FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Nathaniel M. Gorton, U.S. District Judge]
E. Kobick, Assistant Attorney General, with whom Maura
Healey, Attorney General of Massachusetts, Jon Burke,
Assistant Attorney General, Jonathan B. Miller, Assistant
Attorney General, and Elizabeth Carnes Flynn, Special
Assistant Attorney General, were on brief, for appellant.
J. Arffa, Crystal Johnson, Elizabeth J. Grossman, Melina M.
Meneguin Layerenza, and Paul, Weiss, Rifkind, Wharton &
Garrison LLP on brief for amici curiae Planned Parenthood
Federation of America, National Health Law Program, and
National Family Planning and Reproductive Health Association.
Michael J. Fischer, Chief Deputy Attorney General, Josh
Shapiro, Attorney General Commonwealth of Pennsylvania,
Jonathan Scott Goldman, Executive Deputy Attorney General,
Aimee D. Thomson, Deputy Attorney General, Xavier Becerra,
Attorney General of California, George Jepsen, Attorney
General of Connecticut, Matthew P. Denn, Attorney General of
Delaware, Karl A. Racine, Attorney General for the District
of Columbia, Russell A. Suzuki, Attorney General of
Hawai'i, Thomas J. Miller, Attorney General of Iowa,
Janet T. Mills, Attorney General of Maine, Brian E. Frosh,
Attorney General of Maryland, Lori Swanson, Attorney General
of Minnesota, Barbara D. Underwood, Attorney General of New
York, Joshua H. Stein, Attorney General of North Carolina,
Ellen F. Rosenblum, Attorney General of Oregon, Peter F.
Kilmartin, Attorney General of Rhode Island, Thomas J.
Donovan, Jr., Attorney General of Vermont, Mark R. Herring,
Attorney General of Virginia, and Robert W. Ferguson,
Attorney General of Washington, on brief for amici curiae
Pennsylvania, California, Connecticut, Delaware, District of
Columbia, Hawai'i, Iowa, Maine, Maryland, Minnesota, New
York, North Carolina, Oregon, Rhode Island, Vermont,
Virginia, and Washington.
Bernstein, Supervising Deputy City Attorney, City of Oakland,
Laura S. Trice, Lead Deputy County Counsel, Barbara J.
Parker, City Attorney, Maria Bee, Attorney, Malia McPherson,
Attorney, on brief for amici curiae the City of Oakland,
California. Laura S. Trice, Lead Deputy County Counsel,
County of Santa Clara, James R. Williams, County Counsel,
Greta S. Hansen, Attorney, Adriana L. Benedict, Attorney, on
brief for amici curiae the County of Santa Clara, California.
Andre M. Davis, City Solicitor, City of Baltimore, Kimberly
M. Foxx, State's Attorney for Cook County, Michael N.
Feuer, City Attorney of the City of Los Angeles, Charles J.
McKee, County Counsel, County of Monterey, William Litt,
Deputy County Counsel, County of Monterey, Zachary W. Carter,
Corporation Counsel, City of New York, Marcel S. Pratt, City
Solicitor, City of Philadelphia Law Department, Dennis J.
Herrera, City Attorney, City and County of San Francisco,
Peter S. Holmes, Seattle City Attorney, Francis X. Wright,
Jr., City Solicitor, City of Somerville, Michael Jenkins,
City Attorney, City of West Hollywood, on brief for amici
curiae 13 Cities, Counties, and Local Agencies.
Christopher Escobedo Hart, Emily J. Nash, and Foley Hoag LLP
on brief for amicus curiae Public Health Scholars.
A. Levitt, Rhiannon N. Batchelder, and Morrison &
Foerster LLP on brief for amici curiae American Association
of University Women, Service Employees International Union,
and 12 Additional Professional, Labor, and Student
Kasdan, Center for Reproductive Rights, and Jon M. Greenbaum,
Lawyers' Committee for Civil Rights Under Law, on brief
for amici curiae Center for Reproductive Rights, Lawyers'
Committee for Civil Rights Under Law, California Women's
Law Center, GLBTQ Legal Advocates & Defenders,
Lawyers' Committee for Civil Rights and Economic Justice,
Legal Momentum, Legal Voice, Mississippi Justice Center for
Justice, National Center for Lesbian Rights, Women's Law
J. Rossman, Matthew R. Segal, ACLU Foundation of
Massachusetts, Inc., Brigitte Amiri, ACLU Foundation of New
York, Kate R. Cook, and Sugarman Rogers, on brief for amici
curiae American Civil Liberties Union, American Civil
Liberties Union of Massachusetts, Anti-Defamation League,
Leadership Conference on Civil and Human Rights, NARAL
Pro-Choice Massachusetts, and National Urban League.
Duncan Grant, Benjamin J. Eichel, and Pepper Hamilton LLP, on
brief for amici curiae The Guttmacher Institute.
D. Barrowclough, Jeffrey Blumenfeld, Lowenstein Sandler LLP,
Fatima Goss Graves, Gretchen Borchelt, Sunu Chandy, Michelle
Banker, National Women's Law Center, Sequoia Ayala, Jill
Heaviside, Sisterlove, Inc., Jane Liu, National Asian Pacific
American Women's Forum, on brief for amici curiae
National Women's Law Center, National Latina Institute
for Reproductive Health, Sisterlove, Inc., and National Asian
Pacific Women's Forum.
H. Schneider, Michele L. Pahmer, Gilana Keller, and Stroock
& Stroock & Lavan LLP, on brief for amici curiae the
Health Professional Organizations, American Nurses
Association, American College of Obstetricians and
Gynecologists, American Academy of Nursing, American Academy
of Pediatrics, and Physicians for Reproductive Health.
A. Young on brief for amicus curiae Professor Ernest A.
Schoen, Attorney, Appellate Staff, Civil Division, U.S.
Department of Justice, with whom Joseph H. Hunt, Assistant
Attorney General, Andrew E. Lelling, United States Attorney,
Hashim M. Mooppan, Deputy Assistant Attorney General, and
Sharon Swingle, Attorney, Appellate Staff, were on brief, for
Torruella, Lynch, and Thompson, Circuit Judges.
TORRUELLA, CIRCUIT JUDGE. 
Commonwealth of Massachusetts brought suit on October 6,
2017, to enjoin the enforcement of two federal Interim Final
Rules (together, the "IFRs") promulgated by the
United States Departments of Health and Human Services
("HHS"), Labor, and the Treasury (the
"Departments"), which were to become effective that
day. 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).
IFRs permitted employers with religious or moral objections
to contraception to obtain exemptions from providing health
insurance coverage to employees and their dependents for Food
and Drug Administration ("FDA")-approved
contraceptive care. Such coverage would otherwise be required
by guidelines issued pursuant to a provision in the
Affordable Care Act, subject to the limitations imposed by
the Supreme Court in Burwell v. Hobby
Lobby Stores, Inc., 573 U.S. 682 (2014).
IFRs were superseded by final rules (the "Final
Rules"), promulgated on November 15, 2018, with an
effective date of January 14, 2019. Religious Exemptions and
Accommodations for Coverage of Certain Preventive Services
Under the Affordable Care Act, 83 Fed. Reg. 57, 536 (Nov. 15,
2018); Moral Exemptions and Accommodations for Coverage of
Certain Preventive Services Under the Affordable Care Act, 83
Fed. Reg. 57, 592 (Nov. 15, 2018).
both sides here moved for summary judgment, the district
court determined that Massachusetts lacked standing to
challenge the IFRs. Massachusetts v.
U.S. Dep't of Health & Human Servs., 301
F.Supp.3d 248, 266 (D. Mass. 2018). And so, it did not reach
the merits of the Commonwealth's challenges or its prayer
for injunctive relief. The Commonwealth
issue on appeal is narrow: whether the Commonwealth has
Article III standing to challenge the rules. We hold that it
does. Specifically, we conclude that: (1) in agreement with
the position of the United States, the Commonwealth's
substantive challenges have not been mooted by the
promulgation of the Final Rules, but the Commonwealth's
procedural challenge to the IFRs has been mooted; and (2) the
Commonwealth has established Article III standing to
challenge the substance of the rules by demonstrating a
sufficiently imminent fiscal injury under a traditional
standing analysis (and so we do not reach the
Commonwealth's alternative parens patriae
The Affordable Care Act and the Contraceptive Care
Affordable Care Act requires employer-sponsored health plans
to provide coverage for a range of preventive care and
related medical services at no cost to the covered employee.
See 42 U.S.C. § 300gg-13(a). A provision
commonly known as the Women's Health Amendment requires
coverage for, "with respect to women, such additional
preventive care and screenings . . . as provided for in
comprehensive guidelines supported by the Health Resources
and Services Administration." Id. §
the Women's Health Amendment did not indicate the
additional preventive care services that must be covered, it
instructed the Health Resources and Services Administration
("HRSA"), part of HHS, to determine the specifics
of such required care and services. See 155 Cong.
Rec. 511, 987 (daily ed. Nov. 30, 2009) (Senate Amendment
August 2011, HRSA accepted the recommendations of the
Institute of Medicine ("IOM") and issued guidelines
requiring insurance coverage, at no cost to users, of all
"Food and Drug Administration . . . approved
contraceptive methods, sterilization procedures, and patient
education and counseling for all women with reproductive
capacity." Group Health Plans and Health Insurance
Issuers Relating to Coverage of Preventive Services Under the
Patient Protection and Affordable Care Act, 77 Fed. Reg. 8,
725, 8, 725 (Feb. 15, 2012) (quoting HRSA Guidelines,
http://www.hrsa.gov/womens-guidelines). In its report, the
IOM made extensive factual findings about contraceptive care
and public health outcomes. See Institute of
Medicine, Clinical Preventive Services for
Women: Closing the Gaps (2011). Plans within the
guidelines' ambit had to provide such contraceptive
coverage for plan years starting on or after August 1,
2012. See 77 Fed. Reg. at 8, 725-26.
The Departments' Regulations and Related Litigation from
2010 to 2016
the Departments promulgated regulations, which became final
in February 2012, that provided an exemption from the
requirement to provide contraceptive coverage to
"churches, their integrated auxiliaries, and conventions
or associations of churches" with religious objections
to contraception. 76 Fed. Reg. at 46, 623; see also
77 Fed. Reg. at 8, 725.
regulations also created what the Departments termed an
"accommodation" process. Coverage of Certain
Preventive Services Under the Affordable Care Act, 78 Fed.
Reg. 39, 870 (July 2, 2013). This process allowed nonprofit
organizations, including colleges and universities, to submit
a form to their health insurance issuers asserting their
religious objections to contraception. See id. at
39, 874-77. The insurance issuer was then required to remove
contraceptive coverage from the objecting organization's
plan, but still had to provide contraceptive coverage to
members of the plan (without directly involving the objecting
organization) (the "Accommodation"). Id.
at 39, 875-80.
30, 2014, the Supreme Court held in Hobby Lobby that
the contraceptive regulatory requirement as applied to
closely held corporations violated the Religious Freedom
Restoration Act ("RFRA"), 42 U.S.C. § 2000bb-1
et seq. 573 U.S. at 736. That was because the
regulations "clearly impose[d] a substantial
burden" on closely held employers who had religious
objections to contraception, and the regulations were not the
least restrictive means of furthering a compelling government
interest (assuming arguendo that one existed). Id.
at 726, 730-32. The Supreme Court noted that the
Accommodation already available to nonprofit organizations
with religious objections was less restrictive than
"requiring employers to fund contraceptive methods that
violate their religious beliefs." Id. at 730.
Hobby Lobby, the Departments issued a new rule in
2015 which allowed "Closely Held for-Profit
Entit[ies]" who had religious objections to providing
contraceptive coverage to use the Accommodation process
described above. Coverage of Certain Preventive Services
Under the Affordable Care Act, 80 Fed. Reg. 41, 318, 41, 323
(July 14, 2015).
numerous religious nonprofit organizations sued to obtain an
exemption similar to that provided to churches rather than
the more limited Accommodation process (which still allowed
for contraceptive coverage for employees of the objecting
organizations). Nine circuits considered the issue from late
2014 to early 2016. Eight circuits held that the
Accommodation did not substantially burden religious
exercise; one held that it did. The Supreme Court granted
certiorari in some of these cases (from the Third, Fifth,
Tenth, and D.C. Circuits). In a per curiam opinion, it
vacated and remanded, instructing that the parties "be
afforded 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, 136 S.Ct. 1557,
1560 (2016) (per curiam) (internal quotation marks omitted).
Zubik, the Departments sought comment in July 2016
through a request for information, seeking alternative ways
in which the contraceptive coverage mandate and
employers' religious beliefs could coexist. Coverage for
Contraceptive Services, 81 Fed. Reg. 47, 741, 47, 741 (July
22, 2016). The Departments ultimately stated that, though
they received 54, 000 public comments after this request,
"includ[ing] [from] the plaintiffs in Zubik, .
. . consumer advocacy groups, women's organizations [and]
health insurance issuers," by September 20, 2016,
"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 ...