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Commonwealth v. Trump

United States District Court, E.D. Pennsylvania

December 8, 2017

DONALD J. TRUMP, et al. Defendants.



         The Commonwealth of Pennsylvania has brought suit challenging the authority of Defendants to promulgate two Interim Final Rules which interpret the Affordable Care Act to exempt organizations from providing women with contraceptive services if such organizations hold religious beliefs or moral convictions against providing such services. Given the far reaching impact that any decision could have as well as the important federal and state issues at stake, the Court issued a scheduling order permitting interested parties to submit amicus briefs. Several entities have taken advantage of that opportunity. The Little Sisters of the Poor Saints Peter and Paul Home (“Little Sisters”) has not. Instead, it has moved to intervene in this lawsuit both of as of right and by permission of the Court. For the reasons described below, Little Sisters' motion is denied.

         I. FACTS

         Little Sisters is a religious nonprofit corporation operated by an order of Catholic nuns who care for the sick and elderly poor. Based on Catholic doctrine, Little Sisters oppose contraception, sterilization, and abortion. Its motion to intervene must be viewed in the context that follows.

         On August 1, 2011, the Health Resources and Services Administration (“HRSA”) determined that health plans covered by the Patient Protection and Affordable Care Act (“ACA”), 42 U.S.C. § 18001 et seq., must provide contraceptive services (the “Contraceptive Mandate”). The Contraceptive Mandate included a narrow exemption for certain religious organizations. The exemption was subsequently expanded in 2012 to exempt religious nonprofits. Little Sisters did not qualify for either exemption but the Department of Health and Human Services (“HHS”) offered to provide it an alternative regulatory mechanism for compliance. Under this alternative, HHS required Little Sisters to notify its insurer, third party administrator, or the government of any decision to opt-out of coverage (“Accommodation” or “the Accommodation Process”). On September 24, 2013, Little Sisters filed suit against HHS in the United States District Court of Colorado seeking to enjoin enforcement of the Contraceptive Mandate with respect to it on the theory that the Contraceptive Mandate and HHS's Accommodation Process imposed a “substantial burden” on its religious exercise in violation of the Religious Freedom Restoration Act (“RFRA”).

         Both the district court and then, on appeal, the Tenth Circuit denied Little Sisters' request for relief. The Supreme Court then granted certiorari to determine whether the Accommodation Process violated RFRA. Ultimately, the Supreme Court did not decide this issue but instead remanded the matter back to the Tenth Circuit to provide the parties with “an opportunity to arrive at an approach going forward that accommodates petitioners' religious exercise while at the same time ensuring that women covered by petitioners' health plans ‘receive full and equal health coverage, including contraceptive coverage.” Zubik v. Burwell, 135 S.Ct. 1557, 1561 (2016).[1] The Tenth Circuit, stayed the litigation while the government reconsidered the exemptions to the Contraceptive Mandate.

         On May 4, 2017, President Donald Trump issued an Executive Order entitled “Promoting Free Speech and Religious Liberty.” Among other provisions, the Executive Order directed the Defendant agencies to “consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under section 300gg-13(a)(4) of Title 42, United States Code.”

         Five months later, the Defendant agencies promulgated two Interim Final Rules (“IFRs”) which greatly expanded the religious exemptions in essence authorizing employers with religious or moral objections to contraception to block employees and their dependents from access to health insurance coverage for contraceptive care and services. Shortly thereafter, the Commonwealth of Pennsylvania filed the present suit seeking to enjoin enforcement of the two IFRs. Through their briefing, the Defendants have vigorously defended the IFRs. Through its intervention, Little Sisters also seek to defend the IFRs which permit it to entirely opt out of providing contraceptive services without engaging in the Accommodation Process.


         In relevant part, Rule 24 of the Federal Rules of Civil Procedure allows a party to intervene in a matter if it “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest unless existing parties adequately represent that interest.” Fed.R.Civ.P. 24(a)(2). On timely motion, a court must allow intervention by an applicant who: (1) has a sufficient interest in the litigation; (2) which interest may be affected or impaired as a practical matter by the disposition of the action; if (3) the interest is not adequately represented by an existing party in the litigation. Harris v. Pernsley, 820 F.2d 592, 596 (3d Cir. 1987).[2]

         A. Timeliness of Intervention Application

         The factors to consider in evaluating whether a prospective intervenor's application is timely include: “(1) the stage of the proceedings; (2) the prejudice that delay may cause the parties; and (3) the reason for the delay.” Wallach v. Eaton Corp., 837 F.3d 356, 371 (3d Cir. 2016) (quoting In re Cmty. Bank of N. Va., 418 F.3d 277, 314 (3d Cir. 2005). Each of these factors weighs in favor of intervention. Little Sisters moved to intervene less than three weeks after Plaintiff filed its Motion for Preliminary Injunction and less than six weeks after it filed the Complaint. Any proposed intervention will not delay hearing on the motion for preliminary injunction.

         B. Sufficient Interest in the Litigation

         An intervener must demonstrate an interest in an action that is “significantly protectable.” Harris, 820 F.2d at 596. This means that that the applicant must “demonstrate that there is a tangible threat to a legally cognizable interest to have the right to intervene.” Id. at 601. Although an analysis of an applicant's interest is both flexible and pragmatic, escaping talismanic formula, the applicant must show “an interest that is specific to them, is capable of definition, and will be directly ...

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