Petition for Writ of Certiorari — Xavier Becerra, Secretary of Health and Human Services, et al., Petitioners v. Mayor and City Council of Baltimore
Supreme Court briefOct 7, 2020
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No.
In the Supreme Court of the United States
ALEX M. AZAR II, SECRETARY OF HEALTH AND HUMAN
SERVICES, ET AL., PETITIONERS
v.
MAYOR AND CITY COUNCIL OF BALTIMORE
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
JEFFREY B. WALL
Acting Solicitor General
Counsel of Record
JEFFREY BOSSERT CLARK
Acting Assistant Attorney
General
HASHIM M. MOOPPAN
Counselor to the Solicitor
General
BRINTON LUCAS
Assistant to the Solicitor
General
MICHAEL S. RAAB
JAYNIE LILLEY
JOSHUA DOS SANTOS
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTIONS PRESENTED
Title X of the Public Health Service Act, which authorizes federal funding for family planning services,
provides 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.
In Rust v. Sullivan, 500 U.S. 173 (1991), this Court upheld a regulation that, among other things, prohibited
recipients of Title X funds from making elective-abortion referrals in Title X clinics and also required them
to maintain physical separation between those clinics
and any abortion-related activities. This Court explained that those referral and separation provisions
were authorized by statute, the product of reasoned decisionmaking, and consistent with the Constitution. Relying on that decision, the Department of Health and
Human Services issued a final rule in 2019 that reinstated materially indistinguishable referral and separation provisions. The questions presented are as follows:
1. Whether the rule falls within the agency’s statutory authority.
2. Whether the rule is the product of reasoned decisionmaking.
(I)
PARTIES TO THE PROCEEDING
Petitioners (defendants-appellants below) are Alex
M. Azar II, in his official capacity as Secretary of Health
and Human Services; the United States Department of
Health and Human Services; Diane M. Foley, M.D., in
her official capacity as Deputy Assistant Secretary, Office of Population Affairs; and the Office of Population
Affairs.
Respondent (plaintiff-appellee below) is the Mayor
and City Council of Baltimore.
RELATED PROCEEDINGS
United States District Court (D. Md.):
Mayor & City Council of Baltimore v. Azar, No. 19cv-1103 (May 30, 2019) (granting preliminary injunction)
Mayor & City Council of Baltimore v. Azar, No. 19cv-1103 (Feb. 14, 2020) (granting permanent injunction)
Mayor & City Council of Baltimore v. Azar, No. 19cv-1103 (Apr. 15, 2020) (denying motion to alter or
amend the judgment)
United States Court of Appeals (4th Cir.):
Mayor & City Council of Baltimore v. Azar, No. 191614 (July 2, 2019) (panel decision staying preliminary injunction)
Mayor & City Council of Baltimore v. Azar, Nos. 191614 and 20-1215 (Sept. 3, 2020) (decision on hearing en banc)
(II)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 2
Statutory and regulatory provisions involved ........................... 2
Statement ...................................................................................... 2
A. Statutory and regulatory background ...................... 3
B. Procedural history ...................................................... 7
Reasons for granting the petition ............................................. 11
I. The decision below is incorrect ...................................... 12
A. The rule falls within HHS’s statutory authority ... 12
B. HHS engaged in reasoned decisionmaking ........... 20
II. The decision below warrants further review ................ 31
Conclusion ................................................................................... 33
Appendix A — Court of appeals opinion (Sept. 3, 2020) ....... 1a
Appendix B — District court order (Feb. 14, 2020) .......... 133a
Appendix C — District court memorandum opinion
(Feb. 14, 2020).......................................... 135a
Appendix D — District court order (May 30, 2019) .......... 178a
Appendix E — District court memorandum opinion
(May 30, 2019) .......................................... 180a
Appendix F — District court order (Apr. 15, 2020) .......... 212a
Appendix G — District court memorandum opinion
(Apr. 15, 2020) .......................................... 213a
Appendix H — Court of appeals order (July 2, 2019) ....... 226a
Appendix I — Statutory and regulatory provisions ........ 232a
TABLE OF AUTHORITIES
Cases:
Becerra ex rel. California v. Azar, 950 F.3d 1067
(9th Cir. 2020) (en banc), petition for cert. pending,
No. 20-429 (filed Oct. 1, 2020) ................................... passim
Department of Commerce v. New York,
139 S. Ct. 2551 (2019) ....................................... 20, 21, 27, 30
(III)
IV
Cases—Continued:
Page
Encino Motorcars, LLC v. Navarro
136 S. Ct. 2117 (2016) ......................................................... 21
Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018) ................ 18
FCC v. Fox Television Stations, Inc.,
556 U.S. 502 (2009)........................................................ 20, 30
Gonzales v. Carhart, 550 U.S. 124 (2007) ............................ 27
Maine Cmty. Health Options v. United States,
140 S. Ct. 1308 (2020) ......................................................... 18
Michigan v. EPA, 576 U.S. 743 (2015) .......................... 21, 28
Rust v. Sullivan, 500 U.S. 173 (1991) ......................... passim
Constitution, statutes and regulations:
U.S. Const.:
Amend. I ............................................................................. 5
Amend. V ............................................................................ 5
Administrative Procedure Act, 5 U.S.C. 551 et seq.,
701 et seq ................................................................................ 7
Department of Defense and Labor, Health and
Human Services, and Education Appropriations
Act, 2019 and Continuing Appropriations Act,
2019, Pub. L. No. 115-245, Tit. V, § 507(d)(1),
132 Stat. 3118 ...................................................................... 25
Family Planning Services and Population Research
Act of 1970, Pub. L. No. 91-572,
§ 6(c), 84 Stat. 1506-1508 ...................................................... 3
Further Consolidated Appropriations Act, 2020,
Pub. L. No. 116-94, § 117, 133 Stat. 2558 ..................... 8, 13
Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat.
1321-221 ............................................................................... 13
Patient Protection and Affordable Care Act,
Pub. L. No. 111-148, 124 Stat. 258 .............................. 16, 18
§ 1554, 124 Stat. 259 (42 U.S.C. 18114)........ passim, 239a
V
Statutes and regulations—Continued:
Page
42 U.S.C. 18032(d)(3)(D)(i) ............................................. 19
Public Health Service Act, 42 U.S.C. 201 et seq.:
Tit. X ........................................................................ passim
42 U.S.C. 254c-6(a)(1)...................................................... 15
42 U.S.C. 300(a) ....................................................... 3, 232a
42 U.S.C. 300a-4(a) .................................................. 3, 236a
42 U.S.C. 300a-6 (§ 1008) .............................. passim, 238a
42 U.S.C. 300z-10(a) ........................................................ 15
Md. Code Ann., Health-General II (LexisNexis
2019):
§ 20–214(a)(2) ................................................................... 25
§ 20–214(d)(2) ................................................................... 25
42 C.F.R.:
Section 59.1-59.19 .............................................................. 5
Section 59.14(a) .................................................... 5, 6, 240a
Section 59.14(b)(1) ................................................... 6, 240a
Section 59.14(b)(1)(i) ............................................... 6, 240a
Section 59.14(c)(2) ................................................... 6, 241a
Section 59.14(e)(2) ................................................... 6, 242a
Section 59.14(e)(5) ........................................6, 13, 24, 243a
Section. 59.15 ........................................................... 7, 244a
Miscellaneous:
36 Fed. Reg. 18,465 (Sept. 15, 1971) ...................................... 3
53 Fed. Reg. 2922 (Feb. 2, 1988) ............................ 3, 4, 24, 28
58 Fed. Reg. 7455 (Jan. 22, 1993) ........................................... 5
58 Fed. Reg. 7462 (Feb. 5, 1993) ............................................ 5
65 Fed. Reg. 41,270 (July 3, 2000).............................. 5, 14, 16
84 Fed. Reg. 7714 (Mar. 4, 2019) ................................. passim
VI
Miscellaneous—Continued:
Page
HHS:
HHS Issues Supplemental Grant Awards to
Title X Recipients (Sept. 30, 2019),
https://go.usa.gov/xvDEU ........................................ 28
Office of Population Affairs, Title X Family
Planning Directory (Sept. 2020),
https://go.usa.gov/xGFVn ......................................... 28
S. 323, 102d Cong., 1st Sess. (1991) ..................................... 15
In the Supreme Court of the United States
No.
ALEX M. AZAR II, SECRETARY OF HEALTH AND HUMAN
SERVICES, ET AL., PETITIONERS
v.
MAYOR AND CITY COUNCIL OF BALTIMORE
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Acting Solicitor General, on behalf of Alex M.
Azar II, Secretary of Health and Human Services, et al.,
respectfully petitions for a writ of certiorari to review
the judgment of the United States Court of Appeals for
the Fourth Circuit in this case.
OPINIONS BELOW
The opinion of the en banc court of appeals affirming
a permanent injunction (App., infra, 1a-132a) is not
published in the Federal Reporter but is available at
2020 WL 5240442. An order of the court of appeals staying a preliminary injunction (App., infra, 226a-231a) is
not published in the Federal Reporter but is reprinted
at 778 Fed. Appx. 212. The opinion of the district court
granting a permanent injunction (App., infra, 135a177a) is reported at 439 F. Supp. 3d 591. The opinion of
the district court granting a preliminary injunction
(1)
2
(App., infra, 180a-211a) is reported at 392 F. Supp. 3d
602. The opinion of the district court denying respondent’s motion to alter or amend the judgment (App., infra, 213a-225a) is not published in the Federal Supplement but is available at 2020 WL 1873947.
JURISDICTION
The judgment of the en banc court of appeals was entered on September 3, 2020. The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).
STATUTORY AND REGULATORY
PROVISIONS INVOLVED
Pertinent statutory and regulatory provisions are
reproduced in the appendix to this petition. App., infra,
232a-249a.
STATEMENT
In Rust v. Sullivan, 500 U.S. 173 (1991), this Court
upheld a regulation imposing various restrictions and
requirements to enforce a statutory prohibition on using certain federal funds for family planning services
“in programs where abortion is a method of family planning,” 42 U.S.C. 300a-6. Relying on that precedent, the
Department of Health and Human Services (HHS) reinstated a materially indistinguishable version of that
regulation in 2019, and the en banc Ninth Circuit upheld
it, Becerra ex rel. California v. Azar, 950 F.3d 1067
(2020), petition for cert. pending, No. 20-429 (filed Oct.
1, 2020). In this case, however, the district court preliminarily and then permanently enjoined the rule’s enforcement within Maryland, App., infra, 133a-134a,
135a-177a, 178a-179a, 180a-211a, and then the court of
appeals granted initial en banc review and affirmed, after a panel had stayed the preliminary injunction pending appeal, id. at 1a-132a.
3
A. Statutory And Regulatory Background
1. In 1970, Congress enacted Title X of the Public
Health Service Act to create a limited grant program
for certain types of family planning services. See Family Planning Services and Population Research Act of
1970, Pub. L. No. 91-572, § 6(c), 84 Stat. 1506-1508. The
statute authorizes HHS to make grants to, and enter
into contracts with, public or private nonprofit entities
“to assist in the establishment and operation of voluntary family planning projects which shall offer a broad
range of acceptable and effective family planning methods and services.” 42 U.S.C. 300(a). The statute also
provides that “[g]rants and contracts made under this
subchapter shall be made in accordance with such regulations as the Secretary may promulgate.” 42 U.S.C.
300a-4(a). Section 1008 of the statute commands, however, 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.
2. HHS’s initial Title X regulations did not provide
guidance on the scope of Section 1008. See 36 Fed. Reg.
18,465 (Sept. 15, 1971). Since 1972, however, the agency
has construed the provision “as prohibiting Title X projects from in any way promoting or encouraging abortion as a method of family planning,” and “as requiring
that the Title X program be ‘separate and distinct’ from
any abortion activities of a grantee.” 53 Fed. Reg. 2922,
2923 (Feb. 2, 1988) (describing prior agency opinions).
Starting in the 1970s, HHS nevertheless permitted,
and then, in guidelines issued in 1981, required, Title X
recipients to offer “nondirective ‘options couns[e]ling’
on pregnancy termination (abortion), prenatal care, and
adoption and foster care when a woman with an unintended pregnancy requests information on her options,
4
followed by referral for these services if she so requests.” 53 Fed. Reg. at 2923. The agency also allowed
funding recipients to provide “Title X family planning
services and separately funded, abortion-related activities” at “a single site.” Id. at 2924.
3. In 1988, HHS changed course. The agency issued
a final rule prohibiting Title X providers from providing
referrals for, or counseling about, abortion as a method
of family planning, even upon a patient’s specific request. 53 Fed. Reg. at 2945. Instead, providers were
required to refer every pregnant client “for appropriate
prenatal and/or social services by furnishing a list of
available providers that promote the welfare of mother
and unborn child.” Ibid. And to prevent evasion of the
abortion-referral prohibition, the 1988 rule barred providers from using this list (or any other referrals) “as
an indirect means of encouraging or promoting abortion,” such as by “ ‘steering’ clients to providers who offer abortion as a method of family planning.” Ibid. The
1988 rule also required that grantees keep their Title X
projects “physically and financially separate” from all
prohibited abortion-related activities. Ibid.
In Rust, this Court upheld the 1988 rule’s prohibition
on abortion referrals and counseling as well as its requirement of physical separation. 500 U.S. at 183-203.
As this Court explained, HHS’s primary conclusion—
that a Title X program which provides referrals for, or
counseling about, abortion as a method of family planning is in fact one “ ‘where abortion is a method of family
planning’ ”—was at least a “permissible construction” of
Section 1008. Id. at 184, 187 (citation omitted); see
53 Fed. Reg. at 2923, 2933. And even if the 1988 rule
“represent[ed] a sharp break from the Secretary’s prior
construction” of Section 1008, the Court observed, he
5
had “amply justified his change of interpretation with a
‘reasoned analysis,’ ” by, among other things, concluding “that the new regulations are more in keeping with
the original intent of the statute.” Rust, 500 U.S. at 186187 (citation omitted). This Court likewise held that the
physical-separation requirement was “based on a permissible construction of the statute,” and that HHS had
made a “reasoned determination” that this requirement
was “necessary to implement” Section 1008. Id. at 188,
190. It also rejected arguments that the 1988 rule contravened the First and Fifth Amendments, drawing a
clear distinction between impeding abortion and declining to subsidize it. See id. at 192-203.
4. In 1993, President Clinton and HHS suspended
the 1988 rule and the 1981 guidelines went back into effect. 58 Fed. Reg. 7455 (Jan. 22, 1993); 58 Fed. Reg.
7462 (Feb. 5, 1993) (interim rule). HHS then finalized a
new rule in 2000, which, like the 1981 guidelines, required Title X clinics to offer and provide upon request
“information and counseling regarding” (i) “[p]renatal
care and delivery,” (ii) “[i]nfant care, foster care, or
adoption,” and (iii) “[p]regnancy termination,” followed
by “referral upon request.” 65 Fed. Reg. 41,270, 41,279
(July 3, 2000). The 2000 rule also eliminated the physicalseparation requirement. See id. at 41,275-41,276.
5. In 2019, HHS reversed course again. Following
notice and comment, the agency issued a final rule with
referral and physical-separation provisions materially
indistinguishable from those upheld in Rust. 84 Fed.
Reg. 7714 (Mar. 4, 2019); 42 C.F.R. 59.1-59.19. Like its
1988 predecessor, the rule prohibits Title X projects
from providing referrals for abortion as a method of
family planning. 84 Fed. Reg. at 7788-7789 (42 C.F.R.
6
59.14(a)). As HHS explained, “[i]f a Title X project refers for * * * abortion as a method of family planning,
it is a program ‘where abortion is a method of family
planning’ and the Title X statute prohibits Title X funding for that project.” Id. at 7759. To prevent evasion of
this prohibition, the rule, like its 1988 predecessor, prohibits implicit abortion referrals by imposing restrictions
on the list of providers that may be given in conjunction
with a required referral for prenatal care for pregnant
women. See id. at 7789 (42 C.F.R. 59.14(b)(1) and
(c)(2)). For example, Title X clinics may not “identify
which providers on the list perform abortion.” Ibid.
(42 C.F.R. 59.14(c)(2)). If a pregnant client “requests
information on abortion and asks the Title X project to
refer her for an abortion,” the rule, like its 1988 predecessor, explains that a provider may “tell[] her that the
project does not consider abortion a method of family
planning and, therefore, does not refer for abortion.”
Ibid. (42 C.F.R. 59.14(e)(5)). And because Section 1008
addresses abortion only “as a method of family planning,” the rule, like its 1988 predecessor, not only permits, but requires, referrals for abortion in cases of an
“emergency,” such as “an ectopic pregnancy.” Ibid.
(42 C.F.R. 59.14(c)(2) and (e)(2)).
The rule is more permissive, in fact, than its 1988
predecessor, as it allows, but does not require,
“nondirective pregnancy counseling, which may discuss
abortion,” 84 Fed. Reg. at 7789 (42 C.F.R. 59.14(e)(5));
see ibid. (42 C.F.R. 59.14(b)(1)(i)), so long as such
counseling does not “promote” abortion as a method
of family planning, id. at 7788 (42 C.F.R. 59.14(a)); see
id. at 7745-7746. In the agency’s view, such limited
counseling—“[u]nlike abortion referral”—“would not
be considered encouragement, promotion, support, or
7
advocacy of abortion as a method of family planning” in
violation of Section 1008. Id. at 7745.
Also like its 1988 predecessor, the rule requires that
Title X clinics remain physically separate from any
abortion-related activities. 84 Fed. Reg. at 7789
(42 C.F.R. 59.15). As HHS explained, “[i]f the collocation 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.
To give Title X recipients “time to make arrangements,”
however, HHS gave them a “transition period”—a year
from the rule’s publication date—to comply with the
physical-separation requirement, during which they
could consult with the agency about compliance and implement any necessary changes. Id. at 7766-7767.
In HHS’s view, the referral and physical-separation
provisions represent “the best reading” of Section 1008,
“which was intended to ensure that Title X funds are
also not used to encourage or promote abortion.”
84 Fed. Reg. at 7777; see, e.g., id. at 7765 (explaining
that the physical-separation requirement will “help assure fidelity to the text and purpose of section 1008”).
Accordingly, after considering and addressing significant comments about the rule’s alleged effects, see id.
at 7722-7783, HHS ultimately concluded that “compliance with statutory program integrity provisions is of
greater importance” than “cost,” id. at 7783.
B. Procedural History
1. The Mayor and City Council of Baltimore (Baltimore) challenged the rule under the Administrative
Procedure Act (APA), 5 U.S.C. 551 et seq., 701 et seq.
See App., infra, 181a-182a. At Baltimore’s request, the
8
district court issued a preliminary injunction preventing enforcement of the entire rule within Maryland
based on its conclusion that the referral provisions were
likely unlawful. Id. at 183a; see id. at 203a-205a. Although the court acknowledged that these provisions
were “essentially a reversion” to those upheld in Rust,
it concluded that HHS could not reinstate them in light
of “later-enacted laws.” Id. at 189a, 198a.
Specifically, the district court concluded that the referral provisions contravened (1) an appropriations rider
providing that, within the Title X program, “ all pregnancy counseling shall be nondirective,” Further Consolidated Appropriations Act, 2020, Pub. L. No. 116-94,
§ 117, 133 Stat. 2558; see App., infra, 202a; and (2) Section 1554 of the Patient Protection and Affordable Care
Act (ACA), which prohibits HHS from adopting a regulation that, among other things, “interferes with communications regarding a full range of treatment options
between the patient and the provider,” restricts “full
disclosure of all relevant information to patients making
health care decisions,” “ creates any unreasonable barriers” to obtaining “appropriate medical care,” or “impedes timely access to health care services.” Pub. L.
No. 111-148, § 1554, 124 Stat. 259 (42 U.S.C. 18114); see
App., infra, 200a.
The government appealed. A divided panel of the
court of appeals stayed the preliminary injunction and
later heard oral argument on the merits. See App., infra, 19a-20a, 226a-231a.
2. While the preliminary-injunction appeal was pending, however, the district court entered a permanent injunction on the different theory that the referral provisions and physical-separation requirement were arbi-
9
trary and capricious. App., infra, 133a-134a. Specifically, the court concluded that HHS had failed to adequately address comments alleging that (1) the referral
provisions contravened medical ethics; (2) the rule would
disrupt reliance interests; and (3) the likely costs of
complying with the physical-separation requirement
during the transition period were higher than the
agency’s estimate. Id. at 153a-163a. The court again
limited its relief to Title X recipients in Maryland, id. at
163a-164a, and denied a subsequent motion to expand
relief nationwide, id. at 213a-225a.
3. The government again appealed. The court of appeals consolidated the new appeal with the preliminaryinjunction appeal, granted initial hearing en banc on
both, and affirmed the permanent injunction by a 9-6
vote. App., infra, 1a-132a.
a. The en banc majority agreed with the district
court that the rule’s abortion-referral prohibition was
contrary to law. App., infra, 39a-58a. In the majority’s
view, that prohibition, when combined with the rule’s
prenatal-referral requirement, violated the appropriations rider requiring that Title X pregnancy counseling
be “ ‘nondirective’ ” because, in the context of a patient
who “has requested” an abortion referral, that treatment of referrals was not “neutral” between abortion
and childbirth. Id. at 47a; see id. at 40a-41a. The majority further deemed the referral prohibition to violate
Section 1554 on the theory that it “ ‘interferes with communications’ ” between providers and patients; prevents
“ ‘full disclosure of all relevant information’ ”; and “creates ‘unreasonable barriers,’ ” and “ ‘impedes timely access,’ ” to healthcare. Id. at 51a (citations omitted).
The majority also concluded that the rule was arbitrary and capricious for two reasons. App., infra, 25a-
10
39a. First, it held that HHS had not offered a “satisfactory explanation for disagreeing with every major medical organization” over whether the referral prohibition
requires providers to violate medical ethics. Id. at 26a;
see id. at 25a-35a. Second, it ruled that HHS had given
a “conclusory response” to comments claiming that the
likely costs of coming into compliance with the physicalseparation requirement during the transition period exceeded the agency’s estimate. Id. at 36a (citation omitted); see id. at 36a-39a.
b. Judge Diaz concurred in the judgment. App., infra, 69a. He would have affirmed solely on the ground
that the rule contravenes the appropriations rider and
Section 1554. Ibid.
c. Judge Wilkinson dissented. App., infra, 70a-72a.
He observed that “[b]efore us is a milder version of a
rule that the Supreme Court has already upheld,” and
he therefore could not “understand why the result here,
out of simple respect for our highest Tribunal, would
not be open and shut.” Id. at 71a. In ruling otherwise,
he noted, the majority had “snubbed” the “agency, Congress, and not incidentally, the Supreme Court[].” Ibid.
d. Judge Richardson, joined by Judges Wilkinson,
Niemeyer, Agee, Quattlebaum, and Rushing, also dissented. App., infra, 73a-132a. He stressed that the majority had “thumb[ed] its nose at the Supreme Court,”
“rip[ped] open a circuit split,” and abandoned “the limited role of courts, particularly inferior ones, in our constitutional structure.” Id. at 75a. As he explained, the
appropriations rider, which “applies only to ‘counseling,’ ” had no bearing on HHS’s “referral regulations.”
Id. at 91a-92a (citation omitted). And so too for Section
1554, which concerns only “affirmative interference rather than a decision not to offer a subsidy.” Id. at 109a.
11
Judge Richardson further explained why HHS’s rule
was the product of reasoned decisionmaking. App.,
infra, 114a-131a. He noted that, “[a]s in Rust, the
agency determined that the better interpretation of
§ 1008’s prohibition” warranted the referral and
physical-separation provisions, and observed that “an
agency may justify its policy choices by explaining why
those choices best comply with the statutory mandate.”
Id. at 117a. Moreover, he demonstrated at length how
the majority’s conclusion that the rule was arbitrary
and capricious had simply “disregard[ed] inconvenient
agency analysis.” Id. at 119a; see id. at 114a-129a.
REASONS FOR GRANTING THE PETITION
The rule’s abortion-referral prohibition and physicalseparation requirement are materially indistinguishable from their 1988 counterparts upheld in Rust v. Sullivan, 500 U.S. 173 (1991), and were adopted for the
same reasons. The en banc Fourth Circuit nevertheless
held that HHS acted unlawfully in adopting them. That
remarkable conclusion warrants this Court’s review because it is plainly incorrect and defies Rust, creates a
square conflict with the contrary conclusion of the en
banc Ninth Circuit, and requires HHS to allow federal
funds to be used to promote abortion in contravention
of an Act of Congress.
The majority’s determination that Congress implicitly abrogated this Court’s decision in Rust through an
appropriations rider and an ancillary ACA provision
cannot be squared with the text of those statutes or ordinary interpretive principles. The refusal of a Title X
provider to refer a pregnant patient for an abortion, for
instance, does not counsel, let alone direct, her to do anything; it simply declines to facilitate an abortion with
taxpayer dollars, consistent with the best reading of
12
Section 1008. Nor does a prohibition on abortion referrals in the Title X program erect an obstacle to timely
healthcare or interfere with provider-patient communications. Rather, it simply refuses to subsidize certain
types of such activity, which is inherent in a federal
grant program of limited scope.
The majority likewise erred in holding that HHS
acted arbitrarily by doing what this Court has already
declared reasonable. As in 1988, the agency concluded
that the referral and physical-separation provisions reflected the best interpretation of Section 1008 and
should be adopted for that reason alone. And HHS went
on to consider and address comments raising concerns
about medical ethics and compliance costs, even though
it ultimately concluded that compliance with the statute
was more important than any costs Title X recipients
might incur to continue obtaining federal funding. That
was more than sufficient to satisfy the APA.
I. THE DECISION BELOW IS INCORRECT
A. The Rule Falls Within HHS’s Statutory Authority
The court of appeals did not contest HHS’s conclusion that if a program refers patients for (or otherwise
promotes) abortion as a method of family planning, then
that program is, by definition, one “where abortion is a
method of family planning.” 84 Fed. Reg. at 7759. That
is by far the better reading of Section 1008, and the en
banc majority never offered an alternative. Instead, it
concluded that Congress divested HHS of its authority
to prohibit abortion referrals through an appropriations
rider and an ancillary ACA provision. But properly construed, neither of those laws conflicts with the agency’s
pre-existing Title X authority, much less does so with
the requisite clarity to accomplish an implied repeal.
13
1. Since 1996, Congress has attached a rider to
every HHS appropriations bill providing both that Title
X funds “shall not be expended for abortions” and that
“all pregnancy counseling shall be nondirective.” Further Consolidated Appropriations Act, 2020, § 117,
133 Stat. 2558; accord Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104134, 110 Stat. 1321-221. Nothing in the latter clause
abolishes HHS’s authority to reinstate the prohibition
on abortion referrals that this Court upheld in Rust.
a. To begin, a Title X provider’s refusal to refer a
patient for an abortion does not direct her to do anything. Because the Title X “program does not provide
postconception medical care,” a provider’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,” Rust,
500 U.S. at 200—much less direct her to refrain from
getting an abortion. Indeed, providers are “always
free” to respond to a client’s request by explaining that
referrals for abortion are “simply beyond the scope of
the program”; “[n]othing” in the rule “requires a doctor
to represent as his own any opinion that he does not in
fact hold.” Ibid. If a pregnant woman asks a Title X
provider “to refer her for an abortion,” the rule, like its
1988 predecessor, permits the provider to explain that
“the project does not consider abortion a method of family planning and, therefore, does not refer for abortion.”
84 Fed. Reg. at 7789 (42 C.F.R. 59.14(e)(5)). Given that
background, no reasonable patient could treat a Title X
provider’s refusal to refer her for an abortion as an implicit direction not to obtain one.
The en banc majority concluded that the referral
prohibition nevertheless was directive because the
14
current rule, like its 1988 predecessor, also requires
that pregnant patients be referred for prenatal care.
See App., infra, 40a-41a; cf. Rust, 500 U.S. at 192-193
(rejecting similar viewpoint-discrimination argument
that combined the referral prohibition and prenatalreferral requirements). But the existence of that separate
requirement does not somehow render directive the mere
prohibition on abortion referrals—especially since HHS
provided that the rule’s various provisions are severable,
see 84 Fed. Reg. at 7725. In any event, a prenatal-care
referral likewise does not “direct” a patient to forgo
obtaining an abortion—such care is necessary for the
health of the patient while she is pregnant, as she by
definition is at the time of the referral, regardless of
whether she later chooses to obtain an abortion outside
the auspices of Title X. See Becerra ex rel. California
v. Azar, 950 F.3d 1067, 1089 (9th Cir. 2020) (en banc),
petition for cert. pending, No. 20-429 (filed Oct. 1, 2020);
84 Fed. Reg. at 7748, 7761-7762. By contrast, when
HHS wants to direct referrals for “[p]renatal care and
delivery,” it knows how to do so, as the 2000 rule
confirms. 65 Fed. Reg. at 41,279 (emphasis added).
At bottom, the majority appeared to assume that in
requiring that pregnancy counseling be “nondirective,”
Congress mandated that abortion be treated the same
as childbirth or adoption. See App., infra, 43a-44a, 47a.
But the neutral presentation of information about options aside from abortion is not directing a woman to
choose one of those options. Had Congress wanted Title
X providers to treat abortion, childbirth, and adoption
on an “equal basis,” it knew how to say so explicitly. In
2000, Congress enacted legislation directing HHS to
fund the training of staff of various health centers, in-
15
cluding Title X clinics, “in providing adoption information and referrals to pregnant women on an equal basis with all other courses of action included in nondirective counseling to pregnant women.” 42 U.S.C.
254c-6(a)(1) (emphasis added). Indeed, if the rider already required “the presentation of all options on an
equal basis,” such training would have been “unnecessary,” as “the staff would have already been required to
do so.” Becerra, 950 F.3d at 1091.
b. In any event, the “nondirective” requirement for
“counseling” does not extend to referrals. Both in the
Title X program and more generally, the two activities
are distinct—“counseling involves an exchange of information and discussion of options,” which is not the same
as referring “a patient to an appropriate specialist to
pursue her chosen next steps.” App., infra, 95a (Richardson, J., dissenting); see id. at 92a-96a (collecting dictionaries and HHS materials); Becerra, 950 F.3d at
1085-1086 (similar).
Again, when Congress wants to regulate both “counseling” and “referrals” in this area, it knows how to do
so. See, e.g., 42 U.S.C. 300z-10(a) (“Grants or payments
may be made only to programs or projects which do not
provide abortions or abortion counseling or referral.”);
see also App., infra, 96a-97a (Richardson, J., dissenting) (collecting statutes). Notably, when Congress tried
to abrogate Rust in 1991, it passed a bill, vetoed by
President Bush, that would have required Title X recipients to provide “nondirective counseling, and referral”
concerning specific options upon request, including “pregnancy termination,” S. 323, 102d Cong., 1st Sess. § 2
(1991); see App., infra, 12a. HHS’s 2000 rule and 1981
guidelines used a similar formulation: Title X projects
were required to offer “nondirective counseling on each
16
of the options”—including “[p]regnancy termination”—
“and referral upon request.” 65 Fed. Reg. at 41,279; see
Pet. App. at 71a, Rust, supra (No. 89-1391).
The en banc majority dismissed this distinction
based on its observation that referrals may be given
“during” (or “as part of ”) nondirective counseling.
App., infra, 42a (citations and emphases omitted); see
id. at 42a-43a. But the fact that referrals “may occur at
the same time as counseling” does not mean they are “a
type of counseling” covered by the rider itself. Becerra,
950 F.3d at 1087.
2. The en banc majority fared no better in concluding that Section 1554 of the ACA divested HHS of its
authority to prohibit abortion referrals within the Title
X program. Captioned “Access to therapies” and located in the ACA’s “Miscellaneous Provisions” subchapter, Section 1554 provides: “Notwithstanding any other
provision of this Act,” HHS “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.” ACA
§ 1554, 124 Stat. 258, 259 (42 U.S.C. 18114) (capitalization altered; emphasis omitted).
Nothing about a prohibition on abortion referrals
within the Title X program “creates any unreasonable
17
barriers,” “impedes timely access,” “interferes with
communications,” or otherwise violates Section 1554—
which explains why that statutory provision was “never
mentioned in any of the half-million public comments offered during the rulemaking,” App., infra, 104a-105a
(Richardson, J., dissenting). Rather, the referral prohibition merely limits what activities HHS funds. See
Becerra, 950 F.3d at 1094. If HHS expressly prohibited
Title X providers from giving referrals in areas outside
the context of family planning (such as their recommended orthopedists) or for services the government
may not wish to promote (such as nearby medical-marijuana dispensaries), for example, no one could reasonably think that these limitations contravened the ACA.
In concluding otherwise, the majority “repackage[d]
constitutional assertions” that this Court “rejected in
Rust.” App., infra, 112a (Richardson, J., dissenting).
As this Court explained in upholding the 1988 rule,
HHS’s prohibition on abortion referrals within the Title
X program “ ‘places no governmental obstacle in the
path of a woman who chooses to terminate her pregnancy,’ ” but simply “leaves her in no different position
than she would have been if the Government had not enacted Title X.” Rust, 500 U.S. at 201-202 (citation omitted). Likewise, that prohibition does “not significantly
impinge upon the doctor-patient relationship,” as “a doctor’s ability to provide, and a woman’s right to receive,
information concerning abortion and abortion-related
services outside the context of the Title X project remains unfettered.” Id. at 200, 203.
Although the majority dismissed this analysis as limited to constitutional claims, App., infra, 52a-53a, that
“distinction—based on only the source of challenge—
misses the logical point,” id. at 113a (Richardson, J.,
18
dissenting). If the refusal to fund abortion referrals
“does not burden or interfere with a client’s health care
at all, then it does not matter whether the client’s health
care rights were created by the Constitution or a statute.” Becerra, 950 F.3d at 1094 (citation omitted).
In conflating affirmative regulation with failure to
subsidize, the majority transformed an ancillary ACA
provision into a far-reaching mandate threatening to
obliterate traditional limits on government healthcare
spending. For example, if, as the majority concluded, a
refusal to fund abortion referrals “creates ‘unreasonable barriers’ to ‘appropriate medical care,’ and ‘impedes
timely access’ to health care services,” in light of “the
time-sensitive nature of pregnancy,” App., infra, 51a
(citation omitted), then Section 1554 would presumably
deprive HHS of any independent regulatory authority
to decline to fund abortions (or any other medical procedures) themselves. But “Congress ‘does not alter the
fundamental details of a regulatory scheme in vague
terms or ancillary provisions,’ ” Epic Sys. Corp. v.
Lewis, 138 S. Ct. 1612, 1626-1627 (2018) (citation omitted), and there is no basis to conclude that it tucked
away such a sweeping mandate overriding HHS’s extant statutory authority in the mousehole of a “miscellaneous provision[]” in the ACA, 124 Stat. 258 (capitalization and emphasis omitted).
3. At a minimum, the en banc majority’s construction of the appropriations rider and Section 1554 would
conflict with “the ‘strong presumption’ that repeals by
implication are ‘disfavored.’ ” Epic Sys. Corp., 138 S. Ct.
at 1624 (brackets and citation omitted); see Becerra, 950
F.3d at 1084-1085. That presumption, which “is ‘especially’ strong ‘in the appropriations context,’ ” Maine
Cmty. Health Options v. United States, 140 S. Ct. 1308,
19
1323 (2020) (citation omitted), disposes of the implausible theory that, through the 1996 appropriations rider,
Congress implicitly abrogated Rust and divested HHS
of its authority to prohibit abortion referrals—let alone
after Congress had tried and failed to do so explicitly,
and while simultaneously directing that Title X funds
“shall not be expended for abortions.” See p. 15, supra.
The presumption likewise forecloses the remarkable
theory that a miscellaneous ACA provision stripped
HHS of its authority to maintain limitations on
government healthcare spending in a variety of
contexts. See p. 18, supra. That is particularly true
given that Section 1554 applies “[n]otwithstanding any
other provision of this Act,” 42 U.S.C. 18114 (emphasis
added), signaling that Section 1554 may implicitly
displace otherwise-applicable provisions in the ACA.
By contrast, when Congress wanted to indicate that an
ACA provision could implicitly repeal pre-existing
statutory provisions like Section 1008, it used the
phrase “[n]otwithstanding any other provision of law.”
E.g., 42 U.S.C. 18032(d)(3)(D)(i); see App., infra, 107a108a (Richardson, J., dissenting).
The majority dismissed the presumption on the theory that it was considering whether the rule “is ‘not in
accordance with the law,’ as the law now stands.” App.,
infra, 48a (citation omitted). But that is merely another
way of saying that by passing the rider in 1996 and the
ACA in 2010, Congress stripped HHS of its delegated
authority, recognized in Rust, to prohibit abortion referrals within the Title X program. And the legislative
elimination of a statutory delegation of authority is by
definition a repeal, whether that delegation is characterized as an explicit or an implicit one.
20
B. HHS Engaged In Reasoned Decisionmaking
The court of appeals further erred in holding that
HHS’s decision to reinstate the referral and physicalseparation provisions upheld in Rust was arbitrary and
capricious. The standard of review for arbitrary-andcapricious claims is “deferential” and “ ‘narrow’ ”; courts
are to “determine only whether the Secretary examined
‘the relevant data’ and articulated ‘a satisfactory explanation’ for his decision, ‘including a rational connection
between the facts found and the choice made.’ ” Department of Commerce v. New York, 139 S. Ct. 2551, 2569
(2019) (citation omitted). In conducting this limited review, “ ‘a court is not to substitute its judgment for that
of the agency,’ and should ‘uphold a decision of less than
ideal clarity if the agency’s path may reasonably be discerned.’ ” FCC v. Fox Television Stations, Inc., 556
U.S. 502, 513-514 (2009) (citations omitted). HHS’s decision to adopt the same provisions upheld by this Court
in Rust, for the same reasons, easily passes that test.
1. In ruling on Baltimore’s arbitrary-and-capricious
claim, the en banc majority did not take issue with
HHS’s judgment that the abortion-referral prohibition
and physical-separation requirement reflected the best
reading of Section 1008 and that compliance with that
reading was more important than the asserted costs
that might follow. See p. 7, supra. Instead, it faulted
HHS for inadequately responding to comments alleging
that the abortion-referral prohibition contravened medical ethics and that the costs of compliance with the
physical-separation requirement could prove significant. See App., infra, 25a-39a. But if, as the majority
did not contest, HHS reasonably concluded that the
challenged provisions represented the best reading of
Congress’s command and that fidelity to that directive
21
was more important than the practical effects, those objections are beside the point.
When a statute requires an agency to take a particular approach, it must do so on that basis alone. See
Michigan v. EPA, 576 U.S. 743, 755-756 (2015). It follows that even where the statute is ambiguous, “an
agency may justify its policy choice by explaining why
that policy ‘is more consistent with statutory language’
than alternative policies.” Encino Motorcars, LLC v.
Navarro, 136 S. Ct. 2117, 2127 (2016) (citation omitted).
So even if Section 1008 does not compel a prohibition on
referrals for abortions within the Title X program, for
example, HHS was entitled to conclude that such a restriction was the best reading of Section 1008 and adopt
that interpretation for this reason alone. It cannot be
arbitrary and capricious for an agency to decline to
adopt a worse reading of an ambiguous statute merely
because the better reading of the text comes with practical costs. If the agency properly concludes that Congress already made the judgment by using certain
words, it is entitled to follow Congress’s lead, even if
that interpretation is not the only permissible one. At
the very least, the choice between fidelity to the best
textual reading and practical consequences involves the
sort of “value-laden decisionmaking and the weighing of
incommensurables” entrusted to accountable agencies.
Department of Commerce, 139 S. Ct. at 2571.
In Rust, this Court applied that sensible approach in
this very context. It held that HHS’s conclusion that
materially indistinguishable provisions were “more in
keeping with the original intent of the statute” was “sufficient to support the Secretary’s revised approach,”
notwithstanding this Court’s conclusion that Section
1008 was “ambiguous.” Rust, 500 U.S. at 187. And it so
22
held despite arguments, like the ones presented here,
(1) that the abortion-referral prohibition was inconsistent with a physician’s “ethical dut[y]” to provide “referral for all medical alternatives,” Pet. Br. at 21 & n.33,
Rust, supra (No. 89-1391); and (2) that HHS had “offered no rebuttal to the comments suggesting that
costs” associated with the physical-separation requirement “would be significant and even prohibitive,” Pet.
Br. at 31, New York v. Sullivan, No. 89-1392 (July 27,
1990). This Court felt no need to expressly engage with
those claims in holding that “the Secretary amply justified his change of interpretation with a ‘reasoned analysis,’ ” Rust, 500 U.S. at 187 (citation omitted), which
strongly suggests, if not dictates, that the various considerations the en banc majority invoked should be immaterial to the arbitrary-and-capricious inquiry here.
2. In any event, HHS both acknowledged and responded to comments concerning medical ethics and
compliance costs. See, e.g., 84 Fed. Reg. at 7724, 7748,
7766-7777, 7781-7782. The en banc majority did not contest that fact; rather, it concluded that HHS’s explanation on both counts was not “satisfactory.” App., infra,
26a; see id. at 35a-39a. But the agency’s discussion was,
if anything, more thorough than the analysis this Court
found sufficient in Rust, and the majority failed to justify reaching a different conclusion now.
a. i. HHS’s discussion of medical ethics easily satisfies the APA’s requirements. The agency acknowledged that “[m]any commenters” had asserted that a
prohibition on abortion referral “would directly conflict
with the requirements or codes of ethics of medical professional associations.” 84 Fed. Reg. at 7745. For example, these associations maintained “that patients
should receive full and accurate information,” and that
23
the Code of Medical Ethics of the American Medical Association (AMA) provides that “ ‘withholding information without [the] patient’s knowledge or consent is
ethically unacceptable.’ ” Ibid.
HHS agreed with the commenters that “[i]n general,
medical ethics obligations require the medical professional to share full and accurate information with the
patient,” but it explained why the rule “adequately accommodates” those “ethical obligations.” 84 Fed. Reg.
at 7724. Under the rule, Title X providers could offer
“nondirective pregnancy counseling to pregnant Title X
clients on the patient’s pregnancy options, including
abortion.” Ibid. They could “discuss the risks and side
effects of each option.” Ibid. They could ensure that
clients may “ask questions and * * * have those questions answered by a medical professional.” Ibid. And
they could—indeed, had to—“refer for medical emergencies.” Ibid. The only thing they could not do was
use federal funds to “refer[] for abortion as a method of
family planning.” Ibid. But as HHS observed, that
modest restriction was “not inconsistent” with “medical
ethics” for several reasons. Id. at 7748.
First, HHS explained that the referral prohibition
was merely “a matter of Congress’s choice of what activities it will fund, not about what all clinics or medical
professionals may or must do outside the context of the
federally funded project.” 84 Fed. Reg. at 7748. Or as
this Court put it in Rust, whatever might be expected
from a doctor in private practice, “the doctor-patient
relationship established by the Title X program” is not
“sufficiently all encompassing so as to justify an expectation on the part of the patient of comprehensive medical advice,” much less a referral for an abortion specifically. 500 U.S. at 200. Again, had HHS prohibited Title
24
X providers from giving referrals to their recommended
orthopedists or to local medical-marijuana dispensaries, no one could reasonably think that complying with
these limitations would put their medical licenses in
jeopardy. Likewise, given that these providers remain
free to inform their patients “that the project does not
consider abortion a method of family planning and,
therefore, does not refer for abortion,” 84 Fed. Reg. at
7789 (42 C.F.R. 59.14(e)(5)), it is difficult to see how
they could violate the AMA’s Code of Medical Ethics,
which proscribes only “ ‘withholding information without [the] patient’s knowledge or consent,’ ” id. at 7745
(emphasis added).
Second, HHS observed, “[f ]ederal and [s]tate conscience laws, in place since the early 1970s, have protected the ability of health care personnel to not assist
or refer for abortions.” 84 Fed. Reg. at 7748; see also
id. at 7716, 7746-7747 (discussing statutes). This reveals that Congress and state legislatures—as well as
the providers who rely on these laws—believe that declining to provide an abortion referral is consistent with
medical ethics. See id. at 7748; see also id. at 7744-7745,
7780-7781 (discussing providers with conscience objections to abortion referrals). HHS made the same point
in adopting the 1988 rule. See 53 Fed. Reg. at 2932 (explaining that “ ‘conscience’ ” laws make it “apparent that
there is no absolute ethical imperative upon physicians
to counsel or refer for abortion”).
Third, HHS observed that in Rust, this Court upheld
a prohibition “on both referral for, and counseling
about, abortion in the Title X program.” 84 Fed. Reg.
at 7748. As the agency explained, it was unlikely that
this Court would have “upheld a rule that required the
violation of medical ethics.” Ibid.
25
ii. The en banc majority failed to explain why this
analysis was insufficient. It did not even address HHS’s
reliance on the limited nature of the Title X program.
And insofar as it engaged with the agency’s reasoning,
it failed to demonstrate any defect. The majority
dismissed HHS’s reliance on the conscience laws, for
example, based on a distinction between “[a]llowing”
physicians to refuse to provide abortion referrals and
“prohibiting” them from providing such referrals.
App., infra, 32a. But allowing a doctor to unilaterally
choose not to refer for abortion is incompatible with the
existence of an ethical duty to provide such referrals—
indeed, it follows that he breaches no ethical duty by
complying with a legal duty not to provide them, especially one imposed as a condition of federal funding.
The majority relatedly suggested that conscience
statutes only concern cases “[w]here conscience implores physicians to deviate from standard practices,”
App., infra, 33a (citation omitted), but that ignores that
various conscience statutes protect refusals to refer for
abortion even when the provider has no religious or moral
objection to the practice whatsoever, see, e.g., Department of Defense and Labor, Health and Human Services, and Education Appropriations Act, 2019 and Continuing Appropriations Act, 2019, Pub. L. No. 115-245,
Tit. V, § 507(d)(1), 132 Stat. 3118 (Weldon Amendment).
Indeed, Maryland’s conscience statute allows providers
to “refus[e]” to “refer” for an abortion for any reason
unless the refusal would result in death or serious
injury or otherwise be “contrary to the standards of
medical care,” Md. Code Ann., Health-General II
§ 20-214(a)(2) and (d)(2) (LexisNexis 2019), indicating
that Baltimore’s own State has concluded that “declin-
26
ing to refer for a non-emergency abortion does not inherently violate the standards of medical care,” App.,
infra, 122a n.27 (Richardson, J., dissenting).
Likewise, the majority dismissed HHS’s reliance on
Rust on the theory that because this Court was considering an alleged “First Amendment violation,” its
decision “did not purport to speak to medical ethics.”
App., infra, 29a. But the reason the majority gave for
why the current referral prohibition violates medical
ethics is that it “prohibits physicians from sharing full
and accurate information,” id. at 28a, and that was the
same objection presented and rejected in Rust. Faced
with the argument that “the ethical responsibilities of
the medical profession demand” that Title X providers
give their patients “the full range of information and
options regarding their health and reproductive freedom,” including “abortion,” Rust, 500 U.S. at 213-214
(Blackmun, J., dissenting), this Court held that a prohibition on abortion referrals (and even on abortion
counseling) did not “significantly impinge upon the
doctor-patient relationship” because the limited nature
of the Title X program does not “justify an expectation
on the part of the patient of comprehensive medical
advice,” id. at 200 (majority opinion). It is immaterial
that this rejection of the same argument occurred in a
constitutional analysis.
iii. Ultimately, the en banc majority placed significant
weight on the assertion that “every major medical organization in the country” found the referral prohibition
contrary to medical ethics. App., infra, 30a. But even
accepting that characterization, it would not subject the
agency to a less deferential form of review under the
APA, as the majority suggested. See ibid. (concluding
that HHS “cannot easily brush off ” the evidence from
27
“the medical community”). Given that the Secretary’s
“policymaking discretion” permits him to disagree with
“technocratic expertise” even within the agency, Department of Commerce, 139 S. Ct. at 2571, he certainly
may reject the views of “outside commenters,” Becerra,
950 F.3d at 1100 n.31. And contrary to the majority’s
suggestion, he needs no “special justification” for doing
so. Department of Commerce, 139 S. Ct. at 2571;
cf. Gonzales v. Carhart, 550 U.S. 124, 166 (2007) (explaining that courts cannot “strike down legitimate
abortion regulations” simply because “some part of the
medical community [is] disinclined to follow” them).
If anything, HHS’s disagreement with outside commenters was particularly justified here. Unlike state
authorities, these professional organizations have no
regulatory power over medical ethics. And the majority
identified no provider (much less one participating in a
federally funded family planning program) who has
ever been disciplined by any entity with authority over
medical ethics for failing to provide an abortion referral
upon request—not under the 1988 rule, not since HHS
began enforcing the current referral prohibition in July
2019, and not in any other context. Such discipline
would be quite surprising given that the majority of
States (and the federal government) prohibit abortion
referrals (or even abortion counseling) in various publicly funded programs, see Gov’t Supp. C.A. Br. 34 n.7,
while still others, Maryland included, permit medical
providers to refuse to do so, see pp. 24-26, supra. Consistent with that background, the majority of incumbent
Title X providers, including nearly 30 state health departments, have remained in the program without any
apparent ethical sanction since the referral prohibition
began being enforced last July, indicating that neither
28
those providers nor their state regulators believe that
compliance with the rule is unethical. See HHS, Office
of Population Affairs, Title X Family Planning Directory (Sept. 2020), https://go.usa.gov/xGFVn; HHS,
HHS Issues Supplemental Grant Awards to Title X Recipients (Sept. 30, 2019), https://go.usa.gov/xvDEU.
b. The en banc majority was no more persuasive in
concluding that HHS had given a “conclusory response”
to comments asserting that the likely costs of complying
with the separation requirement during the transition
period exceeded the agency’s estimate of $30,000. App.,
infra, 36a (citation omitted). To start, even when Congress requires an agency to consider “cost of compliance,” it need not “conduct a formal cost-benefit analysis in which each advantage and disadvantage is assigned a monetary value.” Michigan, 576 U.S. at 759.
Rather, unless Congress specifies otherwise, “[i]t will
be up to the Agency to decide * * * how to account for
cost.” Ibid. In adopting the 1988 rule, for example,
HHS declined to make any concrete estimate of the
costs of compliance with the physical-separation requirement. See 53 Fed. Reg. at 2940. The majority offered no justification for why HHS should be punished
for attempting to give a rough estimate of those costs
this time around while ultimately concluding that “compliance with statutory program integrity provisions is
of greater importance,” 84 Fed. Reg. at 7783.
In any event, nothing about that rough estimate was
“conclusory.” App., infra, 36a (citation omitted). HHS
acknowledged that commenters had criticized it for “underestimat[ing] the costs related to the new physical
separation requirements.” 84 Fed. Reg. at 7781. But
the agency declined to adopt their “extremely high cost
estimates based on assumptions that they would have to
29
build new facilities.” Ibid. As HHS explained, it did not
expect that Title X recipients would “necessarily engage in construction of new facilities to comply with the
new requirements.” Ibid. Instead, the agency predicted, those entities would “usually choose the lowest
cost method to come into compliance.” Ibid. For example, “Title X providers which operate multiple physically separated facilities and perform abortions may
shift their abortion services * * * to distinct facilities,
a change which likely entails only minor costs.” Ibid.
Having rejected the assumption underlying the commenters’ estimates, HHS acknowledged the difficulty in
estimating average compliance costs. It observed that
the commenters “themselves did not provide sufficient
data to estimate these effects across the Title X program,” and that “there is substantial uncertainty regarding the magnitude of these effects.” 84 Fed. Reg.
at 7781. That was particularly true because these costs
were likely to “vary across covered entities depending
on their circumstances.” Ibid. For example, a Title X
clinic in “a hospital that also performs some abortions”
would be less likely to violate the physical-separation
requirement than “a free-standing clinic,” as “it is
highly unlikely that a Title X clinic and abortion facilities would be collocated within a hospital.” Id. at 7767.
Accordingly, HHS explained that compliance would be
assessed on a case-by-case basis, and it would work with
providers to find solutions to satisfy the physical-separation requirement. See id. at 7766, 7767, 7781.
The agency nevertheless “updated quantitative estimates in response to these comments” from “an averaged estimate between $10,000 and $30,000 in the proposed rule” to an “average of between $20,000 and
$40,000, with a central estimate of $30,000.” 84 Fed.
30
Reg. at 7781-7782. In doing so, however, HHS emphasized that the physical-separation requirement should
“have minimal effect on the majority of current Title X
providers.” Id. at 7781. As it explained, a report from
the Congressional Research Service indicated that only
around 10% of Title X clinics offer abortion as a method
of family planning. Ibid. And even accounting for other
Title X providers who share resources with unaffiliated
entities offering that procedure, HHS estimated that
only between 10% and 30% of all Title X clinics, with a
central estimate of 20%, would be subject to the physicalseparation requirement at all. Ibid.
The majority concluded that the commenters were
entitled to “more explanation” for why their high-cost
estimates were rejected, and criticized HHS for
“blindly assuming” that lower-cost methods were available. App., infra, 38a n.16, 39a. But the APA provides
no basis for elevating the assertions of grant recipients
over the predictions of an expert agency. To the contrary, “even in the absence of evidence,” an “agency’s
predictive judgment * * * merits deference,” Fox, 556
U.S. at 521, and the “pessimistic[] prediction[s]” of
these commenters were “simply evidence for the Secretary to consider,” Department of Commerce, 139 S. Ct.
at 2571. By “penalizing” HHS “for departing from”
commenters’ estimates, the majority “substitut[ed] [its]
judgment for that of the agency.” Ibid.
The majority also criticized HHS’s rough numerical
estimates as unsubstantiated by “studies” or further
justification. App., infra, 37a (citation omitted). But
this demanded “a false precision that is not required by
law.” Id. at 128a (Richardson, J., dissenting). Indeed,
the majority never explained what HHS should have
31
used to estimate compliance costs once it had determined that the commenters’ high-cost estimates rested
on incorrect assumptions.
II. THE DECISION
REVIEW
BELOW
WARRANTS
FURTHER
As discussed, the court of appeals’ decision is irreconcilable with this Court’s decision in Rust. As the dissenting judges forcefully explained, the majority
“thumb[ed] its nose at [this] Court” by choosing to become “the first Circuit bold enough to skirt Rust.”
App., infra, 75a (Richardson, J.). At a bare minimum,
this Court should have the last word on whether Congress implicitly abrogated Rust in an appropriations
rider or an ancillary ACA provision.
In addition, the Fourth Circuit’s decision squarely
conflicts with the Ninth Circuit’s decision in Becerra,
supra, several times over. The latter court held that, in
adopting the final rule, HHS (1) complied with the appropriations rider, 950 F.3d at 1085-1091; (2) acted consistently with Section 1554 of the ACA, id. at 1091-1095;
(3) reasonably addressed comments contending that the
rule violated medical ethics, id. at 1102-1103 & nn.3436; and (4) reasonably responded to comments asserting that the agency’s estimates of the costs of complying
with the separation requirement were too low, id. at
1101 & n.32. Moreover, those issues are all important
ones, as indicated by the fact that each court of appeals
chose to hear these appeals en banc—indeed, before an
appellate panel even had the opportunity to issue a decision on the merits.
The majority below did not deny that it had “rip[ped]
open a circuit split” on multiple fronts. App., infra, 75a
(Richardson, J., dissenting). Instead, it rejected the
Ninth Circuit’s analysis as “unpersuasive,” id. at 33a,
32
and repeatedly embraced the reasoning of “the dissenting judges” in that case, id. at 41a; see id. at 39a, 46a.
It also criticized the Ninth Circuit for resolving the
merits of the arbitrary-and-capricious arguments because that court “did not have the full administrative
record before it.” Id. at 33a. But as the Ninth Circuit
emphasized, all of the critical facts, including “all public
comments,” are publicly available. Becerra, 950 F.3d at
1083 n.11. And like the plaintiffs and dissenters in
Becerra, the majority here did not “identify additional
arguments that could [have been] made” to the Ninth
Circuit “after submission of the full record.” Ibid.
The majority also asserted that “the Ninth Circuit’s
discussion of medical ethics nowhere mentions the precise issue raised here: HHS’s failure to justify or explain its conclusion that the Final Rule is consistent
with medical ethics in the face of overwhelming contrary evidence.” App., infra, 34a. That is incorrect. See
Becerra, 950 F.3d at 1103 (holding that “HHS examined
the relevant considerations arising from commenters
citing medical ethics and rationally articulated an explanation for its conclusion”); id. at 1114 n.13 (Paez, J., dissenting) (contending that “[t]he majority is wrong to
conclude” that HHS presented “a ‘plausible explanation
outlining its rationale for rejecting the evidence and
reaching a different conclusion’ ” from “ ‘the leading expert on medical ethics’ ”) (citation omitted).
Finally, the effects of the decision below are significant. By forcing HHS to disburse taxpayer dollars in
furtherance of a policy that it has determined violates
the best reading of Section 1008, the injunction here undermines the government’s weighty interest in avoiding
the use of federal funds to promote or subsidize abortion. See, e.g., Rust, 500 U.S. at 192-193. The injunction
33
also requires HHS to administer the Title X grant program under two different regulatory regimes: one for
Maryland and one for the rest of the country. And because the conflicting decisions were issued by en banc
courts, only this Court’s review can correct that untenable situation.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
JEFFREY B. WALL
Acting Solicitor General
JEFFREY BOSSERT CLARK
Acting Assistant Attorney
General
HASHIM M. MOOPPAN
Counselor to the Solicitor
General
BRINTON LUCAS
Assistant to the Solicitor
General
MICHAEL S. RAAB
JAYNIE LILLEY
JOSHUA DOS SANTOS
Attorneys
OCTOBER 2020
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Docket No. 19-1614
MAYOR AND CITY COUNCIL OF BALTIMORE,
PLAINTIFF-APPELLEE
v.
ALEX M. AZAR, II, IN HIS OFFICIAL CAPACITY AS THE
SECRETARY OF HEALTH AND HUMAN SERVICES;
DIANE FOLEY, M.D., IN HER OFFICIAL CAPACITY
AS THE DEPUTY ASSISTANT SECRETARY, OFFICE OF
POPULATION AFFAIRS; UNITED STATES DEPARTMENT
OF HEALTH & HUMAN SERVICES; OFFICE OF
POPULATION AFFAIRS, DEFENDANTS-APPELLANTS
OHIO; ALABAMA; ARKANSAS; INDIANA; KANSAS;
LOUISIANA; NEBRASKA; OKLAHOMA; SOUTH CAROLINA;
SOUTH DAKOTA; TENNESSEE; TEXAS; UTAH;
WEST VIRGINIA, AMICI SUPPORTING APPELLANTS,
NEW YORK, NEW YORK CITY HEALTH + HOSPITALS
AND 10 LOCAL GOVERNMENTS; NATIONAL HEALTH LAW
PROGRAM; ADVOCATES FOR YOUTH; AMERICAN
MEDICAL STUDENT ASSOCIATION; AMERICAN SOCIETY
FOR REPRODUCTIVE MEDICINE; COMMUNITY
CATALYST; THE ENDOCRINE SOCIETY; FAMILIES USA;
IN OUR OWN VOICE: NATIONAL BLACK WOMEN’S
REPRODUCTIVE JUSTICE AGENDA; JUVENILE LAW
CENTER; THE LEADERSHIP CONFERENCE ON CIVIL AND
HUMAN RIGHTS; NATIONAL COUNCIL OF JEWISH
WOMEN; NARAL PRO-CHOICE AMERICA; NATIONAL
ABORTION FEDERATION; NATIONAL IMMIGRATION LAW
CENTER; NATIONAL INSTITUTE FOR REPRODUCTIVE
HEALTH; NATIONAL LATINA INSTITUTE FOR
REPRODUCTIVE HEALTH; NATIONAL PARTNERSHIP
(1a)
2a
FOR WOMEN & FAMILIES; NATIONAL WOMEN’S
HEALTH NETWORK; NATIONAL WOMEN’S LAW CENTER;
NORTHWEST HEALTH LAW ADVOCATES; POSITIVE
WOMEN’S NETWORK-USA; POWER TO DECIDE;
UNION FOR REFORM JUDAISM; CENTRAL CONFERENCE
OF AMERICAN RABBIS; WOMEN OF REFORM JUDAISM;
MEN OF REFORM JUDAISM; UNITE FOR REPRODUCTIVE
& GENDER EQUITY; WHITMAN-WALKER HEALTH;
WOMENHEART; YWCA OF THE USA; NATIONAL
CENTER FOR LESBIAN RIGHTS; GLMA: HEALTH
PROFESSIONALS ADVANCING LGBT EQUALITY;
THE LGBT MOVEMENT ADVANCEMENT PROJECT;
NATIONAL LGBTQ TASK FORCE; EQUALITY
FEDERATION; SEXUALITY INFORMATION AND
EDUCATION COUNCIL OF THE UNITED STATES; FAMILY
EQUALITY COUNCIL; THE NATIONAL CENTER
FOR TRANSGENDER EQUALITY; HIV MEDICINE
ASSOCIATION; GLBTQ LEGAL ADVOCATES &
DEFENDERS; LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INCORPORATED; THE HUMAN
RIGHTS CAMPAIGN; TRANSGENDER LAW CENTER;
BAY AREA LAWYERS FOR INDIVIDUAL FREEDOM;
THE INSTITUTE FOR POLICY INTEGRITY AT NEW YORK
UNIVERSITY SCHOOL OF LAW; NATIONAL CENTER FOR
YOUTH LAW; AMERICAN ACADEMY OF PEDIATRICS;
AMERICAN COLLEGE OF OBSTETRICIANS AND
GYNECOLOGISTS; AMERICAN COLLEGE OF PHYSICIANS;
AMERICAN MEDICAL ASSOCIATION; SOCIETY FOR
ADOLESCENT HEALTH AND MEDICINE; SOCIETY FOR
MATERNAL-FETAL MEDICINE; ZACHARY D. CLOPTON;
AMANDA FROST; SUZETTE MALVEAUX; MILA SOHONI;
ALAN TRAMMELL; CALIFORNIA; NEVADA; COLORADO;
CONNECTICUT; DELAWARE; HAWAII; ILLINOIS; MAINE;
MARYLAND; MASSACHUSETTS; MICHIGAN; MINNESOTA;
NEW JERSEY; NEW MEXICO; NEW YORK; NORTH
CAROLINA; OREGON; PENNSYLVANIA; RHODE ISLAND;
VERMONT; VIRGINIA; WASHINGTON; DISTRICT OF
COLUMBIA, AMICI SUPPORTING APPELLEE
3a
No. 20-1215
MAYOR AND CITY COUNCIL OF BALTIMORE,
PLAINTIFF-APPELLEE
v.
ALEX M. AZAR, II, IN HIS OFFICIAL CAPACITY AS THE
SECRETARY OF HEALTH AND HUMAN SERVICES;
DIANE FOLEY, M.D., IN HER OFFICIAL CAPACITY
AS THE DEPUTY ASSISTANT SECRETARY, OFFICE OF
POPULATION AFFAIRS; UNITED STATES DEPARTMENT
OF HEALTH & HUMAN SERVICES; OFFICE OF
POPULATION AFFAIRS, DEFENDANTS-APPELLANTS
KENTUCKY; ALABAMA; ARKANSAS; INDIANA;
LOUISIANA; NEBRASKA; OHIO; OKLAHOMA; SOUTH
CAROLINA; SOUTH DAKOTA; TENNESSEE; TEXAS; UTAH;
WEST VIRGINIA, AMICI SUPPORTING APPELLANTS
AMERICAN MEDICAL ASSOCIATION; ZACHARY D.
CLOPTON; AMANDA FROST; SUZETTE MALVEAUX;
MILA SOHONI; ALAN TRAMMELL; CALIFORNIA; NEVADA;
COLORADO; CONNECTICUT; DELAWARE; DISTRICT OF
COLUMBIA; HAWAII; ILLINOIS; MAINE; MARYLAND;
MASSACHUSETTS; MICHIGAN; MINNESOTA;
NEW JERSEY; NEW YORK; NORTH CAROLINA;
OREGON; PENNSYLVANIA; RHODE ISLAND; VERMONT;
VIRGINIA; WASHINGTON; NEW MEXICO,
AMICI SUPPORTING APPELLEE
Argued:
Decided:
May 7, 2020
Sept. 3, 2020
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Richard D. Bennett, District Judge.
(1:19-cv-01103-RDB)
4a
ON REHEARING EN BANC
Before: GREGORY, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, K ING, AGEE, K EENAN, WYNN, DIAZ,
FLOYD, THACKER, HARRIS, RICHARDSON, QUATTLEBAUM, and RUSHING, Circuit Judges.
THACKER, Circuit Judge:
In these consolidated appeals, we address the propriety of the district court’s preliminary and permanent injunctions. These injunctions halt implementation of a
Health and Human Services (“HHS”) rule that, inter
alia, prohibits physicians and other providers in Title X
programs from referring patients for an abortion, even
if that is the patient’s wish. Instead, it requires them
to refer the patient for prenatal care. See Compliance
With Statutory Program Integrity Requirements, 84
Fed. Reg. 7714-01 (March 4, 2019) (the “Final Rule”).
The Final Rule also requires entities receiving Title X
funds, but offering abortion-related services pursuant to
another source of funds, to physically separate their
abortion-related services from the Title X services.
The Mayor and City Council of Baltimore (“Baltimore” or “Appellee”) filed suit against Alex Azar II; Dr.
Diane Foley; HHS; and the Office of Population Affairs,
the office that administers Title X (collectively, “Appellants” or the “Government”), alleging, in pertinent part,
that the Final Rule violates the Administrative Procedure Act (“APA”) because it is arbitrary, capricious, and
not in accordance with law. The district court first issued a preliminary injunction, concluding that the Final
5a
Rule is likely not in accordance with law, and the Government appealed. While the appeal of the preliminary injunction was pending and after discovery, the
district court issued a permanent injunction on different
grounds—specifically, the promulgation of the Final Rule
was arbitrary and capricious—and the Government appealed from that judgment as well. We consolidated
the appeals, and a majority of the full court voted to hear
both cases en banc.
We affirm in part and dismiss in part. We uphold
the grant of the permanent injunction on two grounds.
First, the Final Rule was promulgated in an arbitrary
and capricious manner because it failed to recognize and
address the ethical concerns of literally every major
medical organization in the country, and it arbitrarily
estimated the cost of the physical separation of abortion
services. Second, the Final Rule contravenes statutory provisions requiring nondirective counseling in Title X programs and prohibiting interference with physician/patient communications. Because we affirm the
permanent injunction in Case No. 20-1215, the appeal of
the preliminary injunction in Case No. 19-1614 is moot,
and we, therefore, dismiss it.
I.
Congress enacted Title X in 1970 “[t]o promote public
health and welfare by expanding, improving, and better
coordinating the family planning services and population research activities of the Federal Government[.]”
Pub. L. No. 91-572, 84 Stat. 1504 (Dec. 24, 1970). Under Title X, the Secretary of HHS (“Secretary”) is
authorized to make grants to and enter into contracts
with public or nonprofit private entities to assist in
6a
the establishment and operation of voluntary family
planning projects which shall offer a broad range of
acceptable and effective family planning methods and
services (including natural family planning methods,
infertility services, and services for adolescents).
42 U.S.C. § 300(a). “Grants and contracts made under
this subchapter shall be made in accordance with such
regulations as the Secretary may promulgate,” id.
§ 300a-4(a), and HHS has never allowed grantees to use
Title X funds to “provide” abortions as a method of family planning, e.g., 42 C.F.R. § 59.5(a)(5) (2000); see id.
§ 59.9 (2000). 1
The parties disagree about the propriety of HHS’s
interpretation of the following provision in Title X:
“None 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 (emphasis supplied) (also referred to as “Section 1008” of the Public
Health Service Act). HHS’s interpretation of this provision has morphed over the last 50 years.
Reading Judge Wilkinson’s dissenting opinion, one would think
this court invalidated a congressional prohibition on federal funding
of abortion. Not so. The Final Rule itself is a change from previous policy. And nothing in this opinion requires—or even allows—
federal funding of abortions.
1
7a
A.
HHS’s Changing Interpretation of Section 1008
1.
1970-1988
For the first 18 years of the Title X program, HHS
interpreted Section 1008 “not only as prohibiting the
provision of abortion but also as prohibiting Title X projects from in any way promoting or encouraging abortion as a method of family planning.” Statutory Prohibition on Use of Appropriated Funds in Programs
Where Abortion is a Method of Family Planning;
Standard of Compliance for Family Planning Servs.
Projects, 53 Fed. Reg. 2922-01, 2923 (Feb. 2, 1988) (explaining history of Section 1008 interpretation); see also
36 Fed. Reg. 18465, 18466 (Sept. 15, 1971); 42 C.F.R.
§ 59.5(9) (1972). Further, HHS “interpreted [S]ection
1008 as requiring that the Title X program be ‘separate
and distinct’ from any abortion activities of a grantee.”
53 Fed. Reg. at 2923. In its advisory opinions, the Office
of General Counsel of HHS “generally took the view that
activity which did not have the immediate effect of promoting abortion or which did not have the principal purpose or effect of promoting abortion was permitted.” Id.
Then, in 1981, HHS “went a step further” and
required Title X projects to engage in abortionrelated activities under certain circumstances. These
guidelines for the first time required nondirective “options counseling” on pregnancy termination (abortion),
prenatal care, and adoption and foster care when a
woman with an unintended pregnancy requests information on her options, followed by referral for these
8a
services if she so requests. These guidelines were
premised on a view that “non-directive” counseling
and referral for abortion were not inconsistent with
the statute and were justified as a matter of policy in
that such activities did not have the effect of promoting or encouraging abortion.
53 Fed. Reg. at 2923.
until 1988.
This approach was maintained
2.
1988-1991
In 1988, the Secretary issued new regulations, which
prohibited Title X projects from promoting, encouraging, advocating, or providing counseling on, or referrals
for, abortion as a method of family planning. See Statutory Prohibition on Use of Appropriated Funds in
Programs Where Abortion is a Method of Family Planning; Standard of Compliance for Family Planning
Servs. Projects, 53 Fed. Reg. 2922 (Feb. 2, 1988) (hereinafter, the “1988 Rule”). The 1988 Rule provided:
•
“[A] Title X project may not provide counseling
concerning the use of abortion as a method of
family planning or provide referral for abortion
as a method of family planning.”;
•
“Because Title X funds are intended only for
family planning, once a client served by a Title X
project is diagnosed as pregnant, she must be referred for appropriate prenatal and/or social
services by furnishing a list of available providers that promote the welfare of mother and unborn child.”;
9a
•
“A Title X project may not use prenatal, social
service or emergency medical or other referrals
as an indirect means of encouraging or promoting abortion as a method of family planning, such
as by weighing the list of referrals in favor of
health care providers which perform abortions,
by including on the list of referral providers
health care providers whose principal business
is the provision of abortions, by excluding available providers who do not provide abortions, or
by ‘steering’ clients to providers who offer abortion as a method of family planning.”;
•
“Nothing in this subpart shall be construed as
prohibiting the provision of information to a project client which is medically necessary to assess
the risks and benefits of different methods of contraception in the course of selecting a method;
provided, that the provision of this information
does not include counseling with respect to or
otherwise promote abortion as a method of family planning.”
Id. at 2945. The aspect of the 1988 Rule that prohibited
counseling on and referrals for abortion came to be referred to as the “Gag Rule.” See Nat’l Family Planning & Reprod. Health Ass’n, Inc. v. Sullivan, 979 F.2d
227, 229 (D.C. Cir. 1992) (explaining that the 1988 Rule
“established a much broader prohibition on abortion
counseling or referrals including a ‘gag rule’ applicable
to all Title X project personnel against informing or discussing with clients the availability of abortion as an option for individual planning or treatment needs”).
10a
In 1991, the Supreme Court upheld the 1988 Rule in
the face of administrative and constitutional challenges.
See Rust v. Sullivan, 500 U.S. 173 (1991).
First, the Rust plaintiffs challenged the 1988 Rule as
exceeding the Secretary’s authority, and as arbitrary
and capricious. See Rust, 500 U.S. at 183. The Court
applied the familiar two-step test pursuant to Chevron
U.S.A., Inc. v. Natural Resources Defense Council, 467
U.S. 837 (1984), which asks (1) if the statute is silent or
ambiguous with respect to the issue; and (2) if so, whether
the agency’s interpretation is “based on a permissible
construction of the statute.” Rust, 500 U.S. at 184 (quoting Chevron, 467 U.S. at 842-43). The Court determined that at Chevron step one, Section 1008’s language
—“[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a
method of family planning”—was ambiguous. Id. At
step two, the Court—citing the “substantial deference”
accorded to the agency authorized with administering
the statute—decided that HHS interpreted Section 1008
in a “permissible” way. Id. at 184-85. The Court explained,
Title X does not define the term “method of family
planning,” nor does it enumerate what types of medical and counseling services are entitled to Title X
funding. Based on the broad directives provided by
Congress in Title X in general and § 1008 in particular, we are unable to say that the Secretary’s construction of the prohibition in § 1008 to require a ban
on counseling, referral, and advocacy within the Title
X project is impermissible.
11a
Id. at 185. The Court explained that HHS sufficiently
justified a “revised approach” to Section 1008 by explaining that the 1988 Rule was “more in keeping with
the original intent of the statute”; “justified by client experience under the prior policy”; and “supported by a
shift in attitude against” abortion. Id. at 187.
Second, the Rust plaintiffs brought constitutional attacks, claiming that the 1988 Rule violated the First
Amendment “by impermissibly discriminating based on
viewpoint” because the Rule “prohibit[s] all discussion
about abortion as a lawful option . . . while compelling the clinic or counselor to provide information that
promotes continuing a pregnancy to term.” Rust, 500
U.S. at 192 (internal quotation marks omitted). They
also asserted that the 1988 Rule violated a woman’s
Fifth Amendment right “to choose whether to terminate
her pregnancy.” Id. at 201. The Court rejected both
claims. On the First Amendment claim, the Court reasoned, “Nothing in [the 1988 Rule] requires a doctor to
represent as his own any opinion that he does not in fact
hold.” Id. at 200. On the Fifth Amendment claim, the
Court “reaffirmed the long-recognized principle,” that
the Due Process Clause does not “generally confer
. . . [an] affirmative right to governmental aid, even
where such aid may be necessary to secure life, liberty,
or property interests of which the government itself
may not deprive the individual.” Id. at 201 (internal
quotation marks omitted).
3.
1991-2010
In the wake of Rust, President George H.W. Bush,
addressing “widespread concern” that the 1988 Rule
12a
would interfere with the physician-patient relationship,
issued a memo to the Secretary on November 5, 1991,
“urging that the confidentiality of the doctor-patient relationship be preserved and that operation of the Title X
program be compatible with free speech and the highest
standards of medical care.” Nat’l Family Planning,
979 F.2d at 230 (internal quotation marks omitted).
President Bush then issued four “directives” to which
HHS was to adhere in implementing the 1988 Rule, including that referrals “may be made by Title X programs to full-service health care providers that perform
abortions,” but not if that is the provider’s “principal activity.” Id.
Before the 1988 Rule could be fully implemented,
Congress passed a bill that would have prohibited the
Secretary from awarding Title X funds to an applicant
unless the applicant agreed to provide “nondirective
counseling and referrals” concerning specific options
upon request, including “termination of pregnancy.”
Family Planning Amendments Act of 1992, S. 323, 102d
Cong. § 2 (1991). However, President Bush vetoed the
legislation on September 25, 1992. See Actions Overview, S.323—102nd Congress (1991-1992), https://www.
congress.gov/bill/102nd-congress/senate-bill/323/actions
(saved as ECF opinion attachment). He explained that,
although he had “reiterated [his] commitment to preserving the confidentiality of the doctor/patient relationship,” he had “repeatedly informed Congress that
[he] would disapprove any legislation that would transform this program into a vehicle for the promotion
of abortion.”
Veto—S. 323: Message from the President of the United States at 1, available at https://www.
senate.gov/reference/Legislation/Vetoes/Messages/
13a
BushGHW/S323-Sdoc-102-28.pdf (Sept. 26, 1992) (saved
as ECF opinion attachment).
In 1993, HHS suspended the 1988 Rule, and the 1981
Guidelines went back into effect on an interim basis.
See 58 Fed. Reg. 7462 (Feb. 5, 1993). President William J. Clinton explained in a Memorandum to the Secretary, “The Gag Rule endangers women’s lives and
health by preventing them from receiving complete and
accurate medical information and interferes with the
doctor-patient relationship by prohibiting information
that medical professionals are otherwise ethically and
legally required to provide to their patients.” Mem.,
The Title X “Gag Rule,” 58 Fed. Reg. 7455 (Jan. 22,
1992). Then in 1996, Congress added a rider to its annual HHS appropriations act that stated: “[A]mounts
provided to [Title X] projects . . . shall not be expended for abortions, [and] all pregnancy counseling
shall be nondirective.” Omnibus Consol. Rescissions
and Appropriations Act of 1996, Pub. L. No. 104-134,
110 Stat. 1321, 1321-221 (April 26, 1996) (emphases supplied) (the “Nondirective Mandate”).
The Nondirective Mandate has appeared in every annual HHS appropriations bill since 1996. See, e.g.,
Further Consol. Appropriations Act, 2020, Pub. L. No.
116-94, 133 Stat. 2534, 2558 (Dec. 20, 2019).
In 2000, HHS issued a new rule which, like the 1981
Guidelines, required Title X projects to offer and provide “information and counseling” regarding “pregnancy termination,” and “referral upon request,” if the
patient desires. Standards of Compliance for AbortionRelated Servs. in Family Planning Servs. Projects, 65
Fed. Reg. 41270, 41279 (July 3, 2000). Providers were
not to offer information or counseling “with respect to
14a
any option(s) about which the pregnant woman indicates
she does not wish to receive such information and counseling.” Id. The agency explained, “If [Title X] projects were to counsel on an option even where a client
indicated that she did not want to consider that option,
there would be a real question as to whether the counseling was truly nondirective or whether the client was
being steered to choose a particular option.” Id. at
41273.
2010
Congress enacted the Affordable Care Act (“ACA”)
in 2010. In Subchapter VI, the ACA provides:
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 (the “Noninterference Mandate”).
15a
2018-2020:
The Final Rule
On June 1, 2018, HHS issued a notice of proposed
rulemaking “to ensure compliance with, and enhance 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
and related statutory requirements.” Proposed Rules:
Compliance with Statutory Program Integrity Requirements, 83 Fed. Reg. 25502, 25502 (June 1, 2018).
The notice provided a deadline for comments of July 31,
2018—a little over eight weeks. Even within this short
time period, HHS received more than 500,000 comments.
On March 4, 2019, HHS issued the Final Rule. HHS
explained that it was amending the Title X regulations
“to clarify grantee responsibilities under Title X, to remove the requirement for nondirective abortion counseling and referral, to prohibit referral for abortion, and
to clarify compliance obligations with state and local
laws.” 84 Fed. Reg. at 7714. Parts of the Final Rule
essentially revive the Gag Rule provisions of the 1988
Rule:
•
“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.”
84 Fed. Reg. at 7788-89.
•
“[O]nce a client served by a Title X project is
medically verified as pregnant, she shall be referred to a health care provider for medically
necessary prenatal health care.” Id. at 7789.
16a
•
A Title X provider “may . . . choose to provide” “[a] list of licensed, qualified, comprehensive primary health care providers (including
providers of prenatal care),” but that list “may
be limited to those that do not provide abortion,
or may include licensed, qualified, comprehensive
primary health care providers (including providers of prenatal care), some, but not the majority,
of which also provide abortion as part of their
comprehensive health care services. Neither
the list nor project staff may identify which providers on the list perform abortion.” Id.
•
A Title X provider “may . . . choose to provide” “[n]ondirective pregnancy counseling, when
provided by physicians or advanced practice
providers [(APPs) 2 ]” but “is not required to.”
Id. at 7789, 7760. As part of nondirective counseling, “abortion must not be the only option presented by physicians or APPs.” Id. at 7747.
•
“Each option discussed in [pregnancy] counseling must be presented in a nondirective manner.
This involves presenting the options in a factual,
objective, and unbiased manner and (consistent
with other Title X requirements and restrictions)
offering factual resources that are objective, rather than presenting the options in a subjective
or coercive manner.” Physicians or APPs “should
discuss the possible risks and side effects to both
An APP is defined in the Final Rule as a “medical professional
who receives at least a graduate level degree in the relevant medical
field and maintains a license to diagnose, treat, and counsel patients.”
84 Fed. Reg. at 7787.
2
17a
mother and unborn child” of any option, including abortion. Id.
•
“Referrals for abortion as a method of family
planning may not be offered. If the patient is
provided a list or the contact information of licensed, qualified, comprehensive primary health
care service providers (including providers of
prenatal care), the list—and the Title X staff—
must not identify to the woman which, if any,
providers on the list offer abortion.” Id.
The Government posits that the discretion to provide
nondirective counseling actually makes it “less restrictive than the 1988 [Rule].” Appellants’ Br. 9. 3 In the
Final Rule, HHS likewise explained:
In response to commenters who contend the rule will
be challenged in court, [HHS] believes the Supreme
Court’s decision in Rust provides broad support for
the approach taken in this rule. Although the rule
differs in some respects from the 1988 [Rule] upheld
in Rust, some of those differences arise from the
[HHS]’s desire to implement statutory provisions
that did not exist at the time the 1988 [Rule was]
adopted. Other differences, such as the permission
for nondirective pregnancy counseling—which implements an appropriations rider that was adopted as
early as 1996 and has been regularly included in
HHS’s appropriations through fiscal year 2019—are
References to “Appellants’ Br.” and “Appellee’s Br.” refer to the
initial briefs filed in Case No. 19-1614. References to “Appellants’
Supp. Br.” and “Appellee’s Supp. Br.” refer to the briefs filed in
furtherance of the consolidated en banc proceedings in Case Nos.
19-1614 and 20-1215.
3
18a
more permissive than the 1988 [Rule] and less susceptible to the type of challenges that plaintiffs brought
(unsuccessfully) in Rust.
84 Fed. Reg. at 7725 (footnote omitted). Putting all of
this together, under the Final Rule, Title X physicians
and APPs can technically counsel on abortion, but abortion cannot be “the only option presented,” even if the
patient does not want to receive counseling about other
options; the patient’s options must be presented in a
“factual, objective, and unbiased manner”; and for any
option presented, the provider must discuss the “risks
and side effects to both mother and unborn child.” Id.
at 7747. And physicians and APPs may not refer the
patient for an abortion, even if that is her desire during
the course of nondirective counseling.
B.
On April 12, 2019, Baltimore filed a “Complaint for
Vacatur of Unlawful Agency Rule and Declaratory and
Injunctive Relief ” (the “Complaint”) against the Government. Baltimore then sought a preliminary injunction
on April 16, 2019. On May 30, 2019, the district court
granted the preliminary injunction. The Complaint
contained ten counts, and the district court based its
preliminary injunction on the likelihood of success on
the merits on the first two:
•
Count I—The Final Rule violates § 706 of the
APA 4 because it is contrary to the Noninterference Mandate;
Section 706 of the APA provides that a reviewing court shall “hold
unlawful and set aside agency action, findings, and conclusions found
4
19a
•
Count II—The Final Rule violates § 706 of the
APA because it is contrary to the Nondirective
Mandate;
•
Count III—The Final Rule exceeds HHS’s authority under the Title X statute;
•
Count IV—The Final Rule is contrary to the Religious Freedom Restoration Act of 1993;
•
Count V—The Final Rule is contrary to the First
Amendment;
•
Count VI—The Final Rule is contrary to the
Equal Protection Clause of the Fifth Amendment;
•
Count VII—The Final Rule is arbitrary and capricious because it is inadequately justified;
•
Count VIII—The Final Rule is arbitrary and capricious because it is objectively unreasonable;
•
Count IX—The Final Rule violates the APA because HHS did not observe procedure required
by law;
•
Count X—The Final Rule is unconstitutionally
vague.
On June 6, the Government filed a notice of interlocutory appeal and a motion to stay the injunction in the
district court, the latter of which was denied on June 19,
2019. A stay was granted by a divided panel of this
to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (emphasis
supplied).
20a
court on July 2, 2019. See Order, Mayor & City Council of Baltimore v. Azar, No. 19-1614 (4th Cir. filed July
2, 2019), ECF No. 23. A panel of this court heard argument in September 2019. 5
While the appeal of the preliminary injunction as to
Counts I and II was pending, the district court continued with proceedings on Counts III, V, VI, VII, VIII,
and IX. On February 14, 2020, the district court
granted summary judgment to the Government as to
Counts III, V, VI, and IX, and it granted summary judgment to Baltimore on Counts VII and VIII. The district court then issued a permanent injunction for the
entire state of Maryland, enjoining the Government
from implementing or enforcing the Final Rule. The
Government filed a notice of appeal and a motion for
stay of the permanent injunction in the district court.
The district court denied the motion to stay on March 4,
2020. In this court, the Government filed a motion to
consolidate and a motion for stay of the permanent injunction. Baltimore filed a motion for initial en banc
consideration of the permanent injunction appeal. On
March 30, 2020, we granted the Government’s motion to
consolidate and Baltimore’s motion for initial en banc review, and we denied the Government’s motion for stay.
Meanwhile, on February 24, 2020, the same day the
Government filed its notice of appeal, Baltimore filed a
motion to clarify the judgment, asking the district court
to “clarify that the [Final] Rule is VACATED by entering a minute order on the docket so specifying.” Mot.
to Clarify at 1, Mayor & City Council of Baltimore v.
Meanwhile, on September 12, 2019, the district court dismissed
without prejudice Counts IV and X.
5
21a
Azar, No. 1:19-cv-1103 (filed Feb. 24, 2020), ECF No. 96.
Two days later, the district court issued an order explaining the “Final Rule is VACATED AND SET
ASIDE in the State of Maryland.” Mem. Order at 1,
Azar, No. 1:19-cv-1103 (filed Feb. 26, 2020), ECF No. 99.
Then, on March 13, 2020, Baltimore filed a motion to
alter or amend the judgment pursuant to Federal Rule
of Civil Procedure 59(e), claiming, “the remedy awarded
by the [district court] is incorrect in one respect,” that
is, the district court “purported to vacate and set aside
the challenged agency action only within the State of Maryland. The [APA] requires, however, that agency action found to be unlawful at the final judgment stage of
a case be vacated and set aside on a nationwide basis.”
Mot. to Alter or Amend at 1, Azar, No. 1:19-cv-1103
(filed March 13, 2020), ECF No. 103 (emphasis supplied). On April 15, 2020, the district court denied the
Rule 59(e) motion, explaining that Baltimore was seeking a “nationwide injunction” of the Final Rule, instead
of “the state-wide injunction [the district court] had ordered.” Mem. Op. at 5, Azar, No. 1:19-cv-1103 (filed
April 15, 2020), ECF No. 115. Further, the district
court reasoned, “[T]he APA does not require a reviewing court vacating a rule to do so on a nationwide basis.
There is no authority in either Fourth Circuit or Supreme Court jurisprudence that mandates such a finding.” Id. at 7. Baltimore did not file a notice of appeal
of this April 15 order, and the time to do so has expired.
Therefore, as explained below, we do not consider it.
II.
A party seeking a permanent injunction must demonstrate “actual success” on the merits, rather than a mere
“likelihood of success” required to obtain a preliminary
22a
injunction. Amoco Prod. Co. v. Vill. of Gambell, 480
U.S. 531, 546 n.12 (1987). The party must demonstrate
(1) “it has suffered an irreparable injury”; (2) “remedies
available at law, such as monetary damages, are inadequate to compensate for that injury”; (3) “considering
the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted”; and (4) “the
public interest would not be disserved by a permanent
injunction.” eBay Inc. v. MercExchange, L.L.C., 547
U.S. 388, 391 (2006). “The decision to grant or deny
permanent injunctive relief is an act of equitable discretion by the district court, reviewable on appeal for abuse
of discretion.” Id. We review the district court’s legal conclusions de novo, and any factual findings for
clear error. See Legend Night Club v. Miller, 637 F.3d
291, 297 (4th Cir. 2011). In this case, even though “the
district court did not discuss the test for granting a permanent injunction, we discern no abuse of discretion in
the court’s decision to issue the injunction.” Id. at 302. 6
We primarily discuss herein the district court’s conclusions that
the Final Rule is arbitrary, capricious, and not in accordance with
law and therefore, it violates the APA. In other words, Baltimore
has demonstrated “actual success” on the merits. As for the remaining permanent injunction factors, the district court decided to issue
an injunction, rather than monetary damages, so that Baltimore
would “avoid irreparable harm.” S.J.A. 1317. And Baltimore has
clearly shown irreparable harm, hardship, and that the public interest favors an injunction in this case. The record is replete with support. For example, Dr. Cynthia Mobley, board-certified pediatrician and a medical director at the Baltimore City Health Department, attested that in 2017, Title X clinics in Baltimore served over
16,000 patients in more than 22,000 clinical visits. See S.J.A. 953.
Title X services include contraceptive services; breast and cervical
cancer screenings; testing, referral, and prevention education for
sexually transmitted infections and HIV; and pregnancy diagnosis
6
23a
III.
The APA requires courts to “hold unlawful and set
aside agency action, findings, and conclusions found to
be . . . arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). In reviewing a rule, courts “must engage
in a searching and careful inquiry of the administrative
record, so that we may consider whether the agency considered the relevant factors and whether a clear error of
judgment was made.” Casa de Maryland v. Dep’t of
Homeland Sec., 924 F.3d 684, 703 (4th Cir. 2019) (alterations and internal quotation marks omitted). We ask
whether the agency:
[r]elied on factors which Congress has not intended
it to consider, entirely failed to consider an important
aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency
expertise.
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins.
Co., 463 U.S. 29, 43 (1983). An agency “must examine
and counseling. See id. at 954. According to Dr. Mobley, one in
three women in Baltimore City need publicly-funded health care in
order to access contraception. In addition, “[l]ow-income women
often rely on Title X providers as their sole health care provider.”
Id. But the Final Rule “force[s] the City of Baltimore to provide
substandard care to the patients in [the] community,” and “subject[s] the City to potential liability for any complications from this
substandard care.” Id. at 964.
Citations to the “J.A.” refer to the Joint Appendix, and citations
to the “S.J.A.” refer to the Supplemental Joint Appendix, filed by
the parties in these consolidated appeals.
24a
the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ ” Id. (quoting Burlington Truck Lines, Inc. v. United States, 371
U.S. 156, 168 (1962)).
In these appeals, 7 Baltimore contends the Final Rule
is arbitrary and capricious, and also not in accordance
with law. We agree on all counts, and even though the
district court’s permanent injunction relied only on the
arbitrariness and capriciousness of the Final Rule, we
see fit to rest our decision affirming the permanent injunction on all of these grounds. See Strawser v. Atkins, 290 F.3d 720, 728 n.4 (4th Cir. 2002) (“[W]e may
affirm on any ground revealed in the record.”). The
We note that this decision only concerns appeals of the preliminary and permanent injunctions issued by the district court, which we
possess jurisdiction to entertain pursuant to 28 U.S.C. § 1292(a)(1).
We do not speak to the validity of the district court’s grant of summary judgment on Counts VII and VIII because the district court
has yet to resolve Counts I and II on the merits, and it dismissed
Counts IV and X without prejudice; thus, there is no final appealable
order over which we may exercise our appellate jurisdiction on that
issue. See 28 U.S.C. § 1291; Domino Sugar Corp. v. Sugar Workers
Local Union 392, 10 F.3d 1064, 1067 (4th Cir. 1993). However, “an
appeal from an order granting or refusing an injunction brings before the appellate court the entire order, not merely the propriety of
injunctive relief, and [we] may consider and decide the merits of the
case,” Allstate Ins. Co. v. McNeill, 382 F.2d 84, 88 (4th Cir. 1967),
“to the extent they relate to the propriety of granting the injunctive
relief,” 11A Wright & Miller, Fed. Prac. & Proc. Civ. § 2962 (3d ed.);
see also Pashby v. Delia, 709 F.3d 307, 318 (4th Cir. 2013). Thus,
we address the merits arguments made in furtherance of summary
judgment, but only as they bear on the propriety of the permanent
injunction.
7
25a
Government itself recognized the legal issues underlying the preliminary injunction “present potential alternative grounds to affirm the permanent injunction.”
Appellants’ Supp. Br. 15.
A.
The Final Rule was Promulgated in an Arbitrary
and Capricious Manner
In issuing the permanent injunction on Counts VII
and VIII, the district court concluded that the Final
Rule was arbitrary and capricious for three reasons:
HHS (1) inadequately explained its decision “to disagree
with comments by every major medical organization regarding the Final Rule’s contravention of medical ethics”; (2) inadequately considered the “reliance interests
that would be disrupted by its change in policy”; and (3)
inadequately considered the “likely costs and benefits of
the physical separation requirement.” S.J.A. 1309 (internal quotation marks omitted). We affirm on the
first and third grounds.
1.
Medical Ethics
First, the district court, after a “searching and careful inquiry of the record,” found that “literally all of the
nation’s major medical organizations have grave medical ethics concerns with the Final Rule.” S.J.A. 1309
(internal quotation marks omitted). In the face of
“grave concerns” from the medical community, HHS
merely stated—with no support—that it “disagrees with
the commenters contending the [Final Rule] infringes
on the legal, ethical, or professional obligations of medical professionals.” Id. at 1311 (alteration and internal
26a
quotation marks omitted). Further, HHS stated it
“believes” the Final Rule accommodates medical ethical
obligations, and “believes” the rule is “not inconsistent”
with medical ethics. Id. (internal quotation marks omitted).
These reasons fall flat. An agency, although entitled to deference, cannot simply state it “believes” something to be true—against the weight of all the evidence
before it—without further support. Indeed, it is the
“agency’s responsibility” to offer an explanation why it
made a certain decision, when “every indication in the
record points the other way.” State Farm, 463 U.S. at
56-57 (internal quotation marks omitted). The arbitrary and capricious standard of review is not a carte
blanche for agencies to issue a rule, and then defend it
only by saying, “because we said so.” As explained below, HHS lacks a satisfactory explanation for disagreeing with every major medical association, and thus, it
has not “articulate[d] a satisfactory explanation for its
action.” Id. at 43.
a.
No Satisfactory Reasoning
Several medical organizations submitted comments
to HHS about the Final Rule, and all of them stated that
the Final Rule would violate the established principles
of medical ethics. For example, the American College
of Obstetricians and Gynecologists (“ACOG”)—which
comprises 90% of the nation’s obstetricians-gynecologists
—cautioned that the Final Rule “would put the patientphysician relationship in jeopardy by placing restrictions on the ability of physicians to make available important medical information, permitting physicians to
27a
withhold information from pregnant women about the
full range of their options, and erecting greater barriers
to care, especially for minority populations.” S.J.A.
171. It further explained that because Title X projects
“do not have to provide any referrals to abortion providers, even if directly requested by the patient,” the Final
Rule “represent[s] an improper intrusion into the
patient-physician relationship.” Id. at 173.
The American Medical Association (“AMA”), citing
to its Code of Medical Ethics, explained that the prohibition on abortion referrals and restrictions on counseling “would not only undermine the patient-physician relationship, but also could force physicians to violate their
ethical obligations . . . to counsel patients about all
of their options in the event of a pregnancy and to provide any and all appropriate referrals.” S.J.A. 189.
The American Academy of Family Physicians, the
American Academy of Nursing, the American Academy
of Pediatrics, and the American College of Physicians
raised similar concerns. See id. at 32-35; 48-53; 192202; 247-55. Planned Parenthood Federation of America and four states (Washington, New York, Hawaii, and
Oregon) all notified HHS that they would have to exit
the Title X program because the restrictions are “fundamentally at odds with the professional and ethical obligations of health care professionals.” Id. at 371. The
American Academy of Nursing likewise stated the Final
Rule “prioritize[s] ideology over evidence-based professional recommendations,” and urged HHS “to remain
religiously and morally neutral in its funding, policies,
and activities to ensure . . . the ethical obligations
of healthcare providers are not compromised.” Id. at
53. Indeed, the Government itself now concedes that
28a
no “professional organization of any kind” takes the position that the Final Rule’s restrictions on referrals are
in line with medical ethics. Id. at 1263-64 (summary
judgment hearing on January 27, 2020).
In response to these comments, HHS merely stated
that it “disagrees” that the Rule “infringes on the legal,
ethical, or professional obligations of medical professionals” and it “believes” the Rule is “not inconsistent” with
medical ethics. 84 Fed. Reg. at 7724. Notwithstanding, HHS clearly recognizes that “medical ethics obligations require the medical professional to share full and
accurate information with the patient, in response to her
specific medical condition and circumstance.” Id. (emphasis supplied). But, it fails to address head-on the
arguments of all of these medical organizations that the
Rule prohibits physicians from sharing full and accurate
information. F.C.C. v. Fox Television Stations, Inc.,
556 U.S. 502, 537 (2009) (“An agency cannot simply disregard . . . inconvenient facts[.]”). 8
The primary dissent accuses the majority of “disregard[ing] inconvenient agency analysis.” Richardson Dissenting Op. at 113.
But just because an agency puts words to a page does not mean it
has provided a “sufficiently reasoned basis.” Id. Here, the agency fails to respond to (or in some cases, even acknowledge) the medical community’s concerns. Rather, HHS simply repeats how its
Final Rule permits nondirective pregnancy counseling—it does not
explain how nondirective pregnancy counseling allows physicians
to share full and accurate information, such as, for example, a complete list of outside physicians who may perform abortions. And
the agency does not respond at all to the myriad other ethical concerns of the medical community, i.e., erecting barriers to care, especially to minorities, and the inability of physicians to refer a patient
for an abortion even when she asks for one. In our view, this “analysis” is nothing but a long-winded “because we said so.”
8
29a
HHS unsuccessfully attempts to rely on Rust v. Sullivan as its silver bullet. It explains,
In Rust, the Supreme Court upheld the prohibition in
the 1988 regulations on both referral for, and counseling about, abortion in the Title X program. The
Department does not believe the Court in Rust upheld a rule that required the violation of medical ethics, regulations concerning the practice of medicine,
or malpractice liability standards.
84 Fed. Reg. at 7748. It also argues that Roe v. Wade
“favorably quoted the proceedings of the American
Medical Association House of Delegates 220 (June
1970), which declared ‘Neither physician, hospital, nor
hospital personnel shall be required to perform any act
Id.
violative of personally-held moral principles.’ ”
(quoting Roe v. Wade, 410 U.S. 113, 144 n.38 (1973)).
But Rust never discussed medical ethics, nor did it
make any suggestion or presumption as to whether the
1988 Rule was supported by the views of the medical
community at that time. The Supreme Court held only
that the 1988 Rule did not so “significantly impinge upon
the doctor-patient relationship” that it rose to the level
of a First Amendment violation. Rust, 500 U.S. at 200.
Thus, Rust did not purport to speak to medical ethics
requirements.
In briefing, the Government contends that HHS “did
not need to identify a professional medical organization
that espoused the same view.” Appellants’ Supp. Br.
13. It also notes that “[t]he majority of incumbent pro-
30a
viders have remained in the program without any apparent ethical sanction.” Id. at 30. Even if the Government is correct, 9 that is not the end of the story.
First, even if HHS did not need to identify a particular medical organization that supported its view, it nonetheless cannot easily brush off the swell of evidence in
the record before the agency that the medical community finds this Rule to be repugnant to the ethical rules
governing the profession. Thus, by announcing that
HHS merely “disagrees” with every major medical organization in the country, without more, the agency
failed to “examine the relevant data and articulate a satisfactory explanation for its action” and “offer[] an explanation for its decision that runs counter to the evidence before the agency.” State Farm, 463 U.S. at 43;
see also Sierra Club, Inc. v. United States Forest Serv.,
Of note, as of late February 2020, roughly one in every four Title X service sites had withdrawn from the Title X program in response to the Final Rule, which slashed the national patient capacity in half, “jeopardizing care for 1.6 million female patients nationwide.” Ruth Dawson, Domestic Gag Rule Has Slashed the Title X
Network’s Capacity by Half, Guttmacher Institute (Feb. 26, 2020),
http://bit.ly/3csjZle (saved as ECF opinion attachment). Planned
Parenthood, which alone served roughly 40 percent of Title X patients, has also withdrawn on the basis that “withhold[ing] important information from patients” is “unethical and dangerous.” Sarah McCammon, Planned Parenthood Officials Say They’ve Halted
Use Of Title X Family Planning Funds (July 17, 2019), https://
www.npr.org/2019/07/17/742841170/planned-parenthood-officialssay-theyvehalted-use-of-title-x-family-planning-fu (saved as ECF
opinion attachment). More than 20 states and the District of Columbia sued HHS to enjoin the Final Rule before it took effect.
See California by & through Becerra v. Azar, 950 F.3d 1067, 1082
(9th Cir. 2020) (en banc), 950 F.3d 1067 (9th Cir. 2020).
9
31a
897 F.3d 582, 594 (4th Cir. 2018); Ohio River Valley Envtl. Coal., Inc. v. Kempthorne, 473 F.3d 94, 103 (4th Cir.
2006) (The APA “require[s] more of the agency” than a
“rubber-stamp.”).
Second, the fact that some providers have remained
in the Title X program says nothing about the reasonableness of the Final Rule at the time it was issued. See,
e.g., Secs. & Exch. Comm’n v. Chenery, 318 U.S. 80, 87
(1943) (explaining courts can uphold an agency decision
only on the basis “upon which the record discloses that
its action was based”); accord State Farm, 463 U.S. at
50 (“[C]ourts may not accept appellate counsel’s post
hoc rationalizations for agency action.”).
b.
Conscience Statutes
The Government also contends that HHS “observed
that the various conscience statutes reveal there is no
absolute ethical imperative upon physicians to counsel
or refer for abortion.” Appellants’ Supp. Br. 30 (internal quotation marks omitted).
The Final Rule likewise explains, “Federal and State conscience laws, in
place since the early 1970s, have protected the ability of
health care personnel to not assist or refer for abortions
in the context of HHS funded or administered programs
(or, under State law, more generally).” 84 Fed. Reg. at
7748. HHS believes the Final Rule’s restrictions are
necessary “to ensure compliance with [the] federal conscience laws,” such as the Church Amendments, 10
The Church Amendments, first enacted in the 1970s, are statutes that, inter alia, prohibit requiring an entity to make its facilities
available for abortion if abortion “is prohibited by the entity on the
basis of religious beliefs or moral convictions,” 42 U.S.C. § 300a-7(b),
10
32a
Coats-Snowe Amendment, 11 and Weldon Amendment. 12
Id. at 7746.
To the extent HHS relies on the federal conscience
statutes (or state statutes, for that matter) 13 to support
the ethical nature of the Final Rule, this reliance is of no
moment. Conscience statutes are not relevant to the
question of whether the Final Rule’s restrictions are
ethical. Allowing a physician with a conscience objection to decline to refer a patient for abortion is quite different from prohibiting a physician from providing full
and accurate information about and referring for abortion, when that physician feels ethically bound to do so.
Indeed, as the ACOG Committee on Ethics states,
Conscientious refusals that conflict with patient wellbeing should be accommodated only if the primary
and prohibit federal grant recipients from discriminating against individuals who refused to assist with abortion because of their “religious beliefs or moral convictions,” id. § 300a-7(c).
11
The Coats-Snowe Amendment, enacted in 1996, prohibits the
Government from discriminating against a health care entity because it refuses to engage in certain abortion-related activities,
such as training. See 42 U.S.C. § 238n(a).
12
The Weldon Amendment, an appropriations rider first included
in health care bills in 2004, prohibits discrimination by recipients of
federal grants against health care entities that refuse to “provide,
pay for, provide coverage of, or provide referrals for abortions.”
Consolidated Appropriations Act, 2005, Pub. L. No. 108-447, 118
Stat. 2809, Sec. 211 (Dec. 8, 2004).
13
The district court reasoned, “In HHS’s explanation for its disagreement with the comments on medical ethics, it does not mention the conscience statutes.” J.A. 1312. But because the Final
Rule does rely on conscience statutes throughout the text, even if
perhaps not in the precise context of ethics, we will proceed to address the Government’s substantive arguments on this point.
33a
duty to the patient can be fulfilled. All health care
providers must provide accurate and unbiased information so that patients can make informed decisions.
Where conscience implores physicians to deviate
from standard practices, they . . . have the duty
to refer patients in a timely manner to other providers if they do not feel that they can in conscience provide the standard reproductive services that patients
request.
The Limits of Conscientious Refusal in Reproductive
Medicine, No. 385, at 1 (Nov. 2007), reaffirmed 2019,
http://bit.ly/2XRZZ4I (saved as ECF opinion attachment); see also S.J.A. 41 (Comment, Nat’l Ass’n of Catholic Nurses) (explaining that if a patient determines that
her chosen course is abortion, and a provider is unable
to offer an abortion referral for conscience reasons, the
provider should “offer[] a transfer of care to the client”).
The Final Rule fails to recognize or appreciate this distinction.
c.
The Ninth Circuit Decision is Unpersuasive
and Inapposite
The Government relies on the Ninth Circuit’s recent
en banc decision in California by & through Becerra v.
Azar, 950 F.3d 1067 (9th Cir. 2020) (en banc), which vacated preliminary injunctions of the Final Rule issued
by three district courts. The Ninth Circuit decided as
a matter of law that the Final Rule was “not arbitrary
and capricious,” California, 950 F.3d at 1104, but we
find this decision unpersuasive and inapposite.
First, the Ninth Circuit did not have the full administrative record before it, see California, 950 F.3d at
34a
1082-84 & n.11, and so could not “engage in a searching
and careful inquiry of the administrative record” that
is necessary before a court can adequately “consider
whether the agency considered the relevant factors and
whether a clear error of judgment was made.” Casa de
Maryland, 924 F.3d at 703 (alteration and internal quotation marks omitted); see California, 950 F.3d at 1112
(Paez, J., dissenting) (“We do not have the complete administrative record before us, and neither did the district courts when they issued the preliminary injunctions. Deciding the merits of Plaintiffs’ arbitrary and
capricious claim is therefore premature.”).
Second, the Ninth Circuit’s discussion of medical ethics nowhere mentions the precise issue raised here:
HHS’s failure to justify or explain its conclusion that the
Final Rule is consistent with medical ethics in the face
of overwhelming contrary evidence. See California,
950 F.3d at 1101-03 & n.34. Moreover, the Ninth Circuit failed to recognize that HHS did not cite any evidence supporting its conclusion regarding medical ethics, and HHS provided no reason for its decision to “disagree” with the AMA’s conclusion. 84 Fed. Reg. at
7724. 14
The Government also relies on a recent district court case, which
granted the Government’s motion to dismiss a complaint challenging
the Final Rule in Maine on, inter alia, arbitrary and capricious grounds.
See The Family Planning Ass’n of Me. v. U.S. Dep’t of Health and
Human Servs., --- F. Supp. 3d ---, 2020 WL 3064426 (D. Me. June 9,
2020). We likewise find this decision to be of no moment to the particular arbitrary and capricious arguments made here. First, the
Maine district court opined that the Supreme Court had “already
deemed [the Final Rule’s] rationale” to be “acceptable and reasonable” in Rust. Id. at *5. Not so. As explained above, Rust did not
14
35a
d.
Therefore, because HHS failed to satisfactorily explain its disagreement with the proliferation of negative
comments from the medical community, and failed to appreciate the distinction between conscience laws as a
shield for physicians—rather than a sword for the government to wield as it shoves its way inside the examination room with a woman and her physician—its decision that the Final Rule is “not inconsistent” with medical ethics is arbitrary and capricious.
2.
Physical Separation
The Final Rule also states that by March 4, 2020, Title X providers were to ensure “clear physical and financial separation between a Title X program and any activities that fall outside the program’s scope.” 84 Fed.
Reg. at 7715. In particular, the separation rule is
meant to “protect the statutory integrity of the Title X
program, to eliminate the risk of co-mingling or misuse
of Title X funds, and to prevent the dilution of Title X
decide the precise challenges presented here: that every major medical organization finds the Final Rule to violate medical ethics, and
the agency fails to explain its disagreement. Second, the Maine court
misstates the plaintiff ’s argument in saying HHS’s views of medical
ethics are not “arbitrary and capricious just because they are not
preferred by industry experts.” Id. at *6. Rather, the argument
made in that case and by Baltimore in this case is that HHS “inexplicably and unreasonably disregarded the views of every major professional medical organization.” Baltimore Letter at 1-2, Mayor &
City Council of Baltimore v. Azar, No. 20-1215 (4th Cir. filed June
15, 2020), ECF No. 83; accord Am. Compl. ¶ 94, The Family Planning Ass’n of Me. v. U.S. Dep’t of Health and Human Servs., No.
1:19-cv-100 (D. Me. filed Nov. 22, 2019), ECF No. 99.
36a
resources.” Id. Specifically as to the physical separation requirement, the Final Rule “preclude[s] shared
physical space and staff with respect to abortion.” Id.
at 7725.
The Final Rule estimates that a Title X provider
would face a cost of $30,000 “to come into compliance
with physical separation requirements in the first year
following publication of a [F]inal [R]ule in this rulemaking.” 84 Fed. Reg. at 7782. 15 However, the district court
found this to be arbitrary and capricious because “the
administrative record reflects comments estimating the
likely cost of the requirement far exceeds HHS’s estimate of $30,000.” S.J.A. 1316. Again, the district court
determined that HHS made a “conclusory response” to
these “evidence-backed concerns about the serious problems the physical separation requirement will cause,”
and as such, “ ‘fail[ed] to consider an important aspect of
the problem, offer[ed] an explanation for its decision
that runs counter to the evidence before the agency, or
is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’ ” Id.
(quoting State Farm, 463 U.S. at 43). The Government
challenges the district court’s conclusion that “HHS did
not adequately consider the likely costs of the physical
separation requirement.” Id.; see Appellants’ Supp.
Br. 40-43.
In the administrative record, there are multiple comments estimating the likely cost to comply with the
physical separation requirement to be much higher than
The first version of the Rule estimated the cost would be $20,000
per provider. See 84 Fed. Reg. at 7782.
15
37a
$30,000. For example, a comment by City Health Department Leaders from Baltimore, Kansas City, Boston,
San Antonio, Chicago, Los Angeles, and Cleveland estimated that the Final Rule would impose ongoing compliance costs, such as the “needless administrative cost
of maintaining separate accounts for [] funding streams”
and associated staffing needs. S.J.A. 112. Moreover,
the “burden imposed upon Title X providers will lead to
the shuttering of a number of invaluable clinics across
the nation.” Id. Planned Parenthood estimated average capital costs of nearly $625,000 per affected service
site. Id. at 387-88. The Family Planning Council of
Iowa explained, “it typically costs hundreds of thousands, or even millions, of dollars to locate and open any
health care facility (and would also cost much more than
$10-30,000 to establish even an extremely simple and
limited office), staff it, purchase workstations, set up
record-keeping systems, etc.” Id. at 242.
Yet, here again, HHS has no response. There is no
justification in the Final Rule for the $30,000 amount, as
evidenced by counsel’s vague answer at oral argument.
Oral Arg. at 2:45-3:15, Mayor & City Council of Baltimore, Nos. 20-1215 & 19-1614 (4th Cir. May 7, 2020)
(When asked, “What studies were done by HHS to arrive at the $30,000 estimate for the physical separation?” Government counsel replied, “The agency considered the costs associated with complying with the
physical separation requirement and arrived [at the
amount] using its expertise at a quantitative as well as
qualitative assessment of those costs.”). And the Rule
itself likewise refers to vague “updated quantitative estimates” made “in response to the[] comments,” but
does not explain what those estimates are or where they
38a
come from. 84 Fed. Reg. at 7781. For all we can tell,
this number was pulled from thin air.
We are not requiring a “false precision,” as the primary dissent suggests. Richardson Dissenting Op. at
121. Rather, we expect a figure that makes at least
some modicum of sense. In sum, HHS certainly did not
provide the “hard and reasoned look” for which the primary dissent gives it credit. Id. at 117. 16 HHS failed
to consider “an important aspect of the problem,” and
failed to “offer[] an explanation for its decision that runs
counter to the evidence before the agency.” State
Farm, 463 U.S. at 43.
The primary dissent takes the view that HHS did not have to
accept the “pessimistic” estimates from some commenters who believed they would have to build new facilities, as long as the agency
provided “a reason.” Richardson Dissenting Op. at 119. But surely
that cannot mean that any reason will suffice—for example, blindly
assuming those facilities “operate multiple physically separated facilities” and can simply “shift their abortion services.” Id. at 120.
Indeed, the dissent seems to suggest that Title X clinics and a provider who perform or refers for abortion could share a building, see
id. at 120 n.29, something that the Final Rule indicated is likely impermissible, see 84 Fed. Reg. at 7767 (“As long as the Title X clinic
and the hospital facilities where abortions are performed are not collocated or located adjacent to each other within a hospital building
or complex, it is highly likely that the hospital is not violating the
requirement that there be physical separation between the Title X
funded activities and activities related to abortion as a method of
family planning.” (emphasis supplied)). Moreover, the Final Rule
requires separation not only from clinics where abortions are performed, but also from clinics that engage in other “prohibited activities,” which under the Final Rule, include referring for abortion or
even telling a patient which providers on a list of providers offer
abortion. 84 Fed. Reg. 7763.
16
39a
The Government does not contend that the cost of
such drastic measures is not “an important aspect of
the problem.” Nor could it. Indeed, in some cases
the physical separation provision would require clinics
to hire new staff, engage in construction, and set up new
bookkeeping methods, all of which would easily cost
multiples of $30,000. See California, 950 F.3d at 1115
n.16 (Paez, J., dissenting) (“[E]ven just hiring a single
front desk staff member to staff a new entrance to a facility would exceed [$30,000], not to mention all the
other costs that would accompany[] creating and maintaining such a facility.” (emphasis in original)). These
facilities are entitled to more explanation than a passing
reference to unspecified assessments. “If judicial review is to be more than an empty ritual, it must demand
something better than the explanation offered for the
action taken in this case.” Dep’t of Commerce v. New
York, 139 S. Ct. 2551, 2576 (2019).
B.
The Final Rule is Not in Accordance with Law
We not only conclude that the Final Rule is arbitrary
and capricious, but we also hold that the Final Rule is
“not in accordance with law,” that is, the Nondirective
and Noninterference Mandates. 5 U.S.C. § 706(2)(A).
Rust establishes that the phrase “in programs where
abortion is a method of family planning” is ambiguous
under step one of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), because it “does not speak directly to the issues of counseling, referral, advocacy, or program integrity.”
Rust, 500 U.S. at 184. Thus, our discussion of the merits is cabined to an analysis of whether HHS’s interpretation of Section 1008 in the Final Rule is “permissible”
40a
or “reasonable” at Chevron step two. 467 U.S. at 84344. A regulation cannot survive at step two if it is in
excess of an agency’s authority or contrary to law pursuant to the APA. See Judulang v. Holder, 565 U.S.
42, 52 n.7 (2011) (noting the overlap in Chevron step two
and the APA standard).
1.
Nondirective Mandate
The Nondirective Mandate dictates that in order for
a family planning program to receive Title X funding,
“all pregnancy counseling shall be nondirective.” Further Consol. Appropriations Act, 2020, Pub. L. No. 11694, 133 Stat. 2534, 2558 (Dec. 20, 2019). HHS defines
“[n]ondirective pregnancy counseling” as “the meaningful presentation of options where the physician or [APP]
is not suggesting or advising one option over another.”
84 Fed. Reg. at 7716 (internal quotation marks omitted).
Baltimore argues that the Final Rule would force
Title X projects to steer women away from one option—
abortion—while at the same time directing them toward
another option—carrying the pregnancy to term—
regardless of the patient’s stated desires, which would run
contrary to the Nondirective Mandate. The district
court agreed:
Requiring providers to refer a patient to prenatal
health care even when the patient has expressly
stated that she does not want prenatal care is coercive, not “nondirective.” Requiring providers to provide a referral list that is limited to those that do not
provide abortion, even if the client specifically requests
an abortion referral, is coercive, not “nondirective.”
Requiring providers to exclude abortion as one of
41a
multiple options available to a client facing an unwanted pregnancy, especially if she has asked about
that option, is coercive, not “nondirective.”
J.A. 266. We agree with the district court and the dissenting judges in the Ninth Circuit, who reasoned, “The
[Final] Rule is nothing but directive. By its very
terms, it requires a doctor to refer a pregnant patient
for prenatal care, even if she does not want to continue
the pregnancy, while gagging her doctor from referring
her for abortion, even if she has requested specifically
such a referral.” California, 950 F.3d at 1107 (Paez, J.,
dissenting).
The Government does not dispute that HHS has an
obligation to comply with the Nondirective Mandate, but
it raises a scattershot argument in an attempt to demonstrate that the mandate is inapplicable here. None of
the arguments lobbed by the Government are convincing.
a.
Counseling Versus Referrals
The Government first contends—and the primary
dissent agrees—that although the Final Rule prohibits
referrals to abortion providers, the Nondirective Mandate uses the word “counseling,” and, the Government
asserts, “counseling” is distinct from “referrals.” Appellants’ Br. 24. In other words, the Government argues, referrals are categorically excluded from the Nondirective Mandate.
First and foremost, nowhere in the Final Rule does
HHS state that counseling and referrals are two separate Title X services, such that the Mandate applies only
42a
to the former. To the contrary, in the Rule itself, counseling and referrals are discussed as part of the same
course of service, with the “nondirective” term applying
to both. See, e.g., 84 Fed. Reg. at 7747 (“Nondirective
counseling and referrals for postconception services
. . . are the appropriate approach in the context of
pregnancy, so long as they do not include referral for
abortion as a method of family planning.” (emphasis
supplied)); id. (“Title X projects should not use nondirective pregnancy counseling, or referrals made for
prenatal care or adoption during such counseling, as an
indirect means of encouraging or promoting abortion as
a method of family planning.” (emphasis supplied)); id.
(“[Providers] should not use [nondirective pregnancy]
counseling or referrals to steer clients to abortion.
. . . ” (emphasis supplied)); id. at 7733 (“Congress
has expressed its intent that postconception adoption information and referrals be included as part of any nondirective counseling in Title X projects. . . . ” (emphasis supplied)).
Thus, the idea that referrals are not subject to the
Nondirective Mandate is nothing but a convenient litigation position which does not support the validity of the
Final Rule. See Roe v. Dep’t of Def., 947 F.3d 207, 220
(4th Cir. 2020) (“We consider the record made before the
agency at the time the agency acted, so post-hoc rationalizations have traditionally been found to be an inadequate basis for review.” (alteration and internal quotation marks omitted)).
The Government’s argument and the primary dissent’s view are also contrary to Congress’s view that
nondirective counseling actually includes “referrals.”
See, e.g., 42 U.S.C. § 254c-6(a)(1) (“The Secretary shall
43a
make grants to . . . adoption organizations for the
purpose of . . . providing adoption information and
referrals to pregnant women on an equal basis with all
other courses of action included in nondirective counseling to pregnant women.”). 17 It is difficult to fathom
how, if Congress has clearly stated “adoption . . .
referrals” are considered to be “part of any nondirective
[pregnancy] counseling” on adoption, HHS nonetheless
believes abortion referrals are not part of nondirective
pregnancy counseling on abortion. The only explanation for this inconsistency is that the agency implicitly
defines nondirective as “anything but abortion”—rather
than the definition the agency purports to give, “not suggesting or advising one option over another,” 84 Fed.
Reg. at 7716. In other words, the Final Rule views certain types of referrals as nondirective and other types of
referrals as directive. 18 The practical result of this ap-
We disagree with the primary dissent’s invocation of the nearest
reasonable referent canon on this point. See Richardson Dissenting Op. at 94-95. First, the dissent relies on the faulty premise that
“referral” is not a “course[] of action,” a claim made with scattershot
references to a 1985 congressional report and a 2012 ACOG opinion
on adoption. See id. at 94 n.17. In any event, we need not resort
to such linguistic contortions. The Final Rule itself explains how
HHS views the phrase “courses of action included in nondirective
counseling.” See 84 Fed. Reg. at 7733 (in interpreting this very
phrase, explaining, “Congress has expressed its intent that postconception adoption information and referrals be included as part of any
nondirective counseling in Title X projects. . . . ” (emphasis
supplied)).
18
The analogies in the primary dissent miss the point in two ways.
First, as noted, Congress and HHS have indicated that referrals are
included in nondirective counseling, so rather than hot dogs and
hamburgers, we should use ground beef and hamburgers; and rather
17
44a
proach is anything but “factual, objective, and unbiased.” Id. at 7747. This trickery becomes crystal
clear when the Final Rule attempts to eschew the Nondirective Mandate under the guise of protecting a
woman in the face of a medical “diagnosis.” See id. at
7748 (“Where care is medically necessary, as prenatal
care is for pregnancy, referral for that care [as opposed
to abortion] is not directive because the need for care
preexists the direction of the counselor, and is, instead,
the result of a woman’s pregnancy diagnosis.”).
Finally, we employ the rule of common sense. In reality, a physician cannot make a referral without first
speaking with and counseling a patient. In their amicus brief to this court, ACOG, which as noted above represents more than 90% of all obstetrician-gynecologists in
the United States, and other reputable and nonpartisan
medical organizations 19 echo the commonsense notion
that,
As commonly understood by medical practitioners
and in daily medical practice, counseling patients
may include and, in some cases, must include, providing referrals. Well-established medical ethical princi-
than dinner and dessert, we should use the side dish and dinner.
Second, even putting this aside and accepting the analogies of the
dissent, it does not so much matter whether counseling and referrals
have meanings as widely accepted as stop and go, as distinct as hot
dogs and hamburgers, or as rule-based as dinner and dessert. The
issue is whether the agency meant for the Nondirective Mandate to
apply to both counseling and referrals. Clearly, it did.
19
Specifically, the American Academy of Pediatrics, American College of Physicians, Society for Adolescent Health and Medicine, and
the Society for Maternal-Fetal Medicine.
45a
ples not only recognize referrals as part of counseling, but impose obligations on practitioners to provide patients with appropriate and necessary health
care, including information about their treatment options and referrals.
Amicus Br., Am. Coll. of Obstetricians & Gynecologists,
at 5. It follows, then, that where a patient has made
her preferences known to her physician or APP, and
those preferences are rejected by a referral for a service
she does not want, the physician or APP has acted in a
directive manner. Yet, this is precisely what the Final
Rule requires Title X providers to do.
b.
Permissive Nondirective Counseling
Next, in an attempt to cast the Final Rule as benign,
the Government and the primary dissent point out that
the Final Rule (unlike the 1988 Rule) “allows, but does
not require, ‘nondirective pregnancy counseling, which
may discuss abortion,’ provided it does ‘not encourage,
promote or advocate abortion as a method of family
planning.’ ” Appellants’ Br. 9 (quoting 84 Fed. Reg.
at 7789, 7745-46; 42 C.F.R. §§ 59.16(a); 59.14(e)(5);
59.14(b)(1)(i)) (emphasis supplied); see Richardson Dissenting Op. at 79 & n.6. Critically, however, this provision was added to “protect the conscience rights of individuals and entities who decline to perform, participate in, or refer for, abortions,” not to protect those
women who are seeking information about or have decided to have an abortion. 84 Fed. Reg. at 7716.
But the Government insists “[t]he [Final] Rule expressly permits ‘nondirective pregnancy counseling,
46a
which may discuss abortion.’ ” Appellants’ Br. 28 (quoting 84 Fed. Reg. at 7789 (emphasis supplied)). However, an application of this concept reveals how constrained a physician can be in his or her discussion.
See California, 950 F.3d at 1107 (Paez, J., dissenting)
(“What can a doctor even say when confronted with her
patient’s questions about abortion?”).
For example, in a hypothetical example set forth in
the Final Rule, a provider “offers [the client] nondirective pregnancy counseling,” even though the provider “[cannot] refer for, nor encourage[], abortion.”
84 Fed. Reg. at 7789. (And according to earlier parts
of the Final Rule, the provider may discuss the “risks
and side effects” of abortion, but may not “encourage”
abortion. Id. at 7724.) Further, in the Final Rule’s
hypothetical “counseling” session, the Title X physician
“tells the client that the project can help her to obtain
prenatal care and necessary social services and offers
her the list of licensed, qualified, comprehensive primary health care providers (including providers of prenatal care), assistance, and information for pregnant
women,” but “[n]one of the providers on the list provide
abortions.” Id. (emphasis supplied). In this hypothetical, which is “consistent with” the Final Rule, id., a
patient may come in seeking an abortion, but the only
counseling done is on prenatal care, and on the list provided, none of the physicians perform abortions. And
according to other parts of the Final Rule, even if a physician offers a list of primary health care providers who
do provide abortions, it cannot indicate which ones provide abortions, and no more than half of the providers
on the list can perform abortions. See id. at 7761.
47a
Thus, HHS’s attempt to appear nondirective is deceptive and at odds with reality. Notably, it is also at odds
with HHS’s own statements made in 2000. See 65 Fed.
Reg. at 41279 (“If [Title X] projects were to counsel on
an option even where a client indicated that she did not
want to consider that option, there would be a real question as to whether the counseling was truly nondirective
or whether the client was being steered to choose a particular option.”).
c.
Failure to Refer
Next, the Government is of the view that “[a] Title X
provider’s failure to refer a patient for an abortion
. . . neither counsels nor directs the patient to do anything; it simply declines to facilitate an abortion with
taxpayer dollars, consistent with the best reading of
§ 1008.” Appellants’ Br. 14 (emphases in original). But
it is not a “failure” to refer when a provider is directed
not to do so. Moreover, Congress’ use of “nondirective”
means that patients are entitled to neutral counseling.
Being required to refuse (not failing) to refer a patient
to a physician who performs abortions when the patient
has requested as much, and instead, referring her for
prenatal care, is far from neutral.
d.
Rust v. Sullivan
The Government’s final argument with respect to the
Nondirective Mandate is that because the Nondirective
Mandate appeared continually in an appropriations rider
beginning in 1996, it could not have supplanted Rust v.
Sullivan to accomplish an “implied repeal[]” of “HHS’s
48a
statutory authorization for these regulations.”
lants’ Br. 22. This argument is a paper tiger.
Appel-
To be clear, Baltimore is not making an implied repeal argument. On Counts I and II, Baltimore is bringing an APA challenge to an agency action that is “not in
accordance with the law,” as the law now stands. J.A.
48, 50.
In any event, Rust was decided before Congress enacted the Nondirective Mandate. As a result, Rust
simply does not speak to the specific challenges in this
case. In Rust, the Supreme Court entertained a challenge to the facial validity of the 1988 Rule. See 500
U.S. at 181. Applying Chevron, the Court held first
that the phrase “shall be used in programs where abortion is a method of family planning” in Section 1008 is
ambiguous because it “does not speak directly to the issues of counseling, referral, advocacy, or program integrity.” Id. at 184. Then, the Court turned to whether
“the agency’s answer [wa]s based on a permissible construction of the statute.” Id. (internal quotation
marks omitted). The Court reasoned:
Title X does not define the term “method of family
planning,” nor does it enumerate what types of medical and counseling services are entitled to Title X
funding. Based on the broad directives provided by
Congress in Title X in general and § 1008 in particular, we are unable to say that the Secretary’s construction of the prohibition in § 1008 to require a ban
on counseling, referral, and advocacy within the Title
X project is impermissible.
49a
Id. The Court also relied on the lack of “clear and operational guidance to [Title X grantees]”; “client experience under the prior policy”; and “a shift in attitude
against the elimination of unborn children by abortion.”
Id. at 187 (internal quotation marks omitted).
This holding has no applicability in HHS’s interpretation in 2019. Because HHS had changed its interpretation of Section 1008, the Rust Court determined
whether the change was supported by a “reasoned analysis,” which involved looking to the Secretary’s determinations about “client experience under the prior policy”
and “a shift in attitude against” abortion. Rust, 500
U.S. at 187. These “justifications”—changes in client
trends and attitudes in 1988—were “sufficient to support the Secretary’s revised approach.” Id.; see also
id. at 186-87 (“An agency is not required to establish
rules of conduct to last forever, but rather must be given
ample latitude to adapt its rules and policies to the demands of changing circumstances.” (alterations and
internal quotation marks omitted) (emphasis supplied)).
These justifications cannot legally control a step two
analysis of a new agency change in policy 30 years later.
See Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 143 (2000) (“At the time a statute is enacted, it may have a range of plausible meanings. Over time, however, subsequent acts can shape or
focus those meanings.”). And crucially, HHS made this
regulatory change in 2019 against the backdrop of newly
enacted prohibitions on directive pregnancy counseling
and interference with communications regarding patient treatment options.
The Court could not have decided whether the content of the 1988 Rule contravened a provision passed
50a
eight years later. Indeed, as pointed out by the Government, the 1988 Rule prohibited nondirective (or any)
counseling on abortion, whereas the Final Rule makes it
permissive. See Appellants’ Br. 21 (Unlike the “1988
regulations,” the Final Rule “permits, but does not require, nondirective pregnancy counseling.”). The legal
and factual background in Rust is inapposite.
e.
For these reasons, the Final Rule violates the Nondirective Mandate that has appeared in every HHS appropriations rider since 1996.
2.
The Noninterference Mandate
The Final Rule is also contrary to law because it violates the Noninterference Mandate, a provision in the
ACA. The Noninterference Mandate provides that, notwithstanding other ACA provisions, HHS “shall not promulgate” any regulation that “creates any unreasonable
barriers to the ability of individuals to obtain appropriate medical care”; “impedes timely access to health care
services”; “interferes with communications regarding a
full range of treatment options between the patient and
the provider”; “restricts the ability of health care providers to provide full disclosure of all relevant information to patients making health care decisions”; and
“violates the principles of informed consent and ethical
standards of health care professionals.” 42 U.S.C.
§ 18114(1)-(5).
Prohibiting Title X health care providers from referring a woman for an abortion when she requests it, as
51a
the Final Rule does, quite clearly “interferes with communications” about medical options between a patient
and her provider. 42 U.S.C. § 18114(3); see Stuart v.
Camnitz, 774 F.3d 238, 253 (4th Cir. 2014) (“Transforming the physician into the mouthpiece of the [government] undermines the trust that is necessary for facilitating healthy doctor-patient relationships and, through
them, successful treatment outcomes.”). What is worse,
the Final Rule requires health care providers to hide the
ball from their patients by giving them a list of providers
without telling them which ones actually perform abortions. This is not “full disclosure of all relevant information.” 42 U.S.C. § 18114(4). Moreover, considering the time-sensitive nature of pregnancy and access to
legal abortion, this attempt to hoodwink patients creates
“unreasonable barriers” to “appropriate medical care,”
and “impedes timely access” to health care services.
Id. § 18114(1), (2). As the district court noted, the AMA
has strongly opposed this rule for its interference in the
patient-physician relationship and violation of ethical
standards, id. § 18114(5), as have over 20 amici in their
filings with this court. 20
These amici include the City of New York and Local Governments; National Health Law Program; Advocates for Youth; American Medical Student Association; Community Catalyst; The Endocrine Society; Families USA; National Center for Lesbian Rights;
Bay Area Lawyers for Individual Freedom; Equality Federation;
Family Equality Council; GLMA: Health Professionals Advancing
LGBT Equality; The National LGBTQ Task Force; The LGBT
Movement Advancement Project; Institute for Policy Integrity at
New York University School of Law; National Center for Youth
Law; American Academy of Pediatrics; American College of Obstetricians and Gynecologists; American College of Physicians; Society
20
52a
In a distressingly poignant hypothetical, the primary
dissent posits that a “failure to act” by an expert swimmer does not impede or interfere with a nearby drowning person’s position, and in the same way, HHS may
choose to fund projects that meet its requirements without impeding or interfering with others that do not.
Richardson Dissenting Op. at 106. But this case is not
about a failure to act. Rather, this case is about placing
limits on the ability to act—that is, providing funds on
which Title X providers rely to continue serving their
low-income patients, but with ethically questionable
strings attached. Therefore, rather than the expert
swimmer merely failing to act by walking past the
drowning person, this case is more akin to the swimmer
jumping in to offer aid to the person, but instead, only
assisting the person halfway to shore, or, worse yet,
blocking the person from being rescued by someone
else.
a.
Rust v. Sullivan
Here again, the Government attempts to rely on Rust
v. Sullivan, quoting from that case: “The difficulty
that a woman encounters when a Title X project does not
provide abortion counseling or referral . . . leaves
her in no different position than she would have been if
the Government had not enacted Title X.” Appellants’
Br. 20 (quoting Rust, 500 U.S. at 202). But this quotation has nothing to do with the challenge here—that
is, an APA challenge to the legality of an agency rule
promulgation. Rather, the quoted language comes
for Adolescent Health and Medicine; and Society for Maternal-Fetal
Medicine.
53a
from Rust’s analysis of whether the 1988 Rule violated
a woman’s Fifth Amendment right to choose whether to
terminate her pregnancy. That inquiry involved due
process questions of whether the Government had a
“constitutional duty to subsidize an activity merely because the activity is constitutionally protected.” Rust,
500 U.S. at 201.
As it did with the Nondirective Mandate, the Government also contends that the ACA cannot act as an implied repeal of HHS’s authority to promulgate the Final
Rule. But as explained above, the Government wholly
misconstrues the issue. Again, Rust does not control
here because the ACA Noninterference Mandate was
enacted after that decision. Moreover, since Rust, Congress has explicitly recognized in the ACA the importance
of removing barriers to full disclosure in a health care
setting and preserving a private and plenary consultation between a patient and her health care provider. In
addition,
as a factual matter, the Final Rule’s referral list restrictions go far beyond anything in the 1988 [Rule].
The new restrictions: (1) permit a Title X project to
give a patient who specifically requests a referral for
abortion a referral list that contains no abortion providers; (2) require the project to compile a list of providers, a majority of whom are not responsive to the
patient’s request; (3) prevents the project from identifying which providers on the list are responsive to
the patient’s needs; and (4) does not require the project to even alert the patient that the list is incomplete and non-responsive. Because of these provisions, patients in need of time-sensitive medical care
54a
will be delayed or altogether prevented from obtaining that care because they will receive referrals that
they do not realize are not for the services they requested. In other words, under the Final Rule, the
Government would be subsidizing the misdirection of
unsuspecting patients. Unlike in Rust, the Final
Rule may well make patients worse off than if they
had not sought help from a Title X project to begin
with.
California v. Azar, 385 F. Supp. 3d 960, 997-98 (N.D.
Cal. 2019) (citations omitted) (emphases in original), vacated and remanded, 950 F.3d 1067. 21
b.
Waiver
The Government also argues that the argument that
the Final Rule contravenes the ACA Noninterference
Mandate was not raised to the agency during the comment period and therefore, it is waived. See Appellants’ Br. 34. Not so.
The Government believes that Congress’s use of the phrase
“[n]otwithstanding any other provisions of this Act,” 42 U.S.C.
§ 18114—rather than “notwithstanding any other law”—means that
it intended to eclipse HHS’s rulemaking authority as to the ACA,
but it did not intend to do so regarding provisions outside of the
ACA. We disagree. Read literally, that provision does not limit the
scope of the Noninterference Mandate. Rather, the phrase simply
means that the Mandate cannot be narrowed by other provisions of
the ACA. In considering a provision outside the ACA, the directive
stands that HHS “shall not promulgate any regulation” that interferes with patient communications, etc. 42 U.S.C. § 18114 (emphasis supplied).
21
55a
“As a general matter, it is inappropriate for courts
reviewing appeals of agency decisions to consider arguments not raised before the administrative agency involved.” 1000 Friends of Md. v. Browner, 265 F.3d
216, 227 (4th Cir. 2001) (internal quotation marks omitted). To do otherwise would “usurp[] the agency’s
function” and would “deprive[] the [agency] of an opportunity to consider the matter, make its ruling, and state
the reasons for its action.” Unemployment Comp.
Comm’n v. Aragan, 329 U.S. 143, 155 (1946). However,
if the public’s comments “sufficiently raised the question” that is challenged in court, the issue is not waived.
Browner, 265 F.3d at 228. In Browner, the comments
“[did] not include a separately delineated section devoted to” the claim at issue, and were “perhaps . . .
phrased somewhat generally,” but they “nonetheless refer[red] (at least implicitly) to” the issue on appeal. Id.
Like in Browner, the concerns raised in this lawsuit
regarding the ACA Noninterference Mandate were sufficiently raised at the administrative level. There were
multiple comments raised about the authority to interfere with medical conversations between physicians and
patients. See, e.g., Comment HHS-OS-2018-0008-69480,
https://www.regulations.gov/document?D=HHS-OS2018-0008-69480 (July 23, 2018) (saved as ECF opinion
attachment) (“There is no legitimate medical or legal
justification for the proposed rule, which is contrary to
the standards of the medical profession, an invasion of
patient privacy, and clearly discriminatory in both intent and effect. It is therefore plainly contrary to the
public interest and likely unlawful.”).
Commenters also told HHS that the Rule would erect
unreasonable barriers to care, impede timely access to
56a
care, interfere with physician-patient communications,
deny patients access to medically relevant information,
and require doctors to violate medical ethics. See, e.g.,
HHSOS-2018-0008-30266, http://bit.ly/2Xl8Han (saved
as ECF opinion attachment) (“Patient’s [sic] have a
right to unbiased, informed consent about all of their options. This rule does a great disservice to women and
puts unreasonable barriers on general providers of care
and hurts the honest, open conversation that healthcare
providers should be having with their patients.” (June
29, 2018)); HHS-OS-2018-0008-198615, http://bit.ly/2VJ
antI (saved as ECF opinion attachment) (Final Rule
“creates barriers to receiving the information needed to
obtain abortion care” (Aug. 1, 2018)); HHS-OS-20180008-179339, http://bit.ly/2ZjlEDt (saved as ECF opinion attachment) (from ACOG: “The Proposed Rule
would interfere with the patient-physician relationship,
restrict the information available to patients, and hinder
the ability of physicians to practice medicine in accordance with their ethical obligations.” (Aug, 1, 2018));
HHS-OS-2018-0008-106624, https://bit.ly/2Yd6opK (saved
as ECF opinion attachment) (from the American Academy of Nursing: “[T]he proposed rule would inject politics and ideology into the examination room by prohibiting providers from giving patients information on how
and where to access abortion. This restriction would
undermine the health professional’s ethical obligations
and hinder open and honest conversations between patients and their providers.” (July 27, 2018)); HHS-OS2018-0008-188772, http://bit.ly/2Ul3L3p (saved as ECF
opinion attachment) (from the Universal Health Care
Foundation of Connecticut: “[The] ‘gag rule’ goes
completely against the ethical standards of health care
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professionals, jeopardizing an open, trusting relationship with their patients.” (Aug. 1, 2018)).
Significantly, HHS responded to these comments, fully
recognizing that “medical ethics obligations require the
medical professional to share full and accurate information with the patient, in response to her specific medical condition and circumstance.” 84 Fed. Reg. at 7724;
see also id. (The Final Rule “adequately accommodates
medical professionals and their ethical obligations.”).
Moreover, HHS listed the ACA as one of the statutes it
considered in promulgating the Final Rule, see Reply
Add., Mayor & City Council of Baltimore v. Azar, No.
19-1614 (4th Cir. filed May 30, 2019), ECF No. 43-2, at 3
(No. 29), and stated that it “consulted upon” this list in
drafting the Final Rule, see id. at 1. It also noted other
ACA provisions implicated by the Final Rule. See 84
Fed. Reg. at 7737 & n.65 (quoting 42 U.S.C. 300gg13(a)(4) as added by the Affordable Care Act, Public
Law 111-148, 124 Stat. 119, 131, sec. 1001). For these
reasons, HHS was clearly aware (1) of the Noninterference Mandate; (2) that the ACA can affect the provisions
of the Final Rule; and (3) of specific challenges to the
protections set forth in that statute. This issue is not
waived. 22
To the extent our conclusion means HHS considered the Noninterference Mandate and thus, we must afford due deference
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