                                         PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   _____________

         Nos. 17-3752, 18-1253, 19-1129, 19-1189
                     _____________

 COMMONWEALTH OF PENNSYLVANIA; STATE OF
             NEW JERSEY

                             v.

    PRESIDENT UNITED STATES OF AMERICA;
 SECRETARY UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES; UNITED STATES
DEPARTMENT OF HEALTH AND HUMAN SERVICES;
 SECRETARY UNITED STATES DEPARTMENT OF
  TREASURY; UNITED STATES DEPARTMENT OF
    TREASURY; SECRETARY UNITED STATES
    DEPARTMENT OF LABOR; UNITED STATES
  DEPARTMENT OF LABOR; UNITED STATES OF
                 AMERICA


    Little Sisters of the Poor Saints Peter and Paul Home
                      (Intervenor in D.C.),
                            Appellant in 17-3752, 19-1129

President United States of America, Secretary United States
of Department of Health and Human Services, United States
Department of Health and Human Services, Secretary United
States Department of Treasury, United States Department of
Treasury, Secretary United States Department of Labor,
United States Department of Labor,
                           Appellants in 18-1253,
                                 19-1189 (Except President
                                 United States of America)
                                 _____________

 ON APPEAL FROM THE UNITED STATES DISTRICT
     COURT FOR THE EASTERN DISTRICT OF
                  PENNSYLVANIA
            (E.D. Pa. No. 2:17-cv-04540)
       District Judge: Hon. Wendy Beetlestone
                   ______________

                   Argued May 21, 2019
                     ______________

   Before: McKEE, SHWARTZ, and FUENTES, Circuit
                     Judges.

                   (Filed July 12, 2019)


      Michael J. Fischer [ARGUED]
      Aimee D. Thompson
      Office of Attorney General of Pennsylvania
      1600 Arch Street, Suite 300
      Philadelphia, PA 19103

      Glenn J. Moramarco
      Office of Attorney General of New Jersey
      Department of Law & Public Safety, Division of Law




                             2
Richard J. Hughes Justice Complex
25 Market Street, P.O. Box 112
Trenton, NJ 08625

             Counsel for Appellees Commonwealth of
             Pennsylvania and State of New Jersey

Lowell V. Sturgill, Jr.
United States Department of Justice, Civil Division
950 Pennsylvania Avenue, N.W., Room 7241
Washington, DC 20530

Hashim M. Moopan [ARGUED]
United States Department of Justice
Civil Division, Appellate Staff
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

Karen Schoen
United States Department of Justice
Civil Division, Appellate Section
950 Pennsylvania Avenue, N.W. Room 7533
Washington, DC 20530

             Counsel for Appellants President United
             States of America, Secretary United
             States Department of Health & Human
             Services, United States Department of
             Health & Human Services, United States
             Department of Treasury, Secretary
             United States Department of Treasury,
             United States Department of Labor,
             Secretary United States Department of




                       3
             Labor, and United States of America

Mark L. Rienzi [ARGUED]
Lori H. Windham
Becket Fund for Religious Liberty
1200 New Hampshire Avenue, N.W., Suite 700
Washington, DC 20036

Nicholas M. Centrella
Conrad O’Brien
1500 Market Street
West Tower, Suite 3900
Philadelphia, PA 19102

             Counsel for Appellee-Intervenor Little
             Sisters of the Poor Saints Peter and Paul
             Home

Jason R. LaFond
Office of Attorney General of Texas
209 West 14th Street, 7th Floor
Austin, TX 78711

             Counsel for Amici Curiae in Support of
             Appellants States of Texas, Alabama,
             Arkansas, Georgia, Idaho, Louisiana,
             Missouri, Nebraska, Oklahoma, South
             Carolina, and West Virginia

Elizabeth N. Dewar
Office of Attorney General of Massachusetts
20th Floor, One Ashburton Place
McCormack Building




                      4
Boston, MA 02108

             Counsel for Amici Curiae States of
             Massachusetts, California, Colorado,
             Connecticut, Delaware, Hawaii, Illinois,
             Iowa, Maine, Maryland, Michigan,
             Minnesota, Nevada, New Mexico, New
             York, North Carolina, Oregon, Rhode
             Island, Vermont, Virginia, Washington
             and the District of Columbia

Dariely Rodriguez
Lawyers’ Committee for Civil Rights Under Law
1500 K Street, N.W., Suite 900
Washington, DC 20005

             Counsel for Amici Curiae Center for
             Reproductive Rights, Lawyers Committee
             for Civil Rights Under Law, California
             Womens Law Center, GLBTQ Legal
             Advocates and Defenders, LatinoJustice
             PRLDEF, Lawyers for Civil Rights,
             Legal Momentum, Legal Voice,
             Mississippi Center for Justice, National
             Center for Lesbian Rights, and Women’s
             Law Project

Sara J. Rose
American Civil Liberties Union
313 Atwood Street
Pittsburgh, PA 15213

             Counsel for Amici Curiae American




                      5
             Civil Liberties Union, Anti Defamation
             League, Leadership Conference on Civil
             and Human Rights, and National Urban
             League

Thomas W. Hazlett
Stephen J. Kastenberg
Ballard Spahr
1735 Market Street, 51st Floor
Philadelphia, PA 19103

             Counsel for Amici Curiae Public Interest
             Law Center of Philadelphia, Washington
             Lawyers Committee for Civil Rights and
             Urban Affairs, Chicago Lawyers
             Committee for Civil Rights, Lawyers
             Committee for Civil Rights of the San
             Francisco Bay Area, and Public Counsel

Jeffrey Blumenfeld
Lowenstein Sandler
2200 Pennsylvania Avenue, N.W., Suite 5
Washington, DC 20037

             Counsel for Amici Curiae National
             Womens Law Center, National Latina
             Institute for Reproductive Health,
             Sisterlove Inc., and National Asian
             Pacific American Women Forum

Robert Dunn
Gibson Dunn & Crutcher
1881 Page Mill Road




                       6
Palo Alto, CA 94304

                 Counsel for Amicus Curiae Religious
                 Sisters of Mercy

Miles Coleman
Nelson Mullins Riley & Scarborough
104 South Main Street, Suite 900
Greenville, SC 29601

                 Counsel for Amici Curiae Ronald J.
                 Colombo, Richard Epstein, Carl H.
                 Esbeck, David F. Forte, Richard W.
                 Garnett, Esq., Professor Robert P.
                 George, Mary Ann Glendon, Michael P.
                 Moreland, Stacy Scaldo, and Michael
                 Uhlmann

Bruce H. Schneider
Stroock Stroock & Lavan
180 Maiden Lane, 38th Floor
New York, NY 10038

                 Counsel for Amici Curiae American
                 Nurses Association, American College of
                 Obstetricians and Gynecologists,
                 American Academy of Nursing,
                 American Academy of Pediatrics, and
                 Physicians for Reproductive Choice and
                 Health


Allan J. Arffa




                          7
Melina M. Meneguin-Layerenza
Sierra Robart
Paul Weiss Rifkind Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019

            Counsel for Amici Curiae Planned
            Parenthood Federation of America,
            National Health Law Program, and
            National Family Planning &
            Reproductive Health Association

Priscilla J. Smith
Yale Law School RRJP Clinic
319 Sterling Place
Brooklyn, NY 11328

            Counsel for Amicus Curiae Program for
            the Study of Reproductive Justice

Leah Bruno
Dentons US
233 South Wacker Drive, Suite 5900
Chicago, IL 60606

Jeffrey S. Feldman
The Feldman Firm
600 West Germantown Pike, Suite 400
Plymouth Meeting, PA 19462

            Counsel for Amici Curiae United States
            Women’s Chamber of Commerce and
            National Association for Female




                     8
             Executives

Joshua A. Matz
Kaplan Hecker & Fink
350 Fifth Avenue, Suite 7110
New York, NY 10118

             Counsel for Amicus Curiae Church State
             Scholars

Rhiannon N. Batchelder
Jamie A. Levitt
Morrison & Foerster
250 West 55th Street
New York, NY 10019

             Counsel for Amici Curiae American
             Association of University Women and
             Service Employees International Union

Richard B. Katskee
Americans United for Separation of Church & State
1310 L Street, N.W., Suite 200
Washington, DC 20005

            Counsel for Amicus Curiae Americans
            United for Separation of Church and
            State
         ______________________

         OPINION OF THE COURT
         ______________________




                      9
SHWARTZ, Circuit Judge.

        The Women’s Health Amendment to the Affordable
Care Act (“ACA”) mandated that women’s health insurance
include coverage for preventive health care. Through the
Amendment, Congress directed the Health Resources and
Services Administration (“HRSA”), a component of the
Department of Health and Human Services (“HHS”), to issue
guidelines setting forth the preventive health care services that
women should be provided. Among the services HRSA
identified was contraceptive care. Nowhere in the enabling
statute did Congress grant the agency the authority to exempt
entities from providing insurance coverage for such services
nor did Congress allow federal agencies to issue regulations
concerning this coverage without complying with the
Administrative Procedure Act.

       Notwithstanding Congress’s directives, in 2017, HHS
and the Departments of Labor and Treasury (collectively, “the
Agencies”) promulgated regulations that expanded the entities
that could invoke an exemption to the requirement that group
health insurance plans cover contraceptive services as a form
of women’s preventive health care. Because the state plaintiffs
are likely to succeed in proving that the Agencies did not
follow the APA and that the regulations are not authorized
under the ACA or required by the Religious Freedom
Restoration Act (“RFRA”), we will affirm the District Court’s
order preliminarily enjoining the rules’ enforcement
nationwide.


                                I




                               10
                               A

       Enacted as a part of the ACA, Pub. L. No. 111-148, 124
Stat. 119 (2010), the Women’s Health Amendment mandates
that “[a] group health plan[ 1] and a health insurance issuer
offering group or individual health insurance coverage shall, at
a minimum provide coverage for and shall not impose any cost
sharing requirements for . . . preventive care and screenings
[for women] . . . as provided for in comprehensive guidelines
supported by the [HRSA].” 2 42 U.S.C. § 300gg-13(a), (a)(4).
HRSA commissioned an expert panel from the Institute of
Medicine to recommend covered services. In 2011, HRSA
adopted the Institute’s recommendations and issued guidelines
defining preventive care to include all “Food and Drug
Administration approved contraceptive methods, sterilization
procedures, and patient education and counseling for all
women with reproductive capacity,” “as prescribed” by a
woman’s health care provider. HRSA, Women’s Preventive
Services      Guidelines,       https://www.hrsa.gov/womens-
guidelines/index.html (last visited May 8, 2019). This

       1
         Pursuant to 42 U.S.C. § 300bb-8(1), the term “group
health plan” has the meaning set forth in 26 U.S.C.
§ 5000(b)(1), which defines a “group health plan” as “a plan
(including a self-insured plan) of, or contributed to by, an
employer . . . to provide health care (directly or otherwise) to
the employees.”
       2
         Congress expressly exempted two sets of actors from
various ACA requirements, including the Women’s Health
Amendment: grandfathered health plans, 42 U.S.C. § 18011,
and employers with fewer than 50 employees, 26 U.S.C.
§ 4980H(c)(2).




                               11
statutory and regulatory scheme was deemed the
“Contraceptive Mandate.” Several regulations and litigation
followed.

                                1

        The same day that the Guidelines were issued, the
Agencies promulgated an interim final rule (“IFR”), followed
by a final rule in 2013, to exempt certain religious employers—
namely, churches and similar entities—from the Contraceptive
Mandate. Group Health Plans and Health Insurance Issuers
Relating to Coverage of Preventive Services Under the Patient
Protection Affordable Care Act, 77 Fed. Reg. 8,725 (Feb. 15,
2012) (the “Church Exemption”); Group Health Plans and
Health Insurance Issuers Relating to Coverage of Preventive
Services Under the Patient Protection and Affordable Care Act,
76 Fed. Reg. 46,621 (Aug. 3, 2011). 3 As the Agencies later


       3
         After a notice-and-comment rulemaking process,
which included consideration of comments concerning
whether coverage may conflict with the religious beliefs of
some employers, Group Health Plans and Health Insurance
Issuers Relating to Coverage of Preventive Services Under
the Patient Protection and Affordable Care Act, 76 Fed. Reg.
46,621, 46,623 (August 3, 2011), the Agencies defined
“religious employer[s]” in the Church Exemption as entities
“that [are] organized and operate[] as . . . nonprofit entit[ies]
and [are] referred to” as such in the internal revenue code
provision applying to “churches, their integrated auxiliaries,
and conventions or associations of churches, as well as to the
exclusively religious activities of any religious order,”
Coverage of Certain Preventive Services Under the




                               12
explained, the “exemption for churches and houses of worship
is consistent with their special status under longstanding
tradition in our society and under federal law.” Coverage of
Certain Preventive Services Under the Affordable Care Act, 80
Fed. Reg. 41,318, 41,325 (July 14, 2015).

        The 2013 final rule also separately provided that a
nonprofit religious employer who “(1) [o]pposes providing
coverage for some or all of the contraceptive services required
to be covered . . . on account of religious objections; (2) is
organized and operates as a nonprofit entity; (3) holds itself out
as a religious organization; and (4) self-certifies that it satisfies
the first three criteria,” 78 Fed. Reg. at 39,874, is entitled to an
accommodation to avoid “contracting, arranging, paying, or
referring for contraceptive coverage,” id. at 39,875. This
accommodation process (the “Accommodation”) permits an
employer to send a self-certification form to its insurance
issuer, which then excludes contraceptive coverage, either in
full or in part, from the group health plan and in turn
“provide[s] payments for contraceptive services for plan
participants and beneficiaries, separate from the group health
plan, without the imposition of cost sharing, premium, fee, or
other charge on plan participants or beneficiaries or on the
eligible organization or its plan.” Id. at 39,876. A third party
administrator (“TPA”) may also be used as a claims or plan
administrator “solely for the purpose of providing payments
for contraceptive services for participants and beneficiaries in
a self-insured plan of an eligible organization at no cost to plan
participants or beneficiaries or to the eligible organization.” Id.
at 39,879. By invoking the Accommodation, the employer was


Affordable Care Act, 78 Fed. Reg. 39,870, 39,871, 39,889
(July 2, 2013); see 45 C.F.R. § 147.132.




                                 13
no longer responsible for providing coverage for contraceptive
care.

                              2

        Various legal challenges followed. First, in Burwell v.
Hobby Lobby Stores, Inc., 573 U.S. 682 (2014), the Supreme
Court held that the Accommodation must be extended to
closely-held for-profit corporations with sincere religious
objections to the provision of contraceptive coverage so that
their religious beliefs were not substantially burdened under
RFRA, 42 U.S.C. § 2000bb-1. Id. at 724-26. The Court
observed that use of the Accommodation process was a less
restrictive means to ensure access to cost-free contraceptives.
Id. at 730-31. Days later, in Wheaton College v. Burwell, 573
U.S. 958 (2014), the Court concluded that Wheaton College,
who also lodged a religious objection to providing insurance
for services covered by the Contraceptive Mandate, did not
have to use the Accommodation self-certification form, known
as the ESBA Form 700, but could instead rely on its
notification to HHS to satisfy the Accommodation’s
prerequisites. Id. at 959.

      To ensure compliance with these rulings, the Agencies
promulgated another IFR and final rule. 4 Coverage of Certain
Preventive Services Under the Affordable Care Act, 80 Fed.
Reg. 41,318 (July 14, 2015). The rule “extend[ed] the
[A]ccommodation to a for-profit entity that is not publicly

       4
        The final rule implementing Hobby Lobby was
preceded by notice of proposed rulemaking. Coverage of
Certain Preventive Services Under the Affordable Care Act,
79 Fed. Reg. 51,118 (Aug. 27, 2014).




                              14
traded, is majority-owned by a relatively small number of
individuals, and objects to providing contraceptive coverage
based on its owners’ religious beliefs.” Id. at 41,324. The rule
also “allow[ed] eligible organizations to choose between using
[the] ESBA Form 700 or the alternative process [of notifying
HHS in writing of a religious objection to covering
contraceptive services] consistent with the Wheaton interim
order.” Id. at 41,323.

       In Zubik v. Burwell, 136 S. Ct. 1557 (2016) (per
curiam), the Supreme Court addressed the petitioners’
assertions that “submitting [the Accommodation] notice
substantially burden[ed] the exercise of their religion, in
violation of [RFRA].” Id. at 1559. The Court did not reach the
merits of this claim but rather remanded to afford the parties
“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 . . . contraceptive coverage.” Id. at 1560 (internal
quotation marks and citation omitted).

        In response to the Court’s direction in Zubik, the
Agencies solicited comments regarding the current procedure
and possible alternatives to the Accommodation. Coverage for
Contraceptive Services, 81 Fed. Reg. 47,741 (July 22, 2016).
The Agencies reviewed the comments and found that “no
feasible approach has been identified at this time that would
resolve the concerns of religious objectors while still ensuring
that the affected women receive full and equal health coverage,
including contraceptive coverage.” Dep’t of Labor, FAQs
About Affordable Care Act Implementation Part 36, at 4 (Jan.
9,                2017),              available                at
https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-




                               15
activities/resource-center/faqs/aca-part-36.pdf. As a result, the
Accommodation remained unchanged.

                               3

       In May 2017, President Donald Trump issued an
executive order directing the Agencies to “consider issuing
amended regulations, consistent with applicable law, to
address conscience-based objections to the preventive-care
mandate promulgated under [42 U.S.C. § 300gg-13(a)(4)].”
Exec. Order No. 13,798 § 3, 82 Fed. Reg. 21,675 (May 9,
2017). In response, and without issuing a notice of proposed
rulemaking or soliciting public comment, the Agencies issued
two new IFRs: the Religious IFR and the Moral IFR. These
IFRs expanded the existing exemption and Accommodation
framework, made the Accommodation process voluntary, and
offered similar protections to organizations with moral
objections to contraceptives. See Religious Exemptions and
Accommodations for Coverage of Certain Preventive Services
Under the Affordable Care Act, 82 Fed. Reg. 47,792 (Oct. 13,
2017); Moral Exemptions and Accommodations for Coverage
of Certain Preventive Services Under the Affordable Care Act,
82 Fed. Reg. 47,838 (Oct. 13, 2017). This litigation followed.




                               16
                               B

                               1

       The Commonwealth of Pennsylvania filed suit against
various governmental entities 5 and sought to enjoin the
enforcement of the IFRs. Little Sisters of the Poor Saints Peter
and Paul Home (“Little Sisters”) intervened. 6 The District

       5
          These entities include the President, the Agencies and
their Secretaries, and the United States of America
(collectively, “the Government”).
        6
          Little Sisters, a religious nonprofit operating a home
in Pittsburgh, moved to intervene, the District Court denied
its motion, and our Court reversed, concluding, at that time,
intervention was appropriate because the litigation posed a
threat to Little Sisters’ interest in an exemption, and that its
interests are not adequately represented by the Government.
See generally Pennsylvania v. President of the United States
of Am., 888 F.3d 52 (3d Cir. 2018). Since then, however, the
United States District Court for the District of Colorado
permanently enjoined enforcement of the Contraceptive
Mandate for benefit plans in which Little Sisters participates.
Pennsylvania v. Trump, 351 F. Supp. 3d 791, 829 n.27 (E.D.
Pa. 2019) (“Defendant-Intervenor has secured a permanent
injunction, preventing enforcement of the Contraceptive
Mandate against it.”); Little Sisters of the Poor v. Azar, No.
1:13-cv-02611, Dkt. No. 82 at 2-3 (D. Colo. May 29, 2018);
Accordingly, Little Sisters is no longer aggrieved by the
District Court’s ruling, its need for relief is moot, and thus
they lack appellate standing. See Ass’n of Banks in Ins. v.
Duryee, 270 F.3d 397, 403 (6th Cir. 2001) (“[T]he intervenor-
defendants face the threat of economic injury should the Ohio




                              17
Court granted Pennsylvania’s request to preliminarily enjoin
the IFRs. See generally Pennsylvania v. Trump, 281 F. Supp.
3d 553 (E.D. Pa. 2017). The Court held that Pennsylvania was
likely to succeed on its procedural and substantive challenges
under the APA. Id. at 576, 581. The Government appealed,
and the District Court granted a stay pending appeal.

       While the appeal of the order preliminarily enjoining
the IFRs was pending, the Agencies promulgated two Final
Rules, which are virtually identical to the Religious and Moral
IFRs. See Religious Exemptions and Accommodations for
Coverage of Certain Preventive Services Under the Affordable
Care Act, 83 Fed. Reg. 57,536 (Nov. 15, 2018); 45 C.F.R.
§ 147.132 (“Religious Rule” or “Religious Exemption”);
Moral Exemptions and Accommodations for Coverage of
Certain Preventive Services Under the Affordable Care Act, 83
Fed. Reg. 57,592 (Nov. 15, 2018); 45 C.F.R. § 147.133
(“Moral Rule” or “Moral Exemption”) (collectively, “the
Rules” or “the Exemptions”). Like the Religious IFR, the Final
Rule creating the Religious Exemption expanded the
categories of employers who are permitted to invoke the
exemption from the Contraceptive Mandate to include all
nonprofit, for-profit, and publicly-held companies. The
Religious Exemption also made participation in the


statutory provisions not be enforced. Such threatened injury is
sufficient to confer appellate standing on the intervenor-
defendants and allows them to challenge the merits of the
district court’s decision.”); cf. In re Grand Jury, 111 F.3d
1066, 1071 (3d Cir. 1997) (“Since both intervenors remain
aggrieved after the district court’s disposition, the
constitutional requirements for standing to appeal as well as
standing to sue are satisfied.”).




                              18
Accommodation process completely voluntarily, relieving
employers from the need to “file notices or certifications of
their exemption.” 7 83 Fed. Reg. at 57,558; see also id. at
57,537, 57,562. The Final Rule creating the Moral Exemption
offered the same exemption and voluntary accommodation
process to nonprofit organizations and non-publicly traded
organizations “with sincerely held moral convictions opposed
to coverage of some or all contraceptive or sterilization
methods.” Id. at 57,593.

       At Pennsylvania’s request, the District Court lifted the
stay, and Pennsylvania filed an amended complaint, joined
New Jersey as a plaintiff, 8 added challenges to the Final Rules
and moved to enjoin them. 9


       7
          The Agencies assert that under ERISA, employees
will at least receive notice that their plans no longer cover
certain contraceptives because, “with respect to plans subject
to ERISA, a plan document must include a comprehensive
summary of the benefits covered by the plan,” which will
“serve to help provide notice to participants and
beneficiaries” of what services are covered. 83 Fed. Reg. at
57,558. Even if this is true, this would apply only to certain
employers.
        8
          Pennsylvania and New Jersey are referred to herein
collectively as the “the States.”
        9
          The States’ amended complaint for declaratory and
injunctive relief pleads five counts: (I) violation of Equal
Protection of the laws under the Fifth Amendment;
(II) violation of Title VII of the Civil Rights Act and the
Pregnancy Discrimination Act; (III) violation of the
procedural requirements of the APA; (IV) violation of the




                              19
                               2

       The District Court held hearings and received evidence
regarding the Rules. Specifically, the States submitted
evidence from health care professionals and state insurance
regulators about the Rules’ impact. The evidence addressed
the relationship between costs and contraceptive use and the
impact the Rules would have on state-funded healthcare
services.

       Cost is a significant barrier to contraceptive use and
access. The most effective forms of contraceptives are the
most expensive. After the ACA removed cost barriers, women
switched to the more effective and expensive methods of
contraception. 10 Because the Rules allow employers to opt out
of providing coverage for contraceptive services, some women
may no longer have insurance to help offset the cost for these
and other contraceptives.

       Pennsylvania and New Jersey have state-funded
programs that provide family planning and contraceptive
services for eligible individuals. For example, Pennsylvania




substantive requirements of the APA; and (V) violation of the
Establishment Clause of the First Amendment.
        10
           Before the ACA, women spent between 30 and 40%
of their total out-of-pocket health costs on contraceptives, and
55% of women experienced a time where they could not
afford contraceptives. Amicus Curiae Women’s Law Ctr. Br.
at 15-17; id. at 17 (describing that the ACA dropped out-of-
pocket contraceptive expenditures by 70%).




                              20
Medicaid and New Jersey’s FamilyCare 11 cover all health care
for childless adults, pregnant women, and parents with
incomes up to 138% and up to 215% of the federal poverty
level, respectively. Pennsylvania’s Family Planning Services
Program also covers all family planning-related services,
including contraceptives, for individuals with incomes up to
215% of the federal poverty level even if they have private
insurance, and New Jersey’s Plan First program offers the
same for individuals with incomes up to 205% of the federal
poverty level.

        Women who lack contraceptive coverage and who meet
certain income levels may also turn to Title X family planning
clinics which “provide access to contraceptive services,
supplies, and information to all who want and need them” with
priority to low-income persons. Office of Population Affairs,
Funding History, HHS, https://www.hhs.gov/opa/title-x-
family-planning/about-title-x-grants/funding-
history/index.html (last visited May 12, 2019). State and
federal governments fund Title X clinics, but recently, federal
funding has decreased.

        The States expect that when women lose contraceptive
insurance coverage from their employers, they will seek out
these state-funded programs and services. The States further
assert that women who do not seek or qualify for state-funded
contraceptives may have unintended pregnancies. Public
funds are used to cover the costs of many unintended




       11
        NJ FamilyCare is New Jersey’s state and federally-
funded Medicaid.




                              21
pregnancies. 12 Accordingly, the States expect to spend more
money due to the Rules.

        In addition to this evidence, the Agencies presented
spread sheets that listed the organizations and companies that
were previously involved in ACA Contraceptive Mandate
litigation. The Agencies offered this evidence to demonstrate
the likely universe of employers whom they contend may seek
to invoke the Rules and opt out of covering contraceptive care.

                              3

        The day the Final Rules were set to go into effect,
January 14, 2019, the District Court issued a nationwide
injunction enjoining their enforcement. Pennsylvania v.
Trump, 351 F. Supp. 3d 791 (E.D. Pa. 2019). The Court found
that the States had standing to challenge the Final Rules and
established a likelihood of success on the merits of their APA
claims. First, the Court held that the States are likely to
succeed on their procedural APA claims because the Agencies
failed to comply with the notice-and-comment requirement and
this defect tainted the Final Rules. Id. at 813. Second, the
Court held that the States were likely to succeed on their
substantive APA challenges because neither the ACA nor
RFRA authorized the Agencies to create exemptions.
Specifically, the unambiguous language of the ACA’s
Women’s Health Amendment only authorized the Agencies to
decide what services would be covered, not who provides

       12
         Nationally, a publicly-funded birth in 2010 cost
$12,770, and that year, New Jersey spent an estimated $186.1
million on unintended pregnancies and Pennsylvania an
estimated $248.2 million.




                              22
them, id. at 821, and RFRA did not require or authorize such
broad exemptions, particularly given RFRA’s remedial
function that places the responsibility for adjudicating religious
burdens on the courts, not the Agencies, id. at 822-23. The
Court concluded that the balance of equities and public interest
favored an injunction, id. at 829-30, and that a nationwide
injunction was appropriate to ensure complete relief for the
States, id. at 834-35. The Government appeals.

                               II 13

        We first address whether the States have standing. 14
Article III limits the scope of federal judicial review to “cases”
or “controversies.” U.S. Const. art. III § 2. A fundamental
safeguard of this limitation is the doctrine of standing. Spokeo,
Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). Put simply, only
parties with standing “can invoke the jurisdiction of the federal
courts.” Constitution Party of Pa. v. Aichele, 757 F.3d 347,
357 (3d Cir. 2014). To have standing to sue, “[t]he plaintiff
must have (1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3)
that is likely to be redressed by a favorable judicial decision.”
Spokeo, 136 S. Ct. at 1547 (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992)). We will examine each
element in turn.

       13
          The District Court had jurisdiction under 28 U.S.C.
§ 1331. We have jurisdiction under 28 U.S.C. § 1292(a)(1).
       14
          “We review the legal conclusions related to standing
de novo, but review for clear error the factual elements
underlying the District Court’s determination of standing.”
Edmonson v. Lincoln Nat’l Life Ins. Co., 725 F.3d 406, 414
(3d Cir. 2013) (internal quotation marks and citation omitted).




                               23
                                A

        To establish injury in fact, the alleged injury must be
“concrete and particularized” and “actual or imminent, not
conjectural or hypothetical.” Id. at 1548 (quoting Lujan, 504
U.S. at 560). An injury is concrete if it “actually exist[s]” and
is not abstract. Id. “For an injury to be particularized, it must
affect the plaintiff in a personal and individualized way.” Id.
(internal quotation marks and citations omitted). Plaintiffs
need not “demonstrate that it is literally certain that the harms
they identify will come about.” Clapper v. Amnesty Int’l USA,
568 U.S. 398, 414 n.5 (2013). Instead, “[a]n allegation of
future injury may suffice if . . . there is a substantial risk that
the harm will occur.” Susan B. Anthony List v. Driehaus, 573
U.S. 149, 158 (2014) (internal quotation marks and citation
omitted); see also Clapper, 568 U.S. at 410 (rejecting lower
court’s use of an “objectively reasonable likelihood” standard
to assess injury).

                                1

       The States have established that they will suffer a
concrete and particularized injury. The States describe that
(1) employers will take advantage of the exemptions and
women covered by their plans will lose contraceptive
coverage; and (2) financially- eligible women will turn to state-
funded services for their contraceptive needs and for the
unintended pregnancies that may result from the loss of
coverage. As a result, the States will suffer a concrete financial
injury from the increased use of state-funded services. See
Cottrell v. Alcon Labs., 874 F.3d 154, 163 (3d Cir. 2017)
(“Typically, a plaintiff’s allegations of financial harm will
easily satisfy each of these components, as financial harm is a




                                24
classic and paradigmatic form[ ] of injury in fact.” (alteration
in original) (internal quotation marks and citations omitted)).
The States will suffer this injury in a particularized manner, as
each State’s coffers will be depleted by the expenditure of
funds to meet the increased demand for state services. Having
concluded that the States have identified a concrete and
particular injury, we next examine whether the injury at issue
is not conjectural and is actual or imminent.

       The record shows that the injury the States expect to
sustain is not conjectural. First, the Agencies’ regulatory
impact analysis acknowledges that between 70,500 and
126,400 women nationwide will lose contraceptive coverage
as a result of their employers’ invocation of the Religious
Exemption, 83 Fed. Reg. at 57,578, 57,581, and fifteen women
will lose coverage as a result of their employers’ use of the
Moral Exemption, 83 Fed. Reg. at 57,627. See California v.
Azar (“California II”), 911 F.3d 558, 572 (9th Cir. 2018)
(noting that the Agencies’ own regulatory impact analysis
estimates loss of coverage, and therefore “it is reasonably
probable that women in the plaintiff states will lose some or all
employer-sponsored contraceptive coverage due to the IFRs”),
cert. denied Little Sisters of the Poor v. California, No. 18-
1192, -- S. Ct. --, 2019 WL 1207008 (June 17, 2019) (Mem.).
Second, based on the Agencies’ list of entities who challenged
the Contraceptive Mandate, eight employers, not including
Little Sisters, between New Jersey and Pennsylvania would
likely take advantage of the Exemptions. Massachusetts v.
U.S. Dep’t of Health & Human Servs., 923 F.3d 209, 224 (1st
Cir. 2019) (relying on spreadsheet of litigating entities to find
“it is highly likely that at least three employers in the
Commonwealth with self-insured health plans . . . will use the
expanded exemptions”). Accordingly, it is not conjecture to




                               25
conclude that employers in Pennsylvania and New Jersey will
take advantage of the Exemptions and, as a result, women will
lose coverage. Id. at 224 n.12 (stating that “it is improbable
based on the evidence that no women in the [States] would lose
contraceptive coverage” (emphasis omitted)).

                               2

        The record also supports the District Court’s conclusion
that the injury is imminent. The States have provided evidence
showing that the Exemption will result in the expenditure of
state funds because some women who lose coverage will
inevitably seek out state-sponsored programs providing
contraceptive services; and some women will forego
contraceptive use, causing the States to shoulder the costs of
unintended pregnancies.

         With the ACA, many patients “switch[ed] from a
cheaper, less effective [contraceptive] method to a more
effective, expensive method that was better for their medical
health and personal needs.” App. 272. Contraceptives are not
only used for pregnancy prevention. They are the “standard
first-line of care for a number of hormonal, and other,
disorders, including poly-cystic ovarian syndrome, primary
ovarian insufficiency/premature ovarian failure, amenorrhea,
dysmenorrhea/chronic pelvic pain, and abnormal uterine
bleeding.” App. 292. A “vast majority” of women use inter-
uterine devices (“IUDs”)—a treatment religious objectors are
particularly focused on, App. 350-83—“for purposes other
than birth control.” App. 293 (describing 90-95% of patients
using IUDs for non-birth control purposes). Contraceptive use
“carries long-term health benefits for women[,]” including
reducing the risk of ovarian and uterine cancer. App. 294.




                              26
“Contraception also helps protect the health of those women
for whom pregnancy can be hazardous, or even life-
threatening.” Amici Curiae Health Prof’l Orgs. Br. at 16.
Thus, removing cost free contraceptive coverage can have
ramifications on women’s health beyond birth control and
unplanned pregnancies.

       Without insurance to defray or eliminate the cost for the
more-effective contraceptive methods, women will use “less
expensive and less effective methods,” App. 245, and both
Pennsylvania and New Jersey “anticipate[] that women who
lose contraceptive coverage through employer plans—whether
the plan of their own employer or that of another family
member—may seek contraception from other sources,
including state-funded programs.” 15 App. 299; App. 317.
Thus, the State-funded programs will be tapped to provide
coverage for financially eligible women whose employers
invoke the Exemptions.

       Furthermore, some women who lose contraceptive
coverage may either fail to qualify for state services or elect to
forego the use of contraceptives altogether. “Women who stop
using contraception are more likely to have unplanned
pregnancies and to require additional medical attention.” App.
312. The costs of such unintended pregnancies are often

       15
          The Agencies “theorize” that some women may be
able to pay out of pocket or obtain coverage through a spouse
or family member’s plan. Massachusetts, 923 F.3d at 227.
While “[s]uch a hypothetical woman may exist, . . . the
number of women with incomes that make them eligible for
state-assisted contraceptive coverage but who still fit in that
category would, logically, be very small.” Id.




                               27
shouldered by states, costing hundreds of millions of dollars.
Therefore, the evidence supports the conclusion that the loss of
contraceptive coverage may also result in unintended
pregnancies for which the States will bear associated health
care costs.

       For these reasons, “[t]he expanded exemptions are
expected to result in greater financial expenditures” by the
States on contraceptive services. App. 318. This anticipated
substantial impact on state finances presents an imminent
injury. Thus, the District Court properly found that the States
showed an imminent injury in fact.

       The Government faults the States for failing to identify
a specific woman who will be affected by the Final Rules, but
the States need not define injury with such a demanding level
of particularity to establish standing. Massachusetts v. EPA,
549 U.S. 497, 523 n.21 (2007); see Massachusetts, 923 F.3d at
225; California II, 911 F.3d at 572. The likelihood that
employers will invoke the Exemptions and leave women
without contraceptive coverage, and that women will turn to
the States for coverage, is sufficient to demonstrate imminent
injury. This likelihood “has nothing to do with whether
petitioners have determined [a] precise” woman who will seek
such funding. Massachusetts, 549 U.S. at 523 n.21. 16

       16
           In the context of an environmental case and a claim
that the plaintiff-state Massachusetts lacked standing because
it failed to identify land that would be impacted by federal
regulators’ inaction, the Supreme Court observed that

       the likelihood that Massachusetts’ coastline will
       recede has nothing to do with whether petitioners




                              28
                                B

        The States’ imminent injury is causally connected and
fairly traceable to the Exemptions. The States will suffer
financial injury when employers in Pennsylvania and New
Jersey take advantage of the Exemptions, leaving female
employees without contraceptive coverage and prompting
financially eligible women to turn to state-funded services.
See Texas v. United States, 809 F.3d 134, 159 (5th Cir. 2015)
(“For Texas to incur injury, DAPA beneficiaries would have to
apply for driver’s licenses as a consequence of DHS’s action,
and it is apparent that many would do so.”), aff’d by an equally
divided court, United States v. Texas, 136 S. Ct. 2271 (2016)
(Mem.) (per curiam). In other words, the States will not
experience an increased demand for services and the resulting
financial burden unless the new Exemptions, which create a
void in contraceptive coverage, go into effect. See id. at 160
(“Far from playing an insignificant role, DAPA would be the


       have determined the precise metes and bounds of
       their soon-to-be-flooded land.           Petitioners
       maintain that the seas are rising and will continue
       to rise, and have alleged that such a rise will lead
       to the loss of Massachusetts’ sovereign
       territory. . . . Our cases require nothing more.

Massachusetts, 549 U.S. at 523 n.21. Just as it was
unnecessary for Massachusetts to identify specific coastline
that would be flooded by the agencies’ inaction, it is
unnecessary for the States to identify a specific woman who
would be impacted by the Government’s action where in both
instances, the record provided a basis to infer specific
imminent injury.




                               29
primary cause and likely the only one. Without the program,
there would be little risk of a dramatic increase in the costs of
the driver’s-license program.”). Thus, there is a link between
the Exemptions and the impact on the States’ fiscs.

                                     C

        The District Court also correctly concluded that an
injunction would redress the financial injury the States face
from the Rules. Enjoining the Final Rules until their legality
is adjudicated on the merits will avoid the imminent financial
burden the States face if they are not enjoined. Massachusetts,
923 F.3d at 228 (“[A]n injunction preventing the application of
these exemptions would stop the alleged fiscal injury from
occurring, making it not only ‘likely,’ Spokeo, 136 S. Ct. at
1547, but certain that this injury would not occur for as long as
the exemptions are enjoined.”); see Massachusetts, 549 U.S. at
526 (“The risk of catastrophic harm, though remote, is
nevertheless real. That risk would be reduced to some extent
if petitioners received the relief they seek.”).

             For these reasons, the States have standing to bring this
        17
suit.

                                    III

       Having determined that the States have standing, we
now address whether they are entitled to a preliminary
injunction. The decision to grant or deny a preliminary

             17
          Based upon of the foregoing discussion, we need not
decide whether the States also have standing under the special
solicitude or parens patriae doctrines.




                                    30
injunction is within the sound discretion of the district court.18
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24, 33
(2008). To obtain a preliminary injunction, the movants must:

       demonstrate (1) that they are reasonably likely to
       prevail eventually in the litigation and (2) that
       they are likely to suffer irreparable injury
       without relief. If these two threshold showings
       are made the District Court then considers, to the
       extent relevant, (3) whether an injunction would
       harm the [defendants] more than denying relief
       would harm the plaintiffs and (4) whether
       granting relief would serve the public interest.

K.A. ex rel. Ayers v. Pocono Mountain Sch. Dist., 710 F.3d 99,
105 (3d Cir. 2013) (alteration in original) (quoting Tenafly
Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144, 157 (3d Cir.
2002)); accord Fed. R. Civ. P. 65. To establish a likelihood of
success, “a sufficient degree of success for a strong showing
exists if there is ‘a reasonable chance, or probability, of
winning.’” In re Revel AC, Inc., 802 F.3d 558, 568 (3d Cir.
2015) (quoting Singer Mgmt. Consultants, Inc. v. Milgram,
650 F.3d 223, 229 (3d Cir. 2011) (en banc)).


       18
            “We employ a tripartite standard of review
for . . . preliminary injunctions. We review the District
Court’s findings of fact for clear error. Legal conclusions are
assessed de novo. The ultimate decision to grant or deny the
injunction is reviewed for abuse of discretion.” K.A. ex rel.
Ayers v. Pocono Mountain Sch. Dist., 710 F.3d 99, 105 (3d
Cir. 2013) (omission in original) (internal quotation marks
and citations omitted).




                               31
       Here, we must decide whether the District Court
correctly concluded that the States have a reasonable
probability of showing that the Final Rules violate the APA,
and if so, whether the equitable factors warrant a nationwide
injunction.

                             A 19

       To promulgate binding regulations, agencies engage in
what is known as notice-and-comment rulemaking. 5 U.S.C.
§ 553. This requires an agency to publish notice of the
proposed rule in the Federal Register, collect and consider
public comments, and issue a concise statement of purpose
upon finalizing the new rule. Id. § 553(b)-(c). Deviation from
these procedures is only permitted where expressly authorized
by statute, id. § 559, or when the agency has “good cause” to
dispense with them, id. § 553(b)(3)(B). The Agencies assert
that both grounds justify their decision to forego notice-and-
comment procedures here. They are mistaken.

                              1

        The Government first argues that provisions within the
Health Insurance Portability and Accountability Act of 1996
(“HIPAA”) grant the Agencies discretion to proceed by IFR in
lieu of notice-and-comment rulemaking. The provisions upon
which the Government relies provide:

      19
          Quite appropriately, the Agencies do not challenge
the States’ statutory standing to sue under the APA. 5 U.S.C.
§ 702; Massachusetts, 549 U.S. at 520 (recognizing states’
“procedural right to challenge the rejection of its rulemaking
petition as arbitrary and capricious” under the EPA).




                              32
       The Secretary, consistent with section 104 of
       [HIPAA], may promulgate such regulations as
       may be necessary or appropriate to carry out the
       provisions of this [subchapter]. The Secretary
       may promulgate any interim final rules as the
       Secretary determines are appropriate to carry out
       this [subchapter].

26 U.S.C. § 9833; 29 U.S.C. § 1191c; 42 U.S.C. § 300gg-92
[hereinafter “Regulation Provision”]. This language does not
eliminate the need for notice and comment.

       First, the APA only allows a subsequent statute to
modify or supersede its procedural requirements “to the extent
[the statute] does so expressly.” 5 U.S.C. § 559. The
Regulation Provision contains no express language
supplanting APA procedures, and the sole reference to “interim
final rules” does not confer a license to ignore APA
requirements. Indeed, in contrast to statutory authorizations to
forego APA procedures, the Regulation Provision is
“permissive (‘The Secretary may promulgate any interim final
rules as the Secretary determines are appropriate . . .’), wide-
ranging (applying to any regulatory proceeding relating to
group health insurance plans), and do[es] not contain any
specific deadlines for agency action.” Coal. for Parity, Inc. v.
Sebelius, 709 F. Supp. 2d 10, 18-19 (D.D.C. 2010) (omissions
in original and emphasis omitted); see also California II, 911
F.3d at 578-80. In short, because the Regulation Provision
“neither contain[s] express language exempting agencies from
the APA nor provide[s] alternative procedures that could
reasonably be understood as departing from the APA,” it does




                              33
not authorize the Agencies to disregard the notice-and-
comment requirements. California II, 911 F.3d at 579.

        Second, the statutory reference within the Regulation
Provision sheds light on the scope and purpose of its IFR
sentence. As the Court of Appeals for the Ninth Circuit points
out, § 104 of HIPAA aims to assure regulatory coordination
between the Agencies’ Secretaries for matters over which they
share responsibility. See California II, 911 F.3d at 579-80
(citing Pub. L. No. 104-191, 110 Stat. 1936 (1996) (codified at
42 U.S.C. § 300gg-92)). The first sentence of the Regulation
Provision authorizes each Secretary to promulgate regulations
“consistent with” the HIPAA section on coordination. The
second sentence is identical but for two differences: it
discusses IFRs instead of final regulations, and it omits any
mention of HIPAA’s coordination section. Read in light of the
first sentence, the second ensures that each Agency can
proceed by IFR where a Secretary “need[s] to regulate within
his or her own domain temporarily while sorting out . . . inter-
agency conflict.” Id. at 579. Thus, “we need not give the
second sentence the [A]gencies’ expansive interpretation in
order for the second sentence to retain independent effect.” Id.
at 579-80. In sum, the Regulation Provision does not expressly
excuse the Agencies from complying with APA procedures
and therefore does not provide a basis for issuing the IFRs
without notice and comment. 20

       20
          Congress knows how to excuse an agency from
complying with the APA. For example, one HIPAA
provision expressly permits the Agencies to promulgate a rule
prior to notice and comment. 42 U.S.C. § 1320a-7b
note. That provision requires the Secretary of Health and
Human Services to publish a rule prescribing penalties for




                              34
                               2

        The Agencies also lacked good cause for dispensing
with notice of and comment to the IFRs. An agency has “good
cause” to forego APA procedures where following them would
be “impracticable, unnecessary, or contrary to the public
interest.” 21 5 U.S.C. § 553(b)(3)(B). “[C]ircumstances
justifying reliance on [the good cause] exception are indeed
rare and will be accepted only after the court has examine[d]
closely proffered rationales justifying the elimination of public
procedures.” Nat. Res. Def. Council, Inc. v. EPA (“NRDC”),


kickbacks by January 1, 1997, then less than four months
away. It provides that “[s]uch rule shall be effective and final
immediately on an interim basis, but is subject to change and
revision after public notice and opportunity for . . . public
comment.” Unlike the Regulation Provision, § 1320a-7b
expressly provides for notice and comment after the
promulgation of an IFR. Congress’s omission of that
procedure from the Regulation Provision demonstrates that it
did not provide the Agencies authority to promulgate IFRs
without notice and comment.
       21
          5 U.S.C. § 553(b)(3) provides

       [e]xcept when notice or hearing is required by
       statute, this subsection does not apply—
       ...
       (B) when the agency for good cause finds (and
       incorporates the finding and a brief statement of
       reasons therefor in the rules issued) that notice
       and public procedure thereon are impracticable,
       unnecessary, or contrary to the public interest.




                               35
683 F.2d 752, 764 (3d Cir. 1982) (alterations in original)
(internal quotation marks and citation omitted). Thus, we
construe the “good cause” exception to the notice-and-
comment requirement narrowly. 22 Id.

       When they issued the IFRs, the Agencies claimed good
cause to waive notice and comment based on (1) the urgent
need to alleviate harm to those with religious objections to the
current regulations; (2) the need to address “continued
uncertainty, inconsistency, and cost” arising from “litigation
challenging the previous rules”; and (3) the fact that the
Agencies had already collected comments on prior Mandate-
related regulations. 82 Fed. Reg. at 47,813-15; see also 82 Fed.
Reg. at 47,855-59. None of these assertions meet the standard
for good cause.

      First, the Agencies’ desire to address the purported
harm to religious objections does not ameliorate the need to
follow appropriate procedures. All regulations are directed
toward reducing harm in some manner. 23 See United States v.

       22
          Though the review standard for agency assertions of
good cause remains an open question in our circuit, see
United States v. Reynolds, 710 F.3d 498, 509 (3d Cir. 2013),
we need not answer that question here. Even applying the
most deferential of the potential standards—reviewing the
agency’s good cause determination to see if it is arbitrary and
capricious—the IFRs cannot stand.
       23
          As we observed in Reynolds,

       [m]ost, if not all, laws passed by Congress
       requiring agencies to promulgate new rules are
       designed to eliminate some real or perceived




                              36
Reynolds, 710 F.3d 498, 512-13 (3d Cir. 2013). Thus, “[a]
need to regulate affected parties does not create the urgency
necessary to establish good cause.” Id. at 511. “As with any
other administrative agency conclusion, we require some
statement of facts or circumstances that justifies the existence
of good cause (e.g., an imminent, externally imposed deadline
or the existence of an emergency).” Id. at 512. The Agencies
fail to cite any facts or impending deadlines sufficient to raise
“good cause” here.

       Second, the need to address uncertainty is likewise
insufficient to establish good cause. Uncertainty precedes
every regulation, and to allow uncertainty to excuse
compliance with notice-and-comment procedures “would have
the effect of writing [those] requirements out of the statute.”
Id. at 510. Furthermore, our precedent forecloses the
acceptance of uncertainty as a basis for good cause. Id. (“An
agency’s intention to provide clarity, without more, cannot
amount to good cause.”).

       Third, the Agencies’ previous solicitation and collection
of   comments regarding other rules concerning the


       harm. If the mere assertion that such harm will
       continue while an agency gives notice and
       receives comments were enough to establish
       good cause, then notice and comment would
       always have to give way. An agency will
       invariably be able to point to some continuing
       harm during the notice and comment period
       antecedent to the promulgation of a rule.

710 F.3d at 512-13.




                               37
Contraceptive Mandate cannot substitute for notice and
comment here. If the APA permitted agencies to forego notice-
and-comment concerning a proposed regulation simply
because they already regulated similar matters, then the good
cause exception could largely obviate the notice-and-comment
requirement. Furthermore, the IFRs did not make a minor
change. The IFRs create exemptions from the Contraceptive
Mandate with unprecedented scope and make the
Accommodation wholly voluntary. Such a dramatic overhaul
of the Contraceptive Mandate regulations required notice-and-
comment under the APA.

       For these reasons, the Agencies did not have good cause
to ignore the APA’s notice and comment requirement.

                              B

        The Government also contends that, even if the IFRs
were procedurally deficient, the Agencies’ subsequent use of
notice-and-comment rulemaking to finalize the Rules cured
any procedural defects. Under our precedent, however, “post-
promulgation notice and comment procedures cannot cure the
failure to provide such procedures prior to the promulgation of
the rule at issue.” NRDC, 683 F.2d at 768; see Reynolds, 710
F.3d at 519 (“Any suggestion that the postpromulgation
comments to the Interim Rule can satisfy [the purposes of
notice-and-comment rulemaking] misses the point.” (internal
citation omitted)); Sharon Steel Corp. v. EPA, 597 F.2d 377,
381 (3d Cir. 1979) (“We hold that the period for comments
after promulgation cannot substitute for the prior notice and
comment required by the APA.”).




                              38
        APA notice-and-comment procedures serve several
goals, including “(1) to ensure that agency regulations are
tested via exposure to diverse public comment, (2) to ensure
fairness to affected parties, and (3) to give affected parties an
opportunity to develop evidence in the record to support their
objections to the rule and thereby enhance the quality of
judicial review.” Prometheus Radio Project v. FCC, 652 F.3d
431, 449 (3d Cir. 2011) (quoting Int’l Union, United Mine
Workers of Am. v. Mine Safety & Health Admin., 407 F.3d
1250, 1259 (D.C. Cir. 2005)). The comment process also
allows each agency to “maintain[] a flexible and open-minded
attitude towards its own rules,” Reynolds, 710 F.3d at 511
(alteration in original and citation omitted) (quoting
Prometheus Radio, 652 F.3d at 449); see also Azar v. Allina
Health Servs., 139 S. Ct. 1804, 1816 (2019) (“Notice and
comment . . .affords the agency a chance to avoid errors and
make a more informed decision.” (internal citation omitted)).
To preserve the integrity of this process, “[t]he opportunity for
comment must be a meaningful opportunity,” Prometheus
Radio, 652 F.3d at 450 (alteration in original), to have
interested parties share their views, and to have the agency
consider them with an “open mind,” Reynolds, 710 F.3d at
517-19.

       The notice and comment exercise surrounding the Final
Rules does not reflect any real open-mindedness toward the
position set forth in the IFRs. 24 First, as the Government
admits, the minor changes to the Final Rules do not “alter the

       24
          We express no opinion on whether the Agencies
appropriately responded to comments collected during this
process, see Trump, 351 F. Supp. 3d at 811-12, as this issue is
not before us.




                               39
fundamental substance of the exemptions set forth in the
IFRs.” Dkt. 107-1 at 8. Second, the reasons the Agencies
supplied for promulgating the Final Rules simply echoed those
provided for issuing the IFRs. See 83 Fed. Reg. at 57,552,
57,609. These rationales do not show the “flexible and open-
minded attitude” the notice-and-comment process requires.
Reynolds, 710 F.3d at 511.            Together, the Agencies’
justifications for avoiding notice and comment to the IFRs, and
the fact that the IFRs and the Final Rules are virtually identical,
suggest that the opportunity for comment was not a
“meaningful” one in the way the APA requires. Prometheus
Radio, 652 F.3d at 450.

       Lastly, even setting aside the Agencies’ lack of open-
mindedness, the IFRs also impaired the rulemaking process by
altering the Agencies’ starting point in considering the Final
Rules. In NRDC, our Court rejected the EPA’s argument that
the opportunity for post-promulgation comment remedied the
EPA’s initial failure to promulgate a rule through notice-and-
comment rulemaking:

       [t]o allow the APA procedures in connection
       with the [new rule] to substitute for APA
       procedures in connection with [the initial,
       procedurally defective rule] would allow [the]
       EPA to substitute post-promulgation notice and
       comment procedures for pre-promulgation
       notice and comment procedures at any time by
       taking an action without complying with the
       APA, and then establishing a notice and
       comment procedure on the question of whether
       that action should be continued. This would




                                40
       allow agencies to circumvent [our case law] and
       the APA. We cannot countenance such a result.

683 F.2d at 768 (citation omitted). This reasoning applies with
equal force here. By first promulgating the IFRs that granted
the expanded exemptions without notice and comment, the
Agencies changed the question presented concerning the Final
Rules from whether they should create the exemptions to
whether they should depart from them. This starting position
is impermissible under the APA. Id.; see also Sharon Steel,
597 F.2d at 381 (“Provision of prior notice and comment
allows effective participation in the rulemaking process while
the decisionmaker is still receptive to information and
argument. After the final rule is issued, the petitioner must
come hat-in-hand and run the risk that the decisionmaker is
likely to resist change.” (citation omitted)).

       In sum, because deficits in the promulgation of the IFRs
compromised the procedural integrity of the Final Rules, the
States have demonstrated a likelihood of success in showing
that the Final Rules are procedurally defective, and in turn,
violate the APA.
                               C

       There are also serious substantive problems with the
Final Rules. More specifically, neither of the statutes upon
which the Agencies rely, the ACA and RFRA, authorize or
require the Final Rules. Thus, they were enacted “in excess of
statutory jurisdiction, authority, or limitations, or short of
statutory right,” making them “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A), (C).




                              41
                                1

       The Agencies argue that their authority under the ACA
to issue preventive care guidelines includes the power to
promulgate the Exemptions. This assertion is without textual
support. The Women’s Health Amendment to the ACA, 42
U.S.C. § 300gg-13(a)(4), provides:

       A group health plan and a health insurance issuer
       offering group or individual health insurance
       coverage shall, at a minimum provide coverage
       for and shall not impose any cost sharing
       requirements for— . . .

       (3) with respect to infants, children,          and
       adolescents, evidence-informed preventive      care
       and screenings provided for in                   the
       comprehensive guidelines supported by           the
       [HRSA].

       (4) with respect to women, such additional
       preventive care and screenings not described in
       paragraph (1)[25] as provided for in
       comprehensive guidelines supported by the
       [HRSA] for purposes of this paragraph.

42 U.S.C. § 300gg-13(a).            The authority to issue
“comprehensive guidelines” concerns the type of services that
are to be provided and does not provide authority to undermine

       25
          Paragraph (1) refers to “evidence-based items or
services that have in effect a rating of ‘A’ or ‘B’ in the current
recommendations of the United States Preventive Services
Task Force.” 42 U.S.C. § 300gg-13(a)(1).




                               42
Congress’s directive concerning who must provide coverage
for these services. Section 300gg-13(a) unambiguously
dictates that group health plans and health insurance issuers
“shall provide” the preventive care services set forth in the
HRSA-supported comprehensive guidelines, and “shall” not
impose cost sharing. The term “shall” denotes a requirement,
Prometheus Radio Proj. v. FCC, 824 F.3d 33, 50 (3d Cir. 2016)
(“Th[e] repeated use of ‘shall’ creates ‘an obligation
impervious to . . . discretion.’” (omission in original) (quoting
Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523
U.S. 26, 35 (1998)), and HRSA’s authority to issue the
guidelines does not empower it to ignore that requirement.
Nothing from § 300gg-13(a) gives HRSA the discretion to
wholly exempt actors of its choosing from providing the
guidelines services. On the contrary, the mandate articulated
in § 300gg-13(a) forecloses such exemptions. 26

       26
          The Government argues that if the ACA does not
grant the authority to issue the Exemptions, then HRSA was
equally without authority to issue the Church Exemption and
the Accommodation. This argument fails. Though the
Church Exemption may seem facially at odds with § 300gg-
13(a), Supreme Court precedent dictates a narrow form of
exemption for houses of worship. See 80 Fed. Reg. at 41,325
(describing the exemption for churches and houses of worship
as “consistent with their special status under longstanding
tradition in our society and under federal law”); see, e.g.,
Hosanna-Tabor Evangelical Lutheran Church & Sch. v.
EEOC, 565 U.S. 171 (2012) (discussing the existence of a
ministerial exception precluding application of employment
legislation to a religious institution to respect churches’
internal autonomy). The Accommodation likewise does not
plainly run afoul of the ACA. Instead, it provides a process




                               43
       The Agencies’ reliance on the language that directed
HRSA to create the guidelines concerning women’s preventive
health care and the use of the phrase “as provided for in” such
guidelines does not advance their position. The Agencies
contrast § 300gg-13(a)(4)’s use of the phrase “as provided for
in” comprehensive guidelines with a neighboring sub-section’s
provision addressing preventive care for infants, children, and
adolescents, which is “provided for in the” comprehensive
guidelines for those services. Compare 42 U.S.C. § 300gg-
13(a)(3) (describing “preventive care and screenings provided
for in the comprehensive guidelines”), with id. § 300gg-
13(a)(4) (describing “preventive care and screenings as
provided for in comprehensive guidelines”). They assert that
the use of the word “as” in § 300gg-13(a)(4) gives HRSA
authority to dictate the preventive services to be provided and
who must provide them. This argument overlooks the clear
explanation for the different language. When the ACA was
passed, the comprehensive guidelines for children’s preventive
care already existed, but guidelines for women’s preventive
care were not yet written. Congress used the definite article
“the” in § 300gg-13(a)(3) to refer to those existing children’s
preventive care guidelines. In § 300gg-13(a)(4), Congress
addressed the women’s preventive care guidelines that were
yet to be promulgated by stating “as provided for in the
comprehensive guidelines.”

       The Agencies’ interpretation of “comprehensive” as
authorizing them to issue guidelines that exempt entities from


through which a statutorily identified actor “shall provide”
the mandated coverage. In any event, the Agencies’ authority
to issue the Church Exemption and Accommodation is not
before us.




                              44
complying with the Mandate likewise fails. Put simply, the
discretion the statute grants HRSA to issue comprehensive
guidelines concerning services to be provided does not include
the power to exempt actors from the statute itself. This is borne
out by the fact that the word “comprehensive” is also used to
describe the children’s preventive care guidelines, and those
guidelines do not exempt any statutorily required party from
providing services. See HHS, Preventive Care Benefits for
Children,          https://www.healthcare.gov/preventive-care-
children (last visited May 8, 2019). Congress was obviously
aware of the existing children’s guidelines when it drafted the
Women’s Health Amendment, and Congress’s use of
“comprehensive” to describe both sets of guidelines conveys
that it intended them to cover the same type of subject matter,
namely health care services for the identified groups. See
F.A.A. v. Cooper, 566 U.S. 284, 292 (2012) (“[W]hen
Congress employs a term of art, it presumably knows and
adopts the cluster of ideas that were attached to each borrowed
word in the body of learning from which it was taken.”
(internal quotation marks and citation omitted)).

       Other portions of the ACA also show that Congress
retained the authority to exempt certain employers from
providing contraceptive coverage. In passing the ACA,
Congress explicitly exempted grandfathered plans from the
Contraceptive Mandate and other ACA requirements. 42
U.S.C. § 18011(a), (e). Congress also considered and rejected
a statutory conscience amendment that would have operated
similarly to the challenged Exemptions. 158 Cong. Rec.
S1162, 1173-74 (2012). Between the substantially analogous
exemption Congress rejected, and the one it decided to keep,
Congress demonstrated that exempting specific actors from the
ACA’s mandatory requirements is its job, not the Agencies.




                               45
See United States v. Johnson, 529 U.S. 53, 58 (2000) (“When
Congress provides exceptions in a statute,” we may infer “that
Congress considered the issue of exceptions and, in the end,
limited the statute to the ones set forth.”). Relatedly, by
promulgating the Moral Exemption, which sought to do what
Congress refused to do with the conscience amendment, the
Agencies contravened Congress’s intent. See Food & Drug
Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
147 (2000) (considering Congress’s prior refusal to pass laws
as material to whether an agency’s interpretation of its statute
is entitled to deference).

      Because § 300gg-13(a) does not authorize the Agencies
to exempt plans from providing the required coverage, the
Agencies’ authority under the ACA to enact the Final Rules is
without merit.

                              2 27

       The Agencies’ effort to cast RFRA as requiring the
Religious Exemption is also incorrect. Even assuming that
RFRA provides statutory authority for the Agencies to issue
regulations to address religious burdens the Contraceptive
Mandate may impose on certain individuals, RFRA does not
require the enactment of the Religious Exemption to address
this burden.

       RFRA provides that the federal government “[s]hall not
substantially burden a person’s exercise of religion even if the
burden results from a rule of general applicability,” 42 U.S.C.

       27
        No party argues that RFRA authorizes or requires
the Moral Exemption.




                              46
§ 2000bb-1(a), unless “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 governmental interest,” id. § 2000bb-1(b). “[A]
person whose religious exercise has been burdened in violation
of this section” may seek relief in a judicial proceeding. Id.
§ 2000bb-1(c). Thus, RFRA authorizes a cause of action for
government actions that impose a substantial burden on a
person’s sincerely-held religious beliefs, and provides a
judicial remedy via individualized adjudication. See 42 U.S.C.
§ 2000bb-3(a); City of Boerne v. Flores, 521 U.S. 507, 529
(1997) (“[RFRA] prevents and remedies laws which are
enacted with the unconstitutional object of targeting religious
beliefs and practices.”). Because Congress has deemed the
courts the adjudicator of private rights of actions under RFRA,
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,
546 U.S. 418, 434 (2006) (holding RFRA “plainly
contemplates that courts would . . . consider whether
exceptions are required under the test set forth by Congress”
(emphasis omitted)), we owe the Agencies no deference when
reviewing determinations based upon RFRA, see Adams Fruit
Co., Inc. v. Barrett, 494 U.S. 638, 649 (1990) (declining to
defer to an agency’s statutory interpretation where Congress
“expressly established the Judiciary and not the [agency] as the
adjudicator of private rights of action arising under the
statute”).

        A prima facie RFRA case requires a plaintiff to prove
that the government imposed a substantial burden on religious
exercise. Mack v. Warden Loretto FCI, 839 F.3d 286, 304 (3d
Cir. 2016). A substantial burden exists if




                                47
       (1) a follower is forced to choose between
       following the precepts of his religion and
       forfeiting benefits otherwise generally available
       to other [persons] versus abandoning one of the
       precepts of his religion in order to receive a
       benefit; or (2) the government puts substantial
       pressure on an adherent to substantially modify
       his behavior and to violate his beliefs.[28]

Real Alternatives, Inc. v. Sec’y Dep’t of Health & Human
Servs., 867 F.3d 338, 371 (3d Cir. 2017) (alteration in original)
(internal quotation marks and citation omitted). The Supreme
Court has directed that, when considering a requested
accommodation to address the burden, “courts must take
adequate account of the burdens a requested accommodation
may impose on nonbeneficiaries.” Cutter v. Wilkinson, 544
U.S. 709, 720 (2005) (referring to third parties who may face
collateral consequences from accommodating an observer’s
burden). 29 The Accommodation fulfills this directive as it


       28
           Although we “defer to the reasonableness” of an
objector’s religious beliefs, “this does not bar our objective
evaluation of the nature of the claimed burden and the
substantiality of that burden on [the objector’s] religious
exercise.” Real Alternatives, Inc. v. Sec’y Dep’t of Health &
Human Servs., 867 F.3d 338, 356 (3d Cir. 2017) (emphasis
omitted) (citation omitted).
        29
           Although Cutter v. Wilkinson, 544 U.S. 709 (2005),
dealt with an application of the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), we have said that
RLUIPA and RFRA “are analogous for the purpose of the
substantial burden test,” and we may therefore may apply




                               48
provides a means for an observer to adhere to religious precepts
and simultaneously allows women to receive statutorily-
mandated health care coverage.

      RFRA does not require the broad exemption embodied
in the Final Rule nor to make voluntary a notice of the
employer’s decision not to provide such coverage to avoid
burdening those beliefs. As our Court has explained,

       the self-certification form does not trigger or
       facilitate the provision of contraceptive coverage
       because coverage is mandated to be otherwise
       provided by federal law. Federal law, rather than
       any involvement by the [employers] in filling out
       or submitting the self-certification form, creates
       the obligation of the insurance issuers and third-
       party administrators to provide coverage for
       contraceptive services. . . .

       [And] the submission of the self-certification
       form does not make the [employers] “complicit”
       in the provision of contraceptive coverage.

Geneva Coll. v. Sec’y of U.S. Dep’t of Health & Human
Servs., 778 F.3d 422, 437-38 (3d Cir. 2015) (emphasis
omitted), vacated and remanded sub nom. Zubik, 136 S. Ct.
1557. 30


RLUIPA law. Mack, 839 F.3d at 304 n.103; see Holt v.
Hobbs, 135 S. Ct. 853, 860 (2015).
        30
           While Zubik vacated our opinion in Geneva College,
it did not reach the merits of the Accommodation nor did it
“attack our reasoning.” Real Alternatives, 867 F.3d at 356




                              49
        The    religious      objectors    who     oppose     the
Accommodation mechanism disapprove of “what follows
from” filing the self-certification form, but under Free Exercise
jurisprudence, we examine the conduct of the objector, not
third parties.      Id.     at 439-40.      Here, through the
Accommodation process, “the actual provision of
contraceptive coverage is by a third party,” so any possible
burden from the notification procedure is not substantial. Id.
at 442. For these reasons, RFRA does not require that the
Agencies permit religious objectors to decline to provide
contraceptive coverage without notifying their insurance
issuer, TPA, HHS, or the employees.

        Contrary to the Agencies’ assertions in the Rule, the
Supreme Court has not held that the Accommodation imposes
substantial burdens on religious rights. Hobby Lobby ruled
that closely-held corporations are entitled to take advantage of
the Accommodation process rather than facing fines for non-
compliance with the contraceptive mandate, observing that the
Accommodation was a less restrictive alternative to forcing
objectors to choose between adhering to the mandate or
violating their sincerely-held beliefs. 573 U.S. at 730-31.
While the Court “did not decide” whether the Accommodation
“complies with RFRA,” it found that “[a]t a minimum . . . it
does not impinge on that plaintiffs’ religious belief that
providing insurance coverage for [certain contraceptives]
violates their religion, and it serves HHS’s stated interests
equally well.” Id. at 731; see also Zubik, 136 S. Ct. at 1561
(Sotomayor, J., concurring) (“The opinion does


n.18. After Zubik, we repeated that the Accommodation does
“not impose a substantial burden.” Id.




                               50
not . . . endorse the petitioners’ position that the existing
regulations substantially burden their religious exercise or that
contraceptive coverage must be provided through a separate
policy, with a separate enrollment process.” (internal quotation
marks and citations omitted)); Wheaton, 573 U.S. at 960
(noting that Hobby Lobby “expressly rel[ied] on the
availability of the religious-nonprofit accommodation” to
reach its holding).

       Furthermore, the Religious Exemption and the new
optional Accommodation would impose an undue burden on
nonbeneficiaries—the female employees who will lose
coverage for contraceptive care. The Agencies downplayed
this burden on women, contradicting Congress’s mandate that
women be provided contraceptive coverage. “No tradition,
and no prior decision under RFRA, allows a religion-based
exemption when the [A]ccommodation would be harmful to
others—here, the very persons the contraceptive coverage
requirement was designed to protect.” Hobby Lobby, 573 U.S.
at 764 (Ginsburg, J., concurring). As the Agencies recognize,
the record shows that thousands of women may lose
contraceptive coverage if the Rule is enforced and frustrate
their right to obtain contraceptives. Id. at 727 (citation
omitted); 42 U.S.C. § 300gg-13(a)(4) (directing the enactment
of the Women’s Preventive Services Guidelines, which include
contraceptives).

       In short, the status quo prior to the new Rule, with the
Accommodation, did not infringe on the religious exercise of
covered employers, nor is there a basis to conclude the
Accommodation process infringes on the religious exercise of
any employer. For these reasons, RFRA does not demand the
Religious Exemption.




                               51
                               D

        Because the States demonstrated a likelihood of success
on the merits as to their APA claim, we next turn to the
remaining equitable factors.        To obtain a preliminary
injunction, a plaintiff must “demonstrate that irreparable injury
is likely in the absence of an injunction.” Winter, 555 U.S. at
22 (emphasis omitted). Because the States cannot collect
money damages under the APA, 31 5 U.S.C. § 702 (enabling
claimants to obtain “relief other than money damages”); see
also California II, 911 F.3d at 581, the States will suffer
irreparable harm if the Rules are enforced. The States will face
unredressable financial consequences from subsidizing
contraceptive services, providing funds for medical care
associated with unintended pregnancies, and absorbing
medical expenses that arise from decreased use of
contraceptive medications for other health conditions.
Therefore, the District Court did not abuse its discretion in
holding that the States demonstrated a likelihood of irreparable
harm.

       Furthermore, because the current Accommodation does
not substantially burden employers’ religious exercise and the
Exemption is not necessary to protect a legally-cognizable
interest, the States’ financial injury outweighs any purported
injury to religious exercise. Moreover, the public interest
favors minimizing harm to third-parties by ensuring that
women who may lose ACA guaranteed contraceptive coverage

       31
          Monetary injuries ordinarily do not constitute
irreparable harm because they are compensable. See Instant
Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801
(3d Cir. 1989).




                               52
are able to maintain access to the preventive care to which they
are entitled under the ACA and HRSA’s comprehensive
guidelines while final adjudication of the Rules is pending.
Therefore, the District Court did not abuse its discretion in
concluding that the balance of the equities and the public
interest both favor issuing an injunction.

                               E

       Having determined that a preliminary injunction is
warranted, the final question we address is whether the District
Court abused its discretion by enjoining the Final Rules
nationwide. “Crafting a preliminary injunction is an exercise
of discretion and judgment, often dependent as much on the
equities of a given case as the substance of the legal issues it
presents.” Trump v. Int’l Refugee Assistance Project, 137 S.
Ct. 2080, 2087 (2017) (per curiam). While courts are vested
with the power to issue equitable relief with a nationwide
reach, see Texas, 809 F.3d at 188 (quoting U.S. Const. art. III,
§ 1), they must ensure that “injunctive relief [is] no more
burdensome to the defendant than necessary to provide
complete relief to plaintiffs,” Novartis Consumer Health, Inc.
v. Johnson & Johnson-Merck Consumer Pharm. Co., 290 F.3d
578, 598 (3d Cir. 2002) (internal quotation marks and citation
omitted). We must also bear in mind that the purpose of
injunctions is “not to conclusively determine the rights of the
parties, but to balance the equities as the litigation moves
forward.” Trump, 137 S. Ct. at 2087 (internal citation
omitted).

       Mindful of these considerations, the District Court did
not abuse its discretion in concluding that a nationwide
injunction is necessary to afford complete relief to the States




                              53
and that it is not “more burdensome to the defendant than
necessary” to provide such relief. 32 Groupe SEB USA, Inc. v.
Euro-Pro Operating LLC, 774 F.3d 192, 206 (3d Cir. 2014)
(internal quotation marks and citations omitted). First, our
APA case law suggests that, at the merits stage, courts
invalidate—without qualification—unlawful administrative
rules as a matter of course, leaving their predecessors in place
until the agencies can take further action. See, e.g.,
Prometheus Radio, 652 F.3d at 453-54 & n.25 (vacating
procedurally defective rule and leaving the prior rule in effect);
Council Tree Commc’ns, Inc. v. FCC, 619 F.3d 235, 258 (3d
Cir. 2010) (same). Congress determined that rule-vacatur was
not unnecessarily burdensome on agencies when it provided
vacatur as a standard remedy for APA violations. See 5 U.S.C.
§ 706(2) (“The reviewing court shall . . . hold unlawful and set
aside agency action” that is outside an agency’s authority, or
“without observance of procedure required by law,” among
other things). While vacatur is the ultimate remedy the States
seek, and that is not the relief being granted here, by enjoining
enforcement of the Rules we provide a basis to ensure that a
regulation that the States have shown likely to be proven to be
unlawful is not effective until its validity is finally adjudicated.

        Second, a nationwide injunction is necessary to provide
the States complete relief. Many individuals work in a state
that is different from the one in which they reside. See Amici

       32
         Our sister circuit declined to uphold a nationwide
injunction concerning the IFRs, but the record before us is
substantially more developed than the record before that
court. California II, 911 F.3d at 584 (“On the present record,
an injunction that applies only to the plaintiff states would
provide complete relief to them.”).




                                54
Curiae Massachusetts, et al., Br. at 24 (“Mass. Amici Br.”)
(stating that 14% of the workforce in New Jersey and 5.4% in
Pennsylvania work out of state, comprising more than 800,000
workers in total). An injunction geographically limited to the
States alone will not protect them from financial harm, as some
share of their residents who work out-of-state will lose
contraceptive coverage originally provided through employers
in non-enjoined states who will exempt themselves. Women
covered by these plans who live in the States will seek state-
funded services, and a state specific injunction will not be
sufficient to prevent the resulting financial harm.

        Out-of-state college attendance further exacerbates the
States’ injury. As the Moral Exemption points out, “[o]nly a
minority of students in higher education receive health
insurance coverage from plans arranged by their colleges or
universities.” 83 Fed. Reg. at 57,564; 83 Fed. Reg. at 57,619.
Instead, most of these students remain on their parents’
employer-based plans. Mass. Amici Br. at 26. The States host
many such students at their colleges. “Each year, for example,
Pennsylvania takes in more than 32,000 first-time out-of-state
students alone—the second most of any state in the country.”
Mass. Amici Br. at 25 (citing Nat’l Ctr. For Educ. Statistics,
Residence and Migration of All First-Time Degree/Certificate-
Seeking Undergraduates, Digest of Education Statistics
(2017)). In the absence of a nationwide injunction, students
attending school in the States may lose contraceptive coverage
from their parents’ out-of-state plans, again leaving programs
within the States to pick up the bill. 33 In light of the impact of

       33
          It is also likely that residents of the States will attend
out-of-state schools that invoke the Exemptions, and that such
students will seek contraceptive services through programs in




                                55
these interstate activities, the District Court did not abuse its
discretion in concluding that a nationwide injunction was
necessary to afford the States complete relief. 34

                               V

      For the foregoing reasons, we will affirm the District
Court’s order granting the nationwide preliminary injunction.




their home states, also giving rise to fiscal injuries to the
States that only a nationwide injunction can remedy.
        34
           The Government also argues that a nationwide
injunction takes a toll on the court system, foreclosing
“adjudication by a number of different courts and judges,”
Califano v. Yamasaki, 442 U.S. 682, 702 (1979), thereby
preventing legal questions from “percolating” throughout the
court system, Gov’t Br. at 79-80. The argument has little
force in this case. First, other federal courts have examined
substantially the same legal issues as we confront here. See
generally Massachusetts, 923 F.3d 209; California II, 911
F.3d 558. Second, the extensive litigation surrounding the
Exemption and Accommodation have allowed for an airing of
the legal issues. See Petition for Writ of Certiorari at 27, The
Little Sisters of the Poor Jeanne Jugan Residence v.
California (No. 18-1192) (“Further percolation is
unnecessary. . . . [T]his issue was adjudicated by ten courts of
appeals and dozens of district courts. . . . The arguments have
all been aired.”). Thus, there is no “percolation” problem
here.




                               56
