By Tulay Turan, J.D.
Pennsylvania and New Jersey stress that Supreme Court review of Commonwealth of Pennsylvania v. Trump is not warranted, because the Third Circuit’s decision that contraceptive exemption regulations are likely unlawful is correct.
In October 2019, the Little Sisters of the Poor filed a petition for certiorari asking the Supreme Court to resolve whether the federal government lawfully exempted religious objectors from the regulatory requirement to provide health plans that include contraceptive coverage. The Third Circuit had previously held that Pennsylvania and New Jersey are likely to succeed in proving the agencies did not follow the Administrative Procedure Act (APA) and that the contraceptive exemption regulations are not authorized under the Affordable Care Act (ACA) or required by the Religious Freedom Restoration Act (RFRA).
No meaningful division among circuits. The respondents explain the Third Circuit found the "agencies acted unlawfully in dispensing with the APA’s notice-and-comment requirement before issuing the interim final rules and that the perfunctory post-promulgation comment period did not render the final rules procedurally valid." They note that the petitioners seek review of the second determination, arguing that the court of appeals’ decision was erroneous and that tension among the circuits on the question and the importance of the issue warrant review. However, the respondents argue there is no meaningful division among the circuits on this issue. Both the First and D.C. circuits "affirm that an agency that improperly forgoes notice-and-comment procedures before issuing an interim rule cannot cure its failure by simply accepting post-promulgation public comment—just as the Third Circuit concluded."
Lacked statutory authority. The respondents also argue the Third Circuit’s decision that the agencies likely lacked statutory authority for the rules is correct and does not warrant Supreme Court review. They note the Third Circuit rejected the agencies’ argument that the ACA gives them the authority to issue the rules. "The only other circuit to consider this question reached the same conclusion. Because petitioners rely solely on the ACA for the authority to issue the moral exemption, this Court would necessarily need to revisit that holding to grant petitioners the complete relief they seek," the brief states.
In addition, the respondents note the Third Circuit assumed, without deciding, that RFRA grants agencies rulemaking authority. This question has been subject to little analysis in the lower courts, which would require the Supreme Court to decide it in the first instance. Thus, it is premature to address whether RFRA grants agencies regulatory authority, according to the brief.
Additional legal issues. The respondents also argue that resolving whether the accommodation violates RFRA requires answering additional legal issues not addressed below. "To grant petitioners full relief, therefore, this Court must consider whether executive agencies can unilaterally disclaim a compelling government interest and decline to enforce generally applicable law, even if there may exist a means of enforcement that is less restrictive. This Court would be the first to resolve those issues. And, in any event, there remain other cases currently working their way through the courts that raise some of the same issues relating to RFRA and the contraceptive care guarantee," the brief states.
Scope of preliminary injunction. Finally, the respondents argue that the scope of the preliminary injunction does not warrant Supreme Court review. They state the Supreme Court "should not review the fact-bound determination that the district court reasonably concluded the final rules should be preliminarily enjoined nationwide to provide the States complete relief. Insofar as petitioners ask the Court to consider more broadly the propriety of nationwide injunctions, this is not the case to do so."
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