Full opinion text
WENDY BEETLESTONE, District Judge. Table of Contents I. Background...798 A. Contraceptive Mandate...798 B. Regulatory Action to Accommodate Religious Objections...799 C. Hobby Lobby & Wheaton College ...800 D. Regulatory Response to Hobby Lobby & Wheaton College ...800 E. Zubik Remand & Impasse...801 F. 2017 IFRs & First Preliminary Injunction...801 G. 2018 Final Rules & Second Motion for Preliminary Injunction...803 II. Analysis...804 A. Standing...804 1. Special Solicitude...805 2. Article III Standing...806 B. Venue...808 C. Preliminary Injunction...810 1. Legal Standard...810 2. Likelihood of Success on the Merits...810 a. APA Procedural Claim...810 i. Inadequate Response to Comments...811 ii. IFRs Taint the Final Rules...812 b. APA Substantive Claim...816 i. The ACA...817 ii. RFRA...821 3. Irreparable Harm...827 4. Balance of the Equities...829 5. Public Interest...829 D. Remedy...830 Plaintiffs, the Commonwealth of Pennsylvania and the State of New Jersey (collectively "the States"), have sued the United States of America, President Donald J. Trump, the United States Secretary of Health and Human Services Alex M. Azar II, the United States Secretary of the Treasury Steven T. Mnuchin, and the United States Secretary of Labor Rene Alexander Acosta in their official capacities, as well as each of their agencies (collectively "Defendants"), seeking to enjoin enforcement of two Final Rules that grant exemptions to the Affordable Care Act's requirement that health plans cover women's preventive services. The Final Rules "finalize" two Interim Final Rules, which Defendants issued in October 2017 and which this Court enjoined soon thereafter, see Pennsylvania v. Trump , 281 F.Supp.3d 553, 585 (E.D. Pa. 2017). On November 15, 2018, while their appeal of that preliminary injunction was pending, Defendants promulgated the Final Rules currently before the Court. The States move to enjoin enforcement of the Final Rules arguing that, like the IFRs before them, the Final Rules violate a variety of constitutional and statutory provisions. For the reasons set forth below, Plaintiffs' Second Motion for a Preliminary Injunction shall be granted. I. Background Although the relevant factual and procedural history of this dispute has been laid out at length before, see id. at 560-64, that background information is recounted here for the sake of clarity. A. Contraceptive Mandate In March 2010, Congress enacted the Affordable Care Act. See Patient Protection and Affordable Care Act ("ACA"), Pub L. No. 111-148, 124 Stat. 119 (2010). A provision of the ACA, the Women's Health Amendment, mandated that insurance providers cover preventive health services and screenings for women without cost-sharing responsibilities. Specifically, the Women's Health Amendment requires that "[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 ... with respect to women, such additional preventive care and screenings ... as provided for in comprehensive guidelines supported by the Health Resources and Services Administration ["HRSA"] for purpose of this paragraph." 42 U.S.C. § 300gg-13(a)(4). This requirement applies to all health insurers offering individual or group insurance, as well as all group health plans, with an exception for certain "grandfathered" plans. 42 U.S.C. § 18011 (exempting "grandfathered" plans); see also 29 C.F.R. § 2590.715-1251 (2010). Rather than enumerate the preventive services to be covered by the mandate, Congress delegated that decision to HRSA, which is an agency of Defendant Department of Health and Human Services ("HHS"). HRSA, in turn, commissioned the then-named Institute of Medicine ("the Institute"), to convene a panel of experts to provide recommendations. On July 19, 2011, the Institute issued its report, recommending that the ACA cover "the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity." Institute of Medicine, Clinical Prevention Services for Women: Closing the Gaps , at 109-10 (2011). On August 1, 2011, HRSA issued its preventive care guidelines ("2011 Guidelines"), which adopted the Institute's recommendations. See HRSA, Women's Preventive Services Guidelines , available at https://www.hrsa.gov/womens-guidelines/index.html. The 2011 Guidelines hewed to the Institute's report, defining preventive care to include all FDA-approved "contraceptive methods, sterilization procedures, and patient education and counseling." Id. Under the Women's Health Amendment, "non-grandfathered group health plans and health insurance issuers are required to provide coverage consistent with the HRSA Guidelines, without cost sharing." 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). Thus these interlocking statutory and regulatory requirements created the so-called "Contraceptive Mandate." B. Regulatory Action to Accommodate Religious Objections At the same time, and based on "considerable feedback," HHS, the Department of Labor, and the Department of the Treasury (collectively "the Agencies") found it was "appropriate that HRSA, in issuing [the 2011] Guidelines, take[ ] into account the effect on the religious beliefs of certain religious employers if coverage of contraceptive services were required." 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 (Aug. 3, 2011). The Agencies therefore provided HRSA with "additional discretion to exempt certain religious employers from the Guidelines where contraceptive services are concerned." Id. On August 1, 2011, the Agencies promulgated an interim final rule exempting certain religious employers from providing contraceptive services. Id. Under the exemption, a "religious employer" could be exempt from the Contraceptive Mandate only if it: (1) had the inculcation of religious values as its purpose; (2) primarily employed people who shared its religious tenets; (3) primarily served persons who shared its religious tenets; and (4) was a church, its integrated auxiliary, or a convention or association of a church exempt from taxation under the Internal Revenue Code. Id. On February 15, 2012, after considering more than 200,000 responses to this interim final rule, the Agencies issued a final rule adopting the "religious employer" definition. 77 Fed. Reg. at 8,725. On March 21, 2012, the Agencies issued a notice of proposed rulemaking requesting comments on "alternative ways of providing contraceptive coverage without cost sharing in order to accommodate non-exempt, non-profit religious organizations with religious objections to such coverage." Certain Preventive Services Under the Affordable Care Act , 77 Fed. Reg. 16,501, 16,503 (March 21, 2012). After receiving and considering over 400,000 comments, the Agencies issued their final rule on July 2, 2013. Coverage of Certain Preventive Services Under the Affordable Care Act , 78 Fed. Reg. 39,870, 39,871 (July 2, 2013). The final rule had two noteworthy effects. First, the rule "eliminate[ed] the first three prongs and clarif[ied] the fourth prong of the definition" of "religious employer" adopted in 2012. Id. at 39,874. Under the new definition, an entity qualified as a "religious employer" so long as it "is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii)" of the Internal Revenue Code, which applies to "churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious activities of any religious order." Id. Second, the rule established an accommodation for "eligible organizations" with religious objections to providing contraceptive coverage. Id. The rule defined an "eligible organization" as one that: "(1) [o]pposes providing coverage for some or all of the contraceptive services required to be covered ...; (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." Id. An eligible organization was required to provide a copy of the self-certification to its insurance provider, which then would provide contraceptive coverage to the organization's employees. Id. at 39,876. Thus an eligible organization that self-certified as such was "not required to contract, arrange, pay, or refer for contraceptive coverage," but its "plan participants and beneficiaries [would] still benefit from separate payments for contraceptive services without cost sharing or other charge," consistent with the Contraceptive Mandate. Id. at 39,874. C. Hobby Lobby & Wheaton College Meanwhile, a host of legal challenges to the Contraceptive Mandate progressed through the federal courts, several of which eventually reached the Supreme Court. On June 30, 2014, the Supreme Court issued its opinion in Burwell v. Hobby Lobby Stores, Inc. , 573 U.S. 682, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014). There, three closely-held corporations challenged the Contraceptive Mandate. Id. at 2765. The Supreme Court held that the application of the Contraceptive Mandate to the organizations violated the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1 ("RFRA"), because the Contraceptive Mandate imposed a substantial burden on the plaintiffs' religious exercise and was not the "least restrictive means" of guaranteeing cost-free access to certain methods of contraception. 134 S.Ct. at 2780-82. The Supreme Court found the existence of the accommodation supported its conclusion that the Contraceptive Mandate was not the "least restrictive means": "HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs.... HHS has already established an accommodation for nonprofit organizations with religious objections." Id. at 2782. Nevertheless, the Supreme Court refrained from deciding "whether an approach of this type"-meaning the accommodation-"complies with RFRA for purposes of all religious claims." Id. A few days later, the Supreme Court issued an order in a related case, Wheaton College v. Burwell , --- U.S. ----, 134 S.Ct. 2806, 189 L.Ed.2d 856 (2014) (per curiam). There, Wheaton College, an organization eligible for the accommodation, sought an injunction "on the theory that its filing of a self-certification form [would] make it complicit in the provision of contraceptives by triggering the obligation for someone else to provide the services to which it objects." Id. at 2808 (Sotomayor, J., dissenting). The Supreme Court granted the injunction, permitting Wheaton College to "inform[ ] the Secretary of Health and Human Services in writing that it ... has religious objections to providing coverage for contraceptive services"-that is, the college did not have to "use the [self-certification] form prescribed by the [g]overnment." Id. at 2807 (per curiam). The Supreme Court warned, however, that the "order should not be construed as an expression of the Court's views on the merits." Id. D. Regulatory Response to Hobby Lobby & Wheaton College The Agencies responded to Hobby Lobby and Wheaton College by issuing a notice of proposed rulemaking "amend[ing] the definition of an eligible organization [for purposes of the accommodation] to include a closely held for-profit entity that has a religious objection to providing coverage for some or all of the contraceptive services otherwise required to be covered." Coverage of Certain Preventive Services Under the Affordable Care Act , 79 Fed. Reg. 51,118, 51,121 (Aug. 27, 2014). Furthermore, the Agencies issued an interim final rule, effective immediately, that provided "an alternative process" for eligible organizations to self-certify "consistent with the Wheaton order." Coverage of Certain Preventive Services Under the Affordable Care Act , 79 Fed. Reg 51,092, 51,094 -96 (Aug. 27, 2014). On July 14, 2015, the Agencies issued a rule that finalized the extended accommodation and alternative self-certification process. Coverage of Certain Preventive Services Under the Affordable Care Act , 80 Fed. Reg. 41,318, 41,323 -24 (July 14, 2015). E. Zubik Remand & Impasse On May 16, 2016, the Supreme Court issued its third decision regarding the Contraceptive Mandate. In Zubik v. Burwell , --- U.S. ----, 136 S.Ct. 1557, 194 L.Ed.2d 696 (2016) (per curiam), several organizations eligible for the accommodation challenged the self-certification process on the grounds that the requirement to submit a notice either to their insurer or the federal government violated RFRA. Id. at 1559. The Supreme Court declined to reach the merits of the dispute, requesting instead "supplemental briefing from the parties addressing 'whether contraceptive coverage could be provided to petitioners' employees, through petitioners' insurance companies, without any such notice from petitioners.' " Id. at 1559-60. After the parties agreed that "such an option [was] feasible," the Supreme Court remanded to afford them "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." Id. at 1560 (internal quotation marks omitted). Again, though, the Court "express[ed] no view on the merits of the cases," and refrained from "decid[ing] whether petitioners' religious exercise has been substantially burdened, whether the [g]overnment has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest." Id. Following the remand the Agencies reached an impasse. After reviewing over 50,000 comments submitted in response to a request for information, the Agencies concluded that there was "no feasible approach ... 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 (2016), available at https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-center/faqs/aca-part-36.pdf. F. 2017 IFRs & First Preliminary Injunction On May 4, 2017, President Donald Trump issued an Executive Order entitled " Promoting Free Speech and Religious Liberty." Exec. Order No. 13798, 82 Fed. Reg. 21,675 (May 4, 2017). The Order directed the Agencies to "consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under [the Women's Health Amendment]." Id. at § 3. On October 6, 2017, aiming to be "[c]onsistent with the President's Executive Order and the Government's desire to resolve the pending litigation and prevent future litigation from similar plaintiffs," Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act , 82 Fed. Reg. 47,792, 47,799 (Oct. 13, 2017), the Agencies issued two, new IFRs, referred to as the Religious Exemption IFR and the Moral Exemption IFR. See id. at 47,792 ("Religious Exemption IFR"); Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act , 82 Fed. Reg. 47,838, 47,838 (Oct. 13, 2017) ("Moral Exemption IFR") (collectively, "the IFRs"). The IFRs made several significant changes to the prior exemption and accommodation framework. For one, the Moral Exemption IFR made the exemption available to "additional entities"-including for-profit entities that are not publicly traded-that object based on "sincerely held moral convictions," without any need for the objection to be grounded in a religious objection to contraception. 82 Fed. Reg. at 47,862 (emphasis added). Second, the Religious Exemption IFR significantly broadened the scope of the religious exemption to encompass any non-profit or for-profit entity, whether closely held or publicly traded. 82 Fed. Reg. at 47,810. Third, the IFRs "likewise" expanded eligibility for the accommodation, allowing entities with sincerely held religious or moral convictions to take advantage of the accommodation process. 82 Fed. Reg. at 47,813 ; 82 Fed. Reg. at 47,849. Fourth, the IFRs made "the accommodation process optional for eligible organizations," such that entities taking advantage of the accommodation would "not be required to comply with a self-certification process." 82 Fed. Reg at 47,808 ; 82 Fed. Reg. at 47,850. Finally, the IFRs eliminated the requirement to provide notice of an intent to take advantage of the exemption or accommodation-entities that stop providing contraceptive care "do not need to file notices or certifications of their exemption." 82 Fed. Reg. at 47,808 ; 82 Fed. Reg. at 47,850. Thus the IFRs permit entities with religious or moral objections to forgo providing contraceptive coverage to employees without "fil[ing] notices or certifications of their exemption." 82 Fed. Reg. at 47,838. The IFRs became effectively immediately. 82 Fed. Reg. at 47,815 ; 82 Fed. Reg. at 47,855. Rather than engage in advance notice-and-comment procedures, the Agencies requested post-promulgation comments be submitted by December 5, 2017, 60 days after the IFRs went into effect. 82 Fed. Reg. at 47,792; 82 Fed. Reg. at 47,838. The Commonwealth filed suit in the interim seeking to enjoin enforcement of the IFRs, arguing: (1) they failed to comply with the notice-and-comment procedures required by the APA, 5 U.S.C. § 551, et seq. ; (2) they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" in violation of the substantive provisions of the APA, 5 U.S.C. § 706(2)(A) ; (3) they violate Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2, et seq. ; (4) they violate the Equal Protection Guarantee of the Fifth Amendment, U.S. Const. amend. V ; and, (5) they violate the Establishment Clause, U.S. Const. amend. I. This Court granted the preliminary injunction, finding the Commonwealth was likely to succeed on its claims that the IFRs violated both the procedural and substantive strictures of the APA; it did not, however, reach the merits of the other statutory or constitutional claims. See Pennsylvania , 281 F.Supp.3d at 585. Defendants subsequently appealed the decision and moved to stay proceedings while the appeal was pending, which this Court granted. G. 2018 Final Rules & Second Motion for Preliminary Injunction On November 15, 2018, while their appeal of the preliminary injunction was pending before the Third Circuit, the Agencies promulgated two new rules that "finalize[d]" the IFRs. Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act , 83 Fed. Reg. 57,536, 57,536 (Nov. 15, 2018) ("Final Religious Exemption"); Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act , 83 Fed. Reg. 57,592, 57,592 (Nov. 15, 2018) ("Final Moral Exemption"). "In response to public comments," the Agencies made "various changes" to the Final Rules "to clarify the intended scope of the language" in the IFRs. 83 Fed. Reg. at 57,537 ; 83 Fed. Reg. at 57,593. The changes, however, were largely "non-substantial technical revisions." 83 Fed. Reg. at 57,567. Defendants assert such changes "do not alter the fundamental substance of the exemptions set forth in the IFRs." The Final Rules were scheduled to take effect on January 14, 2019. 83 Fed. Reg. at 57,567 ; 83 Fed. Reg. at 57,592. The Commonwealth then sought to lift the stay to challenge the Final Rules. The Court granted the motion, and Pennsylvania-now joined by New Jersey-filed an Amended Complaint and a Second Motion for a Preliminary Injunction, seeking to enjoin enforcement of the Final Rules. The States argue the Final Rules: (1) failed to comply with the notice-and-comment procedures required by the APA; (2) are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" in violation of the substantive provisions of the APA; (3) violate Title VII of the Civil Rights Act; (4) violate the Equal Protection Guarantee of the Fifth Amendment; and, (5) violate the Establishment Clause. It is to the merits of these contentions that the Court now turns. II. Analysis A. Standing A threshold question is whether the States have standing. Standing is a litigant's ticket to federal court-a constitutional requirement that "limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong." Spokeo, Inc. v. Robins , --- U.S. ----, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). The States contend that they are properly before the Court because the Final Rules will imminently cause direct harm to their sovereign, quasi-sovereign and proprietary interests. Additionally, they assert that they have parens patriae standing to protect the health, safety and well-being of their residents in ensuring that they enjoy access to healthcare services. Defendants, on the other hand, contend that the States have not suffered any legal wrong that would allow them to get through the turnstile into federal court. "No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies." Simon v. E. Kentucky Welfare Rights Org. , 426 U.S. 26, 37, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). The doctrine of standing "is part of this limitation." Id. ; see also Finkelman v. Nat'l Football League , 810 F.3d 187, 203 (3d Cir. 2016). "[T]he irreducible constitutional minimum of standing contains three elements." Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). First, a plaintiff must have suffered an "injury in fact," which is "an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." Id. (internal quotation marks and citations omitted). Second, a plaintiff must show that there is a "causal connection between the injury and the conduct complained of"-that is, the injury must be "fairly traceable" to the "challenged action of the defendant." Id. (internal quotation marks omitted). Third, a plaintiff must show that it is "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Id. at 561, 112 S.Ct. 2130 (internal quotation marks omitted). As "[t]he party invoking federal jurisdiction," the States "bear[ ] the burden of establishing these elements." Id. And, "[s]ince they are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e. , with the manner and degree of evidence required at the successive stages of the litigation." Id. "[A]t the preliminary injunction stage, allegations are"-without more-"not enough to support standing;" rather, the States must "adduce[ ] evidence demonstrating more than a mere possibility" that the elements of standing are met. Doe v. Nat'l Bd. of Med. Exam'rs , 199 F.3d 146, 152-53 (3d Cir. 1999). 1. Special Solicitude This standing inquiry must be made with recognition that States, like Pennsylvania and New Jersey here, "are not normal litigants for the purposes of invoking federal jurisdiction." Massachusetts v. EPA , 549 U.S. 497, 518, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). They are "entitled to special solicitude in [the] standing analysis" if they have: (1) a procedural right that authorizes them to challenge the conduct at issue; and, (2) a "stake in protecting [their] quasi-sovereign interests." Id. at 520, 127 S.Ct. 1438 ; see also Texas v. United States , 809 F.3d 134, 151 (5th Cir. 2015), aff'd by an equally divided Court , --- U.S. ----, 136 S.Ct. 2271, 195 L.Ed.2d 638 (2016) (per curiam). In determining whether the States have met these conditions, both Massachusetts v. EPA and Texas v. United States are instructive. In Massachusetts v. EPA , Massachusetts sued the Environmental Protection Agency ("EPA"), alleging that the EPA had "abdicated its responsibility under the Clean Air Act" when it failed to issue regulations regarding the emission of certain greenhouse gases. 549 U.S. at 505, 127 S.Ct. 1438. The EPA challenged Massachusetts' standing to bring the suit, arguing greenhouse gas emissions are a widespread and generalized harm not unique to any specific plaintiff. Id. at 517, 127 S.Ct. 1438. The Supreme Court nonetheless held that Massachusetts had special solicitude in the standing inquiry to challenge the EPA's inaction: First, Massachusetts had a procedural right under the relevant statute, the Clean Air Act, which allowed it to "challenge agency action unlawfully withheld." Id. (citing 42 U.S.C. § 7607(b)(1) ). Second, Massachusetts had a quasi-sovereign interest-a "well-founded desire to preserve its sovereign territory" from the effects of global warming because Massachusetts "own[ed] a great deal of the territory alleged to be affected." Id. at 519, 127 S.Ct. 1438 (internal quotation marks omitted); see also id. at 522, 127 S.Ct. 1438 (noting affidavits asserting that "rising seas have already begun to swallow Massachusetts' coastal land."). After concluding that Massachusetts was entitled to special solicitude in the standing analysis, the Supreme Court ultimately held that it had Article III standing to sue the EPA based on the injury to its territory stemming from global warming. Id. at 526, 127 S.Ct. 1438. In Texas v. United States , the Fifth Circuit, relying on Massachusetts v. EPA , similarly concluded that Texas and a multitude of other States were entitled to special solicitude in seeking to enjoin implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents program ("DAPA"). 809 F.3d at 154-55. There, non-citizens in Texas could apply for a driver's license if they presented "documentation issued by the appropriate United States agency that authorizes the applicant to be in the United States." Id. at 155 (internal quotation marks omitted). DAPA would have permitted at least 500,000 non-citizens to qualify for these driver's licenses. Id. Because Texas subsidized its licenses, it would have lost money for each license issued to a DAPA beneficiary. Id. Texas therefore sought injunctive relief to prevent DAPA's implementation. See id. at 149. The Fifth Circuit applied the Massachusetts v. EPA framework and concluded that Texas was entitled to special solicitude. First, the Fifth Circuit considered whether the States' challenge was similar in kind to the challenge brought by Massachusetts, and concluded that it was. Both suits turned on the construction of a federal statute that specifically provided for a procedural right to judicial review, and Texas' use of the APA to challenge an "affirmative decision" made by a federal agency was comparable to Massachusetts' use of the judicial review provision in the Clean Air Act to challenge the EPA's inaction. Id. at 152. Second, as to the quasi-sovereign interest, the Fifth Circuit held that DAPA imposed "substantial pressure" on Texas to change its laws to avoid bearing further costs from subsidizing additional driver's licenses. Id. at 153. The Fifth Circuit thus concluded that Texas, and its fellow plaintiff States, warranted special solicitude in their suit against the federal government under the APA. Id. at 154-55. The Fifth Circuit's reasoning in Texas v. United States is persuasive here. Here as there, the States bring suit under the APA to challenge an affirmative action by the federal government. See Texas , 809 F.3d at 152. And, the Final Rules-like DAPA-"affect[ ] the [S]tates' 'quasi-sovereign' interest by imposing substantial pressure on them to change their laws." Id. Specifically, they put pressure on provisions of the States' laws that provide state-funded contraceptive care to low-income citizens. As the States show, the Final Rules permit more employers to exempt themselves from the Contraceptive Mandate, which would result in more of the States' women seeking state-funded sources of contraceptive care. The harm to the States' fiscs are "intrusions ... analogous to pressure to change the law," id. , implicating the States' quasi-sovereign interests. See also Alfred L. Snapp & Son, Inc. v. Puerto Rico , 458 U.S. 592, 607, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982) (holding that a State has a "quasi-sovereign interest in the health and wellbeing-both physical and economic-of its residents in general."). The States, then, meet the two conditions outlined in Massachusetts v. EPA and shall be accorded special solicitude in the standing analysis. 2. Article III Standing While the States are entitled to special solicitude in the standing analysis, they must nevertheless meet the "irreducible constitutional minimum of standing"-namely, injury in fact, causation, and redressability. Lujan , 504 U.S. at 560, 112 S.Ct. 2130. In its initial challenge to the IFRs, the Commonwealth satisfied this burden, see Pennsylvania , 281 F.Supp.3d at 569, and the same is true of the States' challenge to the Final Rules. See also California , 911 F.3d at 571 (finding another group of States had standing to challenge the IFRs). First, the Final Rules inflict a direct injury upon the States by imposing substantial financial burdens on their coffers. An agency rule that has "a major effect on the states' fiscs" is sufficient to find injury in fact. Texas , 809 F.3d at 152 ; id. at 155 ("[Texas] satisfied the first standing requirement by demonstrating that it would incur significant costs in issuing driver's licenses to DAPA beneficiaries."); see also Wyoming v. Oklahoma , 502 U.S. 437, 448, 112 S.Ct. 789, 117 L.Ed.2d 1 (1992) (holding that Wyoming had Article III standing because it undisputedly suffered a "direct injury in the form of a loss of specific tax revenues"); Danvers Motor Co., Inc. v. Ford Motor Co. , 432 F.3d 286, 291 (3d Cir. 2005) ("While it is difficult to reduce injury-in-fact to a simple formula, economic injury is one of its paradigmatic forms."). If the Final Rules go into effect, the States will have to increase their expenditures for State funded programs that provide contraceptive services. This is not a speculative harm. As Defendants themselves noted in issuing the IFRs, "there are multiple Federal, State, and local programs that provide free or subsidized contraceptives for low-income women." 82 Fed. Reg. at 47,803. As more of the States' women residents are deprived of contraceptive services through their insurance plans and turn to these State funded programs, the States will be pressed to make greater expenditures to ensure adequate contraceptive care. See Mendelsohn Decl. ¶ 15; Steinberg Decl. ¶¶ 24-25. And although Defendants point out that the States have not yet identified a woman resident who has lost contraceptive coverage due to the Final Rules, the States need not sit idly by and wait for fiscal harm to befall them. See McNair v. Synapse Group Inc. , 672 F.3d 213, 223 (3d Cir. 2012) ("When, as in this case, prospective relief is sought, the plaintiff must show that he is 'likely to suffer future injury' from the defendant's conduct.") (quoting City of Los Angeles v. Lyons , 461 U.S. 95, 105, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (emphasis added) ). At bottom, just as Texas' estimated loss due to DAPA supported a finding that Texas suffered an injury in fact, so too does the States' estimated loss due to the Final Rules support a finding that the States have suffered an injury in fact. See Texas , 809 F.3d at 155. Second, the States' financial injury is "fairly traceable" to the issuance of the Final Rules. By their terms, the Final Rules expand the scope of the existing religious exemption rule and allow entities a new rationale for refusing to provide employees with contraceptive coverage if the refusal is "based on sincerely held moral convictions," 83 Fed. Reg. at 57,593. Thus, the Final Rules allow more entities to stop providing contraceptive coverage, which will result in more women residents seeking contraceptive care through State-funded programs. See Mendelsohn Decl. ¶ 15; Steinberg Decl. ¶¶ 24-25. The States have thus shown a causal connection between the Final Rules and their financial injury. As the Court previously explained, Pennsylvania v. New Jersey , 426 U.S. 660, 96 S.Ct. 2333, 49 L.Ed.2d 124 (1976), is not to the contrary. See also California , 911 F.3d at 574 (finding Pennsylvania did not bar States' challenge to the IFRs on a similar theory of standing). In that case, Pennsylvania voluntarily gave tax credits to Pennsylvania residents who paid taxes in New Jersey, and then proceeded to sue New Jersey, contending that the New Jersey tax injured Pennsylvania's fiscs and was constitutionally impermissible. Pennsylvania , 426 U.S. at 662-63, 96 S.Ct. 2333. The Supreme Court found that Pennsylvania lacked standing because the injuries to its fiscs were "self-inflicted," resulting, as they did, from a decision of its state legislature to enact a law that incorporated the legislative choices of New Jersey. Id. at 664, 96 S.Ct. 2333. Here, by contrast, the States' laws funding contraceptive care do not "directly and explicitly" tie the States' finances to another sovereign's law. California , 911 F.3d at 574. Rather, the States' described injuries flow from the unilateral decision by the Agencies to issue the Final Rules. See id. (finding Pennsylvania did control in an analogous challenge); cf. Texas , 809 F.3d at 158 ("The fact that Texas sued in response to a significant change in the [federal government's] policies shows that its injury is not self-inflicted."). The States have therefore met the traceability requirement. Finally, the States have satisfied the redressability requirement. As to the States' procedural claims, enjoining the Final Rules could prompt the Agencies "to reconsider the program, which is all a plaintiff must show when asserting a procedural right." Texas , 809 F.3d at 161 ; see also Massachusetts , 549 U.S. at 518, 127 S.Ct. 1438 (noting that where, as here, a litigant is "vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant"). And, as for the States' substantive claims, enjoining the Final Rules "would prevent [the States'] injury altogether." Texas , 809 F.3d at 161. In sum, the States have established the irreducible constitutional minimum of standing to challenges the Final Rules in federal court. B. Venue The next question to address is whether the States' choice of venue-the Eastern District of Pennsylvania-is proper. Notwithstanding Defendants' argument to the contrary, it is. Defendants' argument is grounded in the structure of the venue statute, Section 1391(e)(1) of which provides that in a civil action against an officer of the United States, venue lies "in any judicial district in which ... the plaintiff resides if no real property is involved in the action." 28 U.S.C. § 1391(e)(1). Section 1391(c) defines a party's residence "[f]or all venue purposes," and distinguishes between three, and only three, categories of litigants: "a natural person," "an entity with the capacity to sue and be sued in its common name under applicable law, whether or not incorporated," and "a defendant not resident in the United States." Id. at § 1391(c). Because Pennsylvania is neither a natural person nor a non-resident, Defendants argue it must be treated as an entity for purposes of determining residency. Section 1391(c)(2) provides that "if a plaintiff," an entity "shall be deemed to reside ... only in the judicial district in which it maintains its principal place of business." Id. Thus, according to Defendants, Pennsylvania resides only in the Middle District-the district that encompasses Harrisburg, the state capital-because that is where Pennsylvania maintains its principal place of business. While inventive, Defendants' interpretation of Section 1391(c) is ultimately unpersuasive. See California , 911 F.3d at 570 (rejecting the argument); Alabama v. U.S. Army Corps of Eng'rs , 382 F.Supp.2d 1301, 1328 (N.D. Ala. 2005) (rejecting a similar argument for an earlier version of the venue statute). Defendants' argument hinges on the assumption that, because Section 1391(c) refers to only three categories of litigants and because a state is neither a natural person nor a non-resident, a state must necessarily be "an entity" for purposes of the venue statute. There are, however, several issues with that assumption. First, the statute explicitly refers to an entity's incorporation status, indicating "that the term [entity] refers to some organization, not a state." California , 911 F.3d at 570. The legislative history confirms that Congress was contemplating "unincorporated associations, such as partnerships and labor unions, and other entities with capacity to sue in their common name," when it defined the residency of unincorporated entities in Section 1391(c). H.R. Rep. No. 112-10, at 21 (2011). There is no indication, however, that Congress intended for that provision to dictate the residency of sovereign States by equating a State with an "unincorporated association[ ]" like a labor union. Second, Congress explicitly distinguishes between States and entities within Section 1391. Compare 28 U.S.C. § 1391(c) (defining the residency of an "entity"), with id. at § 1391(d) ("Residency of corporations in States with multiple districts"). "Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Russello v. United States , 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) (internal quotation marks and citations omitted). Thus, courts typically "refrain from concluding ... that the differing language in [ ] two subsections [of a statute] has the same meaning in each." Id. Here, Congress's differentiation between "an entity" and "States" within Section 1391 indicates that Congress did not intend to include the latter within the definition of the former. Finally, reading Section 1391 as Defendants suggest would yield an absurd result. As several courts have observed, an interpretation that "limit[s] residency to a single district in the state would defy common sense," because "[a] state is ubiquitous throughout its sovereign borders." California , 911 F.3d at 570 ; Alabama , 382 F.Supp.2d at 1329 ("[C]ommon sense dictates that a state resides throughout its sovereign borders"). Thus, the Court will follow the lead of the Ninth Circuit in concluding that "the statute ... dictates that a state with multiple judicial districts 'resides' in every district within its borders." California , 911 F.3d at 570. Venue is therefore proper in the Eastern District of Pennsylvania. C. Preliminary Injunction Because the States have established standing to bring their claims into federal court and that this is a proper venue to hear those claims, the Court now turns to the merits of the preliminary injunction motion. 1. Legal Standard A preliminary injunction is an extraordinary remedy; it "should be granted only in limited circumstances." American Tel. & Tel. Co. v. Winback & Conserve Program, Inc. , 42 F.3d 1421, 1426-27 (3d Cir. 1994). "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. NRDC , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The first two are the "most critical factors: [a movant] 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." Reilly v. City of Harrisburg , 858 F.3d 173, 179 (3d Cir. 2017), as amended (June 26, 2017) (internal quotation marks omitted). "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." Id. 2. Likelihood of Success on the Merits In demonstrating the likelihood of success on the merits, a plaintiff need not show that it is more likely than not that it will succeed. Singer Mgmt. Consultants, Inc. v. Milgram , 650 F.3d 223, 229 (3d Cir. 2011) (en banc). Instead, all a plaintiff must show is "a likelihood of success on the merits (that is, a reasonable chance, or probability, of winning) to be granted relief." Id. (emphasis in original). a. APA Procedural Claim The States argue that the Final Rules should be enjoined because Defendants failed to comply with the procedural requirements of the APA. The APA generally requires that, when promulgating regulations, administrative agencies meet a set of procedural requirements, called notice-and-comment rulemaking. See 5 U.S.C. § 553. Agencies must: issue a general notice of proposed rulemaking, see id. at § 553(b) ; "give interested persons an opportunity to participate in the rule making through submission of written data, views or arguments ..." id. at § 553(c) ; and, "[a]fter consideration of the relevant matter presented, ... incorporate in the rules adopted a concise general statement of their basis and purpose," id. Notice-and-comment rulemaking serves two distinct purposes-it both "give[s] the public an opportunity to participate in the rule-making process," and "enables the agency promulgating the rule to educate itself before establishing rules and procedures which have a substantial impact on those regulated." Texaco, Inc. v. Fed. Power Comm'n , 412 F.2d 740, 744 (3d Cir. 1969). Nevertheless, there are limited exceptions to the requirement that all rules be issued pursuant to notice-and-comment rulemaking, such as when an agency has "good cause" to forgo the strictures of notice-and-comment rulemaking, 5 U.S.C. § 553(b), or when a subsequent act of Congress abrogates the APA's procedural requirements, id. at § 559. In issuing the IFRs, the Agencies failed to meet the various requirements of notice-and-comment rulemaking. See Pennsylvania , 281 F.Supp.3d at 570. Defendants argued, however, that the IFRs were not procedurally invalid because they fell under one (or more) of the limited exceptions to notice-and-comment rulemaking. Id. at 571. The Court found otherwise and enjoined the IFRs for violating the procedural strictures of Section 553. Id. at 576 ; see also California , 281 F.Supp.3d at 829 (enjoining the IFRs for violating the procedural requirements of the APA), aff'd in part, vacated in part , California , 911 F.3d at 575 (upholding the conclusion that the IFRs violated the APA). While Defendants continue to maintain that the IFRs were procedurally valid, they now argue that, even assuming the IFRs were procedurally improper, the subsequent action taken by the Agencies in promulgating the Final Rules satisfied notice-and-comment requirements, and thus the Final Rules comply with the APA. The States' response is two-fold. First, they argue that the Agencies notice-and-comment procedures fell short of the APA's requirements because the Agencies did not adequately respond to significant comments in their statement of the basis and purpose of the Final Rules. Second, the States contend that, no matter the Agencies' subsequent actions, the procedural defects that characterized the issuance of the IFRs fatally taint the Final Rules. These arguments are considered seriatim. i. Inadequate Response to Comments The States argue that the Agencies' issuance of the Final Rules failed to meet the requirements of notice-and-comment rulemaking by not responding to all "vital questions[ ] raised by comments which are of cogent materiality." United States v. Nova Scotia Food Prod. Corp. , 568 F.2d 240, 252 (2d Cir. 1977). The APA requires federal agencies to "consider and respond to significant comments received during the period for public comment." Perez v. Mortg. Bankers Ass'n , --- U.S. ----, 135 S.Ct. 1199, 1203, 191 L.Ed.2d 186 (2015). The requirement, however, is not "particularly demanding." Nazareth Hosp. v. Sec'y U.S. Dep't of Health & Human Servs. , 747 F.3d 172, 185 (3d Cir. 2014) (quoting Pub. Citizen, Inc. v. FAA , 988 F.2d 186, 197 (D.C. Cir. 1993) ). All that is required is a response that " 'demonstrates that the [agency] considered and rejected' the arguments." Id. (quoting Covad Commc'ns Co. v. FCC , 450 F.3d 528, 550 (D.C. Cir. 2006) ). The States contend that the Agencies failed to clear this relatively low bar, pointing to several examples of comments that purportedly received an inadequate response: comments that discuss the scientific evidence of the harm to the health and economic security of women that would result from the Final Rules, 83 Fed. Reg. at 57,555 -56; comments that assert the broad religious and moral exemptions will cause women to lose contraceptive coverage, id. at 57,548 -49; comments that argue the exemptions violate the ACA prohibition on regulations that create barriers to medical care, id. at 57,551 -52; and, specifically, a comment submitted by various States-including Pennsylvania and New Jersey-regarding the medical risks associated with pregnancy, id. at 57,555. For each example, however, a review of the Final Rules demonstrates that the Agencies acknowledged the comments and provided an explanation as to why the Agencies did (or did not) amend the Final Rules based on the comment. See 83 Fed. Reg. at 57,548, 57,551, 57,555. While the Agencies' explanations are not always the picture of clarity, they meet the not "particularly demanding" requirement, Nazareth Hosp. , 747 F.3d at 185, that the Agencies "consider and respond to significant comments received during the period for public comment," Perez , 135 S.Ct. at 1203. Put differently, the Final Rules "demonstrate [to a commenter] that the [the Agencies] considered and rejected, the arguments" put forth by a commenter, which is "all that the [APA] requires." Nazareth Hosp. , 747 F.3d at 185 (internal quotation marks omitted). Thus, the States are unlikely to succeed on the merits of their argument that, in promulgating the Final Rules, the Agencies' actions failed to meet the requirements of notice-and-comment rulemaking. ii. IFRs Taint the Final Rules The States maintain that, even if the Agencies complied with the requirements of notice-and-comment rulemaking in promulgating the Final Rules, the failure to do so in promulgating the IFRs fatally infected the process such that the Final Rules should also be held invalid. Generally, "the period for comments after promulgation cannot substitute for the prior notice and comment required by the APA." Sharon Steel. Corp. v. EPA , 597 F.2d 377, 381 (3d Cir. 1979). The Circuit courts however, diverge on the procedural validity of a final rule that follows an IFR promulgated in a procedurally flawed manner-that is, the question of whether a "procedural defect that taints the original, interim-final rule carr[ies] over to the succeeding final rule." Kristin E. Hickman & Mark Thomson, Open Minds and Harmless Errors: Judicial Review of Postpromulgation Notice and Comment , 101 Cornell L. Rev. 261, 267 (2016) (discussing various approaches taken by the Circuit courts); compare Salman Ranch, Ltd. v. Comm'r , 647 F.3d 929, 940 (10th Cir. 2011) ("While the ... temporary regulations were issued without notice and comment, now that the regulations have issued in final form [after notice and comment], these arguments are moot ...") (internal quotation marks omitted), rev'd on other grounds , Salman Ranch, Ltd. v. Comm'r , 566 U.S. 971, 132 S.Ct. 2100, 182 L.Ed.2d 865 (2012), with Air Transp. Ass'n of Am. v. Dep't of Transp. , 900 F.2d 369, 379 (D.C. Cir. 1990) ("Although we have suggested that there might be circumstances in which 'defects in an original notice [could] be cured by an adequate later notice' and opportunity to comment, we have emphasized that we could reach such a conclusion only upon a compelling showing that 'the agency's mind remain[ed] open enough at the later stage.' .... The FAA has not come close to overcoming the presumption of closed-mindedness in this case.") (quoting McLouth Steel Prods. Corp. v. Thomas , 838 F.2d 1317, 1323 (D.C. Cir. 1988) ), vacated on other grounds , 498 U.S. 1077, 111 S.Ct. 944, 112 L.Ed.2d 1033 (1991). For its part, the Third Circuit has evidenced a deep skepticism towards the curative powers of post-promulgation notice-and-comment procedures, see NRDC v. EPA , 683 F.2d 752, 767-68 (3d Cir. 1982) ; United States v. Reynolds , 710 F.3d 498, 519 (3d Cir. 2013) ; accord Sharon Steel. Corp. , 597 F.2d at 381, which warrants a conclusion that the States are likely to succeed on the claim that the procedural faults that characterized the issuance of the IFRs fatally tainted the Final Rules such that the issuance of the Final Rules violated the APA. The Third Circuits' decision most directly on point is NRDC v. EPA. There, the NRDC challenged EPA action that indefinitely postponed the effective date of certain Clean Water Act amendments. NRDC , 683 F.2d at 757. The EPA did not engage in notice-and-comment procedures before acting to postpone the implementation of the amendments. Id. at 756. After NRDC initiated litigation challenging the agency's action, the EPA issued a notice of proposed rulemaking, seeking comments on whether the agency should issue a rule further postponing the effective date. Id. at 757. After going through notice-and-comment procedures, the EPA then issued a final rule implementing some of the amendments, while further postponing the most controversial bits. Id. Nevertheless, NRDC maintained its challenge to the EPA's initial action to postpone the effective date. The Third Circuit rejected the EPA's argument that its notice-and-comment procedures after the initial action to postpone "cured" any failure to engage in such procedures before the initial action, and held the initial action postponing the effective date was procedurally invalid. Id. at 767. Critical to this dispute, however, the Third Circuit further held that, even though the NRDC did not challenge the final rule-that is, the rule promulgated following notice-and-comment procedures-the final rule "was likewise invalid." Id. at 768. The court of appeals explained that the appropriate remedy for the EPA's failure to engage in notice-and-comment rulemaking before taking its initial action required holding both the initial action and the subsequent, final rule "ineffective." Id. at 767. EPA's notice-and-comment procedures "could not serve as the procedural mechanism" for the final rule because "that rulemaking [could not] replace one on the question of whether the amendments should be postponed in the first place." Id. That is, if the EPA had engaged in notice-and-comment procedures before initially acting to postpone the effective date, then "the question to be decided in the [subsequent] rulemaking"-the rulemaking that complied with notice-and-comment procedures-"would have been whether the amendments ... should be suspended, and not whether they should be further postponed." Id. The Third Circuit warned that: To allow the APA procedures in connection with the further postponement to substitute for APA procedures in connection with an initial postponement would allow 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.... We cannot countenance such a result. Id. That reasoning applies with equal force here. The Agencies issued the IFRs without engaging in notice-and-comment rulemaking. As in NRDC , the issuance of the procedurally defective IFRs fundamentally changed the "question to be decided in the [subsequent] rulemaking"-instead of asking whether substantial expansions to the exemption and accommodation should be made at all , the Agencies solicited comments on whether those changes should be finalized. Thus, the subsequent "rulemaking on [finalizing the IFRs] could not serve as the procedural mechanism," for the Final Rules because "that rulemaking [could not] replace one on the question of whether" the Agencies should broaden the existing exemption and accommodation "in the first place." Id. The Agencies are, in essence, engaging in precisely the behavior that the Third Circuit warned against in NRDC : "substitute[ing] post-promulgation notice and comment procedures for pre-promulgation notice and comment procedures ... 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." Id. The Court, like the Third Circuit, "cannot countenance such a result." Id. Defendants and Defendant-Intervenor advance several arguments to the contrary, none of which are ultimately persuasive. For one, Defendants argue that NRDC is not on all fours with this case and so "provides no support for the Plaintiffs' procedural challenge." Defendants are correct that NRDC differs factually from the case at hand: there the NRDC challenged only the initial action, here the States challenged both the IFRs and the Final Rules. But, even though the plaintiff did not challenge the final rule in NRDC , the Third Circuit held both the initial action to postpone and the subsequent rule procedurally invalid. In reaching that determination, the Third Circuit rejected the notion-advanced by the Agencies here-that subsequent notice-and-comment rulemaking procedures "cured" the failure to engage in such procedures "in the first place." Id. at 767-78. Both the holding and the reasoning given for that holding are binding on this Court. See Tate v. Showboat Marina Casino P'ship , 431 F.3d 580, 582 (7th Cir. 2005) (Posner, J.) ("[T]he holding of a case includes, besides the fact and the outcome, the reasoning essential to that outcome."); see also IFC Interconsult, AG v. Safeguard Int'l Partners, LLC , 438 F.3d 298, 311 (3d Cir. 2006) (quoting Judge Posner's definition approvingly). Because the Third Circuit's reasoning invalidating the subsequent rule was essential to the holding, and because that reasoning applies with equal force to the promulgation of the Final Rules, that reasoning controls here. Next, Defendants argue that the States suffered no procedural injury because they had an opportunity to submit a comment in response to the IFRs, an opportunity that the States "admit" to taking advantage of. The problem for Defendants is that the EPA made the exact argument to the Third Circuit in NRDC , which the court of appeals flatly rejected. NRDC , 683 F.2d at 768. As the Third Circuit explained, it did not matter that "notice and comment were provided in connection with the proposal that the amendments be further postponed, and NRDC was able to make all of the arguments in connection with the further postponement that NRDC would have made in connection with the initial postponement." Id. The problem was that the initial, procedurally defective action fundamentally changed the question to be presented in the subsequent rulemaking, prejudicing NRDC, which " 'must come hat-in-hand and run the risk that the decisionmaker is likely to resist change.' " Id. at 768 (quoting Sharon Steel , 597 F.2d at 381 ). Here, the procedurally invalid IFRs similarly changed the question to be presented in the subsequent rulemaking, prejudicing the States' ability to have their comments heard by an impartial decisionmaker. Cf. Wagner Elec. Corp. v. Volpe , 466 F.2d 1013, 1020 (3d Cir. 1972) ("Section [553(b) ] of the [APA] requires notice before rulemaking, not after. The right of interested persons to petition for the issuance, amendment or repeal of a rule, granted in [ 5 U.S.C. § 553(e) ], is neither a substitute for nor an alternative to compliance with the mandatory notice requirements of [ 5 U.S.C. § 553(b) ].") (emphasis in original). Defendant-Intervenor's attempt to distinguish away the reasoning of NRDC fares no better. It argues the court of appeals' reasoning does not control because, while "unique circumstances" existed in NRDC "to establish prejudice," no such circumstances are present here. Specifically, Defendant-Intervenor argues that the Third Circuit invalidated the final rule in NRDC because of the "asymmetry between using an interim rule to repeal a rule promulgated with prior notice and comment," whereas, here, the Final Rules are not "an abrupt change in federal policy" because the Final Rules do not rescind the Contraceptive Mandate. According to Defendant-Intervenor, that makes this case "readily distinguishable from NRDC. " The argument is premised on a misreading of NRDC. The Third Circuit did not invalidate the EPA action because of the degree of change affected by the procedurally invalid action. Rather, it held that the subsequent notice-and-comment rulemaking "[could not] replace [a rulemaking] on the question of whether the amendments should be postponed in the first place." NRDC , 683 F.2d at 768. More fundamentally, the court of appeals did not rest its decision on the existence of any "unique circumstances," as Defendant-Intervenor suggests. Instead, the Third Circuit voiced a general admonition against the practice of using post-promulgation procedures to cure pre-promulgation procedural flaws. Id. As discussed, the reasoning underpinning that warning informs the result here. Defendant-Intervenor also advances an altogether different argument. It points out that the Agencies "created the [Contraceptive] Mandate via a series of IFRs without notice and comment," suggesting that the Final Rules are procedurally valid because the Agencies followed similar procedures in the past. The Court rejected a version of this argument last go around. See Pennsylvania , 281 F.Supp.3d at 573 n.8. Whether a party could have brought a successful challenge to the procedures followed in the past is not before the Court-what is at issue here is whether the procedures the Agencies followed in issuing the Final Rules violated the APA. Id. (explaining that the IFRs were "not identical to prior regulations" because "they make significant changes in the law, and the Supreme Court did not require immediate action"). The same flawed reasoning characterizes Defendant-Intervenor's related argument that invalidating the Final Rules would "cast a pall on thousands of regulations," because, according to the Government Accountability Office, 35% of all major rules were finalized with post-IFR notice-and-comment procedures. Obviously, those regulations a