Franciscan Alliance v Burwell

Abstract

Federal civil procedure – Preliminary injunction – Federal administrative law and procedure – Jurisdiction – Administrative exhaustion – Standing – Ripeness – Judicial review – Civil rights – Sex discrimination – Gender identity – Termination of pregnancy – Exercise of religion – Private healthcare providers and eight states bringing action against United States Department of Health and Human Services (HHS) and HHS Secretary, challenging regulation enacted pursuant to Patient Protection and Affordable Care Act (ACA) that prohibits discrimination on basis of gender identity and termination of pregnancy – Healthcare providers and states moving for preliminary injunction prohibiting enforcement of regulation – Whether plaintiffs having standing to maintain action – Whether action ripe for judicial review – Whether ACA non-discrimination provision indicates congressional intent to forbid pre-enforcement review of regulation and therefore precludes judicial review under Administrative Procedure Act (APA) – Whether regulation’s inclusion of gender identity within definition of sex discrimination conflicts with Title IX prohibition of sex discrimination in violation of APA and therefore is contrary to law – Whether failure by HHS to include Title IX’s religious and abortion exemptions in regulation rendering regulation arbitrary, capricious, and contrary to law in violation of APA – Whether plaintiffs demonstrating substantial likelihood of success on claim that regulation violates Religious Freedom Restoration Act (RFRA) as applied to providers, as required to obtain preliminary injunction prohibiting enforcement of regulation – Whether nationwide injunction warranted to prohibit enforcement of regulation’s prohibition of discrimination on the basis of gender identity and termination of pregnancy – Fed R Civ Pro 65 (Injunctions); US Const art 1 § 8 (Spending), US Const art 3 (Justiciability), US Const art 5 (Due process), US Const Amend 1 (Speech); 42 USC § 18116(a) (Non-discrimination), Title VI of the Civil Rights Act of 1964, 45 CFR § 92.301 (Enforcement mechanisms), 45 CFR § 92.4 (Definitions); Religious Freedom Restoration Act (RFRA), codified at 42 USC § 2000bb through 2000bb-4; Administrative Procedure Act (APA), Pub L 79–404, 60 Stat 237; Patient Protection and Affordable Care Act (ACA), Pub L 111-148, 124 Stat 119; Non-discrimination in Health Programs and Activities, 81 Fed Reg 31376–31473, codified at 45 CFR § 92