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Commonwealth v. President United States of America

United States Court of Appeals, Third Circuit

April 24, 2018

COMMONWEALTH OF PENNSYLVANIA
v.
PRESIDENT UNITED STATES OF AMERICA; ACTING SECRETARY OF UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; SECRETARY OF THE TREASURY; UNITED STATES DEPARTMENT OF THE TREASURY; SECRETARY UNITED STATES DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF LABOR [*] LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME, Appellant

          Argued March 23, 2018

          On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-17-cv-4540) District Judge: Honorable Wendy Beetlestone

          Nicole J. Boland Jonathan S. Goldman Office of Attorney General of Pennsylvania Michael J. Fischer [Argued] Office of Attorney General of Pennsylvania Attorneys for Appellee

          Daniel H. Blomberg Eric C. Rassbach Mark L. Rienzi Lori H. Windham [Argued] Becket Fund for Religious Liberty Nicholas M. Centrella Conrad O'Brien Attorneys for Appellant

          Before: HARDIMAN, BIBAS, and ROTH, Circuit Judges.

          OPINION OF THE COURT

          HARDIMAN, Circuit Judge.

         In this appeal, we review an order of the United States District Court for the Eastern District of Pennsylvania denying a motion to intervene filed by the Little Sisters of the Poor Saints Peter and Paul Home. The Little Sisters sought to intervene in litigation challenging regulations promulgated under the Patient Protection and Affordable Care Act. The District Court denied the motion, finding that the Little Sisters lacked a significantly protectable interest in the case and that their interests were adequately represented by the federal government. We will reverse.

         I

         The Little Sisters of the Poor are an international Roman Catholic congregation whose mission is to serve the elderly poor of all backgrounds. They operate more than 25 homes for the elderly in the United States, all of which adhere to the same religious beliefs. Each home is separately incorporated as a nonprofit but is "operated under the control" of the larger congregation. App. 82.

         Appellant in this case is a religious nonprofit corporation that operates a Little Sisters home in Pittsburgh, Pennsylvania. The Little Sisters' interest in regulations implementing the Affordable Care Act is neither novel nor isolated. Indeed, they have been involved in litigation regarding the Affordable Care Act for years, and their attempt to intervene in this case must be considered in full context. Accordingly, we begin by describing the relevant portions of the Affordable Care Act and its regulatory scheme, along with the pertinent legal challenges filed by the Little Sisters and others.

         A

         The Affordable Care Act includes a provision that requires health plans to cover certain forms of preventive care for women without cost sharing, as specified in guidelines issued by an agency of the United States Department of Health & Human Services (HHS) called the Health Resources and Services Administration. See 42 U.S.C. § 300gg-13(a)(4). Preventive care under these guidelines includes: all contraceptive methods approved by the Food & Drug Administration, sterilization procedures, and related counseling and education. Unless an exemption applies, failure to comply with the mandate renders a noncompliant employer subject to a penalty of $100 "for each day in the noncompliance period with respect to each individual to whom such failure relates." 26 U.S.C. § 4980D(b)(1). In common parlance, this coverage has come to be known as the "contraceptive mandate."

         In 2011, HHS, along with the United States Departments of Labor and Treasury (collectively, the Departments) promulgated interim final regulations exempting certain religious employers from the contraceptive mandate. 76 Fed. Reg. 46, 621 (Aug. 3, 2011). To be eligible, a religious employer had to (1) have the inculcation of religious values as its purpose; (2) primarily employ people who share its religious tenets; (3) primarily provide services to persons who share its religious tenets; and (4) be a church, its integrated auxiliary, a convention or association of a church, or "the exclusively religious activities of any religious order." Id. at 46, 623; see also 26 U.S.C. § 6033(a)(3)(A)(i), (iii).

         Almost two years after the interim final regulations were promulgated, the Departments issued a final rule in response to public input and various legal challenges. 78 Fed. Reg. 39, 870 (July 2, 2013). That final rule altered the definition of an eligible religious employer by dropping the first three requirements, id. at 39, 874, and it also provided an accommodation process for religious nonprofit organizations that did not meet this new definition. Such a religious nonprofit employer could avail itself of the accommodation if it (1) had religious objections to providing coverage for some or all of the required contraceptive services; (2) was "organized and operate[d] as a nonprofit entity;" (3) "[held] itself out as a religious organization;" and (4) "self-certifie[d] that it satisfie[d] the first three criteria." Id. Once an employer made this self-certification to its insurer or third-party administrator, that entity would provide the mandated contraceptive services directly to women covered under the employer's plan. Id. at 39, 875. Later, the Departments issued another rule that allowed entities eligible for the accommodation to directly notify HHS of a religious objection. 80 Fed. Reg. 41, 318, 41, 323 (July 14, 2015).[1] Through these two regulations, the self-certification accommodation sought to ensure that qualifying employers did not need to "contract, arrange, pay, or refer for contraceptive coverage, " but their "plan participants and beneficiaries . . . [would] still benefit from separate payments for contraceptive services without cost sharing or other charge, " as required by law. 78 Fed. Reg. at 39, 874.

         B

         Two months after the final rule was issued in 2013, the Little Sisters of the Poor Home for the Aged, Denver, Colorado and the Little Sisters of the Poor, Baltimore, Inc. filed suit in the United States District Court for the District of Colorado. They claimed the contraceptive mandate was unconstitutional and that it violated the Religious Freedom Restoration Act (RFRA) and the Administrative Procedure Act (APA). See Little Sisters of the Poor Home for the Aged v. Sebelius, 6 F.Supp.3d 1225, 1232-33 (D. Colo. 2013). With respect to RFRA, the Little Sisters asserted that the self-certification accommodation would force them to "take actions that directly cause others to provide contraception or appear to participate in the Departments' delivery scheme, " both of which would violate their religious conviction "that deliberately avoiding reproduction through medical means is immoral." Little Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151, 1167-68 (10th ...


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