5th Circuit Hears Oral Arguments On Enjoining Health Care Anti-Discrimination Rule

 The U.S. 5th Circuit Court of Appeals yesterday heard oral arguments (audio of full arguments) in Franciscan Alliance v. Cochran. In the case, a Texas federal district court vacated and remanded for further consideration a rule issued by the Obama administration under the Patient Protection and Affordable Care Act that prohibits discrimination on the basis of gender identity or termination of pregnancy in health care programs that receive federal financial assistance. (See prior posting.) As reported by Courthouse News Service, the appeal heard yesterday focused on whether the district court should also have issued an injunction against future enforcement of the rule. The district court declined to do so because the Trump Administration agreed that the rule was invalid. The original plaintiffs argued that the rule would force them to perform gender transition surgery and abortions in violation of their religious beliefs.

3rd Circuit Clarifies Burden of Proof For Preliminary Injunction In 1st Amendment Cases

In Reilly v. City of Harrisburg, (3rd Cir., May 25, 2017), a suit challenging a city's ban on demonstrations within 20 feet of any abortion clinic property, the 3rd Circuit clarified the burden of proof requirement for a preliminary injunction in 1st Amendment cases:

...[A] movant for preliminary equitable relief must meet the threshold for the first two “most critical” factors: it must demonstrate that it can win on the merits (which requires a showing significantly better than negligible but not necessarily more likely than not) and that it is more likely than not to suffer irreparable harm in the absence of preliminary relief. If these gateway factors are met, a court then considers the remaining two factors and determines in its sound discretion if all four factors, taken together, balance in favor of granting the requested preliminary relief.... “How strong a claim on the merits is enough depends on the balance of the harms: the more net harm an injunction can prevent, the weaker the plaintiff’s claim on the merits can be while still supporting some preliminary relief.” ...

In deciding whether to issue a preliminary injunction, plaintiffs normally bear the burden of demonstrating a sufficient likelihood of prevailing on the merits. However, in First Amendment cases where “the Government bears the burden of proof on the ultimate question of [a statute’s] constitutionality, [plaintiffs] must be deemed likely to prevail [for the purpose of considering a preliminary injunction] unless the Government has shown that [plaintiffs’] proposed less restrictive alternatives are less effective than [the statute].”.... This is because “the burdens at the preliminary injunction stage track the burdens at trial,” and for First Amendment purposes they rest with the Government.