Amicus Curiae Brief — Oklahoma, Petitioner v. Department of Health and Human Services, et al.

No. 24-437

IN THE

Supreme Court of the Untted States

STATE OF OKLAHOMA,

Petitioner,

V.

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN

SERVICES, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

BRIEF OF AMERICAN ASSOCIATION OF PRO-

LIFE OBSTETRICIANS & GYNECOLOGISTS,

CHRISTIAN MEDICAL & DENTAL ASSOCIA-

TIONS, CATHOLIC MEDICAL ASSOCIATION,

NATIONAL ASSOCIATION OF CATHOLIC

NURSES USA, AND HUMAN COALITION AS

AMICI CURIAE IN SUPPORT OF PETITIONER

JOHN J. BURSCH CHRISTOPHER P. SCHANDEVEL

ERIN M. HAWLEY Counsel of Record

ALLIANCE DEFENDING ALLIANCE DEFENDING

FREEDOM FREEDOM

440 First Street, NW 44180 Riverside Pkwy

Suite 600 Lansdowne, VA 20176

Washington, DC 20001 (571) 707-4655

(202) 398-8690 cschandevel@AD Flegal.org

Counsel for Amict Curiae

[additional counsel listed on inside cover]

CHLOE K. JONES

ALLIANCE DEFENDING

FREEDOM

1000 Hurricane Shoals Rd. NE

Suite D-1100

Lawrenceville, GA 30043

(770) 389-0774

1

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....... ec ccceeceeeeeeeees il

INTEREST OF AMICI CURIAE....0. cece 1

SUMMARY OF THE ARGUMENT...............:0000000eee A

ARGUMENT oo cccccccceeeeeseeseseeessessneeaceeeeeeeeeeees 5

I. The Tenth Circuit erroneously concluded

that the Weldon Amendment does not

apply to HHS’s rescindment decision. ................ 5

A. HHS discriminated against . the

Oklahoma State Department of Health

for its refusal to refer for abortions. ............. 7

B. Referring patients to a national hotline

is an abortion referral. ..............cccccesesceeeeeeeees 8

C. Referring patients to a national hotline

violates Amici’s conscience rights............... 11

II. The Tenth Circuit failed to interpret Section

1008, conflicting with Loper Bright. .............0... 13

A. The Tenth Circuit misread this Court’s

directive in Loper Bright. ..........ccccccesesceeecees 14

B. The best reading of Section 1008

precludes a referral requirement................ 16

III. An injunction would protect the rights of

healthcare professionals and help provide

medical care to vulnerable Oklahomans. ......... 17

CONCLUSION Woo cccssssnncesetcnsssesssscssseeeseeees 19

il

TABLE OF AUTHORITIES

Cases

California v. Azar,

911 F.8d 558 (9th Cir. 2018) wo... cece ee 17

Loper Bright Enterprises v. Raimondo,

144 8. Ct. 2244 (2024). eee eeceeeees 14, 15

National Family Planning & Reproductive

Health Association, Inc. v. Gonzales,

468 F.3d 826 (D.C. Cir. 2006)... eee eee ee 6

Ohio v. Becerra,

87 F.4th 759 (6th Cir. 2028)... eee 14, 15

Rust v. Sullivan,

500 U.S. 178 (1991)... eee eeee wees 14, 15, 18

Tennessee v. Becerra,

117 F.4th 348 (6th Cir. 2024) we. 14, 16

Statutes

AZ U.S.C. B00... cece cecccsecceccscccecccscecceccescescesces 14

AZ U.S.C. 8008-6... eee ececeeccescceecesceecesceeees 14,17

5B ULS.C. 706... cece ccccceccscccecccsccesccnccesccsccecesccecetscescees 6

Consolidated Appropriations Act, 2005, Pub. L.

No. 108-447, div. F, tit. V, § 508(d), 118 Stat.

111

Consolidated Appropriations Act 2022, Pub. L.

No. 117-108, div. H, tit. V, § 507(d), 136 Stat.

Consolidated Appropriations Act, 2023, Pub. L.

No. 117-828, div. H, tit. V, § 507(d), 136 Stat.

AAD Looe ccc cc ecccsccccccecccececscecccccecscscecscceecececcececeees D

Other Authorities

5,042, HUMAN COALITION .............ccecceeceecceccesceeceeceecs 18

Abortion Position Statement, CMDA................00cc00- 12

About NACN-USA, NAT'L ASSOC. OF CATHOLIC

NURSES USA 2.0... i ce cece ccececceccsccescceccecsscescecceceecs 13

Angela Lanfranchi, What Catholic Social

Teaching Says About the Status of Embryos

Part Two, THE PULSE OF CATHOLIC MED.

(July 15, 2024) ooo cecceecccesscctsccesscesscensceeces 12

Brittni Fredericksen et al., A National Survey of

OBGYNs’ Experiences After Dobbs, KAISER

FAMILY FOUNDATION (June 21, 2028)...........0.... 18

Fighting for Religious Freedom, Conscience

Rights, NATL ASSOC. OF CATHOLIC NURSES

USA (Mar. 8, 2028) oo... cceccescceseceseceeceues 13

H. R. Conf. Rep. No. 91-1667 (1970)... eee. 19

Ludwig Edelstein, The Hippocratic Oath: Text,

Translation, and Interpretation (1948)............. 11

Mission & Viston, AAPLOG.Q...... eee ceeceeccecceeceeceess 12

1V

Moral Complicity With Evil Position Statement,

The Growing Demand for Healthcare Workers in

Oklahoma, AMERICAN IMMIGRATION COUNCIL.. 18

What We Do, HUMAN COALITION. ...........cccscescescecceees 13

Regulations

Ensuring Access to Equitable, Affordable,

Client-Centered, Quality Family Planning

Services, 86 Fed. Reg. 56144—01 (Oct. 7,

AOA 0 5, 6, 7, 16, 18

1

INTEREST OF AMICI CURIAE!

The American Association of Pro-Life Obstetriclans & Gynecologists (AAPLOG) is a nonprofit

professional medical organization with over 7,000

members who are experts in reproductive healthcare.

AAPLOG strives to ensure pregnant women receive

quality care and are informed of induced abortion’s

potential long-term consequences on a woman’s

health. AAPLOG offers medical professionals and the

public an evidence-based understanding of abortionrelated health risks, including depression, substance

abuse, suicide, and subsequent preterm birth.

The Christian Medical & Dental Associations

(CMDA) is a professional association of physicians,

dentists, and other healthcare professionals that

educates, encourages, and equips Christian healthcare professionals to glorify God by following Christ,

serving with excellence and compassion, caring for all

people, and advancing biblical principles of healthcare within the Church and throughout the world.

CMDA has close to 18,000 members and 365 chapters

at medical, dental, optometry, physician-assistant,

and undergraduate schools across the country. CMDA

also has 871 members in the state of Oklahoma.

The Catholic Medical Association (CMA) is the

largest Catholic association of people in healthcare.

Its membership includes more than 2,400 physicians,

nurses, and physician assistants, including two member guilds and 23 active members in Oklahoma.

1 No counsel for a party authored this brief in whole or in part,

and no person other than Amici and their counsel made any

monetary contribution intended to fund the preparation or

submission of this brief. Counsel for both parties were timely

notified of this brief as required by Supreme Court Rule 37.2.

2

CMA’s mission is to inform, organize, and inspire

its members to uphold the Catholic faith in the

science and practice of medicine. CMA opposes direct

abortion because it violates the Catholic Church’s

teaching and tradition, respect for the sanctity of life,

Judeo-Christian medical ethics, and the best interest

of patients. CMA’s members are committed to the

sanctity of human life, and it would violate their

consciences to participate in or refer for direct

abortions.?

CMA has actively sought conscience protections

for its members and other healthcare professionals

who might be forced by laws, regulations, or their

employers to provide, counsel, or refer for abortions.

Many CMA members work at healthcare facilities

that receive Title X funds. These members face a substantial risk of harm from the 2021 Rule’s strict

enforcement. And they face further risk of harm from

the Department of Health and Human Services’

decision to terminate Oklahoma’s Title X funding.

The National Association of Catholic Nurses, USA

(NACN-USA) is the national professional organization for Catholic nurses. A nonprofit association of

hundreds of nurses with different clinical expertise,

NACN-USA focuses on promoting patient advocacy,

human dignity, and professional and _ spiritual

development in the integration of faith and health

within the Catholic context in nursing.

2 CMA uses the phrase “direct abortions” to exclude medically

necessary procedures—like removing the fallopian tube for an

ectopic pregnancy—that, while they may unintentionally cause

the embryo’s death, are not direct attacks on the unborn child

but are aimed instead at treating a serious condition that would

otherwise be fatal for the woman.

3)

NACN-USA supports the protection of human life

from conception to natural death. And it opposes any

involvement in direct abortion of any kind. Any such

involvement would contradict Roman Catholic teaching and values, including respect for the sanctity of

life and the well-being of members’ patients.

Human Coalition is a Texas nonprofit 501(c)(3)

corporation that serves as a comprehensive care

network reaching women facing unexpected pregnancles, rescuing innocent children from abortion, and

restoring families to stability. Partnering with state

erant programs and private funding, Human Coalition operates specialized women’s care clinics and

virtual clinics in major cities across the country and

employs licensed professional doctors, nurses, and

social workers.

Human Coalition has a strong interest in protecting women and their children from abortion while

maintaining their employees’ conscience rights to

serve families in accord with their beliefs that human

life begins at conception and deserves protection from

abortion.

Together, AAPLOG, CMDA, CMA, NACN-USA,

and Human Coalition have a keen interest in ensuring that states and the federal government respect

Congress’s refusal to use taxpayer dollars to facilitate

abortions. And they have the same strong interest in

opposing HHS’s recent efforts to force Title X

recipients to refer for abortions, actions which

threaten to strip funding from pro-life healthcare

entities and professionals.

4

SUMMARY OF THE ARGUMENT

The U.S. Department of Health & Human Services

stripped Oklahoma of millions of dollars in critical

federal funding because the Oklahoma State Department of Health refused to refer patients for abortions.

That funding rescission and the 2021 HHS Rule it

was based on violate the Weldon Amendment, a

critical federal conscience-rights law that prohibits

agencies lke HHS from discriminating against

erantees for refusing to refer for abortions.

The 2021 Rule is also contrary to law because it

violates Section 1008 of the Public Health Service Act,

which prohibits Title X funds from flowing to

programs that treat abortion as a method of family

planning. The Tenth Circuit misread this Court’s

recent decision in Loper Bright and erroneously

deferred to HHS’s interpretation of Section 1008

rather than conduct its own judicial review of the

statute’s meaning. The best reading of Section 1008

precludes an abortion-referral requirement, and so

the Rule must be set aside.

The 2021 Rule and rescindment decision have

unlawfully stripped clinics of critical federal funding.

And that result discriminates against pro-life entities

and providers by denying them millions of dollars in

healthcare funding because they cannot in good

conscience refer patients for abortions. As a result of

HHS’s illegal actions, vulnerable Oklahomans risk

being deprived of the medical services they need.

This Court should grant Oklahoma’s petition to

protect Oklahoma and its healthcare professionals

from unlawful discrimination and to ensure that all

Oklahomans have access to care.

)

ARGUMENT

I. The Tenth Circuit erroneously concluded

that the Weldon Amendment does not apply

to HHS’s rescindment decision.

A bipartisan Congress first passed the Weldon

Amendment as an appropriations rider in 2004 to

better protect healthcare providers from government

coercion to participate in abortions. Consolidated

Appropriations Act, 2005, Pub. L. No. 108-447, div. F,

tit. V, § 508(d)(1), 118 Stat. 2809. Included in every

appropriations bill since, the Amendment prohibits

funds from the Departments of Health, Labor, and

Education from flowing to a government or program

that discriminates against “any institutional or individual health care entity” based on the entity’s refusal

to “provide, pay for, provide coverage of, or refer for

abortions.” See, e.g., Consolidated Appropriations Act,

2023, Pub. L. No. 117-328, div. H, tit. V, § 507(d)(1),

136 Stat. 4459, 4908.

Contradicting the Weldon Amendment’s clear protections for healthcare providers, HHS issued a final

rule in 2021 imposing a universal requirement that

erantees receiving Title X federal funding must

provide information, counseling, and referrals for

abortion. Ensuring Access to Equitable, Affordable,

Client-Centered, Quality Family Planning Services,

86 Fed. Reg. 5614401, 56178—79 (Oct. 7, 2021).

HHS is aware of its obligations under the Weldon

Amendment: it conceded in its 2021 Rule that

“Congress has passed several laws protecting the conscience rights of providers, particularly in the area of

abortion,” and that “[u|nder these statutes, objecting

providers or Title X grantees are not required to

counsel or refer for abortions.” Id. at 56153.

6

But despite that concession, the 2021 Rule fails to

safeguard federal conscience rights on the front end,

stating instead in a footnote that “[p]roviders may

separately be covered by federal statutes protecting

conscience and/or civil rights.” [d. at 56178 n.2. And

rather than protect those rights in the Rule itself, the

preamble says that “providers may avail themselves

of existing conscience protections and file complaints

with OCR, which will be evaluated on a case-by-case

basis as is done with other complaints.” Jd. at 56156.

So HHS claims that healthcare professionals may be

able to obtain some relief—but only after their rights

have been violated. The Rule thus gives short shrift

to the reality that referring for abortions makes

conscientious healthcare professionals complicit in

what they view as a gravely immoral procedure.

Courts must “hold unlawful and set aside” any

agency action that is “not in accordance with [the]

law.” 5 U.S.C. 706(2)(A). Indeed, as the 2021 Rule

recognizes, “a valid statute always prevails over a

conflicting regulation.” 86 Fed. Reg. at 56153 (quoting

Natl Fam. Plan. & Reprod. Health Ass’n, Inc. v.

Gonzales, 468 F.3d 826, 829 (D.C. Cir. 2006)). The

2021 Rule must be set aside because it violates the

Weldon Amendment by sanctioning discrimination

against grantees like the Oklahoma State Department of Health, “institutional... health care entit[ies]”

under the Weldon Amendment, based on their refusal

to counsel and refer for abortions. Consolidated

Appropriations Act 2022, Pub. L. No. 117-108, div. H,

tit. V, § 507(d)(1), 186 Stat. 49, 496. And HHS’s

rescindment decision violates the Weldon Amendment for the same reason. Oklahoma has shown that

it is likely to succeed on the merits of this claim.

7

A. HHS discriminated against the Oklahoma State Department of Health for its

refusal to refer for abortions.

HHS violated the Weldon Amendment when it

rescinded Oklahoma’s Title X funding. The Weldon

Amendment is triggered when a Title X grantee 1) is

an “institutional or individual health care entity,” and

2) is “subject[ed]” to “discrimination on the basis that

the health care entity does not provide, pay for,

provide coverage of, or refer for abortions.”

§ 507(d)(1), 186 Stat. at 496. Because Oklahoma has

shown both, HHS violated the Amendment when it

rescinded OSDH’s funding.

First, as a threshold matter, OSDH satisfies the

Weldon Amendment's definition of a healthcare

entity. Congress designed that statutory definition to

be broad and inclusive: not only does the Amendment

protect “a hospital, a provider-sponsored organization, a health maintenance organization, [or] a health

insurance plan,” it also protects the catchall category

of “any other kind of health care facility, organization,

or plan.” Id. at § 507(d)(2) (emphasis added). What’s

more, the 2021 Rule recognizes the breadth of Coneress’s chosen definition, stating that the Amendment

protects “objecting providers or Title X grantees” from

being “required to counsel or refer for abortions.” 86

Fed. Reg. at 56153 (emphasis added). OSDH is thus

doubly protected as both an “objecting provider[]” and

a “Title X grantee[],” as HHS itself has conceded. Ibid.

See App.132a (labeling OSDH a grantee).

The Amendment’s broad definition protects staterun health departments like OSDH that depend on

Title X funding to offer family-planning health

services to under-served Oklahomans. As the State’s

8

petition explains, OSDH distributes Title X funds

through its county health departments, which employ

medically trained providers such as nurses. Pet. for

Cert. 24—25. Those staff members “engage|[] in direct

patient care at OSDH clinics” where they “see

patients and administer health care.” App.48a. Thus,

OSDH qualifies as “an organization that provides

health care, and is an institutional plan with individual medical professionals who provide health care.”

App.49a. That conclusion is so obvious that the Tenth

Circuit saw no need to address it.

Next, HHS discriminated against OSDH because

OSDH refused to refer pregnant women for abortions.

HHS has repeatedly admitted that the reason it

rescinded Oklahoma’s funding was its refusal to provide abortion referrals. See, e.g., Br. for Appellees at

1-2, Oklahoma v. HHS, 107 F.4th 1209 (10th Cir.

2024) (No. 24-6063), 2024 WL 2262266, at *1-2.

Despite those admissions, the Tenth Circuit held that

the Weldon Amendment did not apply because its

“statutory focus” is (allegedly) “on the referring

entity's purpose” and referring a pregnant woman

interested in abortion to a privately operated national

hotline that would provide her information about how

to obtain an abortion likely would not be regarded “as

a referral for an abortion.” App.24a & n.13, App.25a.

For the reasons explained below, all of that is wrong.

B. Referring patients to a national hotline

is an abortion referral.

For three reasons, the Tenth Circuit wrongly

concluded, sua sponte, that referring a pregnant

woman to a private national hotline where she can

learn where and how to obtain an abortion somehow

does not qualify as an abortion referral.

9

First, the majority redefined what qualifies as an

abortion referral. According to the court, whether the

call-in number is an abortion referral “depend|[s] on

the pregnant woman’s decision after getting the []

information.” App.25a. That is, if she gets an abortion,

it would be “a referral for” an abortion, but if she

decides not to, it’s a referral “against an abortion.”

Ibid. (emphasis omitted). That can’t be right.

Whether a provider’s information to a patient is a

referral doesn’t depend on the client’s after-the-fact

decision to obtain the procedure. The information

given to the patient—at the time it 1s given—is still a

referral. A healthcare provider doesn’t need to wait to

check whether the procedure is obtained to know that

she referred her patient to another provider.

Second, there is nothing in the Amendment’s text

to suggest “the statutory focus” is “on the referring

entity’s purpose rather than” the pregnant woman’s.

App.24a & n.13. The Amendment simply states that

“[nJone of the funds made available in this Act may be

made available to a Federal agency or program” if the

agency “subjects” an institutional healthcare entity to

“discrimination on the basis of” its refusing to “refer

for abortions.” § 507(d)(1), 186 Stat. at 496. As the

dissent below explains, the Amendment’s text “says

nothing, not even a hint, about the referring entity’s

purpose.” App.51a. Rather, its “focus is on the agency

that controls the funds, not the entity that is applying

to receive them.” [bid. The Amendment’s text makes

that focus clear: whether the agency has violated the

Amendment turns on “the basis of” the agency’s

discrimination, not a “detailed probe as to why an

entity does not refer for abortions.” App.52a.

10

Third, HHS itself describes the national hotline as

an abortion referral. The Rule states that a referral

“may consist of relevant factual information such asa

provider’s name, address, and telephone number.”

App.38a (cleaned up). So as HHS explained below, the

Rule requires Title X recipients to provide patients

“factual information about where” an abortion “can be

obtained if the patient wishes.” Br. for Appellees at 1,

Oklahoma v. HHS, 107 F.4th 1209 (10th Cir. 2024)

(No. 24-6063), 2024 WL 2262266. HHS argued that

OSDH could “comply with its counseling and referral

obligations by providing nondirective counseling on

all pregnancy options by its staff or through the

hotline.” Jd. at 9-10 (cleaned up). So when OSDH

stopped referring patients to the hotline, HHS

informed the State that it was not in compliance “with

the Title X regulatory requirements,” implying that

OSDH had been complying with the referral requirement when it previously provided the hotline number

to its patients. Id. at 10.

By contrast, the majority incorrectly described the

hotline as providing only “neutral information,” thus

disqualifying it from being a “referral for an abortion.”

App.28a (emphasis omitted). There is nothing neutral

about providing a pregnant woman seeking an

abortion with information “about abortion and, if

[she] requests, where an abortion can be obtained.”

Br. for Appellees at 19, Oklahoma v. HHS, 107 F.4th

1209 (10th Cir. 2024) (No. 24-6063), 2024 WL

2262266. Indeed, there is a world of difference

between telling a patient what an abortion is and

providing her with information about where to go to

obtain one. Facilitating an abortion’s procural is not

merely providing “neutral information.”

11

C. Referring patients to a national hotline

violates Amici’s conscience rights.

The 2021 Rule ignores the reality that a healthcare provider's referral for abortion is formal cooperation with, and facilitation of, the taking of human life.

Medical professionals who cannot in good conscience

provide abortion referrals seek to honor their

Hippocratic Oath, which states that a doctor will not

deliberately end a life by abortion or euthanasia and

will never even “make a suggestion to this effect.”

Ludwig Edelstein, The Hippocratic Oath: Text,

Translation, and Interpretation 3 (19438). Under that

Oath, assisting a pregnant woman in her next step in

finding and obtaining an abortion would result in a

serious conscience violation.

Amici and their members—many of whom provide

services in Oklahoma—cannot in good conscience

refer patients to the national hotline. Their publicly

stated views reflect their moral opposition to being

forced to participate in such referrals.

AAPLOG’s members “share the view that human

life begins at fertilization and that the lives of preborn children should be protected.” Mission & Vision,

AAPLOG, perma.cc/8JTP-2QE8. Because AAPLOG

members believe “the willful destruction of innocent

human lives has no place in the practice of medicine,”

it would conflict with their sincerely held beliefs to

refer a patient to the national hotline. Ibid.

As practicing Christians, CMDA members cannot

be complicit in “anything immoral or wrong based on

Biblical principles,” and that includes “referral for or

assisting in abortion.” Moral Complicity With Evil

Position Statement, CMDA, available for download at

cmda.org/policy-issues-home/position-statements/.

12

CMDA members believe “refer[ring] for a

medication or surgical abortion...is complicit in the

act of abortion,” which contradicts Biblical teachings

on the sanctity of life. Abortion Position Statement,

CMDA, available for download at cmda.org/policyissues-home/position-statements/. And _ referring

women to the hotline would qualify as complicity in

abortion.

CMA holds that Catholic teaching “demands the

reverence and care for all human life, no matter its

temporal stage of development.” Angela Lanfranchi,

What Catholic Social Teaching Says About the Status

of Embryos Part Two, THE PULSE OF CATHOLIC MED.

(July 15, 2024), perma.cc/5YC6-6D5V. So its members

would object to referring a pregnant woman to the

hotline to obtain information about abortion because

doing so would fail to revere life at every stage.

NACN-USA believes that “healthcare professionals must be free to practice their professions in accordance with their professional judgment and ethical

beliefs,” including “refusing to perform, facilitate, or

refer for procedures that they believe will violate their

professional judgment and the best interest of their

patients.” Fighting for Religious Freedom, Conscience

Rights, NATL ASSOC. OF CATHOLIC NURSES USA (Mar.

8, 2023), perma.cc/M3HW-74CX. Because NACN-

USA promotes the integration of Roman Catholic

doctrine in nursing, it would violate their members’

deeply held beliefs to refer patients to the hotline.

About NACN-USA, NATL Assoc. OF CATHOLIC

NURSES USA, perma.cc/H4BV-UK2X.

Finally, Human Coalition “servel[s] the abortiondetermined community” by “building a pro-life,

holistic, comprehensive care network to help rescue

13

these women and their children from abortion.” What

We Do, HUMAN COALITION, perma.cc/Y4GR-BMW2Z.

For that reason, referring for abortions would violate

Human Coalition’s mission and core beliefs, and its

staff inform patients they do not refer for abortions.

5,042, HUMAN COALITION, perma.cc/MMB4-D87Y.

Amici strongly oppose both performing an abortion

and being complicit in the facilitation of an evil act.

Referring patients to HHS’s hotline would severely

violate the consciences of Amici and their members by

facilitating the taking of human life—life they are

morally obligated to respect at all stages.

II. The Tenth Circuit failed to interpret Section

1008, conflicting with Loper Bright.

The 2021 Rule is also contrary.to law because it

conflicts with Title X’s text, which provides federal

funding “to assist in the establishment and operation

of voluntary family planning projects” that “offer a

broad range of acceptable and effective family planning methods and services.” 42 U.S.C. 300(a). Those

funds enable healthcare professionals, like those in

Oklahoma, to serve vulnerable populations needing

care. And Section 1008 of the Act limits the healthcare projects that can receive funding, specifying that

funds may not be “used in programs where abortion

is a method of family planning.” 42 U.S.C. 300a-6.

The Tenth Circuit erred in deferring to HHS’s

misreading of Section 1008. Under this Court’s recent

decision in Loper Bright, an agency’s regulation must

follow the best reading of a statute—not merely a

permissible one. And far from mandating that Title X

grantees refer patients for abortions, the best reading

of Section 1008 is that it precludes abortion referrals.

14

A. The Tenth Circuit misread this Court’s

directive in Loper Bright.

The Tenth Circuit erroneously deferred to HHS’s

reading of Section 1008, relying solely on Ohio v.

Becerra, 87 F.4th 759, 772 (6th Cir. 2023). There, the

Sixth Circuit held that HHS’s reading of Section

1008’s application to abortion referrals was permissible under Chevron step two. App.28a—29a. As the

Tenth Circuit recognized, though, that holding rested

on Rust v. Sullivan, 500 U.S. 173 (1991). And in that

case, this Court, applying Chevron, held that Section

1008 is ambiguous on abortion referrals, so the Court

deferred to HHS’s reading of the statute. Id. at 184.

Rust was thus “a Chevron case down to its bones.”

Tennessee v. Becerra, 117 F.4th 348, 370 (6th Cir.

2024) (Kethledge, J., dissenting).

But after this Court’s decision in Loper Bright

Enterprises v. Raimondo, 1448. Ct. 2244 (2024), Rust

no longer justifies showing deference to HHS’s view

that Section 1008 allows HHS to require abortion

referrals. Quite the opposite, Rust’s ambiguity holding proves that the 2021 Rule is “likely unconstitutional as applied here because it imposes an abortion

referral condition that is not unambiguously required

by Title X.” Pet. for Cert. 12 (emphasis added).

What’s more, Loper Bright requires “courts [to]

decide legal questions by applying their own judgment.” 144 8. Ct. at 2261 (emphasis added). And the

Tenth Circuit did not follow that instruction here.

Instead, it declared in a footnote that reliance on Rust

was justified because Loper Bright “clarified that it

was not ‘call[ing] into question prior cases that [had]

relied on the Chevron framework.” App.29a n.16

(quoting Loper Bright, 144 8. Ct. at 2273).

15

That conclusion misreads this Court’s directive in

Loper Bright. This Court’s explanation of the precedential value of prior Chevron cases must be read

alongside Loper Bright's next sentence: “The holdings

of those cases that specific agency actions are lawful

...are still subject to statutory stare decisis despite

[the Court’s] change in interpretive methodology.”

144 8. Ct. at 2273 (emphasis added). The “specific

agency action|]” held lawful in Rust was HHS’s 1988

Rule—not its 2021 Rule. And that Rule prohibited

counseling and referral for abortions. Rust, 500 U.S.

at 179-80. So statutory stare decisis says nothing

about whether the opposite agency action—reflected

in the 2021 Rule—is itself lawful.

Contrary to the Tenth Circuit’s reasoning, the

Sixth Circuit’s opinion in Ohio does not support

HHS’s reading of Section 1008. The Sixth Circuit

observed that Rust decided only that Section 1008

was ambiguous at Chevron step one and deferred to

HHS’s 1988 reading at step two. 87 F.4th at 770. That

meant that, in future cases, courts still would have to

decide whether new HHS rules were “permissible” or

“reasonable” at step two. Ibid. Whether the 2021 Rule

is a permissible reading of Section 1008 was thus an

open question after Rust. Ibid. And now, under Loper

Bright, courts must arrive at the “single, best

meaning” of even a previously held ambiguous statute

when confronted with new agency action—like the

2021 Rule. 144 8S. Ct. at 2266. The court below erred

by failing to interpret Section 1008 de novo.

Lastly, Chevron deference can’t apply to the 2021

Rule for a more fundamental reason: HHS never

claimed to interpret Section 1008. Responding to

comments that requiring abortion referrals “squarely” violates Section 1008’s plain text, HHS engaged in

16

zero statutory analysis. 86 Fed. Reg. at 56149.

Instead, it argued that “[c]ounseling for abortion,

including referral when requested, has never been

held to constitute a violation of section 1008,” and

prohibiting abortion referrals would be “inconsistent

with nearly 40 years of agency practice.” 86 Fed. Reg.

at 56149-50. That’s it. The Rule never even quotes

Section 1008’s text.

B. The best reading of Section 1008 precludes a referral requirement.

The de novo interpretation of Section 1008 that the

Tenth Circuit should have conducted shows that the

statute’s best interpretation precludes a referral

requirement. Section 1008 prohibits Title X funds

from being “used in programs where abortion is a

method of family planning.” 42 U.S.C. 300a-6. The

plain meaning of the word “method” is “a deliberate

or systematic means of obtaining a particular end.”

Tennessee, 117 F.4th at 872 (Kethledge, J., dissenting). A program that refers a patient interested in

abortion to an abortion provider deliberately and

systematically employs a means for obtaining an

abortion. After all, knowing “where to obtain a

product or procedure is the first step toward actually

obtaining it.” Ibid. And providing a “hotline” that

could supply the same information does not change

that. Id. at 373. Rather than allowing HHS to require

Title X grantees to refer for abortions, Section 1008

precludes HHS from doing so. On the best reading of

its plain text, then, Section 1008 prohibits the 2021

Rule’s abortion-referral mandate.

17

III. An injunction would protect the rights of

healthcare professionals and help provide

medical care to vulnerable Oklahomans.

“Protecting religious liberty and conscience is

obviously in the public interest.” California v. Azar,

911 F.3d 558, 582 (9th Cir. 2018). An injunction

restoring Oklahoma’s Title X funding would help

protect the religious liberty and conscience rights of

many healthcare entities and professionals across the

state—and it would help secure healthcare access for

all Oklahomans, especially for those living in rural

communities already facing healthcare shortages.

Due to “the COVID-19 pandemic, labor shortages,

and a growing number of baby boomers who are

reaching retirement age each year, Oklahoma has

seen an increase in demand for healthcare workers.”

The Growing Demand for Healthcare Workers in

Oklahoma 1, AMERICAN IMMIGRATION COUNCIL,

perma.cc/G8D3-C4JM. Even before COVID, the state

“faced severe physician shortages, with some counties

across the state registering eight physicians per

100,000 residents.” Id. at 3. And today, “[p]rojections

remain dire.” [bid. The state is “expected to need an

additional 451 primary care physicians by 2030,

significantly impacting the accessibility of healthcare,

particularly in rural communities.” [bid. Absent an

injunction restoring Oklahoma’s Title X funding, the

barriers to care Oklahomans are experiencing already

will be worse.

Meanwhile, if Oklahoma bows to HHS’s unlawful

demands, healthcare professionals who cannot in

good conscience counsel or refer for abortions will be

forced out of providing Title X services like fertility

education and treatment. A recent survey found that

18

380 percent of OBGYNs practicing in pro-life states

like Oklahoma do not provide counseling or referrals

for abortions. Brittni Fredericksen et al., A National

Survey of OBGYNs’ Experiences After Dobbs (Figure

3), KAISER FAMILY FOUNDATION (June 21, 2023),

perma.cc/BV8Q-JG6R. Among the OBGYNs surveyed

in these states, 35 percent cited their beliefs as one

reason they do not participate in abortion. Ibid.

(Figure 4). Depending on their specialty, experience,

and location, some of these professionals could be

driven out of the practice of medicine entirely. The

result would deprive Oklahomans of vital healthcare

services from conscientious professionals dedicated to

doing no harm to their patients or their children.

Congress intended for Title X grants to fund a wide

array of healthcare entities engaged in a wide range

of activities, including “preventive family planning

services, population research, infertility services, and

other related medical, informational, and educational

activities.” Rust, 500 U.S. at 178-79 (quoting H. R.

Conf. Rep. No. 91-1667, p. 8 (1970)). HHS claims to

promote diversity among grantees. 86 Fed. Reg. at

56168. But given its recent demands and termination

decisions, that claim rings hollow. Far from protecting

conscientious providers, the 2021 Rule’s strict

enforcement threatens to force them out of the

practice of medicine altogether.

As a result, the Rule risks reducing the resources

available to people seeking fertility services, familyplanning information, and other medical services.

Diminishing services through discrimination against

conscientious healthcare providers harms the public

interest. This Court should grant the petition and

hold that Oklahoma is entitled to an injunction of

HH\S’s abortion-counseling-and-referral mandate.

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CONCLUSION

The petition for certiorari should be granted.

NOVEMBER 2024

Respectfully submitted,

CHRISTOPHER P. SCHANDEVEL

Counsel of Record

ALLIANCE DEFENDING FREEDOM

44180 Riverside Pkwy

Lansdowne, VA 20176

(571) 707-4655

cschandevel@AD Flegal.org

JOHN J. BURSCH

ERIN M. HAWLEY

_ ALLIANCE DEFENDING FREEDOM

440 First Street, NW

Suite 600

Washington, DC 20001

(202) 393-8690

CHLOE K. JONES

ALLIANCE DEFENDING FREEDOM

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