impose the same RFRA-violating requirement as the

old one—and yet isn’t subject to the district court’s vacatur. Moreover, in

litigation over that new rule, brought by plaintiffs who want to force re-

ligious doctors and hospitals like Appellants to perform gender transi-

tions in violation of their beliefs, two district courts have purported to

vacate the vacatur itself—thus reviving the very requirement of the old

rule that the district court correctly held to unjustifiably burden Appel-

lants. Thus, far from negating the practical meaningfulness of an injunc-

tion, the district court’s vacatur has proven inadequate—conclusively

demonstrating Appellants’ need for injunctive relief.

These post-appeal developments are largely the result of the Supreme

Court’s decision in Bostock v. Clayton County, which held that discrimi-

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nation against employees for being transgender constitutes “sex” discrim-

ination under Title VII. 140 S. Ct. 1731 (2020). But while Bostock may

have been a “momentous” decision for transgender protections in employ-

ment, id. at 1741, nothing in it suggests that religious objectors now must
facilitate gender transitions themselves. To the contrary, the Court in-

sisted it is “deeply concerned with preserving the promise of the free ex-

ercise of religion,” and it described RFRA as a “super statute, displacing

the normal operation of other federal laws … in appropriate cases.” Id. at

1753-54. So whatever Bostock might mean for the proper interpretation

of Section 1557—a question that isn’t before this Court—it only supports
Appellants’ entitlement to full relief protecting their religious exercise.

If Bostock is correct that “the free exercise of religion … lies at the

heart of our pluralistic society,” id. at 1754, that right must at minimum

permit objecting doctors to opt out of performing controversial procedures

they view as forbidden by their faith and harmful to their patients—es-

pecially when they’ve already won their RFRA case. The Court should

reverse the district court’s remedy determination in part and remand for

entry of an injunction providing the lasting protection RFRA requires.

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STATEMENT OF THE CASE

This appeal concerns the appropriate relief for HHS’s uncontested

RFRA violation in attempting to force Appellants—a Catholic hospital

system and an association of Christian healthcare professionals—to per-

form and pay for gender-transition and abortion procedures contrary to

their religious beliefs and medical judgment.

A. Appellants

Franciscan Alliance, Inc., is a Roman Catholic nonprofit hospital sys-

tem founded by a Catholic order, the Sisters of St. Francis of Perpetual

Adoration. ROA.3364. Specialty Physicians is a member-managed lim-

ited-liability company, of which Franciscan is the sole member (collec-

tively, Franciscan). ROA.3365. “All of Franciscan’s healthcare services,

and all of Franciscan’s physicians and employees, follow the values of the

Sisters of St. Francis.” ROA.3367. As part of its religious practices, Fran-

ciscan provides extensive medical services for the elderly, poor, and dis-
abled. ROA.3364-65, 3375. Many of those patients rely on Medicare and

Medicaid, and “Franciscan provides approximately 900 million dollars in

Medicare and Medicaid services annually.” ROA.3375. Franciscan also

receives other HHS grants. ROA.3375.

Franciscan’s religious beliefs require it to treat every person with com-

passion and respect. ROA.3367, 3369. Franciscan follows the Ethical and

Religious Directives for Catholic Healthcare Services, issued by the U.S.

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Conference of Catholic Bishops, which direct Catholic healthcare provid-

ers to treat each patient as “a unique person of incomparable worth,” fo-

cusing on those “at the margins of our society” and those “vulnerable to

discrimination.” USCCB, Ethical and Religious Directives for Catholic

Health Care Services (6th ed. 2018), at 9, https://perma.cc/8MHW-CF3N;

see ROA.3368. Accordingly, Franciscan “provide[s] the same full spec-

trum of compassionate care for” transgender individuals as it provides

for any other patient. ROA.3369. And in accordance with its medical

judgment and religious beliefs, it does not participate in gender-transi-

tion procedures, which it views as harmful. ROA.3377 (Franciscan’s Sex

Reassignment Interventions Policy); see also ROA.3367-71.

Also in keeping with its Catholic beliefs, Franciscan does not perform

abortions or elective sterilizations. ROA.3369. And while Franciscan pro-

vides its employees with health benefits as part of its religious practices,

“Franciscan’s plan specifically excludes coverage for” gender transitions,

sterilizations, and abortions. ROA.3372-73.

Appellant the Christian Medical & Dental Society is an Illinois non-

profit corporation doing business as the Christian Medical & Dental As-

sociations. CMDA “exists to glorify God by motivating, educating and

equipping Christian healthcare professionals and students.” ROA.3380.

Its membership includes thousands of practicing physicians, many of

which accept Medicare and Medicaid patients and other forms of federal
funding. ROA.3379, 3386. CMDA members sign a statement of faith to

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join CMDA and allow CMDA to serve as a voice for membership values.

ROA.3381. One of CMDA’s major priorities is the adoption of ethics state-

ments reflecting its members’ beliefs. ROA.3381.

CMDA has adopted such a statement on gender transitions.

ROA.3589-94. The statement—developed with input from medical ex-

perts in numerous relevant fields, ROA.3381—outlines the health risks

associated with gender-transition procedures, including inhibition of nor-

mal growth and fertility, cancer, high blood pressure, blood clots, loss of

bone mineral density, and increased incidence of depression, anxiety, su-

icidal ideation, and substance abuse. ROA.3382, 3390. Given these ef-
fects, CMDA determined that “attempts to alter gender surgically or hor-

monally … are medically inappropriate.” ROA.3389. Thus, “CMDA mem-

bers have treated and do treat individuals who identify as transgender,

for health issues ranging from common colds to cancer.” ROA.3386. But

they view participating in gender transitions as inconsistent with “the

obligation of Christian healthcare professionals to care for patients strug-

gling with gender identity with sensitivity and compassion.” ROA.3389.

CMDA and its members also oppose abortion. ROA.3383. And just as

CMDA and its members “strive to never commit” certain conduct them-

selves, they also recognize they should not “participate in or encourage”

such conduct by “others.” ROA.3383. Thus, CMDA and its members ob-

ject to providing insurance coverage for gender transitions and abortions.

ROA.3385.

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B. The Government’s Actions

In 2016, HHS’s Office of Civil Rights attempted to force Appellants to

begin performing and providing insurance coverage for gender-transition

procedures and abortions in violation of their religious beliefs and medi-

cal judgment. The purported basis for HHS’s action was its interpretation

of Section 1557 of the ACA, which forbids “discrimination” in healthcare.

42 U.S.C. § 18116(a).

Specifically, Section 1557 prohibits “discrimination under[] any

health program or activity, any part of which is receiving Federal finan-

cial assistance.” Id. But Section 1557 does not specify the grounds on
which discrimination is prohibited. Instead, it incorporates the

“ground[s] prohibited” under four other federal antidiscrimination stat-

utes—(1) “title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.)”

(i.e., “race, color, or national origin”); (2) “title IX of the Education Amend-

ments of 1972 (20 U.S.C. 1681 et seq.)” (i.e., “sex”); (3) “the Age Discrimi-

nation Act of 1975 (42 U.S.C. 6101 et seq.)” (i.e., age”); and (4) “section

794 of Title 29” (i.e., “disability”).

HHS’s actions here center on Title IX’s prohibition of discrimination

“on the basis of sex.” 20 U.S.C. § 1681. At Title IX’s enactment in 1972,

“sex” was commonly understood to refer to the physiological differences

between men and women, particularly with respect to “their reproductive

functions.” E.g., American Heritage Dictionary 1187 (def. 1(a)) (1969).

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This understanding of “sex” is “distinct” from gender identity. Bostock,

140 S. Ct. at 1746-47.

Since Section 1557’s enactment, however, a number of transgender in-

dividuals have sued hospitals and other healthcare providers for declin-
ing to perform or provide insurance coverage for gender-transition proce-

dures, alleging that such conduct amounts to “sex” discrimination under

Section 1557. See, e.g., Cruz v. Zucker, 116 F. Supp. 3d 334 (S.D.N.Y.
2015); Conforti v. St. Joseph’s Healthcare Sys., No. 2:17-cv-00050 (D.N.J.

filed Jan. 5, 2017). In 2016, HHS agreed with this novel interpretation of

Section 1557, promulgating a new rule entitled Nondiscrimination in

Health Programs and Activities (the 2016 Rule), 81 Fed. Reg. 31,376

(May 18, 2016).

The 2016 Rule interprets Section 1557 to prohibit healthcare discrim-

ination “on the basis of” sex. 81 Fed. Reg. at 31,469. It then defines “sex”

to include, among other things, “gender identity” and “termination of

pregnancy.” Id. at 31,467. “Gender identity,” in turn, is defined to mean

an individual’s “internal sense of gender, which may be male, female, nei-

ther, or a combination of male and female.” Id. at 31,467, 31,469. The

2016 Rule states that the “gender identity spectrum includes an array of

possible gender identities beyond male and female,” such as “non-binary

gender identities.” Id. at 31,384, 31,392.

The 2016 Rule then delineates this definition’s consequences. First,

covered entities are required to perform gender-transition procedures or

8
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else be liable for “discrimination.” The 2016 Rule explains: “A provider

specializing in gynecological services that previously declined to provide

a medically necessary hysterectomy for a transgender man would have

to revise its policy to provide the procedure for transgender individuals

in the same manner it provides the procedure for other individuals.” Id.

at 31,455. In other words, if a gynecologist performs a hysterectomy for a

woman with uterine cancer, she must do the same for a woman who
wants to remove a healthy uterus to transition to living as a man. And

the same applies across the full “range of transition-related services”; this

understanding of “gender identity” discrimination “is not limited to sur-

gical treatments and may include, but is not limited to, services such as

hormone therapy and psychotherapy, which may occur over the lifetime

of the individual.” Id. at 31,435-36. Moreover, because the 2016 Rule also

interprets Section 1557 to prohibit discrimination based on “termination

of pregnancy,” it purports to require healthcare providers who perform

procedures such as a dilation and curettage for a miscarriage to perform

the same procedure for an abortion. See id. at 31,455; see also ROA.3371.

Second, the 2016 Rule’s expansive definition of “sex” under Section

1557 means that covered entities must pay for gender-transition proce-

dures in their health-insurance plans. The 2016 Rule states: “A covered

entity shall not, in providing or administering health-related insur-

ance … [h]ave or implement a categorical coverage exclusion or limita-

tion for all health services related to gender transition.” 81 Fed. Reg. at

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31,471-72. According to the 2016 Rule, categorizations of all transition-

related treatment as cosmetic or experimental are now “outdated and not

based on current standards of care.” Id. at 31,429. Thus, a plan excluding

“coverage for all health services related to gender transition is unlawful

on its face.” Id. Rather, if a doctor concludes that a transition procedure—

like a hysterectomy—“is medically necessary to treat gender dysphoria,”

then the patient’s employer would be required to cover that procedure on

the same basis that it would cover the procedure for other conditions—

like cancer. Id. Likewise, because the 2016 Rule’s definition of “sex” in-

cludes “termination of pregnancy,” it purports to require employers who

provide insurance coverage for procedures such as a dilation and curet-

tage for a miscarriage to cover the same procedure for an abortion. See

id.

The 2016 Rule applies to any “entity that operates a health program

or activity, any part of which receives Federal financial assistance.” 81

Fed. Reg. at 31,466. “Federal financial assistance” is then defined broadly

to include “any grant, loan, credit, subsidy, contract … or any other ar-

rangement” by which the Federal Government makes available its prop-

erty or funds. Id. at 31,467. Thus, the 2016 Rule applies to almost every

healthcare provider in the country because they all accept some form of

federal funding, whether through Medicare and Medicaid or otherwise.

Id. at 31,445-46.

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Penalties for violating these mandates are severe. If a covered entity

violates the 2016 Rule, it is subject to the same penalties that accompany

a violation of Title IX. These include the loss of federal funding (which,

in the case of Medicare and Medicaid, can total hundreds of millions of

dollars), debarment from doing business with the government, and false-

claims liability. Id. at 31,472. Penalties also include enforcement pro-

ceedings by the Department of Justice and private lawsuits for damages

and attorneys’ fees. Id. at 31,440, 31,471-72.

The 2016 Rule does not include any religious exemptions or exemp-

tions related to abortion—although the statute incorporated into Section

1557, Title IX, includes both. Title IX’s prohibition on sex discrimination

includes a broad exemption stating that Title IX “shall not apply to an

educational institution which is controlled by a religious organization if

the application of this subsection would not be consistent with the reli-

gious tenets of such organization.” 20 U.S.C. § 1681(a)(3); see id. § 1687.

Likewise, Title IX provides that its prohibition on sex discrimination

shall not be “construed to require or prohibit any person, or public or pri-

vate entity, to provide or pay for any benefit or service, including the use

of facilities, related to an abortion.” Id. § 1688. Section 1557 refers to the

whole of Title IX, incorporating “title IX of the Education Amendments

of 1972 (20 U.S.C. 1681 et seq.).” 42 U.S.C. § 18116(a). Yet in interpreting

Section 1557’s prohibition on “sex” discrimination in the 2016 Rule, HHS

declined to incorporate these exemptions. 81 Fed. Reg. at 31,380.

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HHS adopted this novel interpretation of Section 1557 despite “signif-

icant disagreement within the medical community” as to the “necessity

and efficacy of” gender-transition procedures in the first place. Gibson v.

Collier, 920 F.3d 212, 216, 224 (5th Cir. 2019) (“[S]ex reassignment sur-
gery remains one of the most hotly debated topics within the medical

community today.”). And HHS did this despite the fact that HHS’s own

medical experts recommended against mandating coverage of gender-re-

assignment surgery in Medicare—concluding after “a thorough review of

the clinical evidence” that “there is not enough evidence to determine

whether gender reassignment surgery improves health outcomes for

Medicare beneficiaries with gender dysphoria,” and some studies “re-

ported harms.” ROA.1155.

C. This Lawsuit

Franciscan and CMDA’s members are entities covered by Section 1557

and the 2016 Rule whose religious beliefs and medical judgment preclude

them from performing or providing insurance coverage for gender-tran-

sition procedures or abortions. HHS’s interpretation of Section 1557 thus

puts them to a choice: they can either violate their beliefs or suffer severe

penalties, including the forfeiture of millions of dollars of critical federal

funding.

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Seeking to avoid this dilemma, Appellants filed this lawsuit in August

2016. They alleged two claims central to this appeal—one under RFRA,

and one under the Administrative Procedure Act (APA).

Invoking RFRA, Appellants alleged that HHS had violated the statute
by interpreting Section 1557 to require them to perform and provide in-

surance coverage for gender transitions and abortions contrary to their

religious beliefs and medical judgment. ROA.374-77. They therefore

sought an injunction barring HHS from applying such a requirement to

them. ROA.390, 1892, 3289.

Next, invoking the APA, Appellants alleged that because the term
“sex” as used in Title IX (and thus in Section 1557) unambiguously means

biological sex, and because the 2016 Rule failed to include Title IX’s reli-

gion and abortion exemptions, the 2016 Rule exceeded HHS’s statutory

authority. ROA.346-64. They therefore also sought to have the offending

portions of the 2016 Rule “set aside.” ROA.309; see 5 U.S.C. § 706(2).

The States of Texas, Wisconsin, Nebraska, Kentucky, Kansas, Louisi-

ana, Arizona, and Mississippi (collectively, States), joined the lawsuit as

plaintiffs. ROA.306. They agreed that the 2016 Rule violated the APA

and also alleged that it violated the Spending Clause and the Tenth and

Eleventh Amendments. ROA.380-89.

In September 2016, River City Gender Alliance and the ACLU of

Texas (collectively, ACLU) moved to intervene in defense of HHS’s ac-

tions. ROA.140.

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On December 31, 2016, the district court, on Appellants’ and the

States’ motion, preliminarily enjoined HHS from enforcing the 2016

Rule’s prohibition against discrimination on the basis of “gender identity”

and “termination of pregnancy.” RE.069. The court concluded that HHS’s

“implement[ation] of Section 1557” had likely violated RFRA by

“plac[ing] substantial pressure on [Appellants] to perform and cover tran-

sition and abortion procedures” without its action being narrowly tailored
to a compelling government interest. RE.071, 106-10. The court also

agreed that the 2016 Rule exceeded HHS’s statutory authority by defin-

ing “sex” discrimination under Section 1557 to include discrimination on

the basis of “gender identity” and by not incorporating Title IX’s religion

and abortion exemptions. RE.096-106.

In March 2017, Appellants and the States moved for summary judg-

ment on their RFRA and APA claims. ROA.1884. In response, HHS—now

under a different Administration from the one that had promulgated the

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

reconsider the challenged aspects of the Rule, ROA.2860, which the dis-

trict court granted, ROA.2903.

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D. The Ruling Below

In the ensuing 17 months, however, HHS took no further substantive

action. ROA.2976. In December 2018, Appellants and the States there-

fore sought to lift the stay of litigation, ROA.2956, and the court agreed,

ROA.2983.

In February 2019, Appellants renewed their motion for partial sum-

mary judgment on their claims under RFRA and the APA. ROA.3282. In

support of that motion, Appellants submitted a proposed order specifying

the relief sought. RE.115-19. In particular, Appellants sought an injunc-

tion stating that HHS should be “permanently enjoined” from “[c]onstru-

ing Section 1557 to require [Appellants] to provide medical services or

insurance coverage related to ‘gender identity’ or ‘termination of preg-

nancy’ in violation of their religious beliefs.” RE.117-18. This request for

an injunction corresponded to Appellants’ claim under RFRA, which for-

bids government-imposed “substantial[] burden[s]” on religious exercise,

and both authorizes and typically requires injunctive relief.

42 U.S.C. §§ 2000bb-1(a), (c). The proposed order also included vacatur of

the unlawful portions of the Rule, RE.118, corresponding to Appellants’

claim under the APA, which provides for unlawful regulations to be “set

aside.” 5 U.S.C. § 706(2).

In response to Appellants’ and the States’ renewed summary-judg-

ment motions, HHS “agree[d] with Plaintiffs and the Court that the

Rule’s prohibitions on discrimination on the basis of gender identity and

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termination of pregnancy conflict with Section 1557 and thus are sub-

stantively unlawful.” ROA.4365. Given that concession, HHS argued that

there was “no need for” the court to reach Appellants’ RFRA claim,

though it did not oppose that claim on the merits. ROA.4365.

In May 2019, while the summary-judgment motions were pending,

and more than two years after the preliminary injunction, HHS issued a

Notice of Proposed Rulemaking proposing to amend the Rule. ROA.4519-

722. Citing the district court’s preliminary-injunction decision, the pro-

posed rule conceded that the Rule’s definition of “sex” “exceeded [HHS’s]

authority under Section 1557.” ROA.4533-34 (internal quotation marks

omitted). The proposed rule sought to address this issue by repealing the

2016 Rule’s definition of “sex” in its entirety, which, HHS said, would

“allow the Federal courts, in particular, the U.S. Supreme Court … to

resolve any dispute about the proper legal interpretation of” “sex” in Sec-

tion 1557. ROA.4561, 4630-31. As the proposed rule noted, the Supreme

Court had recently granted certiorari to decide whether “sex” discrimina-

tion under Title VII included discrimination on the basis of “sexual ori-

entation” and “gender identity,” in three cases that would be decided to-

gether as Bostock. ROA.4558.

In October 2019, the district court ruled on ACLU’s renewed motion to

intervene and Appellants’ and the States’ renewed summary-judgment

motions. RE.044. The court had initially denied intervention as of right,

ROA.1839, but it now held that because HHS had conceded that the Rule

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was unlawful, it no longer adequately represented ACLU’s interests.

RE.050-51. The court therefore granted intervention. RE.068.

Regarding the summary-judgment motions, the district court found

“no reason to depart from its” preliminary-injunction analysis. RE.060.

It therefore granted summary judgment in part, holding that HHS had

violated RFRA in attempting to coerce Appellants into violating their be-

liefs, and that the Rule violated the APA by defining “sex” in a way that
conflicted with Title IX and by failing to incorporate Title IX’s religion

and abortion exemptions. RE.059-64.

As for relief, however, the court concluded that “the proper remedy”
was vacatur of the Rule to the extent of its conflict with Section 1557 and

Title IX, and “not a permanent injunction.” RE.064-68. The court ex-

plained that, given the APA’s language providing that unlawful rules

should be “set aside,” the “presumptive remedy” under the APA is vaca-

tur. RE.065-68. And given its decision to vacate, the district court rea-

soned, “issuance of an injunction would not have a ‘meaningful practical

effect independent of … vacatur.’” RE.067-68 (quoting Monsanto, 561

U.S. at 165). The court’s reasoning failed to address the plaintiff-specific

injunction Appellants had sought under RFRA, or the many plaintiff-spe-

cific injunctions awarded to prevailing plaintiffs in parallel RFRA suits,

instead characterizing the injunctive relief at issue solely as a “nation-

wide” injunction against HHS’s enforcement of the challenged portions of

the 2016 Rule. RE.064-68.

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The same day, the district court entered a separate final judgment

severing the claims not reached in its summary-judgment order. RE.041.

Following HHS’s motion to modify the judgment, ROA.4799, on Novem-

ber 21, 2019, the district court entered a modified judgment setting out
the final terms of its relief: “[T]he Court VACATES the Rule insofar as

the Rule defines ‘On the basis of sex’ to include gender identity and ter-

mination of pregnancy.” RE.043.

E. This Appeal

Appellants appealed on January 21, 2020. On May 28, Appellants

moved to stay the deadline to file their opening brief until 21 days after
the Supreme Court’s decision in Bostock, which this Court granted.

On June 12, HHS issued a new Section 1557 rule, finalizing the rule

proposed in 2019. See Nondiscrimination in Health and Health Educa-

tion Programs or Activities (the 2020 Rule), 85 Fed. Reg. 37,160 (June

19, 2020). The 2020 Rule declined to replace the previous Rule’s defini-

tion of “sex” with a new definition, reasoning instead that the Supreme
Court’s then-forthcoming decision in Bostock would “likely have ramifi-

cations for the definition of ‘on the basis of sex’ under Title IX.” Id. at

37,168. Thus, simply repealing the prior definition would permit “appli-
cation of the [Bostock] Court’s construction.” Id.

HHS also stated that the 2020 Rule was intended to respond to the

fact that “the Franciscan Alliance court vacated portions of the 2016 Rule

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for failing to incorporate Title IX’s exemption for religious institutions.”

Id. at 37,207. To that end, the 2020 Rule included language stating that

“[i]nsofar as the application of any requirement under this part would

violate, depart from, or contradict … exemptions … provided by any of”

certain other statutes, including Title IX, “such application shall not be

imposed or required.” 45 C.F.R. § 92.6(b). HHS acknowledged, however,

that the 2020 Rule did not itself include “a religious exemption, whether
narrow or broad,” nor did it “purport to construe the” exemptions refer-

enced. 85 Fed. Reg. at 37,205.

Finally, the 2020 Rule disavowed the 2016 Rule’s statement that cat-
egorical refusals to perform or cover gender transitions were “‘outdated

and not based on current standards of care,’” acknowledging that there

was, at “minimum, a lack of scientific and medical consensus to support”

it. 85 Fed. Reg. at 37,187 (quoting 81 Fed. Reg. at 31,429). Instead, the

2020 Rule pointed to evidence demonstrating “that there is no medical

consensus to support one or another form of treatment for gender dys-

phoria,” and noted that “research has found that children who socially

transition in childhood faced dramatically increased likelihood of persis-

tence of gender dysphoria into adolescence and adulthood.” Id. at 37,187,

37,198.

Three days later, the Supreme Court decided Bostock. The Court held

that when “an employer … fires someone simply for being homosexual or
transgender,” the employer has “discriminated against that individual

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‘because of such individual’s sex’” within the meaning of Title VII. 140

S. Ct. at 1753. The Court cautioned, however, that its opinion did not

“prejudge” the proper interpretation of “other federal or state laws that

prohibit sex discrimination,” id., including Section 1557 and Title IX, see
id. at 1779-82 & n.57 (Alito, J., dissenting).

The Bostock Court also disclaimed any intent to undermine religious

freedom. Emphasizing that it was “deeply concerned with preserving the

promise of the free exercise of religion,” which “lies at the heart of our

pluralistic society,” the Court explained that religious employers might

not be liable under Title VII “in cases like ours” if complying would re-
quire them “to violate their religious convictions.” Id. at 1753-54 (major-

ity). The Court also invoked RFRA as a key protection for religious objec-

tors, describing it as a “super statute” that “might supersede … in appro-

priate cases” an otherwise-applicable ban on gender-identity discrimina-

tion. Id. at 1754. Likewise addressing religious-freedom concerns, Justice

Alito’s dissent noted that “because some employers and healthcare pro-

viders”—like Appellants here—“have strong religious objections to sex

reassignment procedures,” extending Bostock so as to “require[]them to

pay for or to perform” those procedures would “have a severe impact on

their ability to honor their deeply held religious beliefs.” Id. at 1782

(Alito, J., dissenting).

Since June, plaintiffs in at least five jurisdictions have sued HHS,

challenging the 2020 Rule in light of Bostock and seeking restoration of

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the 2016 Rule, in whole or in part. 1 Two district courts have entered
“overlapping injunctions,” Whitman-Walker Clinic, Inc. v. U.S. Dep’t of

Health & Human Servs., No. 1:20-cv-01630, 2020 WL 5232076, at *41

(D.D.C. Sept. 2, 2020) (internal quotation marks omitted), preventing the

2020 Rule “from becoming operative” and thus leaving key portions of the

2016 Rule in place, Walker v. Azar, No. 1:20-cv-02834, 2020 WL 4749859,

at *1 (E.D.N.Y. Aug. 17, 2020). One of these courts has specifically held
that portions of the 2016 Rule vacated by the district court in this case—

including “the definitions of ‘on the basis of sex,’ ‘gender identity,’ and

‘sex stereotyping’”—“remain in effect.” Walker, 2020 WL 4749859, at *10.

And another court has held that a portion of the 2016 Rule purportedly

not vacated by the district court—namely, defining “sex” to include “sex

stereotyping”—independently allows for punishment of healthcare pro-

viders, like Appellants here, who decline to perform or pay for gender-

transition procedures. Whitman-Walker, 2020 WL 5232076, at *23, 45.

1 Whitman-Walker Clinic, Inc. v. U.S. Dep’t of Health & Human Servs., No. 1:20-cv-
01630 (D.D.C. filed June 22, 2020); Walker v. Azar, No. 1:20-cv-02834 (E.D.N.Y. filed
June 26, 2020); Boston All. of Gay, Lesbian, Bisexual & Transgender Youth v. U.S.
Dep’t of Health & Human Servs., No. 1:20-cv-11297 (D. Mass. filed July 9, 2020);
Washington v. U.S. Dep’t of Health & Human Servs., No. 2:20-cv-01105 (W.D. Wash.
filed July 16, 2020); New York v. U.S. Dep’t of Health & Human Servs., No. 1:20-cv-
05583 (S.D.N.Y. filed July 20, 2020).

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SUMMARY OF THE ARGUMENT

The decision below was right on the merits, but wrong on the remedy.

Appellants prevailed on the merits of two different claims: first, their

claim under RFRA that HHS’s actions unjustifiably burdened their reli-

gious exercise; and second, their claim under the APA that HHS’s Rule

exceeded its authority under Section 1557.

The typical relief for a RFRA violation is an injunction preventing the

government from imposing a substantial burden on the plaintiff’s reli-

gious exercise. To remedy the RFRA violation, then, Appellants re-

quested an injunction prohibiting HHS from “[c]onstruing Section 1557

to require [Appellants] to provide medical services or insurance coverage

related to ‘gender identity’ or ‘termination of pregnancy’ in violation of

their religious beliefs.” RE.118.

Yet despite the fact that courts regularly grant injunctive relief to rem-

edy RFRA violations, the district court declined to grant this (or any

other) injunctive relief. Instead, noting that the APA instructs a review-

ing court to “set aside” agency rules found to be “in excess of statu-

tory … authority,” 5 U.S.C. § 706(2), the district vacated the portions of

the Rule it found inconsistent with Section 1557, and held that an injunc-

tion was inappropriate because it would have no “meaningful practical

effect independent of its vacatur.” RE.067-68 (quoting Monsanto, 561

U.S. at 165).

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The court was right to grant vacatur, but wrong to deny an injunction.

Appellants plainly satisfied the traditional four-factor test for injunctive

relief—as neither HHS nor the district court contested. Moreover, be-

cause RFRA is aimed at preventing government-imposed “substantial[]

burden[s]” on religion, 42 U.S.C. § 2000bb-1(a), an injunction perma-

nently barring the government from taking the action that imposed the

burden in the first place is the typical “appropriate relief” under RFRA,
id. § 2000bb-1(c)—as demonstrated by the fact that every case in which

this Court or the Supreme Court has found a RFRA violation since the

statute’s passage has resulted in an injunction.

The district court’s sole reason for declining to grant the injunction—

that doing so would add nothing to its vacatur—was mistaken. There is

a straightforward “practical” difference between the vacatur the district

court ordered and the injunction Appellants sought—the former is effec-

tive only against the 2016 Rule, while the latter would be effective

against not only the 2016 Rule but also current and future efforts to im-

pose on Appellants the same, RFRA-violating burden.

This difference was apparent at the time the district court rendered

its decision, given the administrative back-and-forth over the 2016 Rule

and other court decisions interpreting Section 1557 itself in a way that

would burden Appellants’ beliefs. And recent developments have made

vacatur’s inadequacy all the more unmistakable. Two other district

courts have purported to undo the district court’s vacatur, resurrecting

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 Case: 20-10093 Document: 00515573352 Page: 39 Date Filed: 09/21/2020

provisions of the 2016 Rule that would require Appellants to violate their

beliefs. And HHS has issued a new rule that, in light of Bostock and early

Circuit precedent interpreting it, could be read to require “healthcare

providers” like Appellants “to pay for or to perform [sex reassignment]

procedures,” creating “a severe impact on their ability to honor their

deeply held religious beliefs.” Bostock, 140 S. Ct. at 1781-82 (Alito, J.,

dissenting).
These developments demonstrate Appellants’ need for the narrowly-

tailored injunction they sought below. And they show why the district

court misapplied Monsanto. The practical interest Appellants assert

here—insulating themselves against current or future government ac-

tions violating their rights in the “same fundamental way” as past ones,

but through different means—has been squarely recognized as cogniza-

ble by the Supreme Court. Ne. Fla. Chapter of Associated Gen. Contrac-

tors of Am. v. City of Jacksonville, 508 U.S. 656, 661-63 (1993). And nu-

merous courts around the country have remedied a federal agency’s

RFRA violations by entering injunctions functionally identical to the one

Appellants requested here—that is, by prohibiting the agency from in-

voking its statutory authority, now or in the future, to impose the same

substantial burden on religious exercise found to have violated RFRA.

They’ve done so because that is “prospective relief that fits the remedy to

the wrong or injury that has been established,” Salazar v. Buono, 559

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 Case: 20-10093 Document: 00515573352 Page: 40 Date Filed: 09/21/2020

U.S. 700, 718 (2010) (plurality)—and it’s the relief the district court

should have granted here.

The Court should reverse the district court’s remedy determination in

part and remand for entry of a plaintiff-specific permanent injunction en-

joining HHS from construing Section 1557 to require Appellants to per-

form or provide insurance coverage for gender-transition or abortion pro-

cedures contrary to their beliefs. Such relief would protect Appellants’

deeply held religious exercise against attempts by HHS to reimpose the

same substantial burden they attempted to impose via the 2016 Rule—

whether under Section 1557 directly, under the 2016 Rule as revived by
litigation, under the current 2020 Rule interpreted in light of Bostock, or

under a new Administration. At minimum, the Court should remand to

allow the district court to reconsider the proper remedy in light of recent

developments underscoring the inadequacy of its vacatur.

STANDARD OF REVIEW

“As a general matter,” this Court “review[s] the trial court’s … denial

of a permanent injunction for abuse of discretion.” Scott v. Schedler, 826

F.3d 207, 211 (5th Cir. 2016) (internal quotation marks omitted). Abuse

of discretion occurs when the district court “(1) relies on clearly erroneous

factual findings when deciding to grant or deny the permanent injunc-

tion, (2) relies on erroneous conclusions of law when deciding to grant or

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 Case: 20-10093 Document: 00515573352 Page: 41 Date Filed: 09/21/2020

deny the permanent injunction, or (3) misapplies the factual or legal con-

clusions when fashioning its injunctive relief.” Eastman Chem. Co. v.

Plastipure, Inc., 775 F.3d 230, 234 (5th Cir. 2014) (internal quotation

marks omitted).

ARGUMENT
I. Appellants satisfied the requirements for injunctive relief.

“[T]he standard for a permanent injunction is essentially the same as

for a preliminary injunction with the exception that the plaintiff must

show actual success on the merits.” Dresser-Rand Co. v. Virtual Automa-

tion, Inc., 361 F.3d 831, 847-48 (5th Cir. 2004). Thus, the party seeking a

permanent injunction “must establish (1) success on the merits; (2) that

a failure to grant the injunction will result in irreparable injury; (3) that
said injury outweighs any damage that the injunction will cause the op-

posing party; and (4) that the injunction will not disserve the public in-

terest.” VRC LLC v. City of Dallas, 460 F.3d 607, 611 (5th Cir. 2006).

“[I]n First Amendment cases, the likelihood of success on the merits

will often be the determinative factor.” Korte v. Sebelius, 735 F.3d 654,

666 (7th Cir. 2013) (internal quotation marks omitted). “This is likewise
true here since RFRA is no ordinary statute.” Hobby Lobby Stores v. Sebe-

lius, 723 F.3d 1114, 1146 (10th Cir. 2013) (en banc), aff’d, 573 U.S. 682

(2014). Rather, “RFRA protects First Amendment free-exercise rights.”

Korte, 735 F.3d at 666. RFRA is thus “analog[ous] to a constitutional

right” for purposes of injunctive relief. Hobby Lobby, 723 F.3d at 1146;

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see Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 295 (5th

Cir. 2012). Here, all four factors are satisfied.

Success on the merits. Appellants succeeded on the merits of their

RFRA claim. The district court granted summary judgment in their fa-
vor. And since neither HHS nor ACLU appealed the district court’s mer-

its determination, the merits can’t be revisited. Art Midwest Inc. v. Atl.

Ltd. P’ship XII, 742 F.3d 206, 211 (5th Cir. 2014).
In any event, the merits ruling was correct. RFRA provides “very

broad protection for religious liberty.” Burwell v. Hobby Lobby Stores, 573

U.S. 682, 693 (2014). Under RFRA, “Government may substantially bur-
den a person’s exercise of religion only if it demonstrates that application

of the burden to the person … is the least restrictive means of furthering

[a] compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). RFRA

claims thus proceed in two steps. First, the court must determine

whether the government has imposed a “substantial burden” on the

plaintiff’s religious exercise. If so, the government action is unlawful un-

less it satisfies strict scrutiny—that is, unless the government “demon-

strates that application of the burden to the person represents the least

restrictive means of advancing a compelling interest.” O Centro, 546 U.S.

at 423 (internal quotation marks omitted).

Here, the district court determined that “the Rule imposes a substan-

tial burden on [Appellants’] religious exercise.” RE.062 (internal quota-

tion marks omitted). Rightly so. It is undisputed that Appellants’ sincere

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religious beliefs forbid them from performing or providing insurance cov-

erage for gender transitions or abortions. Yet the interpretation of Sec-

tion 1557 set forth in the 2016 Rule prohibits them from categorically

declining to perform or cover these procedures, calling that “unlawful on

its face.” 81 Fed. Reg. at 31,429. If they nonetheless persist in their reli-

gious exercise, they are subject to massive financial penalties, including

loss of Medicare and Medicaid funds (costing Franciscan up to $900 mil-

lion annually), 81 Fed. Reg. at 31,472; debarment from contracting with

the federal government; enforcement proceedings brought by the Depart-

ment of Justice; liability under the False Claims Act (including treble
damages), 81 Fed. Reg. at 31,440-41; and private lawsuits brought by pa-

tients or employees for damages and attorneys’ fees, id. at 31,440-41;

31,472.

Penalties like these are a quintessential substantial burden. In Hobby

Lobby, for example, the Court said that because the law at issue there

“force[d] [plaintiffs] to pay an enormous sum of money … if they insist on

providing insurance coverage in accordance with their religious beliefs,

the mandate clearly imposes a substantial burden on those beliefs.” 573

U.S. at 726. Here, the Rule doesn’t just force Appellants, on pain of mas-

sive financial penalties, to “provid[e] insurance coverage” for procedures

that violate their beliefs; it also forces them to perform the procedures

themselves. Id. Thus, this is an a fortiori case.

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Next, the district court concluded that HHS had failed to “demonstrate

that applying the Rule to” Appellants satisfied strict scrutiny. RE.063.

This determination, too, was correct. For one thing, RFRA’s plain lan-

guage puts the burden of proof on this issue on the government, providing
that the “Government” may substantially burden religious exercise “only

if it demonstrates” that its action satisfies strict scrutiny. 42 U.S.C.

§ 2000bb-1 (emphasis added). Here, however, HHS didn’t even try to jus-
tify applying the 2016 Rule to Appellants; rather, it conceded in its sum-

mary-judgment response that the 2016 Rule was indefensible.

In any event, even if HHS had tried to satisfy strict scrutiny, it would
have failed. Plaintiffs don’t object to serving transgender individuals.

They provide them with top-notch treatment for everything from cancer

to the common cold. ROA.3386. The issue is gender-transition proce-

dures, which are “hotly disputed within the medical community,” Gibson,

920 F.3d at 220-24, 226, and which HHS itself has acknowledged may

cause “harms.” ROA.1155. HHS has no legitimate interest in forcing doc-

tors to perform such controversial procedures against their religious be-

liefs and medical judgment. ROA.1791-92.

As HHS’s own experts admitted in 2016, “there is not enough evidence

to determine whether gender reassignment surgery improves health out-

comes for [patients] with gender dysphoria.” ROA.1155 (emphasis

added). Meanwhile, there is substantial medical evidence showing such

procedures can impose “harms.” ROA.1155. The Institute of Medicine

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and guidance invoked by HHS itself have recognized that hormone ther-

apy may cause “increased risk” of cancer, cardiovascular disease, Type 2

diabetes, gallstones, venous thromboembolic disease, and hypertension.

ROA.3341-42. Moreover, performing sometimes-irreversible transition

procedures on children is in significant tension with the fact that (accord-

ing to studies cited in HHS’s own guidance documents) the overwhelming

majority of children who experience gender dysphoria don’t continue to

do so as adults. ROA.3854 (studies alternatively showing up to 88% or

94% desistence rate).

Nor does HHS have a compelling interest in forcing Appellants to in-

sure these procedures. “[A] law cannot be regarded as protecting an in-

terest ‘of the highest order’ … when it leaves appreciable damage to that

supposedly vital interest unprohibited.” Church of Lukumi Babalu Aye,

Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993) (citation omitted). Yet

here, some of the government’s own health-insurance programs are ex-

empt from the Rule—and they don’t cover transition procedures. TRI-

CARE (the military’s insurance program) excludes coverage for (1) “[a]ll

services and supplies directly and or indirectly related to surgical treat-

ment for gender dysphoria”; (2) cross-sex hormones for children under 16;

and (3) pubertal suppression for prepubertal children. ROA.3343. And

the Veterans Health Administration’s benefits package specifically ex-

cludes “gender alterations.” 38 C.F.R. § 17.38(c); ROA.3343. As the dis-

trict court explained, the government can’t have a “compelling” interest

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in a policy that it isn’t even “willing to pursue itself.” RE.108-09. That

principle dooms any compelling interest HHS might have sought to

demonstrate here.

And in fact, the “hotly disputed” issue of gender-transition procedures

this Court recognized last year in Gibson has only grown more controver-

sial. See 920 F.3d at 226. In October 2019, for example, researchers from

the Yale School of Public Health published in the American Journal of

Psychiatry the “first total population study” analyzing the long-term ef-

fects of “gender-affirming hormone and surgical interventions” on mental

health. 2 Although the study’s authors initially claimed to find a benefit

from surgery—a finding touted in the media—the journal later issued a

correction, noting flaws in its “statistical methodology” and acknowledg-

ing that the data “demonstrated no advantage of surgery in relation to

subsequent mood or anxiety disorder-related health care.” 3 This correc-

tion aligned with the study’s original finding that hormonal treatments,

2 Richard Bränström & John E. Pachankis, Reduction in Mental Health Treatment

Utilization Among Transgender Individuals after Gender-Affirming Surgeries: A To-
tal Population Study, Am. J. Psychiatry 177:8, 727 (Aug. 2020).
3 Correction to Bränström and Pachankis, Am. J. Psychiatry (Aug. 1, 2020),
https://perma.cc/6J2K-G69H (emphasis added); see also Mark Regnerus, New Data
Show “Gender-Affirming” Surgery Doesn’t Really Improve Mental Health. So Why Are
the Study’s Authors Saying It Does?, Public Discourse (Nov. 13, 2019),
https://perma.cc/LK9U-CTPB.

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too, offered no advantage. 4 And the absence of any psychological ad-

vantage from these controversial treatments contrasts sharply with their

well-documented physical harms described above.

Likewise, the UK’s National Health Service—whose “promot[ion]” of

“gender equity” ACLU lauded in 2018 5—recently shifted its guidance on

puberty blockers for children, going from stating that their consequences

are “fully reversible” to acknowledging “[l]ittle is known about the long-

term side effects.” 6

In short, the “evolving” “field of medicine” this Court recognized in

Gibson has only continued evolving. 920 F.3d at 223. This forecloses any

argument that HHS has a compelling interest in punishing as “discrimi-

nators” medical professionals who, in accordance with their medical judg-

ment and religious beliefs, take “one side in [the] sharply contested …
debate,” id. at 221—much less professionals who take the same side as

other federal agencies themselves. See also 85 Fed. Reg. at 37,198 (“there

is no medical consensus to support one or another form of treatment for

gender dysphoria”).

4Bränström & Pachankis, supra n.2, at 731 (“Time since initiating gender-affirming
hormone treatment was not associated with … mental health treatment outcomes.”).
5Louise Melling, 12 Things Other Countries Have Done to Promote Gender Equity,
ACLU (Aug. 13, 2018), https://perma.cc/F4GD-TYXM.
6Treatment: Gender Dysphoria, National Health Service, https://bit.ly/2RNBnbe; see
James Kirkup, The NHS has quietly changed its trans guidance to reflect reality, The
Spectator (June 4, 2020), https://perma.cc/8DEB-RCSF.

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Finally, even assuming the Rule furthered a compelling interest, HHS

had ways of pursuing it without forcing religious objectors like Appel-

lants to violate their beliefs. If, for example, the goal is to expand access

to gender-transition procedures, HHS could “assist transgender individ-

uals in finding and paying for transition procedures available from the

growing number of healthcare providers who offer and specialize in”

them. RE.109-10. Or if the goal is to ensure that procedures are cost-free

for the patient, “[t]he most straightforward way of doing this would be

for the government to assume the cost of providing the[m] to any [indi-

viduals] who are unable to obtain them under their health-insurance pol-
icies due to their employers’ religious objections.” Hobby Lobby, 573 U.S.

at 728. HHS may be free to decide that gender-transition procedures

should be widely performed and covered by insurance. What it can’t do is

force religious objectors like Appellants to set aside their beliefs and med-

ical judgment to be the ones to do the performing and insuring, when “it

has at its disposal” alternatives that wouldn’t require their participation.

Id. at 730.

Appellants’ RFRA claim thus succeeded on the merits. The district

court correctly so held, in a holding that HHS didn’t dispute, neither HHS

nor ACLU appealed, and Bostock doesn’t question. 140 S. Ct. at 1754

(“no … religious liberty claim is now before us”).

Irreparable harm. The second injunction factor is whether Appel-

lants would otherwise face “a substantial threat of irreparable harm.”

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 Case: 20-10093 Document: 00515573352 Page: 49 Date Filed: 09/21/2020

Opulent Life, 697 F.3d at 294. That question is straightforward here.

“The loss of First Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S.

347, 373 (1976). And under RFRA, “this same principle applies.” Opulent
Life, 697 F.3d at 295. Thus, that HHS has unjustifiably attempted to co-

erce Appellants to violate their religious beliefs is alone enough for this

factor to be met; “no further showing of irreparable injury is necessary.”

Id. (internal quotation marks omitted).

As detailed infra Part II, Appellants’ exposure to irreparable harm

wasn’t mitigated by the district court’s partial vacatur of the 2016 Rule.
Vacatur here doesn’t provide the lasting protection an injunction would:

“an exemption” for Appellants, regardless whether the government later

finds a way to validly apply its mandate to others. Hobby Lobby, 573 U.S.

at 694-95 (emphasis added). And recent events—the 2020 Rule, Bostock,

and the district-court decisions purporting to resurrect the 2016 Rule—

illustrate how fleeting the relief afforded by the vacatur has been. Indeed,

these events show that Appellants are suffering irreparable harm now,

as they attempt to carry out their missions, care for their patients, and

insure their employees consistent with their religious beliefs, all without

knowing whether they can do so in compliance with Section 1557, or even

which Section 1557 rule currently controls. See Opulent Life, 697 F.3d at

296 (“ongoing harm to … religious practice”).

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An injunction would dispel this uncertainty, ordering that however

HHS interprets the statute now and going forward, it can’t require Ap-

pellants to perform or pay for gender transitions and abortions contrary

to their beliefs. Neither vacatur nor any other “remed[y] available at law”
suffices. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).

Balance of harms. The third factor is the balance of harms—i.e.,

whether “plaintiff will be more severely prejudiced by a denial of the in-

junction than defendant would be by its grant.” Canal Auth. of Fla. v.

Callaway, 489 F.2d 567, 576 (5th Cir. 1974). Where, as here, the threat-

ened harm for the plaintiff is irreparable, the defendant “would need to
present powerful evidence of harm to its interests to prevent” this factor

from being met. Opulent Life, 697 F.3d at 297.

The balance here tips sharply in Appellants’ favor. To perform or pro-

vide insurance coverage for gender transitions and abortions, Appellants

would have to forsake their sincere religious beliefs. If, by contrast, they

adhere to their beliefs, they face the loss of millions of dollars in funding,

the risk of legal liability, and the opprobrium of being branded as “dis-

criminators” under federal law. And even now, Appellants are forced to

operate under a cloud of uncertainty, unsure whether they can continue

to care for their patients and insure their employees consistent with both

the law and their conscience.

Meanwhile, the harms to HHS from being enjoined against requiring

Appellants to violate their beliefs are negligible to nonexistent. Again,

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 Case: 20-10093 Document: 00515573352 Page: 51 Date Filed: 09/21/2020

HHS has many straightforward ways of expanding access to gender tran-

sitions and abortions without involving Appellants. And indeed, HHS

didn’t even respond to Appellants’ balance-of-harms argument below—

thus failing not only to present “powerful evidence” but any evidence of
harm to its interests at all. Opulent Life, 697 F.3d at 297.

Public interest. Finally, the requested injunction must “not disserve

the public interest.” VRC, 460 F.3d at 611. This factor, too, favors Appel-
lants. “Injunctions protecting First Amendment freedoms are always in

the public interest”—a principle that “applies equally to” RFRA. Opulent

Life, 697 F.3d at 298 (internal quotation marks omitted) (discussing

RLUIPA); see also id. at 295 (RFRA is RLUIPA’s “predecessor statute”

and equivalent for purposes of injunction factors). Meanwhile, as HHS

now recognizes, the public interest in transgender healthcare is best

served by leaving “providers … generally free to use their best medical

judgment, consistent with their understanding of medical ethics,” to treat

gender dysphoria—not by conscripting unwilling providers to place ide-

ology over medicine. 85 Fed. Reg. at 37,187.

Moreover, an injunction like the one Appellants seek here is a stand-

ard remedy for RFRA claims. As the Supreme Court has held, successful

RFRA claimants are “entitled to an exemption” from the law under which

the government imposed the burden, regardless whether it validly ap-

plies to others. Hobby Lobby, 573 U.S. at 694-95 (emphasis added). And
when the RFRA claimant is the plaintiff, an “exemption” has invariably

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meant an injunction—one “prohibiting the Government from” taking the

challenged action “with respect to” the claimant’s exercise. O Centro, 546

U.S. at 427; see also Hobby Lobby, 573 U.S. at 735 (injunction sought was

a “religious exemption from generally applicable laws”). In fact, this sort

of injunctive relief has been the remedy awarded in every one of this

Court’s and the Supreme Court’s decisions finding a meritorious RFRA

claim, under both the federal RFRA and its Texas analogue. 7

“When Congress itself has struck the balance” in determining whether

injunctive relief is in the public interest, “a court of equity is not justified

in ignoring that pronouncement under the guise of exercising equitable

discretion.” O Centro Espirita Beneficente Uniao do Vegetal v. Ashcroft,

389 F.3d 973, 1025-28 (10th Cir. 2004) (en banc) (McConnell, J., concur-

ring) (internal quotation marks omitted), aff’d, 546 U.S. 418. Injunctions
are the ordinary relief for pre-enforcement RFRA actions like this one.

And the traditional factors are met, supporting the narrowly-tailored in-

junction Appellants sought below.

7 See Hobby Lobby, 573 U.S. at 692, 701-04 (plaintiffs sought “to enjoin application of
ACA’s contraceptive mandate insofar as it requires them to provide [objectionable]
health-insurance coverage”); O Centro, 546 U.S. at 427 (affirming “preliminary in-
junction prohibiting the Government from enforcing the Controlled Substances Act
with respect to [plaintiff’s] importation and use of hoasca”); A.A. ex rel. Betenbaugh
v. Needville Indep. Sch. Dist., 611 F.3d 248, 257 (5th Cir. 2010) (affirming “permanent
injunction against the District preventing the grooming policy’s application to A.A.”);
Merced, 577 F.3d at 595 (“Merced is entitled … to an injunction preventing Euless
from enforcing its ordinances that burden his religious practice of sacrificing ani-
mals.”).

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II. Appellants’ proposed injunction would have a meaningful

practical effect.

The district court didn’t question Appellants’ showing that they satis-

fied the ordinary injunction factors. Rather, it refused to enter a perma-

nent injunction on one ground: that because it was also vacating the “gen-

der identity” and “termination of pregnancy” portions of the Rule, an in-

junction would have no “meaningful practical effect independent of … va-

catur.” RE.067-68 (quoting Monsanto, 561 U.S. at 165). That was mis-

taken. Appellants’ proposed injunction would have the practical effect of

insulating them from both current and future efforts to invoke Section

1557 to require them to perform and provide insurance coverage for gen-

der-transition procedures and abortions contrary to their beliefs, resolv-

ing the current uncertainty about their ability to continue caring for their

patients and insure their employees consistent with their faith. By de-

clining to grant it, the district court contradicted controlling precedent

and failed to provide Appellants “complete relief.” Califano v. Yamasaki,

442 U.S. 682, 702 (1979).

A. An injunction would protect Appellants from imposition of

the same unlawful burden by other means.

This practical difference between vacatur and injunction was apparent

from the outset. The district court’s vacatur prevented HHS from apply-

ing the portions of the 2016 Rule requiring Appellants to perform and

provide coverage for gender-transition procedures and abortions. But

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 Case: 20-10093 Document: 00515573352 Page: 54 Date Filed: 09/21/2020

nothing in that remedy stopped HHS from imposing the same require-

ment by other means—such as by initiating an enforcement action di-

rectly under Section 1557 or promulgating a new rule imposing the same

burden. HHS doesn’t need to act by regulation to enforce Section 1557; it

can interpret and enforce the statute itself. See 42 U.S.C. § 18116(c) (“The

Secretary [of HHS] may,” but doesn’t have to, “promulgate regulations to

implement this section.” (emphasis added)). Yet while the district court
correctly held that RFRA prohibits HHS from forcing Appellants to per-

form and provide insurance coverage for gender-transition and abortion

procedures contrary to their religious beliefs and medical judgment,

ROA.4789-92, it didn’t actually enjoin HHS from doing so, ROA.4792-

96—leaving HHS free to reimpose the same RFRA-violating burden via

any means other than the vacated portions of the 2016 Rule.

That HHS at the time appeared disinclined to do so doesn’t undermine

the practical meaningfulness of an injunction. As this case illustrates,

HHS’s positions today don’t necessarily dictate its positions tomorrow.

See, e.g., ConocoPhillips Co. v. U.S. E.P.A., 612 F.3d 822, 832 (5th Cir.

2010) (“Embedded in an agency’s power to make a decision is its power

to reconsider that decision.”). And agency changes to “their statutory in-

terpretations” are particularly common when “elections change admin-

istrations,” Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives,

140 S. Ct. 789, 790 (2020) (Gorsuch, J., concurring in denial of certio-

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 Case: 20-10093 Document: 00515573352 Page: 55 Date Filed: 09/21/2020

rari)—especially when “hotly-debated issues” like those of “sex and gen-

der identity” are implicated. United States v. Varner, 948 F.3d 250, 256

(5th Cir. 2020); cf. Joe Biden (@JoeBiden), Twitter (Jan. 25, 2020),

https://bit.ly/3d4pqqq (“Let’s be clear: Transgender equality is the civil

rights issue of our time. There is no room for compromise when it comes

to basic human rights.”).

Moreover, even before Bostock, some courts interpreted Section 1557

to cover “gender identity” discrimination, and thus to require healthcare

providers to offer gender-transition procedures. See, e.g., Flack v. Wis.

Dep’t of Health Servs., 328 F. Supp. 3d 931, 947-48 (W.D. Wis. 2018);
Prescott v. Rady Children’s Hosp.-San Diego, 265 F. Supp. 3d 1090, 1098-

1100 (S.D. Cal. 2017). These decisions were “not based on the” 2016 Rule

but “grounded in the language of the statute itself.” Prescott, 265 F. Supp.

3d at 1098. Appellants believe these decisions wrongly interpret the stat-

ute, as the district court explained. ROA.1781-86, 4788. But they make

it far from “[im]practical” for Appellants to have been concerned that a

future HHS might conclude that Section 1557 requires objecting provid-

ers to offer transition procedures, with or without the 2016 Rule, cf. Mon-

santo, 561 U.S. at 165—justifying Appellants’ request for injunctive re-

lief.

All this shows that when the district court decided this case there was

a practical difference between the injunction Appellants sought and the

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vacatur the district court granted. But developments postdating the de-

cision have only confirmed as much. Indeed, in the months since the dis-

trict court’s ruling, both other courts and HHS itself may already have

reimposed the substance of the 2016 Rule—providing the clearest possi-

ble demonstration of Appellants’ need for the injunctive relief they seek

in this appeal.

First, although HHS has now finalized its new rule intended to re-
spond to the district court’s vacatur, other district courts have in turn

enjoined that rule, in the process purporting to revive the very portions

of the 2016 Rule the district court correctly held to violate RFRA. HHS’s
issuance of the 2020 Rule triggered at least five lawsuits from advocacy

groups, transgender activists, and states. And federal judges in New York

and D.C. have ruled for challengers, resuscitating the substance of the

2016 Rule and thus negating in practical terms the sole relief Appellants

obtained from the district court here. Walker, 2020 WL 4749859; Whit-

man-Walker Clinic, 2020 WL 5232076.

The Walker court held that HHS likely violated the APA by repealing

the 2016 Rule’s definition of “sex,” reasoning that HHS’s “premise” for

doing so—that Section 1557 doesn’t “prohibit[] discrimination based on

gender identity and sex stereotyping”—“was effectively rejected by” Bos-

tock. 2020 WL 4749859, at *8-9. The court thus preliminarily enjoined

“the repeal of the 2016 definition of discrimination on the basis of sex.”

Id. at *10. And although the Walker court noted that it had “no power to

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revive a rule vacated by another district court,” it nonetheless concluded

that “[a]s a result” of its decision, the definitions of ‘sex,’ ‘gender identity,’

and ‘sex stereotyping’ in the 2016 Rule “will remain in effect.” Id. at *7,

*10.
Whitman-Walker Clinic likewise held that, given Bostock, the 2020

Rule’s repeal of the 2016 Rule’s definition of “sex” discrimination violated

the APA. 2020 WL 5232076, at *22-27. The court stated that because the
district court in this case “vacated the ‘gender identity’ portion of this

definition,” that portion of the definition couldn’t be brought back. Id. at

*13. Still, the court reasoned that it could order revival of the 2016 Rule’s
definition of “sex” discrimination to include “sex stereotyping,” id. at *14-

15—which, it said, would have the same effect, since “[d]iscrimination

based on transgender status—i.e., gender identity—often cannot be

meaningfully separated from discrimination based on sex stereotyping.”

Id. at *23. The court therefore entered a nationwide preliminary injunc-

tion preventing HHS “from enforcing the repeal of the 2016 Rule’s defi-

nition of discrimination ‘[o]n the basis of sex’ insofar as it includes ‘dis-

crimination on the basis of … sex stereotyping.’” Id. at *45 (quoting 81

Fed. Reg. at 31,467).

These decisions demonstrate the district court’s error in concluding

that there was no “meaningful practical” difference between the vacatur

it granted and the injunction Appellants sought. ROA.4795-96 (internal

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quotation marks omitted). Despite the district court’s vacatur, other dis-

trict courts have now enjoined HHS from repealing provisions of the 2016

Rule interpreting “sex” discrimination under Section 1557 to include dis-

crimination based on “gender identity,” which is the very interpretation

the district court held to substantially burden Appellants’ religious exer-

cise. Walker, 2020 WL 4749859, at *9; Whitman-Walker, 2020 WL

5232076, at *23. And although the district court here also held that ap-
plying such a provision to override Appellants’ religious exercise would

violate RFRA—in a ruling that (1) was not appealed, and (2) is divorced

from any issue affected by Bostock—the district court’s denial of Appel-

lants’ injunction means that Appellants now have no court order to pre-

vent exactly that from occurring.

Even if Walker and Whitman-Walker are later limited or reversed, the

combination of Bostock and the 2020 Rule itself independently demon-

strates Appellants’ entitlement to an injunction under RFRA. Although

the 2020 Rule eliminates the 2016 Rule’s definition of “sex,” the 2020

Rule doesn’t offer a replacement definition. Instead, the 2020 Rule cites

the Supreme Court’s then-forthcoming decision in Bostock, noting that

the Court’s decision “on the meaning of ‘on the basis of sex’ under Title

VII will likely have ramifications for the definition … under Title IX,”

and explaining that the repeal of the prior definition “would not preclude

application of the [Bostock] Court’s construction.” 85 Fed. Reg. at 37,168.

Bostock has now determined that “sex” discrimination under Title VII

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includes discrimination against a person “for being … transgender.” 140

S. Ct. at 1737. Thus, by finalizing a new rule that arguably ties the mean-

ing of “sex” discrimination under Section 1557 to Bostock, HHS may have

itself interpreted Section 1557 again to forbid “gender identity” discrimi-

nation—and thus may already have reimposed the same RFRA-violating

burden on Appellants’ religious exercise that motivated Appellants to

seek injunctive relief in the first place.

HHS’s position in the cases challenging the 2020 Rule has confirmed

this possibility. HHS has defended the 2020 Rule on the ground that its

“language may be interpreted in conformity with Bostock.” Opp’n to Mot.

for Prelim. Inj. at 17, Whitman-Walker, No. 1:20-cv-01630 (D.D.C. July

24, 2020), ECF 42. Indeed, HHS obtained dismissal on standing grounds

in one of the cases challenging the 2020 Rule precisely because that court

agreed that if Bostock applies under Title IX and Section 1557, then “the

2020 Rule does, in fact,” prohibit gender-identity discrimination like the

2016 Rule did. Washington v. U.S. Dep’t of Health & Human Servs., No.

C20-1105JLR, 2020 WL 5095467, at *8 (W.D. Wash. Aug. 28, 2020) (em-

phasis added).

Moreover, early post-Bostock caselaw supports Appellants’ concern.

“[C]ourts, including the Supreme Court and this court, frequently rely

on” Title VII caselaw to interpret Title IX, whose ban on “sex” discrimi-

nation is the one cross-referenced in Section 1557. Carmichael v. Gal-

braith, 574 F. App’x 286, 293-94 (5th Cir. 2014) (Dennis, J., concurring)

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(collecting cases). Thus, both Circuits that have so far addressed whether

Bostock means that Title IX’s prohibition on “sex” discrimination includes

discrimination based on “transgender status” have concluded that it does.

Adams ex rel. Kasper v. Sch. Bd. of St. John’s Cty., 968 F.3d 1286, 1304-
05 (11th Cir. 2020); see Grimm v. Gloucester Cty. Sch. Bd., No. 19-1952,

2020 WL 5034430, at *25 (4th Cir. Aug. 26, 2020). Appellants dispute

this conclusion. See ROA.1786 n.28 (distinguishing Title VII); cf. Grimm,
2020 WL 5034430, at *35-37 (Niemeyer, J., dissenting); Adams, 968 F.3d

at 1319-21 (W. Pryor, J., dissenting). But to the extent Bostock has in fact

reimposed the 2016 Rule’s prohibition on “gender identity” discrimina-

tion, Appellants are in no better position today than they were when they

filed this lawsuit—even though the district court held, HHS agreed, and

ACLU hasn’t contested by appeal that application of that prohibition to

Appellants would violate RFRA.

Nor does the 2020 Rule’s statement that it “will be implemented con-

sistent with … conscience and religious freedom statutes,” including Title

IX’s religion and abortion exemptions, 85 Fed. Reg. at 37,205, undermine

Appellants’ entitlement to an injunction. At the outset, the 2020 Rule’s

text doesn’t actually set out the substance of those exemptions. See

45 C.F.R. § 92.6(b) (“Insofar as the application of any requirement under

this part would violate, depart from, or contradict … exemptions … pro-

vided by any of” a number of statutes, including Title IX, “such applica-
tion shall not be imposed or required.”). So it is unclear if this language

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does anything—much less that it renders injunctive relief meaningless.

Cf. 81 Fed. Reg. at 31,466 (similar language in 2016 Rule that HHS un-

derstood not to incorporate exemptions); Kennecott Utah Copper Corp. v.

U.S. Dep’t of Interior, 88 F.3d 1191, 1221-23 (D.C. Cir. 1996) (preamble
binding only “if what it requires is sufficiently clear”). The scope of any

incorporated exemption is likewise unclear. Compare RE.103-06 (exemp-

tion would protect “religious organization[s]”) with Whitman-Walker,

2020 WL 5232076, at *27 (exemption would protect “educational opera-

tion[s]” of religious organizations).

In any event, setting aside any ambiguity about whether the 2020
Rule does in fact incorporate Title IX’s religious exemption, that still

wouldn’t eliminate the need for an injunction, because the Whitman-

Walker court has enjoined HHS “from enforcing its incorporation of the

religious exemption contained in Title IX” in the 2020 Rule. 2020 WL

5232076, at *45. Thus, any protection offered Appellants by the 2020

Rule’s reference to Title IX’s statutory exemptions—however incom-

plete—has already evaporated.

B. Controlling authority requires injunctive relief.

These practical considerations illustrate Appellants’ need for addi-

tional relief. They also distinguish this case from the sole binding author-

ity invoked by the district court, Monsanto, which held that an injunction

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is inappropriate if it would have no “‘meaningful practical effect inde-

pendent of’” vacatur. RE.067-68 (quoting 561 U.S. at 165).

In Monsanto, the district court held that a federal agency had violated

environmental law by “deregulat[ing] a variety of genetically engineered

alfalfa” without first completing a sufficient environmental review. 561

U.S. at 144. To remedy that violation, the district court both “vacated [the

agency]’s deregulation decision” and “enjoined the planting of” the alfalfa
by any farmer in the country pending the review’s completion. Id. at 148.

The Ninth Circuit affirmed this relief, id., but the Supreme Court re-

versed, holding that because (as the plaintiffs agreed) the district court’s
“injunction against planting does not have any meaningful practical ef-

fect independent of its vacatur,” “no recourse to the additional and ex-

traordinary relief of an injunction was warranted,” id. at 165-66.

That holding is distinct from this case. In Monsanto, vacatur of the

agency’s deregulation decision meant there was nothing farmers could do

to legally plant the alfalfa—that activity was “independently” “ban[ned]”

by “federal regulations” outside their control. Id. at 150, 165-66. Enjoin-

ing them therefore made no difference to their ability to plant.

Here, by contrast, vacatur alone doesn’t stop HHS from engaging in

the conduct Appellants seek to enjoin. It prevents HHS from relying on

the 2016 Rule to require Appellants to perform or provide gender-transi-

tion procedures or abortions contrary to their religious beliefs. RE.042-

43. But it does not prevent HHS from imposing the same requirement by

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other means—which it could do by enforcing Section 1557 directly, by re-

lying on the 2016 Rule as revived by other litigation, by enforcing the

current 2020 Rule interpreted in light of Bostock, or by promulgating a

new rule under a new Administration. In fact, while the Monsanto vaca-
tur “ha[d] the effect of independently prohibiting” the also-enjoined ac-

tivity, 561 U.S. at 165, “nothing in Franciscan Alliance prevented HHS

from re-promulgating the very provisions that the court vacated.” Whit-
man-Walker, 2020 WL 5232076, at *25. That is why an injunction is

needed. And that is the “meaningful practical effect” not present in Mon-

santo. 561 U.S. at 165.

Post-Monsanto decisions confirm this point. In New York v. U. S. De-

partment of Commerce, for example, the district court held that the Sec-

retary of Commerce violated the APA by deciding to ask about citizenship

on the census. 351 F. Supp. 3d 502, 516 (S.D.N.Y. 2019), aff’d in part,

rev’d in part on other grounds, 139 S. Ct. 2551 (2019). It therefore vacated

the memorandum reflecting that decision, then considered whether it

should also enter injunctive relief. The court noted Monsanto, but held

that an injunction would have “a meaningful practical effect independent

of … vacatur,” and thus that Monsanto didn’t apply. 351 F. Supp. 3d at

676. Absent an injunction, the court explained, the Secretary “could the-

oretically reinstate his decision by simply re-issuing his memorandum

under a new date or by changing the memorandum in some immaterial

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way.” Id. The court therefore issued an injunction “enjoin[ing] Defend-

ants from adding a citizenship question … based on [the] memorandum

or based on any reasoning that is substantially similar to the reasoning

contained in that memorandum.” Id. at 676-77; compare Br. for Pet’rs,

Dep’t of Commerce v. New York, No. 18-966 (U.S. Mar. 6, 2019) (arguing

that the “district court erred in enjoining the Secretary”) with 139 S. Ct.

at 2573-76 (affirming).
So too here. Absent the injunction Appellants requested, HHS “could

theoretically reinstate” the same burden on their religious exercise im-

posed through the 2016 Rule. New York, 351 F. Supp. 3d at 676. Indeed,
to the extent the 2020 Rule imports Bostock’s understanding of “sex” dis-

crimination to Section 1557, it may already have. Here too, then, “an in-

junction is necessary to make the” district court’s RFRA ruling “effec-

tive.” Id.

And indeed, although Monsanto doesn’t specify what sorts of “mean-

ingful practical” differences suffice to justify both vacatur and an injunc-

tion, the Supreme Court has in other contexts recognized as cognizable a

plaintiff’s interest in insulating himself against a government defend-

ant’s future change of position. In Stenberg v. Carhart, 530 U.S. 914

(2000), for example, the Court entertained a challenge to a state law that

the plaintiffs alleged prohibited certain abortion procedures even though

the state Attorney General had interpreted it not to do so. The reason:
“some present prosecutors and future Attorneys General may choose to”

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take a different approach and prosecute providers for performing them.

Id. at 945-46; see id. at 922 (affirming district court’s permanent injunc-

tion).

Similarly, the Supreme Court has held that plaintiffs have a continu-
ing interest in cases challenging laws that the government repealed in

response to the suit, if nothing “preclude[s]” the defendant “from reenact-

ing precisely the same provision if” the case were dismissed. City of Mes-
quite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982); see also Jackson-

ville, 508 U.S. at 661-63; Spell v. Edwards, 962 F.3d 175, 179 (5th Cir.

2020). The same logic applies here. If the government’s repeal of a chal-
lenged rule doesn’t render the court unable to award effective relief so

long as the government remains free to “reenact[]” it, Mesquite, 455 U.S.

at 289, neither should a court’s vacatur of a challenged rule render in-

junctive relief unnecessary under Monsanto if the government could “re-

instate” the unlawful aspects of the vacated rule in a “substantially sim-

ilar” form. New York, 351 F. Supp. 3d at 676.

And this is true “a fortiori” if, as here, the government may have “al-

ready” reimposed the substance of the repealed rule before the case is

even concluded. Jacksonville, 508 U.S. at 662. Indeed, Appellants’ prac-

tical interest in additional relief is even clearer than in Jacksonville. The

Court there held the plaintiffs could continue to litigate because, alt-

hough the ordinance they challenged had been repealed and replaced, the
new ordinance “disadvantage[d] them in the same fundamental way.” Id.

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Here, however, not only has HHS already potentially reimposed the sub-

stance of the 2016 Rule in the 2020 Rule, but other courts have purported

to revive RFRA-violating portions of the 2016 Rule itself.

Finally, Monsanto is also inapposite because here, unlike in Monsanto,

vacatur alone fails to comport with a fundamental remedial principle:

that “the nature of the violation determines the scope of the remedy.”

Veasey v. Abbott, 888 F.3d 792, 800 (5th Cir. 2018) (quoting Swann v.
Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971)). Vacatur is

the “normal remedy” for APA claims asserting that a rule exceeded the

agency’s statutory authority. See, e.g., Allina Health Servs. v. Sebelius,

746 F.3d 1102, 1110 (D.C. Cir. 2014). And for good reason—because the

“nature of the violation” is the existence of the ultra vires rule itself. See

5 U.S.C. § 702 (giving “aggrieved” plaintiffs a cause of action to challenge

“agency action”); id. § 551(13) (defining “agency action” to include “the

whole or a part of an agency rule”); see also Mila Sohoni, The Power to

Vacate a Rule, 88 Geo. Wash. L. Rev. (forthcoming September 2020)

(manuscript, at 11) (the APA “makes the agency action the object of the

court’s review”), https://bit.ly/2EkURkg.

The nature of a RFRA violation, however, isn’t the existence of any

particular rule or statute but government action imposing a “substan-

tial[] burden” on religion. 42 U.S.C. § 2000bb-1(a). So the remedy is

aimed at the burden—for example, damages to compensate the plaintiff

for suffering it, see, e.g., Tanvir v. Tanzin, 894 F.3d 449, 463 (2d Cir.

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2018), cert. granted 140 S. Ct. 550, or a plaintiff-specific injunction to en-

sure that it isn’t imposed at all, now or in the future, see Hobby Lobby,

573 U.S. at 694-95 (successful RFRA plaintiffs are “entitled to an exemp-

tion”). That is why every meritorious RFRA claim to come before this
Court or the Supreme Court has resulted in an injunction. Supra n.7.

These principles are illustrated by the widespread RFRA litigation re-

sulting from another HHS effort to make religious objectors provide med-
ical services violating their beliefs: the contraceptive-mandate litigation.

See Zubik v. Burwell, 136 S. Ct. 1557 (2016); Hobby Lobby, 573 U.S. 682.

That litigation arose from an ACA provision requiring certain employers

to provide their employees with health-insurance coverage for “preven-

tive care” for women. 42 U.S.C. § 300gg-13(a)(4). But the ACA itself didn’t

define “preventive care”; HHS did. Hobby Lobby, 573 U.S. at 697. And

when HHS did so, it defined that term to include all FDA-approved “con-

traceptive methods [and] sterilization procedures,’” id. (quoting 77 Fed.

Reg. 8725 (Feb. 15, 2012))—substantially burdening the religious exer-

cise of many religious employers and prompting “[y]ears of litigation in

dozens of cases” around the country. DeOtte v. Azar, 393 F. Supp. 3d 490,

497 (N.D. Tex. 2019) (internal quotation marks omitted).

On the district court’s reasoning here, a sufficient remedy for success-

ful RFRA plaintiffs in these cases would have been simply to vacate the

offending portions of HHS’s “preventive services” definition as applied to

the plaintiffs. But that relief wouldn’t have been tailored to the “nature

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 Case: 20-10093 Document: 00515573352 Page: 68 Date Filed: 09/21/2020

of the violation,” Swann, 402 U.S. at 16, which didn’t consist of any par-

ticular regulatory definition but of HHS’s effort to require religious em-

ployers to provide objectionable contraceptives. And it isn’t what hap-

pened. Instead, at least twenty courts entered permanent injunctions en-

joining HHS “from any effort to apply or enforce … 42 U.S.C. § 300gg-

13(a)(4)” with respect to the “provision of contraceptive services which

violate [plaintiffs’] conscience.” E.g., Order Amending Injunction, E. Tex.

Baptist Univ. v. Azar, No. 4:12-cv-03009 (S.D. Tex. Aug. 10, 2020), ECF

163. 8 They thus both prohibited enforcement of the current mandate and

foreclosed any effort to reimpose its substance by other means.

8 See also:
• Order, Ass’n of Christian Schs. v. Azar, No. 1:14-cv-02966 (D. Colo. Dec. 10,
2018), ECF 49;
• Order, Ave Maria Sch. of Law v. Sebelius, No. 2:13-cv-00795 (M.D. Fla. Jul. 11,
2018), ECF 68;
• Order, Ave Maria Univ. v. Sebelius, No. 2:13-cv-00630 (M.D. Fla. Jul. 11, 2018),
ECF 72;
• Order, Catholic Benefits Ass’n LCA v. Hargan, No. 5:14-cv-00240 (W.D. Okla.
Mar. 7, 2018), ECF 184;
• Order, Christian Emp’rs All. v. Azar, No. 3:16-cv-00309 (D.N.D. May 15, 2019),
ECF 53;
• Order, Colo. Christian Univ. v. Health & Human Servs., No. 1:13-cv-02105 (D.
Colo. July 11, 2018), ECF 84;
• Order, Conestoga Wood Specialties Corp. v. Burwell, No. 5:12-cv-06744 (E.D. Pa.
Oct. 2, 2014), ECF 82;
• Order, DeOtte v. Azar, No. 4:18-cv-00825 (N.D. Tex. June 5, 2019), ECF 76;
• Order, Dobson v. Azar, No. 13-cv-03326 (D. Colo. Mar. 26, 2019), ECF 61;

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That is what Appellants seek here. Just as HHS was permanently en-

joined from exercising its authority under 42 U.S.C. § 300gg-13(a)(4) to

require religious objectors to provide insurance coverage for contracep-

tives contrary to their beliefs, so it should be enjoined from construing

Section 1557 to “require [Appellants] to provide medical services or in-

surance coverage related to ‘gender identity’ or ‘termination of pregnancy’

in violation of” theirs. RE.118.

III. At minimum, this Court should remand for consideration

of the proper remedy in light of changed circumstances.

As we’ve explained, it was clear at the time of the district court’s deci-

sion that Appellants were entitled to an injunction and that there was a

• Order, Dordt Coll. v. Azar, No. 5:13-cv-04100 (N.D. Iowa June 14, 2018), ECF
89;
• Order, Geneva Coll. v. Sebelius, No. 2:12-cv-00207 (W.D. Pa. Jul. 5, 2018), ECF
153;
• Order, Grace Schs. v. Azar, No. 3:12-cv-00459 (N.D. Ind. June 1, 2018), ECF 114;
• Order of Injunction, Korte v. Health & Human Servs., No. 3:12-cv-1072 (S.D. Ill.
Nov. 7, 2014), ECF 89;
• Order, Little Sisters of the Poor v. Azar, No. 1:13-cv-02611 (D. Colo. May 29,
2018), ECF 82;
• Order, Reaching Souls Int’l, Inc. v. Azar, No. 5:13-cv-01092 (W.D. Okla. Mar. 15,
2018), ECF 95;
• Judgment Order, Sharpe Holdings, Inc. v. Health & Human Servs., No. 2:12-cv-
00092 (E.D. Mo. Mar. 28, 2018), ECF 161;
• Order, S. Nazarene Univ. v. Hargan, No. 5:13-cv-01015 (W.D. Okla. May 15,
2018), ECF 109;
• Order, Wheaton Coll. v. Azar, No. 1:13-cv-08910 (N.D. Ill. Feb. 22, 2018), ECF
119;
• Order, Zubik v. Sebelius, No. 2:13-cv-01459 (W.D. Pa. Dec. 20, 2013), ECF 81.

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meaningful practical difference between the injunction Appellants

sought and the vacatur the district court granted. And events postdating

the decision—the 2020 Rule, Bostock, and decisions from other jurisdic-

tions purporting to undo the vacatur—have only shown that Appellants

are correct.

This Court “is obligated to take notice of changes in fact or law occur-

ring during the pendency of a case on appeal,” so it can consider these

changed circumstances in determining Appellants’ entitlement to an in-

junction now. Spencer v. Schmidt Elec. Co., 576 F. App’x 442, 446-47 (5th

Cir. 2014) (quotation omitted). But if the Court would prefer instead for
the district court to pass on the changed circumstances in the first in-

stance, it should, at minimum, vacate the district court’s determination

that an injunction is improper and remand for reconsideration of the

proper relief.

CONCLUSION

The Court should reverse the district court’s remedy determination in

part and remand for entry of a permanent injunction enjoining HHS from

construing Section 1557 of the ACA to require that Appellants perform

or provide insurance coverage for gender-transition procedures or abor-

tions in violation of their religious beliefs.

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Case: 20-10093 Document: 00515573352 Page: 71 Date Filed: 09/21/2020

Respectfully submitted,

/s/ Joseph C. Davis

LUKE W. GOODRICH
MARK L. RIENZI
LORI H. WINDHAM
JOSEPH C. DAVIS
The Becket Fund for Religious Liberty
1200 New Hampshire Ave. NW
Suite 700
Washington, DC 20036
(202) 955-0095
[email protected]
Counsel for Plaintiffs-Appellants
Franciscan Alliance, Inc., Christian
Medical & Dental Society, and
Specialty Physicians of Illinois, LLC

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CERTIFICATE OF SERVICE

I certify that on September 21, 2020, an electronic copy of the foregoing

brief was filed with the Clerk of Court for the U.S. Court of Appeals for

the Fifth Circuit using the appellate CM/ECF system, and that service

will be accomplished by the appellate CM/ECF system.

I further certify that: (1) any required privacy redactions have been

made in compliance with Fifth Circuit Rule 25.2.13; (2) the electronic

submission is an exact copy of any required paper document in compli-

ance with Fifth Circuit Rule 25.2.1; and (3) the document has been

scanned with the most recent version of Windows Defender Antivirus and

is free of viruses.

/s/ Joseph C. Davis

Joseph C. Davis
Attorney for Plaintiffs-Appellants

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 Case: 20-10093 Document: 00515573352 Page: 73 Date Filed: 09/21/2020

CERTIFICATE OF COMPLIANCE

This brief complies with the word limit of Fed. R. App. P. 32(a)(7)(B)
because, excluding the parts exempted by Fed. R. App. P. 32(f), it con-

tains 12,975 words. This brief complies with the requirements of Fed. R.

App. P. 32(a)(5) and Fed. R. App. P. 32(a)(6) because it has been prepared

in a proportionally-spaced typeface (Century Schoolbook 14 pt.) using Mi-

crosoft Word 2016.

/s/ Joseph C. Davis

Joseph C. Davis
Attorney for Plaintiffs-Appellants

Dated: September 21, 2020

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ADDENDUM

Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.

42 U.S.C. § 2000bb. Congressional findings and declaration of pur-

pose

(a) Findings

The Congress finds that—

(1) the framers of the Constitution, recognizing free exercise of religion

as an unalienable right, secured its protection in the First Amendment
to the Constitution;

(2) laws “neutral” toward religion may burden religious exercise as

surely as laws intended to interfere with religious exercise;

(3) governments should not substantially burden religious exercise

without compelling justification;

(4) in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme
Court virtually eliminated the requirement that the government jus-
tify burdens on religious exercise imposed by laws neutral toward re-
ligion; and

(5) the compelling interest test as set forth in prior Federal court rul-
ings is a workable test for striking sensible balances between religious
liberty and competing prior governmental interests.

(b) Purposes

The purposes of this chapter are—

(1) to restore the compelling interest test as set forth in Sherbert v.

Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205
(1972) and to guarantee its application in all cases where free exercise
of religion is substantially burdened; and

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(2) to provide a claim or defense to persons whose religious exercise is

substantially burdened by government.

42 U.S.C. § 2000bb-1. Free exercise of religion protected

(a) In general

Government shall not substantially burden a person’s exercise of reli-

gion even if the burden results from a rule of general applicability,
except as provided in subsection (b).

(b) Exception

Government may substantially burden a person’s exercise of religion

only if it demonstrates that application of the burden to the person—

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling govern-

mental interest.

(c) Judicial relief

A person whose religious exercise has been burdened in violation of

this section may assert that violation as a claim or defense in a judicial
proceeding and obtain appropriate relief against a government. Stand-
ing to assert a claim or defense under this section shall be governed
by the general rules of standing under article III of the Constitution.

42 U.S.C. § 2000bb-2. Definitions

As used in this chapter—

(1) the term “government” includes a branch, department, agency, in-

strumentality, and official (or other person acting under color of law)
of the United States, or of a covered entity;

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Case: 20-10093 Document: 00515573352 Page: 76 Date Filed: 09/21/2020

(2) the term “covered entity” means the District of Columbia, the Com-
monwealth of Puerto Rico, and each territory and possession of the
United States;

(3) the term “demonstrates” means meets the burdens of going for-
ward with the evidence and of persuasion; and

(4) the term “exercise of religion” means religious exercise, as defined

in section 2000cc-5 of this title.

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42 U.S.C. § 18116

(a) In general

Except as otherwise provided for in this title (or an amendment made

by this title), an individual shall not, on the ground prohibited under
title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title
IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.), the
Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), or section 794
of Title 29, be excluded from participation in, be denied the benefits of,
or be subjected to discrimination under, any health program or activ-
ity, any part of which is receiving Federal financial assistance, includ-
ing credits, subsidies, or contracts of insurance, or under any program
or activity that is administered by an Executive Agency or any entity
established under this title (or amendments). The enforcement mech-
anisms provided for and available under such title VI, title IX, section
794, or such Age Discrimination Act shall apply for purposes of viola-
tions of this subsection.

(b) Continued application of laws

Nothing in this title (or an amendment made by this title) shall be

construed to invalidate or limit the rights, remedies, procedures, or
legal standards available to individuals aggrieved under title VI of the
Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title VII of the Civil
Rights Act of 1964 (42 U.S.C. 2000e et seq.), title IX of the Education
Amendments of 1972 (20 U.S.C. 1681 et seq.), section 794 of Title 29,
or the Age Discrimination Act of 1975, or to supersede State laws that
provide additional protections against discrimination on any basis de-
scribed in subsection (a).

(c) Regulations

The Secretary may promulgate regulations to implement this section.

62