FAMILY PLANNING ASSOCIATION OF MAINE v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

THE FAMILY PLANNING )

ASSOCIATION OF MAINE D/B/A )

MAINE FAMILY PLANNING, et al., )

)

Plaintiffs )

)

v. ) No. 1:19-cv-00100-LEW

)

UNITED STATES DEPARTMENT )

OF HEALTH AND HUMAN SERVICES, )

et al., )

)

Defendants )

DECISION AND ORDER

In this action, The Family Planning Association of Maine d/b/a Maine Family

Planning, on its own behalf and on behalf of its staff and patients, and J. Doe, a doctor of

osteopathic medicine, who similarly seeks to vindicate personal and third-party/patient

rights (“Plaintiffs”), allege that the United States Department of Health and Human

Services, Secretary Alex M. Azar II, and Deputy Assistant Secretary Diane Foley, M.D.,

through the Department’s Office of Population Affairs (“Defendants”), have exercised

rulemaking authority under the Title X family planning program in violation of the

Administrative Procedures Act, and that the new Final Rule 1 governing post-conception

activities and certain program separation requirements, if allowed to stand, will deprive

1 Compliance with Statutory Program Integrity Requirements (“Final Rule” or “Rule”), 84 Fed. Reg. 7714

(Mar. 4, 2019) (codified at 42 C.F.R. pt. 59).

Plaintiffs and those they serve of fundamental freedoms enshrined in the First and Fifth

Amendments to the United States Constitution.

Now pending are Defendants’ Motion to Dismiss or, in the Alternative, for

Summary Judgment (ECF No. 111) and Plaintiffs’ Motion for Summary Judgment (ECF

No. 113).

BACKGROUND

The Title X program is a federal welfare program that provides grants to providers

to support public access to contraceptive and reproductive health products and services.

The Title X program states that “[n]one of the funds appropriated under this subchapter

shall be used in programs where abortion is a method of family planning.” 42 U.S.C. §

300a-6. As commented by the Supreme Court, “[t]hat restriction was intended to ensure

that Title X funds would ‘be used only to support preventive family planning services,

population research, infertility services, and other related medical, informational, and

educational activities.’” Rust v. Sullivan, 500 U.S. 173, 178-79 (1991) (citing H.R. Conf.

Rep. No. 91-1667, p. 8 (1970), U.S. Code Cong. & Admin. News 1970, pp. 5068, 5081-

82).

For many years, Maine Family Planning operated under the auspices of a regulatory

regime first formally promulgated in 2000. The 2000 rule required Title X grant recipients

to provide “nondirective counseling” to patients in the event of “an unplanned pregnancy,”

and also permitted Title X grant recipients to provide abortion services in their Title X

project facilities, provided that the projects paid for the services with funding derived from

sources other than their Title X grant. In the event the Title X grantee did not separately

provide abortion services, the 2000 rule required that the grantee provide abortion referrals

if the patient requested such a referral. Standard of Compliance for Abortion-Related

Services in Family Planning Services Projects, 65 Fed. Reg. 41,270-01 (July 3, 2000).

On March 4, 2019, following a public notice and comment period, Defendant

Department of Health and Human Services promulgated new regulations with the stated

goal of “ensur[ing] compliance with, and enhance[ing] implementation of, the statutory

requirement that none of the funds appropriated for Title X may be used in programs where

abortion is a method of family planning, as well as related statutory requirements.”

Compliance with Statutory Program Integrity Requirements (“Final Rule” or “Rule”), 84

Fed. Reg. 7714, 7715 (Mar. 4, 2019) (codified at 42 C.F.R. pt. 59).

The Final Rule requires “clear physical and financial program separation from

programs that use abortion as a method of family planning.” Id. at 7765, 7789, codified at

42 C.F.R. § 59.15 (the “separation requirement”). It also reformats the standards to be

applied to consultation services with respect to “post-conception activities.” Id. at 7788,

codified at 42 C.F.R. § 59.14. The new standards permit nondirective counseling,

including abortion counseling, but prohibit referrals for abortion services.

A. The Separation Requirement

The separation requirement provides that Title X projects “must be organized so

that [they are] physically and financially separate . . . from activities which are prohibited.”

42 C.F.R. § 59.15 (2019). The Rule states: “[A] Title X project must have an objective

integrity and independence from prohibited activities. Mere bookkeeping separation of

Title X funds from other monies is not sufficient.” Id.

The Department asserts the separation requirement will serve to “protect[] against

the intentional or unintentional co-mingling of Title X resources with non-Title X resources

or programs” as well as counteract “the potential for ambiguity between approved Title X

activities and non-Title X activities and services.” 2 Final Rule, 84 Fed. Reg. at 7715

(discussing need for “clear financial and physical separation”), 7765 (“The performance of

abortions at nonspecialized clinics that also may provide Title X services increases the risk

and potential both for confusion and for the co-mingling or misuse of Title X funds.”).

B. Post-Conception Activities

The Final Rule’s post-conception activities provision begins with an express

prohibition on abortion referral: “A Title X project may not perform, promote, refer for, or

support abortion as a method of family planning, nor take any other affirmative action to

assist a patient to secure such an abortion.” 42 C.F.R. § 59.14(a) (2019). 3

The post-conception activities provision also requires Title X projects to provide

patients who are “medically verified as pregnant” with a referral for prenatal care. Id. §

59.14(b). According to the Department, “[p]renatal care is medically necessary for any

2 By addressing “the fungibility of Title X resources and the potential use of Title X resources to support

programs where . . . abortion is a method of family planning,” the Department seeks to prevent the use of

Title X resources to “facilitate the development of, and ongoing use of, infrastructure for non-Title X

activities.” Final Rule, 84 Fed. Reg. at 7715. The Department’s policy perspective is succinctly stated, as

follows: “Commenters’ insistence that requiring physical and financial separation would increase the cost

for doing business only confirms the need for such separation. If the co-location of a Title X clinic with an

abortion clinic permits the abortion clinic to achieve economies of scale, the Title X project (and, thus, Title

X funds) would be supporting abortion as a method of family planning.” Id. at 7766.

3 However, “[r]eferrals for abortion for emergency care purposes are not prohibited.” Final Rule, 84 Fed.

Reg. at 7747. The rule provides that in cases of emergency – such as the discovery of an ectopic pregnancy

– a Title X provider “shall only be required to refer the client immediately to an appropriate provider of

medical services needed to address the emergency,” which may include a referral for abortion. 42 C.F.R.

§ 59.14(b)(2), (e)(2); Final Rule, 84 Fed. Reg. at 7747-48.

patient who is pregnant, so referrals for such care do not render counseling directive.” Final

Rule, 84 Fed. Reg. at 7761. In the Department’s view, referrals for prenatal care should be

de rigueur “[b]ecause prenatal care is essential in order to optimize the health of the mother

and unborn child, and to help ameliorate the current health inequality as it relates to low

income women.” Id. at 7762.

The post-conception activities provision further states that once a Title X client is

confirmed to be pregnant, a Title X project “may also choose to provide” the client with

additional information, including:

(i) Nondirective pregnancy counseling, when provided by physicians or

advanced practice providers;

(ii) A list of licensed, qualified, comprehensive primary health care

providers (including providers of prenatal care);

(iii) Referral to social services or adoption agencies; and/or

(iv) Information about maintaining the health of the mother and unborn

child during pregnancy.

Id. § 59.14(b).

Should a Title X provider decide to do so, it may furnish a client with a list of

“comprehensive primary health care providers,” which list “may be limited to those that

do not provide abortion” or may include providers that “also provide abortion as part of

their comprehensive health care services”; however, those providers who perform

abortions must not constitute the majority of the references provided. 42 C.F.R. §

59.14(c)(2). While the project cannot exclude from its list providers that do not supply

abortion services, id., it may exclude providers that do. Id. § 59.14(e)(4), (5). Additionally,

if the list includes both types of providers, “[n]either the list nor project staff may identify

which providers on the list perform abortion.”4 Id. § 59.14(c)(2).

The Final Rule’s post-conception activities provision then concludes much as it

begins: “[a] Title X project may not use the provision of any prenatal, social service,

emergency medical, or other referral, of any counseling, or of any provider lists, as an

indirect means of encouraging or promoting abortion as a method of family planning.” Id.

§ 59.14(c)(1).

C. Title X Grant Recipients May Provide Abortion Services

Despite the prohibition against abortion referral and other program speech that

would identify abortion providers, nothing in either the separation requirement or the post-

conception activities provision precludes Title X grantees from providing abortion services

through separate programs and facilities. “The rule continues to allow organizations to

receive Title X funds even if they also provide abortion as a method of family planning, as

long as they comply with the physical and financial separation requirements.” 84 Fed.

Reg. at 7766.

D. Maine Family Planning’s Service Model

As of the commencement of this litigation, Maine Family Planning was both the

4 In support of the prohibition on providing referrals for abortion providers, the Department asserts:

[I]n most instances when a referral is provided for abortion, that referral necessarily treats

abortion as a method of family planning. The Department believes both the referral for

abortion as a method of family planning, and such abortion procedure itself, are so linked

that such a referral makes the Title X project or clinic a program one where abortion is a

method of family planning, contrary to the prohibition against the use of Title X funds in

such programs.

Final Rule, 84 Fed. Reg. at 7717.

sole statewide Title X grantee for the State of Maine and one of the primary providers and

funders of abortion services in Maine. Because the Final Rule requires that abortion

facilities be physically separate from Title X facilities and prohibits abortion referrals, the

Final Rule is incompatible with Maine Family Planning’s abortion service model, which

relies on both the co-location of abortion services in clinic space partially paid for with

Title X funds and the referral of Title X patients to Maine Family Planning and affiliated

abortion providers.

Although the Final Rule does not prohibit Plaintiffs from continuing to provide

abortion services, it raises significant barriers which would require Plaintiffs to reconfigure

their operations in order to remain in the Title X program. In particular, to remain in the

program Maine Family Planning would need to obtain new clinic space or other facilities

for the provision of abortion services and/or convert some of its existing clinics into

abortion clinics unaffiliated with the Title X project. 5

D. Preliminary Injunction Proceedings

In 2019, in advance of the effective date of the Final Rule, Maine Family Planning

and other Title X program participants in California, Maryland, Oregon, and Washington

filed civil actions to enjoin implementation of the Final Rule. In a Decision and Order

issued on July 3, 2019, I denied Plaintiffs’ request for injunctive relief. Family Planning

5 In their papers, Plaintiffs speak of their network of 18 clinics and state that they would have to discontinue

abortion services in 17 of the clinics if they remained in the Title X program. They evidently do not envision

a path forward that involves more than one but fewer than 18 abortion clinics operated by Maine Family

Planning. Plaintiffs’ Statement of Material Facts ¶¶ 4, 14, 124, 125, 135 (ECF No. 114).

Ass’n of Maine v. United States Dep’t of Health & Human Servs., 404 F. Supp. 3d 286 (D.

Me. 2019).6 However, the United States District Courts for the Districts of Oregon and

Washington granted preliminary injunctive relief on a nationwide basis.7 Oregon v. Azar,

389 F. Supp. 3d 898 (D. Or. 2019); Washington v. Azar, 376 F. Supp. 3d 1119 (E.D. Wash.

2019). A panel of the Ninth Circuit stayed the nationwide injunctions, No. 19-15974, 2020

WL 878528, 2020 U.S. App. LEXIS 5696 (9th Cir. Feb. 24, 2020), as did the Ninth Circuit,

sitting en banc, upon further review, 928 F.3d 1153 (9th Cir. July 11, 2019). 8

Although Plaintiffs appealed my denial of preliminary injunctive relief to the First

Circuit Court of Appeals, on October 23, 2019, the First Circuit dismissed Plaintiffs’ appeal

of the denial of preliminary injunctive relief, pursuant to a stipulation. No. 19-1836, 2019

WL 8112705, 2019 U.S. App. LEXIS 39141 (1st Cir. Oct. 23, 2019).

E. Maine Family Planning’s Departure from the Title X Program

On August 23, 2019, Maine Family Planning departed the program and terminated

6 See also Decision and Order on Motion to Amend Order, 2019 WL 3774619, 2019 U.S. Dist. LEXIS

135409 (D. Me. Aug. 9, 2019).

7 The Northern District of California and the District of Maryland granted statewide injunctions only.

Mayor & City Council of Baltimore v. Azar, No. 19-1103, 2020 WL 758145, 2020 U.S. Dist. LEXIS 26061

(D. Md. Feb. 14, 2020); California v. Azar, 385 F. Supp. 3d 960 (N.D. Cal. 2019), vacated and remanded,

No. 19-15974, 2020 WL 878528, 2020 U.S. App. LEXIS 5696 (9th Cir. Feb. 24, 2020). Judge Chen of the

Northern District of California determined that the plaintiffs would likely succeed on their APA and

statutory claims, but he did not reach the constitutional claims. His injunction was vacated by a panel

opinion and, ultimately, the Ninth Circuit sitting en banc held that the plaintiffs’ claims were not viable.

Judge Bennett of the District of Maryland addressed the merits after a divided panel of the Fourth Circuit

stayed his initial entry of a preliminary injunction. In his memorandum opinion on the merits, Judge

Bennett found that the Final Rule is arbitrary and capricious, but he rejected all other legal arguments.

Secretary Azar filed a notice of appeal of the ruling on February 25, 2020.

8 On February 24, 2020, the Ninth Circuit opined that the plaintiffs before it “will not prevail on the merits

of their legal claims,” vacated the district courts’ preliminary injunction orders, and remanded the cases.

California v. Azar, 950 F.3d 1067, 1105 (9th Cir. 2020) (en banc) (7-4).

a three-year Title X grant that began on April 1, 2019. Amended Complaint ¶ 19 (ECF

No. 99). Maine Family Planning alleges it was “forced to leave … because implementing

the Rule would materially and irreparably damage the provision of both family planning

services and abortion care in Maine.” Id. ¶ 120. Given the “rurality and poverty in Maine,”

Plaintiffs allege, compliance with the Rule “would exacerbate the effects of those cuts and

the resulting hardships.” Id. Plaintiffs also object to the post-conception activities

provision, which they say “would … fundamentally alter how they speak to patients

regarding their health care options,” id. ¶ 166, and they maintain that the prohibition on

abortion referrals will delay patient access to care, increasing risks and costs, id. ¶ 171.

DISCUSSION

The matter is before the Court on review of an administrative rulemaking process.

Judicial review of administrative proceedings is deferential. Visiting Nurse Ass’n Gregoria

Auffant, Inc. v. Thompson, 447 F.3d 68, 72-73 (1st Cir. 2006); Associated Fisheries of

Maine, Inc. v. Daley, 127 F.3d 104, 109 (1st Cir. 1997). Absent a showing that an exercise

of administrative rulemaking authority was arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law; or unsupported by substantial evidence; or contrary

to constitutional right, power, privilege, or immunity; or in excess of statutory jurisdiction,

authority, or limitations; or short of statutory right, the exercise is presumed valid. 5 U.S.C.

§ 706(2); Rhode Island Hosp. v. Leavitt, 548 F.3d 29, 33-34 (1st Cir. 2008).

“In applying these standards, an inquiring court must ‘review the whole record or

those parts of it cited by a party.’” Sasen v. Spencer, 879 F.3d 354, 360 (1st Cir. 2018)

(quoting 5 U.S.C. § 706(2)). The court “may not substitute its judgment for that of the

agency, even if it disagrees with the agency’s conclusions.” Id. Although “the agency’s

answers to questions of law engender de novo review,” when “the agency’s legal analysis

implicates the interpretation of a statute or regulation that it is charged with administering,”

the court ordinarily accords “some weight to the agency’s views.” Id. A. Arbitrary

and Capricious

Plaintiffs contend the Final Rule’s post-conception activities provision is arbitrary

and capricious because it reduces compliance with medical ethics, accessibility of care, and

quality of care, and because its practical impact is to reduce access to both Title X and

abortion services. Plaintiffs’ Motion at 11-17; Plaintiffs’ Reply at 3-6 (ECF No. 125).

Plaintiffs’ contentions and the evidence they offer in support thereof do not disclose an

arbitrary or capricious exercise of rulemaking authority.

The Final Rule does not prohibit abortion counseling. Providers are free to discuss

the abortion option with their patients. Although the Final Rule prohibits abortion referrals,

it does not do so arbitrarily, given that Congress stipulated that Title X funds not be “used

in programs where abortion is a method of family planning,” 42 U.S.C. § 300a-6, and the

relative ambiguity behind this admonition “plainly allows” Defendants’ decision to

construe it in a manner that withholds abortion referral authority from Title X providers.

Rust, 500 U.S. at 184. This is so notwithstanding “a sharp break with prior interpretations.”

Id. at 185 (quoting Chevron, 467 U.S. at 862).

Nor does the lack of a referral deny patients access to abortion care. Patients remain

free to access abortion services, including services provided by Plaintiffs. These

considerations were fully vetted by Defendants in the rulemaking process, and the Supreme

Court has already deemed Defendants’ rationale to be one acceptable and reasonable

method of administering the Title X grant program. To find the prohibition against

abortion referral arbitrary and capricious would be to ignore Rust entirely.9 While the

AMA’s Code of Medical Ethics is a weighty consideration, I would note that it does not

mandate that physicians make referrals for any and all care their patients desire. Rather, it

states patients “should be able to expect that their physician will cooperate in coordinating

medically indicated care with other health care professionals.” Patient Rights, Code of

Medical Ethics Opinion 1.1.3. I certainly do not take issue with this ethical canon, but

observe that while the AMA says the Department must condone abortion referrals, it does

not state that physicians must make abortion referrals. The AMA also gives physicians

freedom to decline to accept a patient in non-emergency situations, including where the

care requested by the patient “is incompatible with the physician’s deeply held personal,

religious, or moral beliefs in keeping with ethics guidance on exercise of conscience.” Id.

Opinion 1.1.2. Thus, the AMA does not hold the position that abortion referral is

mandatory and acknowledges that physicians can withhold referrals on grounds of

conscience. Given this yardstick, Plaintiffs’ argument that it is arbitrary and capricious for

the Department to make a similar policy determination in the context of the Title X program

does not measure up.10

9 Plaintiffs appear to argue that medical ethics have changed since 1988. Plaintiffs’ Motion at 12-13. The

record does not support that contention.

10 Plaintiffs’ expert in medical ethics points to the AMA Code of Ethics to reinforce his viewpoint.

Declaration of Matthew Wynia, MD (ECF No. 113-4). He also cites a committee opinion of the American

College of Obstetrics and Gynecologists that purportedly mandates abortion referral, even for physicians

who are opposed on grounds of conscience. ACOG Committee Opinion, available at https://

www.acog.org/clinical-guidance-and-publications/committee-opinions/committee-on-ethics/informed-

Turning to the separation requirement, Plaintiffs contend it is arbitrary and

capricious because it purportedly lacks “a single evidence-based reason.” Plaintiffs’

Motion at 17. According to Plaintiffs, before Defendants can impose a separation

requirement, Defendants need to audit grantees and determine that Title X funds are, in

fact, expended on abortion services. Id. at 18. Plaintiffs further argue that Defendants

failed to adequately account for the serious reliance interests of providers who have co-

located Title X and abortion practices for years, and of the patients who might lose local

access to either Title X or abortion services (or both) due to the economic burdens imposed

by the separation requirement. Id. at 19-21.

The Final Rule cites the following justification for requiring physical separation:

[S]hared facilities create a risk of the intentional or unintentional use of Title

X funds for impermissible purposes, the co-mingling of Title X funds, the

appearance and perception that Title X funds being used in a given program

may also be supporting that program’s abortion activities, and the use of Title

X funds to develop infrastructure that is used for the abortion activities of

Title X clinics. Even with the strictest accounting and charging of expenses,

a shared facility greatly increases the risk of confusion and the likelihood that

a violation of the Title X prohibition will occur.

84 Fed. Reg. at 7764. Defendants’ concerns are not arbitrary and capricious. Maine Family

Planning has used Title X funds to sustain a wide-ranging network of dual-purpose family

planning and abortion clinics. Plaintiffs have acknowledged in this litigation that Maine

consent (“Even in the context of justified conscientious refusal, physicians must provide the patient with

accurate and unbiased information about her medical options and make appropriate referrals.”). I note that

the committee opinion addresses the process of obtaining informed consent for treatment. Title X providers

do not perform abortion, so they need not obtain informed consent for abortion treatment. Indeed, it is odd

that a mandatory referral opinion is offered in the context of an informed consent discussion. In any event,

the opinion that abortion referrals are mandatory does not have the force of law, and if it did it is doubtful

it would survive constitutional challenge. Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S.

205, 214-15, 217 (2013).

Family Planning sustained its geographically-expansive, clinic-based family planning and

abortion service model with funds secured through the Title X grant, which funds it now

needs to replace to prevent disruption or reduction of its abortion network. Amended

Complaint ¶ 176. To be sure, Maine Family Planning was not violating the law when it

built out its statewide network of dual-purpose clinics, but it built the network on shifting

sands and the current administration’s assessment that a Title X contribution to abortion

clinic overhead is a subsidy is every bit as reasonable as the assessment of prior

administrations that sharing clinic space and other infrastructure is not a subsidy if abortion

services are not paid for with Title X funds. At the end of the day, it depends on how one

looks at it and, evidently, what one’s political leanings are. Answers to political questions

are not arbitrary and capricious just because they are not preferred by industry experts.

As for an evidence-based assessment of Plaintiffs’ reliance interest, this case

involves a federal agency imposing conditions on the administration of its own grant

program. Defendants have provided a “reasonable explanation for the change,” Encino

Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016), and its reason appropriately

takes into consideration the fact that it is funding a family planning program that does not

permit a subsidy for abortion services. Although the Department has not been able to

persuade Plaintiffs, their healthcare experts, or several jurists that its new policy is better

than its old policy, that decidedly is not the standard of review. F.C.C. v. Fox Television

Stations, Inc., 556 U.S. 502, 515 (2009).

In summary, “an agency is not forever bound by an earlier resolution of an

interpretive issue, but … a change must be addressed expressly, at least by the agency’s

articulate recognition that it is departing from its precedent.” Nat’l Labor Relations Bd. v.

Lily Transp. Corp., 853 F.3d 31, 36 (1st Cir. 2017) (Souter, J.). The administrative record

satisfies this standard,11 alternative administrative viewpoints12 notwithstanding.

B. Contrary to Law

Plaintiffs argue the Final Rule is not in accordance with law because it violates the

nondirective counseling mandate contained in the Continuing Appropriations Act of 2019

and fails to meet objectives set forth in the Affordable Care Act. Plaintiffs’ Motion at 21-

27; Plaintiffs’ Reply at 6-9. An administrative decision that is “contrary to the

‘unambiguously expressed intent of Congress’” will not stand, but in order to overturn

agency action on this ground, an “unmistakably clear expression of congressional intent”

must be evident. Lily Transp., 853 F.3d at 34 (quoting Strickland v. Comm’r, 48 F.3d 12,

16-17 (1st Cir. 1995)). Unless a clear line has been crossed, I must “defer to the views of

the agency Congress has entrusted with relevant rule-making authority,” and afford

“considerable deference” to its views. Id. (quoting Royal Siam Corp. v. Chertoff, 484 F.3d

139, 145 (1st Cir. 2007)).

1. The appropriations mandate

The nondirective counseling mandate provides that “all pregnancy counseling”

under Title X “shall be nondirective.” Continuing Appropriations Act, 132 Stat. 2981,

11 To the extent Plaintiffs contend Defendants ignored the evidence, that is not a fair characterization. Prior

to finalizing the 2019 Rule, the Department received “over 500,000 public comments.” Final Rule, 84 Fed.

Reg. at 7722. Following the public notice and comment period, the Department “consider[ed] the

comments,” made modifications to the rule in response to those comments, and ultimately finalized the

rule. Id.

12 I have in mind here the 2014 Quality of Family Planning Care (“QFP”) document. See Plaintiffs’ Motion

at 15-16.

3070-71 (2018). As I explained in the Decision and Order on the preliminary injunction

motion, the history of Title X regulation permits a line of demarcation between counseling

and referrals and Congress has not clearly overridden the distinction in the appropriations

language. Nor have “administrative and judicial interpretations … settled the meaning” of

the term “counseling” such that the courts can know with confidence that the nondirective

counseling mandate encompasses abortion referral. Bragdon v. Abbott, 524 U.S. 624, 645

(1998) (observing that “the uniformity of the administrative and judicial interpretations”

of a statutory provision “confirm[ed]” the Court’s interpretation of how Congress

understood the provision would be applied). Given this leeway, Defendants’

“interpretation of the phrase ‘pregnancy counseling’ as a concept that is distinct from the

term ‘referrals’ is reasonable and consistent with common usage.” California v. Azar, 950

F.3d at 1086. In line with the appropriations mandate, the Rule provides that if there is to

be pregnancy counseling, all such counseling will be nondirective.

Though the Rule requires a referral for prenatal services and permits providers to

supply a list of comprehensive primary health care providers, these measures leave ample

room for Title X grantees to provide nondirective counseling concerning the abortion

option, and to explain that the prenatal care referral is mandated and an abortion referral is

prohibited within the Title X program. In the words of the Ninth Circuit, the Department

“could reasonably conclude that referrals for prenatal care are nondirective ... because a

referral for prenatal care does not steer the client toward any particular option and does not

discourage a client from seeking an abortion outside of the Title X program.” Id. at 1089.

The Final Rule is not incompatible with Congress’s nondirective counseling

mandate.

2. The Affordable Care Act

Plaintiffs argue the Final Rule conflicts with certain provisions of the Affordable

Care Act (“ACA”). Specifically, the ACA includes the following language:

Notwithstanding any other provision of this Act, the Secretary of Health and

Human Services shall not promulgate any regulation that—

(1) creates any unreasonable barriers to the ability of individuals to obtain

appropriate medical care;

(2) impedes timely access to health care services;

(3) interferes with communications regarding a full range of treatment

options between the patient and the provider;

(4) restricts the ability of health care providers to provide full disclosure of

all relevant information to patients making health care decisions;

(5) violates the principles of informed consent and the ethical standards of

health care professionals; or

(6) limits the availability of health care treatment for the full duration of a

patient’s medical needs.

42 U.S.C. § 18114.

When I ruled on Plaintiffs’ motion for preliminary injunction, I reasoned that the

Rule does not violate the ACA because the preclusion of undue administrative interference

in the private healthcare arena does not prevent the Department from administering its own

health services grant program. I reasoned that a contrary ruling would mean that, in all

matters pertaining to government medical assistance programs administered by the

Department of Health and Human Services, the boards of professional healthcare

organizations will have, effectively, captured the agency. I still hold that view.

Additionally, the Ninth Circuit has observed that the ACA provision at issue here

only purports to give preclusive effect “[n]otwithstanding any other provisions of this Act,”

and not “notwithstanding any other provision of law.” California v. Azar, 927 F.3d 1068,

1079 n.4 (9th Cir. 2019). Because the ACA did not address the implementation of

Congress’s choice not to support abortion programming through the Title X program, and

because the Final Rule does not impose an obstacle in the path of a patient pursuing medical

care outside the Title X program, the Rule does not run afoul of the ACA. Simply stated,

prohibiting abortion referral by a Title X provider and withholding a subsidy for abortion

programming do not impose a barrier between women and abortion providers. Rust, 500

U.S. at 196-203; California v. Azar, 950 F.3d at 1092-93.

C. Contrary to the Constitution

Plaintiffs argue the Rule is contrary to constitutional right, power, privilege or

immunity; specifically, the liberty interest of patients to choose abortion, Plaintiffs’ Motion

at 30-39; the equal protection right of “pregnant patients seeking abortion,” id. at 39-42;

and the free speech rights of both providers and patients, id. at 42-45. See also Plaintiffs’

Reply at 10-12. Defendant argues these contentions are foreclosed by Rust or are otherwise

untenable. Defendant’s Motion at 37-40; Defendant’s Opp’n at 20-25 (ECF No. 122).

1. Due process right to choose abortion

Plaintiffs argue the separation requirement of the Final Rule imposes an

unconstitutional condition on their patients’ right to terminate a pregnancy prior to

viability. Plaintiffs’ Motion at 30-39. In other words, they contend that Defendant, by

conditioning participation in the Title X program on the operation of family planning

projects that do not share space with abortion providers, has exercised its rule-making

power to shut down abortion clinics. This argument is a creative reimagining of the

economic reliance argument. In effect, because Plaintiffs have built out a statewide

network of clinics that provide both Title X services and abortion services, compliance

with the Rule would impose unworkable financial burdens because a similarly expansive

network of stand-alone abortion clinics is not sustainable. The irony of the argument, of

course, is that it substantiates Defendant’s concern that the Title X program is subsidizing

abortion.

Plaintiffs’ as applied, unconstitutional-condition, due process argument is

misguided. Plaintiffs, all of whom are providers, do not have a constitutional right to

provide abortions. Planned Parenthood of Greater Ohio v. Hodges, 917 F.3d 908, 912

(6th Cir. 2019); Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health,

699 F.3d 962, 986-88 (7th Cir. 2012). And in any event, by law they are free to provide

abortion services even if they participate in the Title X program; only they must separate

their abortion clinics and their Title X clinics. As for the alleged impact on a woman’s

right to choose, women may obtain Title X services regardless of any election they might

make concerning abortion in the event of an unplanned pregnancy.

Finally, Plaintiffs’ reliance on Whole Woman’s Health v. Hellerstedt, 136 S. Ct.

2292 (2016), as contrary authority is mistaken, as the instant case involves conditions

related to participation in a government spending program, not the imposition of an undue

regulatory burden on private providers who are not administering a government program,

as was the case in Whole Woman’s Health. Id. at 2310-18 (invalidating a Texas law that

imposed a hospital-admitting-privilege condition on physicians who provide abortion

services and required that their facilities meet surgical-center requirements).

2. Equal protection

Plaintiffs argue the Final Rule “discriminates against pregnant patients seeking to

exercise their fundamental right to abortion,” in violation of equal protection precepts

embodied in the Due Process Clause of the Fifth Amendment. Plaintiffs’ Motion at 48,

citing, inter alia, Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (striking down a state

law that authorized forced sterilization of habitual criminals, relying on the Equal

Protection Clause). Plaintiffs’ equal protection theory focuses on the Final Rule’s mandate

that all Title X patients who are pregnant receive a referral for prenatal care. They argue

that, “even though both prenatal care and abortion services fall outside the ambit of the

Title X program, only patients seeking abortion services are singled out and denied the

critical information they need.” Plaintiffs’ Motion at 40.

Plaintiffs are wrong to characterize the prenatal care referral as a violation of equal

protection. Equal protection requires that the government accord similar treatment to

similarly situated people; it does not dictate that dissimilarly situated people be treated

differently. See, e.g., Bruns v. Mayhew, 750 F.3d 61, 65 (1st Cir. 2014). Giving every

pregnant Title X patient a referral for prenatal care is not discriminatory because it gives

every pregnant patient the same thing.

3. Provider – patient speech

Plaintiffs contend the Defendants have forced them from the Title X program

because Defendants do not condone their exercise of free speech. Plaintiffs’ Motion at 42.

As Plaintiffs see it, the Final Rule “prevents providers from speaking honestly with their

patients and compels speech about prenatal referrals even when not medically or ethically

appropriate,” purportedly in violation of the First Amendment. Id. Because the Final Rule

does nothing to restrict Plaintiffs’ speech outside of the Title X program, and does not

preclude abortion proponents and providers from participating in the Title X program,

Plaintiffs’ “unconstitutional condition” theory is misguided.

In Rust v. Sullivan, the Supreme Court considered whether provider-patient speech

within the Title X program is beyond the scope of governmental regulation, the very

question presented here. In the words of the Rust Court:

Title X program regulations do not significantly impinge upon the

doctor-patient relationship. Nothing in them requires a doctor to

represent as his own any opinion that he does not in fact hold. Nor is

the doctor-patient relationship established by the Title X program

sufficiently all encompassing so as to justify an expectation on the

part of the patient of comprehensive medical advice. The program

does not provide post conception medical care, and therefore a

doctor’s silence with regard to abortion cannot reasonably be thought

to mislead a client into thinking that the doctor does not consider

abortion an appropriate option for her. The doctor is always free to

make clear that advice regarding abortion is simply beyond the scope

of the program. In these circumstances, the general rule that the

Government may choose not to subsidize speech applies with full

force.

Rust, 500 U.S. at 200. Plaintiffs fail to identify a meaningful way in which the Final Rule

differs from the regulations considered in Rust, for purposes of a First Amendment inquiry.

Moreover, the Final Rule is less exacting than the rule under review in Rust. The Final

Rule authorizes nondirective counseling, including abortion counseling; it only prohibits

an abortion referral.

Since Rust, the Supreme Court has not indicated or even hinted that it might be

inclined to depart from the principle set forth in Rust. To the contrary, it has pointed to

Rust as a reliable standard against which to compare other cases. Most simply stated, the

Rust standard holds that “programmatic” messaging in government-funded programs is

permitted so that the government can “specify the advice deemed necessary for its

legitimate objectives.”13 Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 541, 548 (2001).

See also Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 833 (1995)

(discussing scenarios, like those addressed in Rust, when “the State is the speaker” or when

the government “use[s] private speakers to transmit specific information pertaining to its

own program” and confirming that “when the government appropriates public funds to

promote a particular policy of its own it is entitled to say what it wishes”). Because the

Final Rule does not “seek to leverage funding to regulate speech outside the contours of

the program itself,” but instead seeks to “define the limits of the government spending

program,” the Final Rule does not unconstitutionally condition the receipt of government

funding on the relinquishment of a fundamental speech right. Agency for Int’l Dev. v. All.

for Open Soc’y Int’l, Inc., 570 U.S. 205, 214-15 (2013).

CONCLUSION

Plaintiffs’ Motion for Summary Judgment (ECF No. 113) is DENIED. Defendants’

Motion to Dismiss or, in the Alternative, for Summary Judgment (ECF No. 111) is

13 Supreme Court cases predating the Rust decision also support this distinction. See, e.g., Maher v. Roe,

432 U.S. 464, 475 (1977) (“There is a basic difference between direct state interference with a protected

activity and state encouragement of an alternative activity consonant with legislative policy.”).

GRANTED. Plaintiffs’ Amended Complaint is DISMISSED.

SO ORDERED.

Dated this 9th day of June, 2020

/s/ Lance E. Walker

UNITED STATES DISTRICT JUDGE