Petition for Writ of Certiorari — Tennessee, Petitioner v. Robert F. Kennedy, Secretary of Health and Human Services, et al.
Supreme Court briefAug 7, 2025
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No. 25-_____
IN THE
Supreme Court of the United States
STATE OF TENNESSEE,
Petitioner,
v.
ROBERT F. KENNEDY, JR., in his official capacity as
Secretary of the U.S. DEPARTMENT OF HEALTH AND
HUMAN SERVICES, ET AL.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
JONATHAN SKRMETTI
Attorney General
J. MATTHEW RICE
Solicitor General
Counsel of Record
HARRISON GRAY KILGORE
Senior Assistant Attorney
General for Strategic Litigation
OFFICE OF TENNESSEE
ATTORNEY GENERAL
P.O. Box 20207
Nashville, TN 37202
(615) 741-3491
Matt.Rice@ag.tn.gov
Counsel for Petitioner
i
QUESTIONS PRESENTED
In 2023, the U.S. Department of Health and Human Services stripped millions of dollars in funding
from the States of Tennessee and Oklahoma because
they refused to counsel or refer for abortions that are
illegal under state law. Tennessee sued, alleging that
HHS’s funding decision exceeded statutory authority,
violated the Administrative Procedure Act, and
flunked the Spending Clause clear-statement rule. A
district court denied Tennessee’s request for preliminary relief. The Sixth Circuit affirmed. In doing so,
the court created a circuit split on what the Spending
Clause requires and drastically narrowed the prospective scope of Loper Bright Enterprises v. Raimondo,
603 U.S. 369 (2024). After the Sixth Circuit’s decision,
HHS restored Tennessee’s funding at approximately
full amounts and thereby eliminated any live dispute
between the parties. The questions presented are:
1. Whether, pursuant to United States v. Munsingwear, Inc., 340 U.S. 36 (1950), this Court should
vacate and remand with instructions to dismiss the
appeal as moot.
2. Whether, in the alternative, this Court should
vacate and remand for further consideration in light
of Medina v. Planned Parenthood South Atlantic, 145
S. Ct. 2219 (2025).
ii
PARTIES TO THE PROCEEDINGS BELOW
Petitioner, plaintiff-appellant below, is the State
of Tennessee.
Respondents, defendants-appellees below, are
Robert F. Kennedy, Jr., in his official capacity as Secretary of the United States Department of Health and
Human Services; the United States Department of
Health and Human Services; the Deputy Assistant
Secretary for Population Affairs; and the Office of Population Affairs. *
* Pursuant to this Court’s Rule 35.3, the following respondents
have been automatically substituted as official-capacity parties:
Robert F. Kennedy, Jr., vice Xavier Becerra; the Deputy Assistant Secretary for Population Affairs vice Jessica S. Marcella.
iii
RELATED PROCEEDINGS
The following proceedings are directly related to
this case within the meaning of Rule 14.1(b)(iii):
Tennessee v. Becerra, No. 24-5220 (6th Cir.) (initial
opinion and judgment issued August 26, 2024;
amended opinion and judgment issued March 10,
2025; petition for en banc review denied May 9, 2025).
Tennessee v. Becerra, No. 3:23-cv-384 (E.D. Tenn.) (order denying preliminary injunction motion issued
March 11, 2024; final judgment not yet entered).
iv
TABLE OF CONTENTS
Introduction ................................................................. 1
Opinions Below ............................................................ 2
Jurisdictional Statement............................................. 3
Constitutional and Statutory Provisions Involved .... 3
Statement .................................................................... 3
A. Background ...................................................... 3
B. Proceedings Below ........................................... 9
Reasons for Granting the Petition ............................ 13
I.
Vacatur under Munsingwear is warranted. ....... 13
A. HHS mooted this appeal. .............................. 14
B. The decision below would have warranted
review. ........................................................... 16
C. The equities favor vacatur. ........................... 31
II. Alternatively, the Court should remand for
reconsideration in light of Medina. .................... 34
Conclusion.................................................................. 36
Appendix A
Amended opinion of the United
States Court of Appeals for the
Sixth Circuit (Mar. 10, 2025) ....... 1a
Appendix B
Original opinion of the United
States Court of Appeals for the
Sixth Circuit (Aug. 26, 2024)...... 49a
v
Appendix C
Memorandum Opinion of the
United States District Court for
the Eastern District of Tennessee
(Mar. 11, 2024) ............................ 96a
Appendix D
Order of the United States Court
of Appeals for the Sixth Circuit
denying petition for en banc
rehearing (May 9, 2025) ........... 152a
Appendix E
U.S. Const. art. I § 8, cl. 1 ........ 154a
Appendix F
42 U.S.C. § 300(a) ..................... 155a
Appendix G
42 U.S.C. § 300a-4(a)-(b)........... 156a
Appendix H
42 U.S.C. § 300a-6 .................... 157a
Appendix I
Letter from the United States
Department of Health and
Human Services clarifying
Title X funding award (May 27,
2025) .......................................... 158a
Appendix J
Notice of Award from the United
States Department of Health
and Human Services (Mar. 31,
2025) .......................................... 162a
vi
TABLE OF AUTHORITIES
Cases
Page(s)
Already, LLC v. Nike, Inc.,
568 U.S. 85 (2013) .................................................. 15
Am. Med. Ass’n v. Becerra,
141 S. Ct. 2619 (2021) .............................................. 5
Arizonans for Off. Eng. v. Arizona,
520 U.S. 43 (1997) .................................................. 14
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,
548 U.S. 291 (2006) ................................................ 24
Azar v. Garza,
584 U.S. 726 (2018) .......................................... 16, 32
Bennett v. Ky. Dep’t of Educ.,
470 U.S. 656 (1985) ................................................ 25
Bernardo-De La Cruz v. Garland,
114 F.4th 883 (7th Cir. 2024) ................................ 21
BP PLC v. Mayor of Baltimore,
593 U.S. 230 (2021) ................................................ 20
California ex rel. Becerra v. Azar,
950 F.3d 1067 (9th Cir. 2020) ............................ 4, 22
vii
Camreta v. Greene,
563 U.S. 692 (2011) .............................. 14, 16, 32, 34
Chavez v. Bondi,
134 F.4th 207 (4th Cir. 2025) ................................ 21
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837 (1984) .................................................. 5
City and County of San Francisco v. Trump,
897 F.3d 1225 (9th Cir. 2018) ................................ 27
Cochran v. Mayor of Baltimore,
141 S. Ct. 1369 (Mem.) (2021) ......................... 22, 23
Corner Post, Inc. v. Bd. of Governors of Fed. Rsrv.
Sys.,
603 U.S. 799 (2024) ................................................ 18
Cummings v. Premier Rehab Keller, PLLC,
596 U.S. 212 (2022) ................................................ 24
Davis v. Monroe Cnty. Bd. of Educ.,
526 U.S. 629 (1999) ................................................ 26
Deakins v. Monaghan,
484 U.S. 193 (1988) ................................................ 34
Deanda v. Becerra,
96 F.4th 750 (5th Cir. 2024) .................................. 30
Dobbs v. Jackson Women’s Health Org.,
597 U.S. 215 (2022) .................................................. 5
viii
Emigrant Co. v. Cty. of Adams,
100 U.S. 61 (1879) .................................................. 35
FCC v. Consumers’ Rsch.,
145 S. Ct. 2482 (2025) ............................................ 26
Great W. Sugar Co. v. Nelson,
442 U.S. 92 (1979) (per curiam) ............................ 14
Jackson v. Birmingham Bd. of Educ.,
544 U.S. 167 (2005) ................................................ 26
Kimble v. Marvel Ent., LLC,
576 U.S. 446 (2015) ................................................ 21
Kingdomware Techs., Inc. v. United States,
579 U.S. 162 (2016) ................................................ 15
Lake Region Healthcare Corp. v. Becerra,
113 F.4th 1002 (D.C. Cir. 2024)............................. 21
Lawrence v. Chater,
516 U.S. 163 (1996) .................................... 34, 35, 36
Loper Bright Enters. v. Raimondo,
603 U.S. 369 (2024) .......................... 1, 11, 16, 17, 20
Lopez v. Garland,
116 F.4th 1032 (9th Cir. 2024) .............................. 21
Mayor of Baltimore v. Azar,
973 F.3d 258 (4th Cir. 2020) .................................. 22
ix
Medina v. Planned Parenthood S. Atlantic,
145 S. Ct. 2219 (2025) ...................... 2, 24, 30, 33, 35
Moyle v. United States,
144 S. Ct. 2015 (2024) ............................................ 31
Mozilla Corp. v. FCC,
940 F.3d 1 (D.C. Cir. 2019) .................................... 19
Murillo-Chavez v. Bondi,
128 F.4th 1076 (9th Cir. 2025) .............................. 22
NFIB v. Sebelius,
567 U.S. 519 (2012) ................................................ 24
Ohio v. Becerra,
87 F.4th 759 (6th Cir. 2023) ...................... 4, 5, 6, 18
Oklahoma v. U.S. Dep’t of Health & Hum. Servs.,
107 F.4th 1209 (2024) ............................................ 25
Oklahoma v. U.S. Dep’t of Health & Hum. Servs.,
145 S. Ct. 110 (2024) .............................................. 23
Oklahoma v. U.S. Dep’t of Health & Hum. Servs.,
No. 24-437, 2025 WL 1787685 (Mem.) (U.S. June
30, 2025) ..................................... 2, 13, 23, 31, 34, 36
PDR Network, LLC v. Carlton & Harris Chiropractic,
Inc.,
588 U.S. 1 (2019) .................................................... 18
x
Pennhurst State Sch. & Hosp. v. Halderman,
451 U.S. 1 (1981) ........................................ 23, 24, 25
Rust v. Sullivan,
500 U.S. 173 (1991) ...................... 4, 5, 18, 22, 24, 29
DHS v. Regents of the Univ. of Cal.,
591 U.S. 1 (2020) ...................................................... 6
Siqueira v. U.S. Att’y Gen.,
No. 23-13710, 2024 WL 4590031 (11th Cir. Oct. 28,
2024) ....................................................................... 22
South Dakota v. Dole,
483 U.S. 203 (1987) ................................................ 26
Tennessee v. Becerra,
739 F. Supp. 3d 467 (S.D. Miss. 2024) .................. 30
Tennessee v. Cardona,
No. 24-5588, 2024 WL 3453880 (6th Cir. July 17,
2024) ....................................................................... 30
Texas v. Yellen,
105 F.4th 755 (5th Cir. 2024) .......................... 28, 33
Texas Educ. Agency v. U.S. Dep’t of Educ.,
992 F.3d 350 (5th Cir. 2021) ............................ 27, 28
U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship,
513 U.S. 18 (1994) ............................................ 14, 31
xi
U.S. Telecom Ass’n v. FCC,
825 F.3d 674 (D.C. Cir. 2016) ................................ 19
United States v. Butler,
297 U.S. 1 (1936) .................................................... 28
United States v. Munsingwear, Inc.,
340 U.S. 36 (1950) .............................. 1, 2, 13, 14, 32
United States v. Trumbull,
114 F.4th 1114 (9th Cir. 2024) ........................ 17, 22
Valent v. Comm’r of Social Sec.,
918 F.3d 516 (6th Cir. 2019) .................................. 32
Va. Dep’t of Educ. v. Riley,
106 F.3d 559 (4th Cir. 1997) (en banc)
(per curiam) ...................................................... 26, 27
W. Va. ex rel. Morrisey v. U.S. Dep’t of Treasury,
59 F.4th 1124 (11th Cir. 2023) .................. 26, 28, 29
Constitutional Provisions
U.S. Const. art. III, § 2, cl. 1 ..................................... 15
Statutes
5 U.S.C. § 551(13) ................................................ 17, 18
5 U.S.C. § 702 ............................................................ 17
5 U.S.C. § 704 ............................................................ 17
xii
20 U.S.C. § 1682 ........................................................ 33
28 U.S.C. § 1254(1) ...................................................... 3
28 U.S.C. § 2112(a)(3) ................................................ 19
42 U.S.C. § 300(a) .................................................... 3, 4
42 U.S.C. § 300a-4(a) ................................... 1, 3, 10, 30
42 U.S.C. § 300a-4(b) ............................. 1, 3, 10, 25, 30
42 U.S.C. § 300a-6 ............................................. 3, 4, 29
42 U.S.C. § 421(m) ..................................................... 32
42 U.S.C. § 18116 ...................................................... 33
2019 Tenn. Pub. Acts, ch. 351, §§ 2-3 ......................... 8
Regulations
86 Fed. Reg. 56144 (Oct. 7, 2021) ............................... 5
Other Authorities
Application for Stay, Oklahoma v. HHS, No. 24A146
(U.S. Aug. 5, 2024) ................................................. 31
Kent Barnett & Christopher J. Walker, Chevron Step
Two’s Domain, 93 NOTRE DAME L. REV. 1441
(2018) ...................................................................... 20
xiii
Amy Coney Barrett, Statutory Stare Decisis in the
Courts of Appeals, 73 Geo. Wash. L. Rev. 317
(2005) ...................................................................... 20
Br. for Resp’ts App. B, Loper Bright Enters. v. Raimondo, No. 22-451 (U.S. Sept. 15, 2023) .............. 20
Consolidation Order, Dkt. No. 1, In re: MCP No. 185
Open Internet Rule (FCC 24-52), No. 24-7000
(6th Cir. June 13, 2024) ......................................... 19
Executive Order No. 14076,
87 Fed. Reg. 42053 (July 8, 2022) ........................... 8
Jonathan Remy Nash, Chevron Stare Decisis
in a Post-Loper Bright World, 110 Iowa L.
Rev. Online 180 (2025)............................... 16, 21, 22
Petition for a Writ of Certiorari, Oklahoma v.
HHS, No. 24-437 (U.S. Oct. 15, 2024) ................... 31
Tenn. Att’y Gen. and Rep., Tennessee Attorney General’s Office Recovers $7 Million in Annual
Healthcare Funding for Expectant Mothers (July
29, 2025, at 10:39 CT) ............................................ 12
Christoper J. Walker, What Loper Bright Enterprises v. Raimondo Means for the Future of
Chevron Deference, Notice & Comment—Yale
J. on Regulation (June 28, 2024) ........................... 33
INTRODUCTION
The decision below is a dream for the administrative state—but a nightmare for sovereign States. It
carries forward agency deference for every statutory
construction ever allowed under Chevron, negating
this Court’s instruction that courts must identify the
“single, best meaning” of a statute when confronted
with a new “agency action[].” Loper Bright Enters. v.
Raimondo, 603 U.S. 369, 400, 412 (2024). The decision
also guts the Spending Clause. According to the Sixth
Circuit, the Spending Clause allows the Executive
Branch to subject States to conditions on federal funding that are untethered from any statutory restriction.
If Congress provides that States will be subject to “regulations” an agency “may promulgate” or “conditions”
the agency “may determine to be appropriate,” see 42
U.S.C. § 300a-4(a), (b), that’s good enough for the
Sixth Circuit. And this case shows just how supercharged that power is, because the Sixth Circuit allowed a regulatory funding condition that this Court
has already stated Title X does not address to serve as
the basis for stripping Tennessee of millions of dollars.
That cannot be right.
If HHS had not mooted this appeal, it would have
been ready-made for this Court’s review. But HHS
has now restored Tennessee’s Title X funding and disavowed enforcing the abortion-related mandates it
previously cited as grounds for rescindment. When
the actions of a prevailing party below give rise to
mootness, this Court’s “established practice” is to “vacate the judgment below and remand with a direction
to dismiss.” United States v. Munsingwear, Inc., 340
2
U.S. 36, 39 & n.2 (1950). The Court should follow that
practice here.
And if this appeal is not moot, the Court should
vacate the judgment and remand the case for further
consideration in light of Medina v. Planned
Parenthood South Atlantic, 145 S. Ct. 2219 (2025).
The Sixth Circuit would likely reconsider its Spending
Clause holding given Medina’s repeated instruction
that the Constitution requires Congress to announce
clear spending conditions in statutes. Indeed, this
Court recognized as much by GVR’ing Oklahoma’s
near-identical Spending Clause challenge to HHS’s
decision to rescind its Title X funding. Oklahoma v.
U.S. Dep’t of Health & Hum. Servs., No. 24-437, 2025
WL 1787685, at *1 (Mem.) (U.S. June 30, 2025). Absent Munsingwear vacatur, that same approach is
warranted here.
The Court should grant the petition for certiorari,
vacate the judgment below, and remand with instructions to dismiss as moot or, at minimum, for further
consideration in light of Medina.
OPINIONS BELOW
The Sixth Circuit’s initial opinion (Pet.App.49a95a) is reported at 117 F.4th 348 (6th Cir. 2024). The
Sixth Circuit’s amended opinion (Pet.App.1a-48a) is
reported at 131 F.4th 350 (6th Cir. 2025). The Sixth
Circuit’s order denying en banc rehearing
(Pet.App.152a-153a) is unreported but available at
2025 WL 1409052 (6th Cir. May 9, 2025). The district
court’s opinion (Pet.App.96a-151a) is reported at 720
F. Supp. 3d 564 (E.D. Tenn. 2024).
3
JURISDICTIONAL STATEMENT
The Sixth Circuit initially entered judgment on
August 26, 2024, but later issued an amended opinion
and judgment on March 10, 2025. A petition for en
banc rehearing was denied on May 9, 2025. This
Court has jurisdiction under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Article I, § 8, cl. 1 of the United States Constitution is reproduced at Pet.App.154a. Subsection 300(a)
of Title 42 of the United States Code is reproduced at
Pet.App.155a. Pertinent portions of subsections 300a4(a) and (b) of Title 42 of the United States Code are
reproduced at Pet.App.156a. Section 300a-6 of Title
42 of the United States Code is reproduced at
Pet.App.157a.
STATEMENT
A. Background
1. Exercising its Spending Clause power, Congress
enacted Title X of the Public Health Service Act, 42
U.S.C. § 300, et seq., to provide federal funding for
family planning services. Title X authorizes the Secretary of HHS “to make grants to and enter into contracts with public or nonprofit private entities to assist
in the establishment and operation of voluntary family planning projects.” 42 U.S.C. § 300(a). These
grants and contracts are “made in accordance with
such regulations as the Secretary may promulgate,”
id. § 300a-4(a), and may be used to “offer a broad
4
range of acceptable and effective family planning
methods and services,” id. § 300(a).
But Congress placed a guardrail on Title X: “None
of the funds appropriated under” that program “shall
be used in programs where abortion is a method of
family planning.” Id. § 300a-6. HHS has always read
that provision (often referred to as Section 1008) to
prevent Title X grantees from performing abortions.
But HHS’s view on its power to require grantees to refer and counsel for abortion procedures has “flipped
back and forth” between irreconcilable formulations.
Ohio v. Becerra, 87 F.4th 759, 765 (6th Cir. 2023).
Sometimes HHS has understood Section 1008 to permit abortion counseling and referrals in Title X programs. Other times, HHS has invoked its Section
1008 authority to require abortion counseling and referrals. And still other times, HHS has interpreted
Section 1008 to prohibit counseling and referring for
abortion. Changes occurred in 1971 (no funding), the
mid-1970s (directive counseling prohibited, nondirective counseling allowed), 1981 (requiring counseling and referrals), 1988 (barring both counseling and
referrals), 2000 (requiring both counseling and referrals), and 2019 (permitting nondirective counseling
but prohibiting referrals). See id. at 765-68; California ex rel. Becerra v. Azar, 950 F.3d 1067, 1075 (9th
Cir. 2020) (en banc).
The Chevron doctrine provided legal cover for this
flip-flopping. This Court, in Rust v. Sullivan, considered whether HHS’s 1988 rule prohibiting abortion
counseling and referrals fell within the agency’s rulemaking authority as limited by Section 1008. 500 U.S.
5
173, 184-87 (1991). The Court held that Section 1008
is “ambiguous” because it “does not speak directly to
the issues of counseling [or] referral[s].” Id. at 184.
The “legislative history,” according to the Court, was
similarly “ambiguous” as to what Section 1008 requires. Id. at 186. The Court therefore evaluated the
rule under the two-step framework from Chevron,
U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984), and deferred to HHS’s interpretation of Section 1008, Rust, 500 U.S. at 184-87.
This Court granted review in a suite of cases in
early 2021 to provide clarity on the contours of Section
1008. See Am. Med. Ass’n v. Becerra, Nos. 20-429, 20454, 20-539. But a change in administration and concomitant enforcement priorities robbed the Court of
the opportunity. 141 S. Ct. 2619 (2021) (dismissing
certiorari).
So the regulatory whiplash continued. HHS’s latest take on Section 1008 came in October 2021. 86
Fed. Reg. 56144 (Oct. 7, 2021) (“2021 Rule”). Among
other things, the 2021 Rule replaced a 2019 ban on
abortion referrals by Title X grantees with a mandate
that Title X projects provide abortion counseling and
make abortion referrals upon request. Id. at 56179.
The State of Ohio led a coalition of States challenging the 2021 Rule as facially unlawful. See Ohio, 87
F.4th at 767-68. Bound by Rust and Chevron, the
Sixth Circuit upheld the 2021 Rule. Id. at 770-75. The
court recognized that this Court’s decision in Dobbs v.
Jackson Women’s Health Organization, 597 U.S. 215
6
(2022), was unaccounted for “[w]hen HHS implemented the 2021 Rule” because it “had not yet happened.” Id. at 774 n.7. But because “judicial review of
agency action is limited to the grounds that the agency
invoked when it took the action,” the Court held that
Dobbs did not affect Ohio’s facial challenge to the 2021
Rule. Id. (quoting DHS v. Regents of the Univ. of Cal.,
591 U.S. 1, 20 (2020)). Even so, the court explained
that “[t]he impact of Dobbs on the Title X program is
undoubtedly an ‘important aspect’ of the question” for
future applications of the rule to Title X participants,
meaning that application of the 2021 Rule’s referral
mandate against States with post-Dobbs laws criminalizing abortion would require new and different
scrutiny. See id. (quotation omitted).
2. Tennessee has developed “a leading” Title X program. D.Ct.Doc. 1-1 at 36. 1 The State received its first
Title X grant in 1971, and for five decades, HHS renewed Tennessee’s funding without fail. D.Ct.Doc. 15 at 131-32. Tennessee’s Title X program provides services across all 95 counties in the State. D.Ct.Doc. 11 at 36. Its facilities provide an array of family planning and health services ranging from abstinence
training, to natural family planning and fertility
methods, to pregnancy testing and infertility services.
Id.; D.Ct.Doc. 1-5 at 132. Tennessee’s program “has
also provided all options counseling, including counseling on” pregnancy termination as requested by the
pregnant client. D.Ct.Doc. 1-5 at 132.
1 All pincites to district court filings refer to the stamped Page ID
numbers generated by the court’s ECF filing system for the consolidated docket No. 3:23-cv-384-TRM (E.D. Tenn.).
7
Each year, Tennessee serves over 40,000 individuals through Title X, most of whom qualify as low income and depend on the State for vital services. Id.;
D.Ct.Doc. 1-1 at 36. HHS has commended the State’s
“strong” performance. D.Ct.Doc. 1-2 at 96.
3. In March 2022, Tennessee received a new Title X grant that provided the State with approximately $7 million for family planning services each
year through 2027. D.Ct.Doc. 1-7 at 170-86. When
Tennessee received this 5-year grant, HHS had implemented the 2021 Rule’s abortion-related mandates.
Months later, this Court’s decision in Dobbs triggered a chain of events. At the federal level, Dobbs
spurred HHS to issue guidance about the impact on
Title X. D.Ct.Doc. 1-6 at 161-69. That guidance stated
that Title X recipients are still required to provide
counseling and referrals for abortion, but it did not address how providers in States that outlaw abortion
could comply. See id. at 164-66. HHS instead advised
that “[t]here are no geographic limits for Title X recipients making referrals,” but “Title X recipients are required to provide for coordination and use of referrals
and linkages with [providers] who are in close physical
proximity to the Title X site, when feasible.” Id. at 165
(emphasis omitted). HHS also recommended using
telehealth for making “necessary referral[s] to other
medical facilities.” Id.
In Tennessee, Dobbs activated the Human Life
Protection Act. That Act, which took effect 30 days
after the Dobbs decision, makes it a felony to “perform[] or attempt[] to perform an abortion,” except to
8
preserve the life or health of the pregnant woman. See
2019 Tenn. Pub. Acts, ch. 351, §§ 2-3.
With that change in state law, Tennessee’s Department of Health updated its Title X protocol to clarify that it would comply with the 2021 Rule by
“provid[ing] information and counseling regarding all
options that are legal in the State of Tennessee.” See
D.Ct.Doc. 1-5 at 132-33, 135-37 (emphasis added).
Soon after, HHS began a pre-scheduled review of
Tennessee’s Title X program. Id. at 133. During that
review, the State told HHS about its post-Dobbs policy. Id. And HHS determined that the State “met” the
2021 Rule’s counseling-and-referral expectations,
even though “[n]o referrals for abortion are made” under the post-Dobbs policy. D.Ct.Doc. 1-1 at 56. Indeed,
HHS lauded Tennessee’s Department of Health as
“the only agency” in the State capable of “administer[ing] Title X funds with integrity.” Id. at 36. An
HHS official passing along Tennessee’s report praised
the State for “such a wonderful review and leading a
strong Title X program.” D.Ct.Doc. 1-2 at 96.
HHS later reversed course. In Dobbs’s wake, President Biden ordered agencies like HHS to assess “potential actions” in light of States’ restored ability to
regulate abortion—including under Title X. See Exec.
Ord. No. 14076, 87 Fed. Reg. 42053 (July 8, 2022). In
response, HHS initiated another audit of Tennessee’s
Title X program in January 2023. And this time HHS
disapproved the State’s program, deciding that Tennessee must counsel and refer for abortions prohibited
by state law. See D.Ct.Doc. 1-9 at 189-90. Either that,
9
or Tennessee should refer illegal abortions “out of
state.” D.Ct.Doc. 1-11 at 195. When the State refused
to accede to these ultimatums, HHS canceled the balance of Tennessee’s Title X grant and reallocated the
$7 million the State was to receive to Planned
Parenthood and similar groups. See D.Ct.Doc. 1 at 1819 (collecting cites).
B. Proceedings Below
Tennessee sued to invalidate the rescindment of
its March 2022 Title X grant award. The State argued
that HHS’s rescindment was unlawful under Title X,
the Administrative Procedure Act, and the Spending
Clause. Id. at 22-30. And it sought a preliminary injunction to preserve its funding during litigation.
D.Ct.Doc. 20. On March 11, 2024, the district court
denied this request for an injunction. Pet.App.96a151a.
Tennessee immediately appealed. After briefing
had closed before the Sixth Circuit, this Court decided
Loper Bright, interring Chevron deference. Tennessee
requested a chance to brief Loper Bright’s effect on
this case, but HHS insisted that further briefing on
the matter was unnecessary. C.A.Doc. 45. Without
the benefit of additional briefing, the Sixth Circuit
panel affirmed the district court’s decision, with Judge
Kethledge dissenting in part and concurring in the
judgment in part. Pet.App.49a-95a.
As relevant here, the panel majority held that
Tennessee was unlikely to succeed in its challenge
based on two crucial conclusions. First, the majority
10
held that Rust and Ohio govern HHS’s authority under Section 1008 to impose abortion-related funding
conditions even after Loper Bright. Pet.App.66a-73a.
Second, the majority held that HHS passed the Spending Clause’s clear-statement rule even though Title X
“does not” itself “illuminate” HHS’s abortion conditions. See Pet.App.56a-66a. Title X states that grants
and contracts “made under this subchapter shall be
made in accordance with such regulations as the Secretary may promulgate” and “shall be payable … subject to such conditions as the Secretary may determine
to be appropriate.” Pet.App.58a (ellipsis in original)
(quoting 42 U.S.C. § 300a-4(a), (b)). These broad delegations, the majority held, were constitutionally sufficient under the Spending Clause clear-statement rule
when “combin[ed]” with the regulations promulgated
under them. Pet.App.60a. The majority dismissed
any tension with Spending-Clause cases that stress
the need to source funding conditions in congressional
statutes, not agency rules. See Pet.App.61a-63a.
In dissent, Judge Kethledge explained that the
majority’s reliance on Rust and Ohio—“Chevron
case[s] down to [their] bones”—misapplies Loper
Bright. See Pet.App.84a. That’s because Loper Bright
only narrowly affords statutory stare decisis protection to Chevron-dependent “holdings … that specific
agency actions are lawful.” Pet.App.87a (emphasis in
original) (quotation omitted). Rescinding Tennessee’s
Title X funding, Judge Kethledge recognized, is distinct from the “specific agency action[s]” that were at
issue in Rust and Ohio. See id. Rust, for example,
dealt with “the 1988 Rule, which has since been rescinded.” Id. Thus, Judge Kethledge argued that the
11
court had “no occasion to defer to that holding,” and
instead needed to “determine for itself whether the
2021 Rule’s abortion-referral requirement,” applied
against Tennessee, “is contrary to law.” Pet.App.87a88a. The majority’s contrary approach, he warned,
renders Loper Bright “of no moment whatever” and ensures “Chevron lives on in perpetuity as to any statute
that the Supreme Court has ever deemed ambiguous
under that doctrine.” Pet.App.86a-87a.
Under the de novo review required by Loper
Bright, Judge Kethledge determined that HHS’s
“abortion-referral requirement likely violates § 1008’s
proscription.” Pet.App.90a. Given this impermissibility, Judge Kethledge did “not reach Tennessee’s parallel challenge” to the referral requirement “under the
Spending Clause.” Pet.App.94a. Judge Kethledge
otherwise concluded that statutory text and subsequent congressional appropriations likely supported
enforcing the 2021 Rule’s counseling mandate and
therefore partially concurred in the judgment.
Pet.App.94a-95a.
Tennessee sought en banc review. Five months
later—with Tennessee’s petition still pending—the
court issued an amended opinion. That opinion left
the majority’s original Spending Clause analysis undisturbed and doubled down on the view that Rust and
Ohio control notwithstanding Loper Bright. See
Pet.App.1a-36a.
In particular, the majority announced that “a ‘specific agency action’ attaches to an
agency’s particular construction of a statute.”
Pet.App.23a (quoting Loper Bright, 603 U.S. at 376).
12
From there, it rejected “Tennessee’s attempt to distinguish HHS’s promulgation of the 2021 Rule in Ohio
from HHS’s rescindment of Tennessee’s Title X funding,” reasoning instead that both involve the same
“specific agency action.” Id. (emphases in original).
Judge Kethledge carried forward his separate opinion
without any changes. Pet.App.37a-48a. And, at the
invitation of the court, Tennessee filed a supplemental
memorandum explaining why the amended opinion
made en banc review even more necessary. C.A.Doc.
76.
Shortly thereafter, Tennessee received an unprompted notice from HHS reflecting a partial, forward-looking restoration of Title X funding under Tennessee’s March 2022 grant award—the same grant
HHS had previously canceled. See C.A.Doc. 77.
The court denied Tennessee’s petition for en banc
rehearing on May 9, 2025. Pet.App.152a-153a. Since
then, HHS has clarified that it is “declining to enforce”
the 2021 Rule’s abortion-counseling-and-referral mandates against Tennessee, and the State can “rely” on
that position going forward. Pet.App.160a; see id. at
158a-159a; Pet.App.162a-219a; see also Tenn. Att’y
Gen. and Rep., Tennessee Attorney General’s Office Recovers $7 Million in Annual Healthcare Funding for
Expectant Mothers (July 29, 2025, at 10:39 CT),
https://tinyurl.com/y9j4td8j. HHS has also notified
Tennessee that the State’s funding will be restored
prospectively at approximately full funding (minus a
small, unrelated reduction necessitated by congressional appropriations). See Pet.App.158-159a.
13
REASONS FOR GRANTING THE PETITION
The decision below neuters this Court’s effort in
Loper Bright to move past Chevron deference, perpetuates uncertainty around HHS’s authority under Section 1008, and permits Congress to circumvent constitutional limits on its spending power by simply delegating to executive agencies broad authority to impose
funding conditions. Each of these important legal errors would have independently warranted this Court’s
review. But before Tennessee could obtain further review, HHS mooted this appeal. Consistent with its ordinary practice in such circumstances, the Court
should grant the petition for a writ of certiorari, vacate
the judgment below, and remand with instructions to
dismiss this appeal as moot. See Munsingwear, 340
U.S. at 39.
At bare minimum, the Court should vacate the
judgment and remand for further consideration in
light of Medina. The Spending Clause analysis in that
recent decision will likely alter the Sixth Circuit’s consideration of Tennessee’s challenge. Indeed, this
Court just GVR’d Oklahoma’s near-identical Title X
challenge in light of Medina. Oklahoma, 2025 WL
1787685, at *1. If Medina requires a fresh look at Oklahoma’s case, the same is true here.
I.
Vacatur under Munsingwear is warranted.
This case presented three questions of fundamental importance: First, to what extent did Chevron deference survive Loper Bright? Second, did Congress
empower HHS to compel States to counsel and refer
for abortions, especially those that are illegal under
14
state law after Dobbs? And third, can Congress circumvent the Spending Clause clear-statement rule
simply by delegating to federal agencies broad authority to set spending conditions? But HHS’s reinstatement of Tennessee’s funding and disavowal of the
2021 Rule moots this case, prohibiting the State from
seeking answers.
When that happens, this Court’s “established
practice” is to “vacate the judgment below and remand
with a direction to dismiss.” Munsingwear, 340 U.S.
at 39 & n.2. This Court has followed that approach in
“countless cases,” Great W. Sugar Co. v. Nelson, 442
U.S. 92, 93 (1979) (per curiam), and it is the “normal”
procedure in the event of mootness, Camreta v.
Greene, 563 U.S. 692, 713 (2011). The rule serves important purposes: “A party who seeks review of the
merits of an adverse ruling, but is frustrated by the
vagaries of circumstance” or the “unilateral action of
the party who prevailed below,” “ought not in fairness
be forced to acquiesce in the judgment.” U.S. Bancorp
Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 25
(1994). At the same time, “[v]acatur ‘clears the path
for future relitigation’ by eliminating a judgment the
loser was stopped from opposing on direct review.” Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 71 (1997)
(quotation omitted). The case for vacatur is especially
strong here for three reasons.
A. HHS mooted this appeal.
The controversy in this appeal was resolved when
HHS restored Tennessee’s funding and disclaimed the
2021 Rule’s abortion-related mandates.
15
The jurisdiction of the federal courts is limited to
the resolution of actual “Cases” or “Controversies.”
U.S. Const. art. III, § 2, cl. 1. And “an ‘actual controversy’ must exist not only ‘at the time the complaint is
filed,’ but through ‘all stages’ of the litigation.” Already, LLC v. Nike, Inc., 568 U.S. 85, 90-91 (2013)
(quotations omitted). Thus, a case or appeal becomes
moot when the issues presented are no longer “live” or
the parties lack a legally cognizable interest in the outcome—“[n]o matter how vehemently the parties continue to dispute the lawfulness of the conduct that precipitated the lawsuit.” Id. at 91. A case generally presents no live controversy if “no court is now capable of
granting the relief” sought by the plaintiff. Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 169
(2016).
Under those principles, this appeal is moot. Tennessee brought this case to undo HHS’s decision to rescind the State’s March 2022 Title X grant award
based on non-compliance with the 2021 Rule’s abortion-related mandates, and Tennessee sought preliminary relief to prevent HHS from reallocating those
annually dispersed funds during the pendency of this
matter. See D.Ct.Doc. 1; D.Ct.Doc. 20. But Tennessee’s 2024 Title X funding cannot be recovered, and
HHS has committed to restoring Tennessee’s 2025
funding and declining to enforce the 2021 Rule’s abortion-related mandates against the State going forward. C.A.Doc. 80-1, at 2; Pet.App.159a-160a. Given
these developments, this dispute no longer presents a
live controversy because reversing the denial of Tennessee’s motion for preliminary injunction would do
16
nothing to benefit the State, meaning it lacks any legally cognizable interest in the outcome of these proceedings.
HHS told the Sixth Circuit that “this case lacks
prospective significance” given the restoration of Tennessee’s funding, C.A.Doc. 80-1, at 3, so it presumably
agrees.
B. The decision below would have warranted review.
Vacatur under Munsingwear is available even if a
case becomes “moot before certiorari” when the decision below would have been worthy of further review
absent mootness. Azar v. Garza, 584 U.S. 726, 729
(2018) (per curiam); see Camreta, 563 U.S. at 713-14.
And further review of the decision below would have
been warranted for at least three reasons:
1. The decision below risks undermining this
Court’s transformative Loper Bright decision and
heightens the risk of growing “disuniformity” among
the circuits over the meaning of the decision’s stare
decisis discussion. See Jonathan Remy Nash, Chevron
Stare Decisis in a Post-Loper Bright World, 110 Iowa
L. Rev. Online 180, 198-99 & n.86 (2025).
a. In Loper Bright, this Court overruled Chevron
and revived courts’ duty to determine statutes’ “single,
best meaning.” 603 U.S. at 400. But the panel majority did not allow Tennessee to argue Title X’s meaning
de novo. Instead, it posited that Rust and Ohio—
Chevron cases to their “bones”—require continued deference to any HHS action relating to Section 1008.
17
Pet.App.18a-26a; Pet.App.37a (Kethledge, J., dissenting). The broad, prospective effects of that erroneous
decision about “an important question of federal law”
would have warranted review. See Sup. Ct. R. 10(c).
Judge Kethledge stressed the stark upshot of the
majority’s reasoning: “Chevron lives on in perpetuity
as to any statute that the Supreme Court”—or the circuit court—“has ever deemed ambiguous under that
doctrine.” Pet.App.40a. As Judge Kethledge explained, that cannot be right. See id.
First, the majority’s view undercuts Loper Bright
by tying stare decisis to statutory interpretations, not
“specific agency actions.” Loper Bright, 603 U.S. at
412. The term “agency action” refers to the particular
agency rule or order subject to judicial review. See 5
U.S.C. § 551(13); id. §§ 702, 704. Loper Bright carefully instructed that it was not overruling prior Chevron-based “holdings” that “specific agency actions are
lawful.” Loper Bright, 603 U.S. at 412. Thus, the
Court distinguished a case’s “reliance on Chevron”
from the “holding” that receives stare decisis effect.
Id. In so doing, Loper Bright sets up a res-judicatatype rule to ensure long-extant “specific agency actions” are not exposed to de novo reopening. United
States v. Trumbull, 114 F.4th 1114, 1125 (9th Cir.
2024) (Bea, J., concurring in the judgment) (emphasis
in original and quotation omitted). But courts otherwise are to implement Loper Bright’s new “interpretive methodology.” Pet.App.40a (Kethledge, J., dissenting) (quotation omitted).
18
The panel majority here missed that mark. Promulgation of “an agency rule” is one specific “agency action,” while an agency “order, license, sanction, relief,
or the equivalent” applying that rule is a separate specific “agency action.” See 5 U.S.C. § 551(13). Hence
the well-worn APA principle that regulated entities
may “raise an as-applied challenge … in an enforcement proceeding.” See PDR Network, LLC v. Carlton
& Harris Chiropractic, Inc., 588 U.S. 1, 15 (2019) (Kavanaugh, J., concurring in the judgment); cf. Corner
Post, Inc. v. Bd. of Governors of Fed. Rsrv. Sys., 603
U.S. 799, 813-23 (2024) (rejecting argument that “facial challenges to agency rules” accrue “when agency
action is final rather than when the plaintiff can assert [a] claim” upon application of the rule against the
plaintiff).
Yet the panel majority conflated the “specific
agency action” at issue in prior decisions—the enactment of rules implementing Section 1008—from the
distinct “specific agency action” Tennessee challenged
here—the rescindment of its Title X grant. In the
panel’s view, a “‘specific agency action’ attaches to an
agency’s particular construction of a statute.”
Pet.App.23a (emphasis added). And because Ohio had
upheld the 2021 Rule’s construction of Section 1008, it
was entitled to “statutory stare decisis.” Id. (quotation
omitted). That is not how the APA defines “agency action.” See 5 U.S.C. § 551(13). Moreover, it would
mean HHS rules reading Title X to bar abortion conditions comprise one “specific agency action,” see Rust,
500 U.S. at 184-87, whereas all rules reading Title X
to require abortion conditions are another “specific
agency action,” see Ohio, 87 F.4th at 770-72—with
19
both warranting simultaneous deference. That cannot
be, and the majority made no effort to show otherwise.
Second, granting stare decisis effect to the statutory interpretations of circuit-level Chevron cases
opens a Pandora’s Box of analytical problems—none of
which the panel majority addressed directly. Consider
this case, which involves a Supreme Court precedent
(Rust) and a circuit precedent (Ohio) approving opposite interpretations under Chevron. Which “holding[]”
about the agency’s “particular construction of a statute” controls as a matter of stare decisis and Chevron?
Pet.App.23a. This Court’s holding that Title X might
prohibit abortion counseling and referrals, or Ohio’s
contrary decision that Title X can be read to mandate
abortion counseling and referrals? Does letting Ohio
trump Rust violate vertical stare decisis?
And what are courts to do about conflicting circuit
decisions approving opposite readings of a statute under Chevron deference? Compare, e.g., U.S. Telecom
Ass’n v. FCC, 825 F.3d 674, 701-04 (D.C. Cir. 2016),
with Mozilla Corp. v. FCC, 940 F.3d 1, 22-23 (D.C. Cir.
2019) (per curiam). Are both available, meaning the
agency always wins? Or do they cancel each other out,
requiring de novo review? If Loper Bright’s discussion
shields all “prior cases” relying on Chevron, see
Pet.App.20a, why shouldn’t other circuits’ precedents
approving prior agency constructions bind too? After
all, the circuit-lottery statute funnels many rule challenges to a single circuit following a random draw.
See, e.g., Consolidation Order, Dkt. No. 1, In re: MCP
No. 185 Open Internet Rule (FCC 24-52), No. 24-7000
(6th Cir. June 13, 2024) (citing 28 U.S.C. § 2112(a)(3)).
20
Did Loper Bright intend to hinge parties’ going-forward right to de novo review on such happenstance?
What is more, the decision to carry forward deference for all statutes previously interpreted under
Chevron is a seismic doctrinal step. This Court has
relied on Chevron some 70 times. See Br. for Resp’ts
App. B 68a-72a, Loper Bright Enters. v. Raimondo, No.
22-451 (U.S. Sept. 15, 2023). And the decision below
further expands the universe of statutes that will now
be subject to perpetual agency deference. See Kent
Barnett & Christopher J. Walker, Chevron Step Two’s
Domain, 93 NOTRE DAME L. REV. 1441, 1460, 1458,
1463 & n.173 (2018) (finding that the Sixth Circuit applied Chevron dozens of times between 2003 and 2013,
upholding the agency’s view more than 80 percent of
the time). The panel majority, too, recognized that
“thousands” of lower-court decisions apply Chevron,
framing protection of those decisions as a plus to its
approach. Pet.App.22a (quoting Loper Bright, 603
U.S. at 477 (Kagan, J., dissenting)). Preserving deference for all statutes previously run through Chevron’s
framework would severely limit Loper Bright’s goingforward impact.
Further, it is an open question whether strongform statutory stare decisis should apply to circuitlevel precedents at all. That practice depends on Congress’s presumed awareness of this Court’s statutory
decisions—a justification often inapplicable to circuit
holdings. See Amy Coney Barrett, Statutory Stare Decisis in the Courts of Appeals, 73 Geo. Wash. L. Rev.
317, 318 (2005); cf. BP PLC v. Mayor of Baltimore, 593
U.S. 230, 244 (2021) (deeming it “most unlikely” that
21
“a smattering of lower court opinions could ever” warrant a presumption of congressional approval). Given
that debate, it is dubious that, in an opinion critiquing
and overruling Chevron, this Court meant to bestow a
“superpowered form of stare decisis” on countless
Chevron cases across circuits. Kimble v. Marvel Ent.,
LLC, 576 U.S. 446, 458 (2015).
b. The Sixth Circuit’s sweeping approach to Chevron stare decisis also contributes to growing confusion
among the circuits about the consequences of Loper
Bright’s stare decisis discussion. See Nash, supra at
198-99 & n.86. The D.C. Circuit, for example, has held
that Loper Bright requires courts to now “‘exercise independent judgment’ in construing” provisions previously held ambiguous under Chevron’s framework.
See Lake Region Healthcare Corp. v. Becerra, 113
F.4th 1002, 1007 (D.C. Cir. 2024). The Seventh Circuit took a similar approach in Bernardo-De La Cruz
v. Garland. See 114 F.4th 883, 890 (7th Cir. 2024).
Meanwhile, the Fourth Circuit has noted “‘though apparently in dicta, that ‘Loper Bright doesn’t wipe away
the results of our prior decisions deferring to’” agencies’ “‘reasonable interpretations’ of [a statute].’”
Nash, supra at 199 n.86 (quoting Chavez v. Bondi, 134
F.4th 207, 213 (4th Cir. 2025)). The Ninth Circuit has
offered seemingly contradictory positions. In Lopez v.
Garland, the Court held that a past Chevron-based
circuit holding “remains precedential authority which
binds us,” 116 F.4th 1032, 1045 (9th Cir. 2024), but it
has elsewhere explained that although the holdings of
prior cases “in which Chevron deference was applied
remain precedential until overruled,” courts “are not
compelled to use them as analytical building blocks in
22
every case” involving related statutory questions, Murillo-Chavez v. Bondi, 128 F.4th 1076, 1087 (9th Cir.
2025); see also Trumbull, 114 F.4th at 1125 (Bea, J.,
concurring in the judgment). “The Eleventh Circuit
has also noted the issue but remain[s] unclear as to
whether circuit Chevron-era precedent survives Loper
Bright.” Nash, supra at 199 n.86 (citing Siqueira v.
U.S. Att’y Gen., No. 23-13710, 2024 WL 4590031, at *2
(11th Cir. Oct. 28, 2024)). This Court could have
cleared up the confusion among the lower courts with
this case if HHS had not rendered it moot.
2. Proper resolution of the Loper Bright inquiry
would also unlock de novo review of Section 1008’s
meaning for the first time, an issue of exceptional importance that would have independently warranted
this Court’s review. See Cochran v. Mayor of Baltimore, 141 S. Ct. 1369 (Mem.) (2021) (granting certiorari to review validity of prior HHS Title X rule), cert
dismissed by 141 S. Ct. 2618 (2021).
This Court has only ever had the opportunity to
consider the contours of HHS’s Section 1008 authority
under Chevron’s now-defunct framework. See Rust,
500 U.S. at 184-87. Loper Bright clears the way for de
novo review of whether and how Title X limits or empowers HHS in setting abortion-related conditions.
This subject has divided the circuits, including some
that have taken the issue en banc, and not long ago
this Court granted review of a similar question. Compare California ex rel. Becerra, 950 F.3d 1067, 1105
with Mayor of Baltimore v. Azar, 973 F.3d 258, 296
(4th Cir. 2020) (en banc), cert. granted sub nom.
Cochran v. Mayor of Baltimore, 141 S. Ct. 1369 (Mem.)
23
(2021), cert. dismissed, 141 S. Ct. 2618 (2021). The opportunity to settle the scope of Title X’s meaning thus
makes this case more cert-worthy, especially given the
acute sovereignty issues Dobbs now raises.
3. The Sixth Circuit’s Spending Clause decision
also would have warranted review. Oklahoma, 2025
WL 1787685, at *1; see Oklahoma v. U.S. Dep’t of
Health & Hum. Servs., 145 S. Ct. 110 (2024) (JJ.,
Thomas, Alito, and Gorsuch, dissenting from denial of
stay). As a Spending Clause statute, Title X implicates a special constitutional rule: Congress can set
funding conditions only through “unambiguous[]” legislation States clearly understand. Pennhurst State
Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). The
panel majority agreed that HHS imposed abortion-related requirements that Title X itself lacks. See
Pet.App.11a. But it deemed that no matter, since Title
X generally allows HHS to place unspecified “conditions” on grants and the 2021 Rule clearly sets forth
its abortion-related mandates. Pet.App.10a-13a. In
other words, a general conferral of rulemaking authority—divorced from any statutory condition—can eliminate the States’ ability to raise a Spending Clause
challenge. That extraordinary proposition nullifies
the Spending Clause clear-statement rule.
a. Funding via Congress’s spending power functions “much in the nature of a contract: in return for
federal funds, the States agree to comply with federally imposed conditions.” Pennhurst, 451 U.S. at 17.
The very “legitimacy of Congress’ power to enact
Spending Clause legislation rests not on its sovereign
authority to enact binding laws, but on whether the
24
[recipient] voluntarily and knowingly accepts the
terms of th[at] contract.” Cummings v. Premier Rehab
Keller, PLLC, 596 U.S. 212, 219 (2022) (citation and
quotation marks omitted). That means that “if Congress intends to impose a condition on the grant of federal moneys [under its Spending Clause authority], it
must do so unambiguously.” Pennhurst, 451 U.S. at
17. After all, recipients “cannot knowingly accept conditions of which they are ‘unaware.’” Arlington Cent.
Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296
(2006).
When “fix[ing] the terms” for dispersing “federal
money to the States,” Congress itself must speak with
“a clear voice” via statute. Pennhurst, 451 U.S. at 17.
Indeed, this Court just reaffirmed “these principles” in
Medina. See 145 S. Ct. at 2230-34. By insisting that
“Congress speak with a clear voice,” the Spending
Clause clear-statement rule alleviates “separation of
powers and federalism concerns, id. at 2238 n.8 (emphasis in original) (quoting Pennhurst, 451 U.S. at 17),
and “ensur[es] that Spending Clause legislation does
not undermine … the States as independent sovereigns,” NFIB v. Sebelius, 567 U.S. 519, 577 (2012)
(opinion of Roberts, C.J.).
That poses a problem for HHS here. As Rust recognized, “[a]t no time did Congress directly address
the issues of abortion counseling, referral, or advocacy.” 500 U.S. at 185. So Congress itself imposed no
statutory restriction that can support HHS’s abortioncounseling-and-referral rule.
25
Yet despite conceding that Title X itself does not
clearly condition States’ funding on counseling and referring for abortions, the panel majority concluded
that HHS may nonetheless permissibly impose that
and many other conditions outside the statute. It is
“sufficient for notice purposes under the Spending
Clause,” the majority stated, if a statute “unambiguously authorize[s]” an agency “to impose conditions for
federal grants.” Pet.App.12a (quoting Oklahoma v.
U.S. Dep’t of Health & Hum. Servs., 107 F.4th 1209,
1219 (2024)). The agency then has power to “fashion
conditions” however it “may determine to be appropriate.” Pet.App.10a (quoting 42 U.S.C. § 300a-4(b)).
These broad delegations, the majority held, satisfy the
Spending Clause clear-statement rule when
“combin[ed]” with the regulations promulgated under
them. Pet.App.12a. So according to the Sixth Circuit,
the Spending Clause requires nothing more than general rulemaking authority (even absent a statutory
condition) and a regulation enacted thereunder.
This purse-sword merger explodes the “legitimacy” of spending conditions in a way no Supreme
Court case permits. Pennhurst, 451 U.S. at 17. Contra the panel majority, Pet.App.11a-13a, the decision
in Bennett v. Kentucky Department of Education, 470
U.S. 656 (1985), does not license blanket delegations
of condition-setting authority to agencies. The Court
instead found the “requisite clarity” in the statute and
expressed “reluctan[ce] to conclude that the States
guaranteed that their performance … would satisfy
whatever interpretation” of the statute “might later be
adopted by the Secretary.” Id. at 666, 670. The majority’s other citations, see Pet.App.11a-12a, also
26
sourced spending conditions in the statutes’ text, so
they are not on point either. Jackson v. Birmingham
Bd. of Educ., 544 U.S. 167, 183 (2005); Davis v. Monroe
Cnty. Bd. of Educ., 526 U.S. 629, 640, 643 (1999).
This is not to say that agencies lack “authority to
fill in gaps that may exist in a spending condition” by
defining statutory terms or explaining how broad concepts (like “discrimination”) might apply to particular
facts. See W. Va. ex rel. Morrisey v. U.S. Dep’t of Treasury, 59 F.4th 1124, 1148 (11th Cir. 2023). The discussion and cited cases in South Dakota v. Dole, 483 U.S.
203, 206-07 (1987), illustrate that limited prerogative.
But this Court has never held that a mere conferral of
general rulemaking authority somehow suffices for
purposes of the Spending Clause’s clear-statement requirement. Nor is it clear how reliance on general
rulemaking authority, unbounded by any statutory restriction, could satisfy even the lax “intelligible principle” test. See FCC v. Consumers’ Rsch., 145 S. Ct.
2482, 2497-98 (2025).
b. The decision below splits with four other circuits.
In Virginia Department of Education v. Riley, the
en banc Fourth Circuit held that, because of the
Spending Clause, the “United States Department of
Education was without authority” to impose an extrastatutory condition on Virginia through regulation.
106 F.3d 559, 561 (4th Cir. 1997) (en banc) (per curiam). Rather, “for Congress to condition a state’s receipt of federal funds, Congress must do so clearly and
unambiguously.” Id. (emphasis added). “[F]orbidden
27
regulation in the guise of Spending Clause condition,”
the court explained, is not permissible. Id.; see also id.
at 569 (Luttig, J., dissenting). 2 The Fourth Circuit
therefore refused to “defer” to the executive agency’s
construction of the Spending Clause statute, since “[i]t
is axiomatic that statutory ambiguity defeats altogether a claim by the Federal Government that Congress has unambiguously conditioned the State’s receipt of federal monies in the manner asserted.” Id. at
567 (Luttig, J., dissenting) (emphasis added). Rather,
for a condition under the Spending Clause, Congress
must speak with “clarity” and “specificity.” Id.
In City and County of San Francisco v. Trump, the
Ninth Circuit enjoined an executive order withholding
funds from sanctuary cities. 897 F.3d 1225 (9th Cir.
2018). The Spending Clause, the Ninth Circuit explained, “vests exclusive power to Congress to impose
conditions on federal grants”—“not the President.” Id.
at 1231 (emphasis added). Thus, without a “show[ing]
that Congress authorized” withdrawing “federal grant
moneys from jurisdictions that do not agree with the
current Administration’s immigration strategies,” the
executive-imposed spending condition violated the
Constitution. Id. at 1234.
In Texas Education Agency v. United States Department of Education, the Fifth Circuit considered
“whether the clarity required for waiver of sovereign
immunity … can be met by regulations clarifying an
ambiguous” Spending Clause “statute.” 992 F.3d 350,
2 Judge Luttig’s dissenting panel opinion was adopted in relevant
part by a majority of the en banc Fourth Circuit. See Va. Dep’t of
Educ., 106 F.3d at 561.
28
361 (5th Cir. 2021). The court explained that the
“needed clarity cannot be so provided—it must come
directly from the statute.” Id. That’s because the
Spending Clause “empowers Congress, not the Executive, to spend for the general welfare,” and “[r]elying
on regulations to present the clear condition … is an
acknowledgment that Congress’s condition was not
unambiguous” like the Spending Clause requires. Id.
at 361-62. The Fifth Circuit reaffirmed this position
in invalidating the off-set provision of the American
Rescue Plan Act (“ARPA”) under the Spending Clause.
Texas v. Yellen, 105 F.4th 755, 774 (5th Cir. 2024).
The Eleventh Circuit adopted the same approach
in Morrisey. After determining that ARPA’s off-set
provision “does not provide ‘clear notice’ … about how
to comply with it,” the court explained that the Treasury Secretary’s clarifying regulations could not “defeat[] the States’ constitutional arguments.” Morrisey,
59 F.4th at 1146 (citation omitted). An “agency cannot
exercise legislative power or otherwise ‘operate independently of the statute that authorized it,’” and to allow otherwise, the court explained, “would be inconsistent with the Constitution’s meticulous separation
of powers.” Id. at 1147 (citations omitted). Thus,
“[j]ust as an agency cannot choose its own intelligible
principle, it cannot provide the content that makes a
funding condition ascertainable.” Id. at 1148. For
that point, the Eleventh Circuit relied on United
States v. Butler, where this Court found “an obvious
difference between a statute stating the conditions
upon which moneys shall be expended and one effective only upon assumption of a contractual obligation
to submit to a regulation.” 297 U.S. 1, 73 (1936). This
29
means that “the ‘needed clarity’ under the Spending
Clause ‘must come directly from the statute.’” Morrisey, 59 F.4th at 1147 (citation omitted). And whatever authority agencies have “to fill in gaps that may
exist in a spending condition,” the “condition itself
must still be ascertainable on the face of the statute.”
Id. at 1148.
The abortion-related funding conditions here are
not ascertainable on the face of the statute. That is
the precise holding of Rust: “At no time did Congress
directly address the issues of abortion counseling, referral, or advocacy.” 500 U.S. at 185. Moreover, the
only statutory indication of congressional intent in Title X runs in Tennessee’s favor. See 42 U.S.C. § 300a6 (“None of the funds appropriated under this subchapter shall be used in programs where abortion is a
method of family planning”). Yet the panel majority
embraced the now-vacated opinion of the Tenth Circuit that Congress’s broad delegation of condition setting authority, “in combination with HHS’s 2021 counseling and referral regulation, are sufficient for notice
purposes under the Spending Clause.” Pet.App.12a
(emphasis added). Indeed, the majority admitted that
the generic rulemaking authority in Title X that HHS
relied upon “does not illuminate the nature of any such
conditions on the grant,” but held that the Spending
Clause is satisfied “by looking to both statutes and an
agency’s authorized regulations.” Pet.App.11a (emphasis in original). The 2021 Rule’s abortion-related
mandates, the majority held, are “minutia” that HHS
can clarify “even in the face of statutory ambiguity.”
See Pet.App.12a. With such a robust split, this issue
would have been ripe for review.
30
c. The sweeping implications of the Spending
Clause holding below would have warranted review.
See Sup. Ct. R. 10(c). The Title X provisions that the
majority found constitutionally sufficient place no
limit on HHS’s power to adopt new conditions. See 42
U.S.C. § 300a-4(a)-(b). And the majority does not suggest that Section 1008—or any other provision of Title
X—checks those delegations. It is anyone’s guess
what controversial condition HHS might next impose
on States’ Title X programs. This will leave States
without assurances needed to invest the requisite time
and resources to build up programs in reliance on the
federal funding they receive.
And the majority’s reasoning risks further empowering agencies to unilaterally wield spending legislation against States more broadly—an alarming proposition given the recognized “separation of powers and
federalism concerns” animating the Spending Clause
clear-statement rule. Medina, 145 S. Ct. at 2238 n.8.
Consider recent history: Through rules stretching
Spending Clause statutes, the prior administration
sought to condition States’ Medicaid funding on their
covering gender-transition procedures, see Tennessee
v. Becerra, 739 F. Supp. 3d 467, 480-82 (S.D. Miss.
2024), and to override States’ laws requiring parental
consent for abortions, see Deanda v. Becerra, 96 F.4th
750, 762 (5th Cir. 2024). The prior administration’s
Department of Education sought to condition billions
in States’ education funding on following gender-identity mandates. See Tennessee v. Cardona, No. 245588, 2024 WL 3453880, at *1 (6th Cir. July 17, 2024).
And the prior administration’s Department of Justice,
for its part, argued that spending legislation can even
31
“obligate” States “to violate state criminal law.” See
Moyle v. United States, 144 S. Ct. 2015, 2022 (2024)
(Barrett, J., concurring). Given the issue’s patent effects on state sovereignty and our constitutional structure, resolving agencies’ power to conjure new spending conditions would have warranted review.
d. Oklahoma raised these same arguments in its
twin Title X challenge. See Petition for a Writ of Certiorari 11-23, Oklahoma v. HHS, No. 24-437 (U.S. Oct.
15, 2024); Application for Stay 13-23, Oklahoma v.
HHS, No. 24A146 (U.S. Aug. 5, 2024). This Court’s
recent GVR in Oklahoma proves the importance of
these Spending Clause issues. 2025 WL 1787685, at
*1. There the Court vacated the Tenth Circuit’s judgment upholding HHS’s rescission of Oklahoma’s Title
X funding and remanded the case so the circuit court
could reconsider its decision with the benefit of Medina’s explication of the principles underlying the
Spending Clause. Id.
C. The equities favor vacatur.
The determination whether to vacate the judgment when a case becomes moot while pending review
ultimately “is an equitable one.” U.S. Bancorp, 513
U.S. at 29. It requires the disposition that would be
“most consonant to justice” in light of the circumstances. Id. at 24 (citation omitted). Here, the equities favor vacatur.
Under Munsingwear, the “principal condition” to
which the Court has “looked is whether the party seeking relief from the judgment below caused the mootness by voluntary action.” Id. When the party that
32
prevailed in the lower court caused the mootness
through its own “unilateral action,” vacatur is clearly
“in order.” Azar, 584 U.S. at 729. That is this case:
HHS unilaterally restored Tennessee’s Title X funding. HHS’s March notice stated that Tennessee’s
award was being restored “pursuant to a settlement
agreement with the recipient,” but HHS has since confirmed that no such settlement agreement ever existed. C.A.Doc. 80-1, at 3 n.1 (citation omitted). So
Tennessee had no role in making the Sixth Circuit’s
judgment unreviewable. Having blocked this Court’s
review, HHS should not “retain the benefit” of the
agency-empowering judgment below. See Azar, 584
U.S. at 729.
Vacatur is also warranted because the decision below could “spawn[]” several “legal consequences” if left
in place. Munsingwear, 340 U.S. at 41. As the foregoing discussion makes clear, the precedential value of
the decision below will “have a significant future effect.” Camreta, 563 U.S. at 704. The decision crystalizes Chevron deference “as to any statute that the Supreme Court”—or the Sixth Circuit—“has ever
deemed ambiguous under that doctrine.” Pet.App.40a
(Kethledge, J., dissenting). For example, the Social
Security Administration will now receive perpetual
deference on questions about the role of work activity
on individuals’ entitlement to disability benefits. See
Valent v. Comm’r of Social Sec., 918 F.3d 516, 520 (6th
Cir. 2019) (holding that 42 U.S.C. § 421(m) is ambiguous). Moreover, Loper Bright’s impact is a live issue
in several in-circuit district court actions. See, e.g., Order, Sec’y of Labor v. Macy’s, Inc., No. 1:17-cv-541,
Dkt. No. 76 (S.D. Ohio Aug. 28, 2024). Addressing the
33
import of “prior judicial precedents based on Chevron”
will bear critically on Loper Bright’s reach. Christoper
J. Walker, What Loper Bright Enterprises v. Raimondo Means for the Future of Chevron Deference, Notice & Comment—Yale J. on Regulation (June 28,
2024), https://tinyurl.com/3kk7uusw.
Moreover, the decision below subjects States to the
condition-setting whims of executive agencies, potentially requiring regular overhauls of multi-billion-dollar programs. Indeed, in “arguing that statutory ambiguity can be vitiated by regulatory enactments in the
context of the Spending Clause, the federal defendants
claim a remarkably broad power for federal administrative agencies.” Yellen, 105 F.4th at 773 (emphases
in original). After all, many important spending programs—like Title IX and the Affordable Care Act—
that offer States billions of dollars come from statutes
that also allow federal-agency rulemaking. See, e.g.,
20 U.S.C. § 1682; 42 U.S.C. § 18116. And the federal
government has shown a willingness to wield its regulatory powers to impose extra-statutory conditions
on States under such programs. Supra 30-31. Under
the decision below, States would be put to deciding
whether to abide these unforeseeable conditions or
forego billions of dollars, exactly counterpose to the
purposes of the Spending Clause clear-statement rule.
See Medina, 145 S. Ct. at 2331-34.
Given that Tennessee regularly challenges federal
rulemakings and participants in a raft of federal
spending programs, see, e.g., Tennessee v. Cardona,
No. 3:24-cv-00073-DCR (E.D. Ky.) (Tennessee-led
challenge to Biden Administration’s Title IX rule to
34
preserve billions in federal funding), the decision below may have a significant impact on future litigation
brought by the State—as well as every other State or
regulated entity within the Sixth Circuit. Vacatur
would rightly “strip[] the decision below of its binding
effect” so that it may not be used against Tennessee in
future litigation. Camreta, 563 U.S. at 713 (quoting
Deakins v. Monaghan, 484 U.S. 193, 200 (1988)).
II. Alternatively, the Court should remand for
reconsideration in light of Medina.
If the Court does not follow the well-worn Munsingwear path, it should vacate and remand for further consideration in light of Medina. When intervening developments “reveal a reasonable probability
that the decision below rests upon a premise that the
lower court would reject if given the opportunity for
further consideration, and when it appears that such
a redetermination may determine the ultimate outcome of the litigation, a GVR order” is often appropriate. Lawrence v. Chater, 516 U.S. 163, 167 (1996).
That approach is appropriate here, as this Court recognized when it GVR’d Oklahoma’s parallel litigation.
Oklahoma, 2025 WL 1787685, at *1.
Medina would materially affect the Sixth Circuit’s
consideration of the Spending Clause issue here. Although acknowledging that Title X itself does not condition funding on counseling and referring for abortions, the decision below stated that it is “sufficient for
notice purposes under the Spending Clause” if a statute “unambiguously authorize[s]” an agency “to impose conditions for federal grants.” Pet.App.12a (quo-
35
tation omitted). The agency then has power to “fashion conditions” however it may determine to be appropriate. Pet.App.10a. In other words, the decision below approves executive-branch regulations providing
clear spending conditions that are absent from the
statute itself.
But Medina confirms that “as a rule, ‘Congress
alone has the power to enforce’ the conditions it attaches to its grants.” 145 S. Ct. at 2231 (emphases
added) (quoting Emigrant Co. v. Cty. of Adams, 100
U.S. 61, 69 (1879)). This Court thoroughly explained
that under the Spending Clause “Congress must
clearly and unambiguously alert States to conditions
associated with federal funding.” Id. at 2232 n.4 (emphasis added). So nothing “less than clear statutory
language can supply States with the unambiguous notice required.” Id. at 2238 n.8 (emphasis added).
These rules vindicate “separation of powers and federalism concerns” that would arise if the requisite clarity came from elsewhere. Id. For these reasons, it is
likely that the Sixth Circuit would reach a different
result if it were to reconsider this case under Medina.
The “equities of the case” also support vacatur and
remand. Lawrence, 516 U.S. at 168. A “GVR order
conserves the scarce resources of this Court that might
otherwise be expended on plenary consideration,” id.
at 167—an especially important consideration here,
given the split among the courts of appeals, see, e.g.,
supra 26-30. A GVR would also alleviate the potential
for unequal treatment and “assist[] this Court by procuring the benefit of the lower court’s insight before
[it] rule[s] on the merits.” Lawrence, 516 U.S. at 167.
36
Last, “the intervening development” was not “part of
an unfair or manipulative litigation strategy,” and no
unwarranted “delay” is threatened by a GVR. Id. at
168.
This Court has already vacated and remanded a
decision involving identical Spending Clause issues
(and nearly identical facts) for reconsideration in light
of Medina. Oklahoma, 2025 WL 1787685, at *1. Vacating and remanding this case in light of Medina is
similarly warranted.
CONCLUSION
The Court should grant the petition for certiorari,
vacate the judgment of the court of appeals, and remand with instructions to dismiss the case as moot
under Munsingwear. In the alternative, consistent
with Oklahoma, 2025 WL 1787685, at *1, the Court
should grant the petition for certiorari and remand for
further consideration in light of Medina.
37
Respectfully submitted,
JONATHAN SKRMETTI
Attorney General
J. MATTHEW RICE
Solicitor General
Counsel of Record
HARRISON GRAY KILGORE
Senior Assistant Attorney
General for Strategic Litigation
OFFICE OF TENNESSEE
ATTORNEY GENERAL
P.O. Box 20207
Nashville, TN 37202
(615) 741-3491
Matt.Rice@ag.tn.gov
Counsel for Petitioner
AUGUST 7, 2025
APPENDIX
TABLE OF CONTENTS
Page
A PPEN DI X A : A mended opi n ion of t he
United States Court of Appeals for the
Sixth Circuit (Mar. 10, 2025) . . . . . . . . . . . . . . . . . . . 1a
APPENDIX B: Original opinion of the United
States Court of Appeals for the Sixth Circuit
(Aug. 26, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49a
A PPENDI X C: Memora ndu m Opi n ion of
the United States District Court for the
Eastern District of Tennessee (Mar. 11, 2024) . . . . 96a
APPENDIX D: Order of the United States
Cour t of Appeals for the Si xth Ci rcuit
deny ing petition for en banc rehea r ing
(May 9, 2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152a
APPENDIX E: U.S. Const. art. I § 8, cl. 1 . . . . . . . . 154a
APPENDIX F: 42 U.S.C. § 300(a) . . . . . . . . . . . . . . . 155a
APPENDIX G: 42 U.S.C. § 300a-4(a)–(b) . . . . . . . . . 156a
APPENDIX H: 42 U.S.C. § 300a-6 . . . . . . . . . . . . . . 157a
APPENDIX I: Letter from the United States
Depa r t ment of Hea lt h a nd Hu ma n
Services clarifying Title X funding award
(May 27, 2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158a
A PPENDI X J: Notice of Award from the
United States Department of Health and
Human Services (Mar. 31, 2025) . . . . . . . . . . . . . . 162a
1a
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 24-5220
STATE OF TENNESSEE,
Plaintiff-Appellant,
v.
XAVIER BECERRA, IN HIS OFFICIAL CAPACITY
AS SECRETARY OF HEALTH AND HUMAN
SERVICES; UNITED STATES DEPARTMENT
OF HEALTH AND HUMAN SERVICES; JESSICA
S. MARCELLA, IN HER OFFICIAL CAPACITY
AS DEPUTY ASSISTANT SECRETARY
FOR POPULATION AFFAIRS; OFFICE OF
POPULATION AFFAIRS,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 3:23-cv-00384—Travis Randall McDonough,
District Judge.
Argued: July 18, 2024
Decided and Filed: March 10, 2025
Before: GIBBONS, KETHLEDGE, and DAVIS,
Circuit Judges.
2a
DAVIS, J., delivered the opinion of the court in which
GIBBONS, J., joined in full. KETHLEDGE, J. (pp. 24–
31), delivered a separate opinion dissenting in part and
concurring in the judgment in part.
AMENDED OPINION
DAVIS, Circuit Judge. In 2021, the United States
Department of Health and Human Services (“HHS”)
promulgated a rule requiring Title X grant recipients to
provide neutral, nondirective counseling and referrals for
abortions to patients who request it. Tennessee, which has
been a Title X recipient for over 50 years, recently outlawed
most abortions in the state. After doing so, Tennessee
would commit only to conducting counseling and referrals
for options deemed legal in the state. HHS considered
Tennessee’s commitment to be out of compliance with its
regulatory requirements. So it opted to discontinue the
grant. Tennessee filed suit to challenge HHS’s action and
enjoin it from closing the grant. The district court denied
Tennessee’s request for preliminary injunction because it
held that Tennessee does not have a strong likelihood of
succeeding on the merits of its claim and that the balance
of the remaining preliminary injunction factors weigh in
HHS’s favor. For the reasons set forth below, we affirm.
I.
A.
Factual Background. In 1970, Congress enacted Title
X of the Public Health Service Act (alternatively, the
3a
“Act”) to authorize HHS to award discretionary grants
to fund family-planning projects. See 42 U.S.C. §§ 300(a),
300a-4(a)– (b); Family Planning Services and Population
Research Act, Pub. L. No. 91-572, 84 Stat. 1504, 1508
(1970). Title X authorizes HHS to “enter into contracts
with public or nonprofit private entities” to establish and
operate these family-planning projects, 42 U.S.C. § 300(a),
and these grants are to be “made in accordance with
such regulations as the Secretary may promulgate,” id.
§ 300a-4(a). Nevertheless, Section 1008 of the Act provides
that “[n]one of the funds appropriated . . . shall be used in
programs where abortion is a method of family planning.”
Id. § 300a-6. HHS has varied in its interpretation of the
limit that § 1008 imposes on its regulatory authority.
As a result, it has vacillated from regulations requiring
funded projects to provide nondirective counseling and
referrals for abortion (2000–2019), to forbidding such
activity (2019–2021), to requiring nondirective counseling
and abortion referrals if requested by the patient (2021–
present). See Ohio v. Becerra, 87 F.4th 759, 765–67 (6th
Cir. 2023) (summarizing the history of the Counseling and
Referral rule). Generally, HHS grants are awarded for a
one-year period and any subsequent continuation awards
are similarly determined one year at a time. 42 C.F.R.
§ 59.8(a)–(b). When “non-Federal” entities fail to comply
with the “[f]ederal statutes, regulations, or the terms and
conditions” of an award, HHS is empowered to terminate
the grant. 45 C.F.R. §§ 75.371(c), 75.372(a)(1).
In October 2021, HHS promulgated a rule requiring
Title X programs to offer pregnant clients the opportunity
to receive “neutral factual information and nondirective
4a
counseling” regarding prenatal care and delivery, infant
care, foster care, adoption, and abortion.1 Ensuring Access
to Equitable, Affordable, Client-Centered, Quality Family
Planning Services, 86 Fed. Reg. 56144 (Oct. 7, 2021); see
also 42 C.F.R. § 59.1 et seq; 42 C.F.R. § 59.5(a)(5)(i)–(ii).
The 2021 Rule also required Title X programs to provide
referrals for any of these options in response to a patient
request. 42 C.F.R. § 59.5(a)(5)(ii). To comply with § 1008’s
prohibition of funding for programs where abortion is a
method of family planning, the 2021 Rule emphasized that
a referral for abortion services “may include providing
a patient with the name, address, telephone number,
and other relevant factual information” about a medical
provider, but that a Title X project “may not take further
affirmative action (such as negotiating a fee reduction,
making an appointment, providing transportation) to
secure abortion services for the patient.” Ensuring Access,
86 Fed. Reg. at 56150.
In March 2022, HHS awarded the Tennessee
Department of Health a Title X grant for the period
from April 1, 2022, through March 31, 2023. The notice
of award stated that the amount requested represented
the one-year “budget period,” (as opposed to the project’s
five-year period), and that it was “not obligated to make
additional Federal Funds available.” (R. 1-7, PageID 172).
In June 2022, the Supreme Court handed down
its decision in Dobbs v. Jackson Women’s Health
1. Through this rule, HHS readopted the regulations in place
from 2000 to 2019. 86 Fed. Reg. 56144, 56144 (Oct. 7, 2021).
5a
Organization, 597 U.S. 215, 142 S. Ct. 2228, 213 L. Ed.
2d 545 (2022), in which it held that there is no individual
right under the Constitution to obtain an abortion.
Following Dobbs, several states—Tennessee included—
implemented laws that criminalized abortion in all but a
few circumstances. Reasoning that Dobbs did not affect
the Title X grant regime, in January 2023, HHS notified
grantees it would be auditing their compliance with its
counseling and referral regulations. HHS requested that
grantees submit copies of their policies for providing
neutral, nondirective options counseling and referrals
for abortion services and a signed statement confirming
compliance with those regulations.
Tennessee responded by submitting a letter confirming
its compliance with the regulation and attaching its
policy. The policy stated, in pertinent part, that Title
X “[p]atients with positive pregnancy test[s] must be
offered the opportunity to be provided information and
counseling regarding all options that are legal in the State
of Tennessee.” (R. 1-3, PageID 99). The letter did not
clarify which options the state deemed “legal in the State
of Tennessee,” but seemed to be alluding to a new law that
had recently taken effect restricting abortion in the State.
See Tenn. Code Ann. § 39-15-213. HHS notified Tennessee
that its response appeared to place it out of compliance and
offered Tennessee the option of submitting an “alternate
compliance proposal” with specific examples of acceptable
arrangements. (R. 1-9, PageID 190). For instance, HHS
suggested the option of providing Title X patients with
the number for a national call-in hotline where operators
would supply referral information. Tennessee responded
6a
by reiterating its compliance based on its understanding
of its obligations under state law and federal regulations.
(R. 1-10, PageID 192 (citing Tenn. Code Ann. § 39-15213(a)(1))). HHS disagreed with Tennessee’s assertion
that it was in compliance. On March 20, 2023, the agency
sent the state a letter explaining its decision to decline
to issue a Title X continuation award to the Tennessee
Department of Health. 2
B.
Procedural History. In October 2023, Tennessee
brought the instant action in the United States District
Court for the Eastern District of Tennessee seeking:
(1) a declaratory judgment under 28 U.S.C. § 2201 stating
that HHS’s termination of the state’s Title X funding
was unlawful; (2) dissolution of HHS’s March 20, 2023,
discontinuation decision; (3) a preliminary injunction
enjoining HHS and others from enforcing or implementing
the discontinuation decision; (4) to enjoin HHS from
withholding Title X funds based on the counseling and
referral clause; (5) reinstatement of Title X funds from
the date of discontinuation; and (6) any and all other relief
the court deemed proper.
In November 2023, this court reviewed a similar Title
X case and held that HHS’s 2021 Rule was a permissible
construction of the Title X statute. See Ohio, 87 F.4th at
2. HHS concluded that a continuation award was not “in the
best interest of the government” based on its determination that
Tennessee’s Title X project was not in compliance with the Title X
regulation. (See R. 1-12, PageID 198 (quoting 42 C.F.R. § 59.8(b))).
7a
771–72. Based in large part on our decision in Ohio, the
district court denied Tennessee’s preliminary injunction,
concluding that Tennessee was not likely to succeed on the
merits and that the balance of the equities and the public
interest did not favor relief. The district court further
concluded that Tennessee had “no basis to force funding
from HHS without meeting the obligations upon which
the [Title X] funding [was] conditioned.” (R. 30, PageID
857). Tennessee timely appealed.
II.
We review a district court’s denial of a motion
for a preliminary injunction for abuse of discretion.
Wonderland Shopping Ctr. Venture Ltd. P’ship v. CDC
Mortg. Cap., Inc., 274 F.3d 1085, 1097 (6th Cir. 2001). We
will find that a district court has abused its discretion when
it has made “clearly erroneous findings of fact, improperly
applied the governing law, or used an erroneous legal
standard.” Id. (quoting Bonnell v. Lorenzo, 241 F.3d
800, 809 (6th Cir.2001)). Though we review de novo the
question of whether a movant is likely to succeed on the
merits, a district court’s ultimate determination as to
whether the factors weigh in favor of granting or denying
preliminary injunctive relief is subject to review for abuse
of discretion. Ohio, 87 F.4th at 768 (citing City of Pontiac
Retired Emps. Ass’n v. Schimmel, 751 F.3d 427, 430 (6th
Cir. 2014) (en banc) (per curiam)). Thus, absent a legal or
factual error, “the district court’s weighing and balancing
of the equities will be overruled ‘only in the rarest of
cases.’” Am. Imaging Servs., Inc. v. Eagle-Picher Indus.,
Inc. (In re Eagle-Picher Indus., Inc.), 963 F.2d 855, 858
(6th Cir. 1992) (citations omitted).
8a
Courts consider four factors when determining
whether to grant a preliminary injunction: “(1) whether
the movant has a strong likelihood of success on the
merits; (2) whether the movant would suffer irreparable
injury without the injunction; (3) whether issuance of the
injunction would cause substantial harm to others; and (4)
whether the public interest would be served by issuance
of the injunction.” Ohio, 87 F.4th at 768 (citing City of
Pontiac, 751 F.3d at 430). “Where the federal government
is the defendant, as here, the third and fourth factors
merge.” Id. (citing Nken v. Holder, 556 U.S. 418, 435, 129
S. Ct. 1749, 173 L. Ed. 2d 550 (2009)).
III.
Likelihood of Success on the Merits. Tennessee first
argues that it has a strong likelihood of success on the
merits because HHS’s discontinuation of Title X funds
usurped Congress’s sole Spending Clause powers and
disregarded the Administrative Procedure Act’s (“APA”)
limits.
A.
The Spending Clause. Tennessee maintains that
HHS’s enforcement (through rescission of funding) of the
2021 Rule’s counseling and referral requirements violated
the Spending Clause of the United States Constitution.
It argues that HHS’s imposition of these requirements
usurped Congress’s exclusive authority to regulate Title
X funding. The Spending Clause empowers Congress to
“lay and collect Taxes . . . to pay the Debts and provide for
9a
the common Defence and general Welfare of the United
States.” U.S. Const. art. I, § 8. It grants Congress the
broad power to “set the terms” for when and to whom it
will disburse federal funds. Cummings v. Premier Rehab
Keller, P.L.L.C., 596 U.S. 212, 216, 142 S. Ct. 1562, 212
L. Ed. 2d 552 (2022). As it regards funds disbursed to
individual states, Congress’s spending power operates like
a contract; “in return for federal funds,” states must agree
to “comply with federally imposed conditions.” Pennhurst
State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 101 S.
Ct. 1531, 67 L. Ed. 2d 694 (1981).
As a result, Congress’s legitimacy to legislate under
the spending power depends on (1) whether Congress’s
conditions on its grants of federal funds are unambiguous;
and (2) “whether the State voluntarily and knowingly
accepts the terms of the ‘contract.’” Id. Because the
district court reasonably concluded that Congress
unambiguously authorized HHS to regulate Title X
eligibility; the conditions of the grant were unambiguous;
and Tennessee knowingly and voluntarily accepted the
grant’s terms, we find that the district court did not abuse
its discretion in concluding that Tennessee is unlikely to
succeed on the merits of its Spending Clause claim.
1.
Unambiguous Statutory Authorization. Tennessee
argues that Congress did not unambiguously place
counseling and referral requirements in Title X and did
not grant HHS the authority to add these conditions.
Therefore, these conditions violate the Spending
10a
Clause. Tennessee’s arguments here mirror the state of
Oklahoma’s challenge to HHS’s counseling and referral
requirements which it asserted in Oklahoma v. United
States Department of Health & Human Servs., 107 F.4th
1209, 1217 (10th Cir. 2024). Under similar facts, the state of
Oklahoma also argued that Title X’s ambiguity prevented
HHS from imposing counseling and referral requirements
on grant recipients. Like Tennessee, Oklahoma argued
that because the Supreme Court, in Rust v. Sullivan, 500
U.S. 173, 111 S. Ct. 1759, 114 L. Ed. 2d 233 (1991), held
that § 1008’s language barring usage of federal funds “in
programs where abortion is a method of family planning”
is ambiguous, then “Congress’s silence on counseling and
referrals render[ed] Title X ambiguous for purposes of the
spending power.” Oklahoma, 107 F.4th at 1218 (quoting
42 U.S.C. § 300a-6). The Oklahoma court rejected these
arguments because it found that Congress’s instructions
to HHS to determine eligibility for Title X grants likely
did not violate the spending powers. Id. (citing 42 U.S.C.
§ 300a-4(a); § 300a-4(b)). We agree.
To begin, as the Oklahoma court recognized,
Congress’s charge to HHS to promulgate eligibility
requirements for Title X funds is explicit; “Grants . . .
made under this subchapter shall be made in accordance
with such regulations as the Secretary may promulgate”
and “shall be payable . . . subject to such conditions as the
Secretary may determine to be appropriate” so they are
“effectively utilized for the purposes for which made.”
42 U.S.C. § 300a-4(a)–(b). In this way, Congress both
imposed on the Secretary the responsibility to fashion
conditions and alerted grant recipients to the existence
11a
of conditions for funding. As to the former, the Supreme
Court, in recognition of the fact that Congress is unable
to “prospectively resolve every possible ambiguity
concerning particular applications of requirements,” has
permitted such delegations. Bennett v. Kentucky Dep’t. of
Educ., 470 U.S. 656, 669, 105 S. Ct. 1544, 84 L. Ed. 2d 590
(1985). True, the statutory language does not illuminate
the nature of any such conditions on the grant. But these
questions can be resolved by looking to both statutes and
an agency’s authorized regulations. In Bennett that meant
looking to the statute’s language indicating that Title I
education funds could not be used to supplant state and
local funds for public schools, along with the Department of
Education’s (“DOE”) regulations specifying the measures
that states and local grant recipients were required to take
to assure compliance with the grant. When the DOE issued
a final order, demanding that Kentucky repay funds that it
purportedly used to supplant state educational funding “in
violation of statutory and regulatory requirements,” the
state challenged the action as a violation of the Spending
Clause. Id. at 663. Though the Court of Appeals had found
that “the statute and regulations concerning supplanting
were not unambiguous,” id. (cleaned up), the Supreme
Court upheld the agency action; Kentucky had agreed to
but failed to comply with the conditions for the grant as
set forth in the statute and regulations, so the DOE could
pursue this statutory remedy. See Jackson v. Birmingham
Bd. of Ed., 544 U.S. 167, 183, 125 S. Ct. 1497, 161 L. Ed. 2d
361 (2005) (crediting Title IX’s implementing regulations
as well as circuit precedent interpreting the statute with
placing grant recipients on notice of potential liability for
retaliatory actions).
12a
Here, Title X “unambiguously authorized HHS to
impose conditions for federal grants” to ensure that the
funds issued will be efficaciously put to use for their
intended purpose. Oklahoma, 107 F.4th at 1219 (citing
42 U.S.C. § 300a-4(b); 86 Fed. Reg. 56144, 56154 (Oct. 7,
2021)). This clear delegation of authority to HHS, viewed
in combination with HHS’s 2021 counseling and referral
regulation, are sufficient for notice purposes under the
Spending Clause.
Resisting this conclusion, Tennessee argues that
Rust’s holding that § 1008 is ambiguous as it relates to
counseling and referrals for abortions, precluded HHS
from requiring counseling and referrals and violated
the Spending Clause. But as discussed, the Supreme
Court has long recognized Congress’s power to authorize
agencies to issue grants and leave the minutia of its
spending programs to be clarified through regulations and
other guidelines—even in the face of statutory ambiguity.
Id. at 1218 (citing Bennett, 470 U.S. at 670 (“We agree
with the [agency] that the [state grantee] clearly violated
existing statutory and regulatory provisions”) (emphasis
added) (collecting cases)3 Again, Title X authorizes HHS
3. See id. (reviewing the spending power based on both
the “the statutory provisions” and “the regulations . . . and
other guidelines provided by the [the agency] at th[e] time” that
funding had been accepted); see also Davis v. Monroe Cnty. Bd.
of Educ., 526 U.S. 629, 643, 119 S. Ct. 1661, 143 L. Ed. 2d 839
(1999) (finding an agencies’ unambiguous regulations satisfied the
notice requirements under the spending power); South Dakota v.
Dole, 483 U.S. 203, 206, 107 S. Ct. 2793, 97 L. Ed. 2d 171 (1987)
(“Congress . . . has repeatedly employed the spending power ‘to
further broad policy objectives by conditioning receipt of federal
13a
“to make grants to State health authorities to assist in
planning, establishing, maintaining, coordinating, and
evaluating family planning services.” 42 U.S.C. § 300a(a).
It directs that these grants “shall be made in accordance
with such regulations as the Secretary may promulgate.”
Id. § 300a-4(a). And Congress made the disbursement of
grant funds “subject to such conditions as the Secretary
may determine to be appropriate to assure that such
grants will be effectively utilized for the purposes for
which made.” Id. § 300a-4(b). These clauses, in addition
to HHS’s regulations explaining the importance of
nondirective counseling and referrals for Title X services,
foreclose Tennessee’s arguments. See Bennett, 470 U.S. at
670. Congress made compliance with HHS’s requirements
a clear and unambiguous condition of receiving a Title
X grant. See 86 Fed. Reg. 56144, 56154 (Oct. 7, 2021).
Moreover, we agree with our concurring colleague that
Congress’s inclusion of a yearly appropriations rider
which expressly contemplates nondirective pregnancy
counseling lends further support for the notion that
HHS acted within its authority in setting that condition
for funding—a fact that has implications for both the
Spending Clause and APA analysis. See Omnibus Consol.
Rescissions and Appropriations Act of 2022, Pub. L. No.
117-103, 136 Stat. 49, 444 (Mar. 15, 2022).
Tennessee’s reliance on Kentucky v. Yellen, 54 F.4th
325 (6th Cir. 2022) and West Virginia ex rel. Morrisey v.
moneys upon compliance by the recipient with federal statutory
and administrative directives.’“ (emphasis added) (quoting
Fullilove v. Klutznick, 448 U.S. 448, 474, 100 S. Ct. 2758, 65 L.
Ed. 2d 902 (1980))).
14a
U.S. Department of Treasury, 59 F.4th 1124 (11th Cir. 2023)
does not increase its likelihood of success on the merits.
It insists that these two cases support its proposition
that, in the face of an ambiguous statute, regulations
alone generally cannot establish conditions. Specifically,
Tennessee argues that HHS was barred from resolving
§ 1008’s ambiguity through its own interpretations.
But Yellen, which grappled with a vague rather than an
ambiguous statute, did not reach a holding on the broader
question of whether Congress could condition funding
on compliance with agency regulations. 54 F.4th at 353.
Indeed, in Yellen, the Department of Treasury argued
that statutory language alone sufficiently placed states on
notice of its conditions for funding. Id. And in Morrisey,4
the Eleventh Circuit found that grantees were subject
to regulations and legal requirements in place when the
grants were made. 59 F.4th at 1148 (acknowledging that
Congress may require grantees to abide by “‘the legal
requirements in place when the grants were made’ [and]
[t]hese ‘legal requirements’ include existing regulations.”)
(quoting Bennett, 470 U.S. at 670). Thus, because § 1008
4. In addition to Morrisey’s nonbinding effect on our
jurisprudence, the circumstances there differ from this case in
two important ways. In an effort to resolve the ambiguity of a
tax offset provision in a stimulus act which potentially implicated
states’ sovereign tax authority, the Treasury Department created
an entirely new regulatory framework. The HHS did no such
action. Second, the Treasury Department’s regulatory framework
changed the fundamental function of the relevant statute. HHS’s
counseling and referral requirements here do not have such a
fundamental effect on the application of the grant program. See
Oklahoma, 107 F.4th at 1219.
15a
is situated among other provisions of Title X that clearly
instruct HHS to determine the eligibility requirements,
the district court did not err in concluding that Congress’s
delegation to HHS would not violate the Spending Clause.
2.
Voluntarily and Knowingly. The district court likely
also did not err in determining that Tennessee voluntarily
and know ingly agreed to HHS’s requirement for
nondirective counseling and referrals. Despite Congress’s
broad powers to set the unambiguous terms of its grants, it
may not do so in a manner that “surprise[es] participating
States with post acceptance or ‘retroactive’ conditions.”
Pennhurst, 451 U.S. at 25. As discussed above, this means
that HHS’s decision to discontinue Tennessee’s grant
based on the state’s refusal to adhere to the counseling and
referral conditions would violate the Spending Clause if it
imposed new requirements after Tennessee’s acceptance
of the grant. See Bennett, 470 U.S. at 670 (“[L]iability is
determined by[] the legal requirements in place when the
grants were made.”). But HHS issued the nondirective
counseling and referral requirements in 2021, which then
went into effect on November 8, 2021—several months
before Tennessee accepted its Title X grant award in
March 2022. See 86 Fed. Reg. 56144 and (R. 1-7, PageID
170). Moreover, as the district court aptly observed, the
Counseling and Referral Rule has been in place in all
but two of the last twenty-nine years. As a decades-long
recipient of Title X funds, Tennessee was aware of this
fact. So Tennessee was on clear notice of the 2021 Rule and
voluntarily agreed to its requirements when it accepted
16a
the grant. See Miss. Comm’n on Env’t Quality v. EPA,
790 F.3d 138, 179, 416 U.S. App. D.C. 69 (D.C. Cir. 2015)
(“[T]he fact that the State has long accepted billions of
dollars notwithstanding the challenged conditions may be
an additional relevant factor in the contract-like analysis
the Court has in mind for assessing the constitutionality
of Spending Clause legislation.”).
Tennessee points out that HHS issued the 2021 Rule
at a time when the law of the land stated that women had
a constitutional right to obtain an abortion. Thus, there
was no possibility that the state’s adherence to the Rule
might conflict with a law banning the procedure. But
after the Supreme Court’s decision in Dobbs, Tennessee
criminalized the procedure in all but the narrowest of cases.
It argues that this “supervening illegality” of abortions
in the state demonstrated a clear and permissible public
policy statement on an issue within the domain of its own
sovereignty. This critical shift in circumstances, according
to Tennessee, rendered inadequate any notice of the Rule
it had received pre-criminalization because the 2021 Rule
did not contemplate such a scenario. (ECF 20, Appellant’s
Br. 30). But to the extent that Tennessee argues that the
2021 Rule is “silent” regarding its obligations post-Dobbs,
HHS provided detailed guidance on how its nondirective
counseling and referral requirements remained unchanged
and active. Consistent with § 1008, HHS reiterated that
Title X projects “may not take further affirmative action
. . . to secure abortion services for the patient.” (R. 1-6,
PageID 165 (citing 65 Fed. Reg. at 41281)). And after
Tennessee raised compliance concerns following its
criminalization of abortion, HHS offered Tennessee the
17a
opportunity to submit an “alternate compliance proposal,”
which included the option to use a national call-in hotline
where third-party operators would supply the requisite
information. (R. 1-9, PageID 190). Thus, given that Dobbs
did not address what, if any, effect the decision might
have on Title X’s underlying program requirements, the
district court did not err in determining that Tennessee
voluntarily and knowingly agreed to the conditions when
accepting its grant award.
3.
Tennessee’s Sovereignty. Tennessee also asserts that
HHS’s 2021 Rule violates the spending power because it
infringes on Tennessee’s state sovereignty. It suggests
that the 2021 Rule’s counseling and referral requirements
compel Tennessee to undermine its own state criminal
abortion laws. But like Oklahoma, Tennessee may
not use its state criminal laws to “dictate eligibility
requirements” for Title X grants. Oklahoma, 107 F.4th
at 1220 (citing Planned Parenthood Fed’n of Am., Inc. v.
Heckler, 712 F.2d 650, 663, 229 U.S. App. D.C. 336 (D.C.
Cir. 1983) (“Although Congress is free to permit the
states to establish eligibility requirements for recipients
of Title X funds, Congress has not delegated that power
to the states.”)). The 2021 Rule makes no reference to
incorporating state law and does not limit compliance
with its requirements to the procedures available within
a given state. And Tennessee was free to voluntarily
relinquish the grants for any reason, especially if it
determined that the requirements would violate its state
laws. (R. 1-9, PageID 190); see also Rust, 500 U.S. at 199
18a
n.5 (“The recipient is in no way compelled to operate a
Title X project; to avoid the force of the regulations, it can
simply decline the subsidy.”)). Instead, Tennessee decided
to accept the grant, subject to the 2021 Rule’s counseling
and referral requirements.
In addition, Tennessee’s suggestion that the 2021 Rule
violates the Spending Clause by impairing its general
police powers to regulate “health and welfare” through
“limits on the medical profession” is unsubstantiated.
Thus, we find that the district court did not err in its
conclusions that Title X and HHS’s regulations did not
violate the spending power and that Tennessee voluntarily
and knowingly accepted its grant conditions. Tennessee is
not likely to succeed on its Spending Clause claims.
B.
Tennessee’s APA Challenge. Tennessee next argues
that HHS’s decision to discontinue funding its grant
violated the APA. Specifically, Tennessee asserts that
HHS’s action to enforce the 2021 Rule: (1) exceeded HHS’s
regulatory authority under Title X; (2) is unreasonable;
(3) is arbitrary and capricious; and (4) represents a new
legislative rule which may only be promulgated via noticeand-comment rulemaking.
1.
Compliance with Title X. Tennessee maintains that
HHS has misinterpreted § 1008’s prohibition on the use of
Title X funds for “programs where abortion is a method
19a
of family planning.” 42 U.S.C. § 300a-6. It argues that
the best reading of that provision, according to its text
and history, is that it bars HHS from conditioning Title X
funding on grantees’ counseling or referring for abortion
services. This court must “hold unlawful and set aside
agency action . . . found to be . . . in excess of statutory
jurisdiction, authority, or limitations, or short of statutory
right.” 5 U.S.C. § 706(2).
Several states raised similar arguments before this
court in Ohio, 87 F.4th at 770-75. In Ohio, we held that
HHS’s application of the 2021 Rule was within its statutory
authority. Id. In deciding Ohio, we relied on the Supreme
Court’s conclusion in Rust, that § 1008 is indeed ambiguous
with respect to nondirective counseling and referral
options under Chevron step one; and under Chevron
step two, HHS’s “reasoned analysis” for proscribing such
actions was a permissible construction of Title X. Rust, 500
U.S. at 187; see also Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d
694 (1984). Thus, in reviewing HHS’s 2021 Rule requiring
nondirective counseling and referral in Ohio, we held that
HHS’s action also “must” have been permissible under
Chevron’s step two analysis so long as HHS adequately
explained its choice. Ohio, 87 F.4th at 772. In other words,
because Rust held that a permissible construction of
§ 1008 permitted HHS to promulgate regulations banning
counseling and referrals for abortion, we held that HHS’s
subsequent promulgation of a rule going the opposite way
also “must” have been permissible so long as it adequately
explained its choice. Id. at 772. We also concluded that
HHS’s reasoned analysis was sufficient to establish that
20a
the 2021 Rule is not arbitrary and capricious—regardless
of whether it represents the best reading of the statute.
Since our decision in Ohio, Chevron deference has
fallen. See Loper Bright Enters. v. Raimondo, 603 U.S. 369,
412, 144 S. Ct. 2244, 219 L. Ed. 2d 832 (2024). Consequently,
given Rust’s and Ohio’s application of Chevron deference
to HHS’s actions relating to the provision of neutral,
nondirective counseling5 and referrals in those cases,
Tennessee challenges their precedential effect. However,
the extent to which Loper Bright undermines the validity
of prior cases that were decided using Chevron deference
depends on several factors not addressed by the parties in
their briefing. In its guidance to lower courts, the Court
broadly stated that it “do[es] not call into question prior
cases that relied on the Chevron framework.” Id. at 376.
And it further explained that “[t]he holdings of those
cases that specific agency actions are lawful . . . are still
subject to statutory stare decisis despite [its] change in
interpretive methodology.” Id. (citing CBOCS West, Inc. v.
Humphries, 553 U.S. 442, 457, 128 S. Ct. 1951, 170 L. Ed.
2d 864 (2008)). So, while Loper Bright opens the door to
new challenges based on new agency actions interpreting
statutes, specific agency actions already resolved via
Chevron deference analysis will not automatically fall.
See id. Unremarked upon was whether statutory stare
decisis includes Circuit court precedent. See id.; see also
Amy Coney Barrett, Statutory Stare Decisis in the Court
of Appeals, 73 Geo. Wash. L. Rev. 317 (2005). For instance,
5. The states declined to challenge the counseling requirement
included in the 2021 Rule in Ohio v. Becerra, 87 F.4th 759, 773 (6th
Cir. 2023).
21a
here, Tennessee’s argument involves the same “specific
agency action”6 challenged in Ohio—HHS’s enforcement
of its 2021 Rule interpreting § 1008 to require nondirective
counseling and referral options. In Ohio, we concluded
that the 2021 Rule was lawful. Regardless of whether
Ohio binds us,7 like the Oklahoma court, we find its
conclusion upholding the 2021 Rule—and by extension its
enforcement against Tennessee here—persuasive. Ohio
relied on Rust for its determination that HHS acted within
statutory authority in treating referrals as falling outside
of § 1008’s restriction on using funds for programs in which
abortion is a “method of family planning.” We have held
that we are bound by precedent “unless a Supreme Court
decision ‘mandates modification’ of our precedent.” RLR
Investments, LLC v. City of Pigeon Forge, Tenn., 4 F.4th
380, 390 (2021) (quoting United States v. Moody, 206 F.3d
609, 615 (6th Cir. 2000)). And the Supreme Court cautioned
litigants hoping to rehash or relitigate previously settled
issues decided based on Chevron that “[m]ere reliance
on Chevron cannot constitute a special justification for
6. “‘[A]gency action’ includes the whole or a part of any agency
rule, order, license, sanction, relief, or the equivalent or denial
thereof, or failure to act.” 5 U.S.C. § 551.
7. In Metropolitan Hospital v. U.S. Department of Health
and Human Services, we concluded that statutory stare decisis
attaches to our own cases interpreting statutes in relation to their
application under the APA only when such prior decisions were
based on a finding that the terms of the statute were unambiguous
and therefore left no room for agency discretion. 712 F.3d 248,
255–56 (6th Cir. 2013) (citing Nat’l Cable and Telecomms. Ass’n
v. Brand X Internet Servs., 545 U.S. 967, 982, 125 S. Ct. 2688, 162
L. Ed. 2d 820 (2005)).
22a
overruling such a holding.” Loper Bright, 603 U.S. at 376
(quoting Halliburton Co. v. Erica P. John Fund, Inc., 573
U.S. 258, 266, 134 S. Ct. 2398, 189 L. Ed. 2d 339 (2014)
(cleaned up)).
Here, Tennessee argues that Loper Bright abrogated
the precedential effect of Rust and Ohio because they
relied on Chevron. But Loper Bright declined to “call
into question prior cases that relied on the Chevron
framework.” Id. This approach makes sense considering,
“there are thousands of such decisions, many settled for
decades.” Id. at 477 (Kagan, J. dissenting). And, even
if the “specific agency action” in Rust was HHS’s 1988
Rule prohibiting counseling and referral requirements
pursuant to § 1008, our own circuit precedent addressed
the inverse specific agency action and notably affirmed
HHS’s authority under Title X to require nondirective
counseling and referral options. See Ohio, 87 F.4th at
772. Thus, as we consider, on a tentative basis, whether
the district court improperly relied on Rust and Ohio to
support its analysis, we cannot say that Loper Bright
requires us to find that it did. See In re Baker, 791 F.3d 677,
682 (6th Cir. 2015) (recognizing lower courts’ obligation
to follow Supreme Court dicta).
Alternatively, Tennessee argues Ohio and Rust
are distinguishable because they only involved facial
challenges to § 1008. Tennessee asserts that its claim
is an as-applied challenge because the challenge hinges
on HHS’s decision to discontinue its Title X funding—a
purportedly different agency action in the wake of
Tennessee’s changed circumstances post-Dobbs. But
23a
Tennessee’s attempt to distinguish HHS’s promulgation
of the 2021 Rule in Ohio from HHS’s rescindment of
Tennessee’s Title X funding is unavailing because a
“specific agency action” attaches to an agency’s particular
construction of a statute. See Loper Bright, 546 U.S. at
376 (connecting “specific agency action” to the “holdings
of those cases that specific agency actions are lawful”). In
Ohio, this court had already held that HHS’s 2021 Rule is
lawful because it is a permissible construction of § 1008. 87
F.4th at 772. 8 Therefore, Ohio’s holding that the 2021 Rule
is lawful is “still subject to statutory stare decisis despite
our change in interpretive methodology.” Loper Bright,
603 U.S. at 412; see also Lopez v. Garland, 116 F.4th 1032,
1045 (9th Cir. 2024) (declining to call into question prior
Chevron precedent because an administrative body did
not promulgate a new interpretation of a statute). And the
district court’s decision is consistent with this approach.
Tennessee further asserts that its as-applied
challenge now requires the court to determine § 1008’s
single, best meaning, especially in the wake of Tennessee’s
changed circumstances post-Dobbs. But this as-applied
distinction is less meaningful where, as discussed, Dobbs
did not address its effect, if any, on Title X’s underlying
8. Unlike in In re MCP No. 185, 124 F.4th 993, 1002 (6th
Cir. 2025), in which the Federal Communications Commission
(“FCC”) changed its previous construction of whether Broadband
Internet Service Providers offer a “telecommunication service”
subject to common-carrier regulations under Title II of the
Communications Act of 1934, 47 U.S.C. § 153(51), here, HHS’s
particular construction of § 1008 is the same construction that
this court approved in Ohio.
24a
program requirements or HHS’s enforcement of such
requirements. See Dobbs, 597 U.S. at 231. In other words,
despite the change in circumstances, Tennessee’s claim
still centers on its challenge of HHS’s statutory authority
as it relates to the 2021 Rule. See 42 U.S.C. § 300a-4(b).
Notably, the counseling and referral requirements were
unambiguously in place before Tennessee accepted its
grant award and before it changed its own laws. As
such, Tennessee’s arguments boil down to whether the
counseling and referral requirements were legal as per
the limitation contained in § 1008. And this is the same
issue addressed in Ohio. Nevertheless, while the district
court must ultimately determine whether HHS’s actions
complied with Title X, we confine our inquiry to whether
the district court erred in its tentative conclusion. See
Oklahoma, 107 F.4th at 1226. And even if Ohio were
no longer binding, we agree with the district court’s
conclusion that the 2021 Rule is a lawful construction of
§ 1008.
Moreover, the “single, best meaning” of § 1008
permits both neutral, non-directive counseling and
referrals. Loper Bright, 603 U.S. at 400. As noted earlier,
Congress’s yearly spending rider presumes the provision
of such counseling, specifically instructing—like the
2021 Rule—that all pregnancy counseling must be nondirective. Requiring grantees to follow up with additional
information to those who request it, in the form of names,
addresses, and phone numbers of health care providers,
is a natural outgrowth of that counseling. And short of
that, HHS has granted Tennessee the option of merely
providing patients with a hotline number where they
25a
can obtain such health care provider information. Under
either scenario, the grant recipient’s role is informational
only. It neither recommends nor promotes any particular
pregnancy care option, while, at the same time, it promotes
HHS’s stated intention to advance a patient-centered
approach. In this light, it seems quite a stretch to say that
merely supplying to patients health provider information
or a means to obtain such information elevates a grantee’s
actions to the status of having abortion as a method of
family planning. Even accepting the dissent’s definition
of the term “method,” the provision of such information
cannot be characterized as a deliberate or systematic
action toward a particular end. Offering a list of phone
numbers is simply too attenuated an act to characterize an
entire program as one that conclusively offers abortion as
a “method of family planning.” For this reason, Tennessee
is unlikely to succeed on its claim that the 2021 Rule
violates the APA. The 2021 Rule’s counseling and referral
requirement is consistent with the meaning of § 1008.
Tennessee also relies on a series of other arguments
to attack HHS’s authority based on § 1008’s ambiguity.
For instance, it argues that because of § 1008’s ambiguity,
HHS’s actions implicated the major-questions doctrine,
which requires agencies to have “clear congressional
authorization” before making major policy decisions.
W. Virginia v. EPA, 597 U.S. 697, 722, 142 S. Ct. 2587,
213 L. Ed. 2d 896 (2022). But, given the limited scope of
HHS’s authority under Title X, the doctrine is likely not
implicated. Title X describes HHS’s authority to “make
grants to and enter into contracts with public or nonprofit
private entities to assist in establishment and operation
26a
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). We agree
with the district court’s conclusion that this language
sets forth a sufficiently intelligible principle supporting
Congress’s delegation. See Whitman v. Am. Trucking
Ass’ns, 531 U.S. 457, 474, 121 S. Ct. 903, 149 L. Ed. 2d 1
(2001). And as the district court accurately observed, HHS
does not “exercise powers of vast economic and political
significance.” Ala. Ass’n of Realtors v. Dep’t of Health &
Hum. Servs., 594 U.S. 758, 141 S. Ct. 2485, 2489, 210 L.
Ed. 2d 856 (2021). It issued only eighty-six Title X grants
in 2023 with an average award value of $ 3 million. Office
of Population Affairs, Fiscal Year 2023 Title X Service
Grant Awards, https://opa.hhs.gov/grant-programs/
title-x-service-grants/current-title-x-servicegrantees/
fy2023-title-X-service-grant-awards (last accessed Aug.
16, 2024). Given this relatively circumscribed grantmaking authority, it is unlikely that HHS has run afoul
of the non-delegation doctrine here and we see no reason
to disturb the district court’s conclusion on this point.
See, e.g., FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120, 159–60, 120 S. Ct. 1291, 146 L. Ed. 2d 121
(2000) (finding nondelegation problem where “the FDA . . .
asserted jurisdiction to regulate an industry constituting
a significant portion of the American economy.”).
2.
Compliance with HHS Regulations. Tennessee
next argues that HHS’s actions are inconsistent with
its own regulations because program services must be
27a
“allowable under state law” and referrals must be made
to service providers “in close physical proximity.” (ECF
20, Appellant’s Br. 44 (citing 42 C.F.R. § 59.5(b)(6)); (id.
at 45 (citing 42 C.F.R. § 59.5(b)(8))).
Allowable Under State Law. “[A] fundamental canon
of statutory construction is that when interpreting
statutes, the language of the statute is the starting point
for interpretation, and it should also be the ending point
if the plain meaning of that language is clear.” Saginaw
Chippewa Indian Tribe of Mich. v. Blue Cross Blue Shield
of Mich., 32 F.4th 548, 557 (6th Cir. 2022) (citations and
quotations omitted). 42 C.F.R. § 59.5(b)(6) states that
Title X projects must “[p]rovide that family planning
medical services will be performed under the direction of
a clinical services provider, with services offered within
their scope of practice and allowable under state law, and
with special training or experience in family planning.”
(emphasis added). Tennessee first argues that the plain
meaning of § 59.5(b)(6) is that its Title X project may not
encompass services relating to abortions because the
procedure is not allowable under state law in Tennessee.
But as the district court correctly concluded, Tennessee’s
interpretation does not reflect the plain meaning of the
regulation. There is no indication that the nondirective
options for counseling and the neutral information
required by the Rule are not “allowable under state law” in
Tennessee. Though Tennessee law prohibits a person from
performing an abortion, the law “contains no language
whatsoever related to counseling or referral[s],” and does
not overlap with § 59.5(b)(6). (R. 30, PageID 840); see
Tenn. Code Ann. § 39-15-213. Indeed, HHS’s commentary
28a
accompanying the 2021 Rule indicates HHS included
the “allowable under state law” phrase to “more clearly
reflect the role of a broader range of healthcare providers
in providing Title X services.” 86 Fed. Reg. at 56163–64
(emphasis added). Thus, this provision addresses “who”
may qualify as a clinical services provider, not the types
of services provided under Title X programs. In short,
because Tennessee law does not prohibit mere abortionrelated counseling or referrals, we find no conflict between
§ 59.5(b)(6) and Tennessee law. The district court did not
err in this regard.
Close Physical Proximity. Tennessee next argues
that 42 C.F.R. § 59.5(b)(8)’s mandate to provide services
close to patients, conflicts with its need to refer patients
to out-of-state providers due to its laws criminalizing
abortions. Section 59.5(b)(8) requires Title X projects
to “[p]rovide for coordination and use of referrals and
linkages with [other health-care entities], who are in close
physical proximity to the Title X site, when feasible, in
order to promote access to services and provide a seamless
continuum of care.” (emphasis added). However, the
phrase “when feasible” in this provision plainly modifies
the requirement to refer to providers “in close physical
proximity to the Title X site.” Id. Thus, as the district court
again correctly determined, the regulation only requires
that Title X projects refer patients to nearby healthcare
providers “when it is possible to do so.” When such closein-proximity referrals are not possible, it permits the
referral to be made “to a provider farther away.” (R.
30, PageID 837–39 (quoting 42 C.F.R. § 59.5(b)(8)); 86
Fed. Reg. at 56164 (explaining that “referrals are to be
29a
to providers in close proximity to the Title X site when
feasible”). This regulation does not require a referral to
a provider within the state. The district court did not err.
3.
Finally, Tennessee contends that HHS’s counseling
and referral conditions are arbitrary and capricious
because the agency failed to consider several “important
aspect[s]” of its requirement. (ECF 20, Appellant’s Br.
47 (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
Auto. Ins., 463 U.S. 29, 43, 103 S. Ct. 2856, 77 L. Ed. 2d
443 (1983))).
Federalism Concerns. First, Tennessee asserts that
HHS ignored federalism concerns because its decision to
discontinue Tennessee’s grant award did not consider the
effect of Dobbs on counseling and referral requirements.
But as discussed above, HHS issued extensive guidance
about the effect of Dobbs on the requirements regarding
counseling and referrals. Though Tennessee is correct
that the 2021 Rule did not contemplate Dobbs, that case
did not address the power of the agency to set conditions
on federal grants. 597 U.S. at 231. And as the Supreme
Court has previously noted, “[t]he recipient is in no way
compelled to operate a Title X project; to avoid the force
of the regulations, it can simply decline the subsidy.” Rust,
U.S. at 199 n.5. The district court did not err here.
Unlawful Position Switch. Tennessee argues that the
rescindment was an “unlawful position switch,” because
it came only months after HHS approved Tennessee’s
30a
Title X program with “full awareness the State’s postDobbs policy that ‘[n]o referrals for abortion are made.’”
(ECF 20, Appellant’s Br. 50 (quoting (R. 1-1, PageID 56))).
Tennessee points to HHS’s July 2022 program review of
its Title X project to support its argument that the agency
unlawfully changed positions. However, the July 2022
program review indicated that there would be a follow-up
if Tennessee changed its counseling and referral policies
in response to the abortion restriction that was soon to
take effect. And regardless, the counseling and referral
requirements have been in place since 2021, before
Tennessee applied for and received Title X funds.
Reliance Interests. Lastly, Tennessee argues that the
rescindment overlooked Tennessee’s legitimate reliance
interests in the grant award because it has been receiving
Title X funding for 50 years. And the rescindment was
procedurally invalid because HHS was required to
undertake notice-and-comment rulemaking procedures
to impose “new requirements” on Tennessee’s Title
X project. (ECF 20, Appellant’s Br. 53 (quoting Nat’l
Council for Adoption v. Blinken, 4 F.4th 106, 114, 453
U.S. App. D.C. 199 (D.C. Cir. 2021) (citation omitted)). But
Tennessee’s notice-and-comment arguments fail because
HHS did not impose any “new” requirements on grantees.
Furthermore, Tennessee likely has no legally cognizable
reliance interest in the receipt of a discretionary funding
award on the conditions that it prefers. Cf. Encino
Motorcars, LLC v. Navarro, 579 U.S. 211, 222, 136 S. Ct.
2117, 195 L. Ed. 2d 382 (2016). HHS’s regulations make
clear that Title X grants provide funding for one year with
the option of issuing noncompetitive continuation grants
31a
for additional years. 42 C.F.R. § 59.8(b). HHS was not
obligated to award more. Id. § 59.8(c). The district court
did not err in this regard.
IV.
Irreparable Harm. Tennessee argues that it will
face irreparable harm without an injunction because the
rescindment: (1) will cause Tennessee severe financial
losses that it cannot later recover; (2) threatens the
viability of Tennessee’s Title X program; (3) causes
irreparable reputational harm impacting its ability to
secure future federal grants; and (4) interferes with its
“sovereign interest” in setting its own abortion laws.
Maryland v. King, 567 U.S. 1301, 1303, 133 S. Ct. 1, 183
L. Ed. 2d 667 (2012) (Roberts, C.J., in chambers).
“A plaintiff’s harm from the denial of a preliminary
injunction is irreparable if it is not fully compensable by
monetary damages.” Overstreet v. Lexington-Fayette
Urb. Cnty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002)
(citing Basicomputer Corp. v. Scott, 973 F.2d 507, 511
(6th Cir. 1992)). Tennessee bears the burden of showing
that its injuries are both “certain and immediate” and
not “speculative or theoretical.” D.T. v. Sumner Cnty.
Schs., 942 F.3d 324, 327 (6th Cir. 2019) (citation omitted).
However, finding harm is not enough for Tennessee to
satisfy its burden here. It is “the peculiarity and size of a
harm” that “affects its weight in the equitable balance.”
Kentucky v. Biden, 57 F.4th 545, 556 (6th Cir. 2023). For
instance, when the likelihood of success on the merits is
low, plaintiffs must inversely show a higher degree of harm
32a
to warrant an injunction. See Friendship Materials, Inc.
v. Mich. Brick, Inc., 679 F.2d 100, 105 (6th Cir. 1982) (“[I]n
general, the likelihood of success that need be shown . . .
will vary inversely with the degree of injury the plaintiff
will suffer absent an injunction.”) (citation omitted).
The district court satisfied itself that Tennessee’s
harm was insufficient to warrant a preliminary injunction
because its claims failed to establish a high degree of
harm. Tennessee says the court abused its discretion
because Tennessee believes it will suffer severe financial,
reputational, and sovereign harm. Specifically, it argues
that its loss of $ 7 million in federal Title X funds will cause
irreparable harm because the funds are unrecoverable, and
this court in Ohio has similarly found lower amounts of lost
federal funds sufficient to compel an injunction. 87 F.4th
at 782–83. But there, the state of Ohio lost one-fifth of its
Title X funding because of HHS’s contested rule change.
Id. Moreover, the court found that Ohio established that
it was likely to succeed on the merits of one of its claims,
further warranting an injunction. Tennessee’s situation is
different. Unlike Ohio, Tennessee lost its funding because
it refused to comply with requirements established before
it accepted the grant and declined to proceed with HHS’s
proffered alternative. There was no intervening rule
change. We agree with the district court that Tennessee
likely will not succeed on the merits. So, while Tennessee’s
complaints may demonstrate some degree of harm, the
state was required to show a higher degree of harm than
what was asserted here. See Friendship Materials, 679
F.2d at 105.
33a
Second, there is no indication that Tennessee will lose
its Title X program because of the lack of federal funding.
Irreparable injury cannot be speculative. See D.T., 942
F.3d at 327 (requiring that irreparable harm not be
speculative); see also Mich. Coal. of Radioactive Material
Users, Inc. v. Griepentrog, 945 F.2d 150, 154 (6th Cir. 1991)
(“[T]he harm alleged must be both certain and immediate,
rather than speculative or theoretical.”). As it currently
stands, the Tennessee legislature has already provided
the state’s Title X project with the $ 7 million it would have
otherwise received from HHS. (R. 21-1, PageID 335, ¶15).
The Tennessee legislature earmarked the appropriations
to fund its Title X project as “recurring.” (R. 21-1, PageID
335, ¶15). Because this suggests that Tennessee’s family
planning program will continue to be funded—at least in
the near-term—Tennessee’s arguments that it will lose
its program based on a lack of federal funding amount to
speculation.
Tennessee’s next claim, that it will suffer irreparable
reputational harm, is similarly unpersuasive. Tennessee
argues that because HHS is required to report its
termination of Tennessee’s grant to the federal grantee
clearinghouse, the Federal Awardee Performance and
Integrity Information System (“FAPIIS”), HHS’s actions
threaten Tennessee’s “ability to obtain [any] future
Federal funding.” (see R. 1-9, PageID 190). Tennessee
cites ACT, Inc. v. Worldwide Interactive Network, Inc.,
46 F.4th 489, 503–04 (6th Cir. 2022), for the proposition
that its possible reported status is the type of reputational
damage that “constitute[s] irreparable harm” because it
is “likely to occur” and “difficult to quantify monetarily.”
34a
(ECF 20, Appellant’s Br. 56). But Tennessee provided no
evidence as to how being reported would “affect the grants
it currently receives or will receive in the future.” (R. 30,
PageID 854 (citing ACT, Inc., 46 F.4th at 503–04). True,
the inclusion in FAPIIS “may” affect a grantee’s ability to
obtain future federal funding, (see R. 1-9, PageID 190). But
Tennessee does not do its part to establish the evidence
of how FAPIIS inclusion has hurt grantees “in the past”
or that it “is likely to occur again.” State of Ohio ex rel.
Celebrezze v. Nuclear Regul. Comm’n, 812 F.2d 288, 290
(6th Cir. 1987). Thus, because Tennessee does not provide
the “requisite facts and affidavits” supporting its theory
of reputational harm, Ohio, 87 F.4th at 784, we agree with
the district court that Tennessee’s reputational-injury
claim is too speculative.
Last, Tennessee claims that HHS’s interference
with its “sovereign interest” in setting its abortion
laws constitutes a form of irreparable injury. (ECF 20,
Appellant’s Br. 56–57 (citing Maryland, 567 U.S. at
1303)). However, we have already concluded that there
is no direct conflict between HHS’s counseling and
referrals requirement and Tennessee’s recent abortion
criminalization laws. Moreover, as discussed above,
Tennessee was free to voluntarily relinquish the grants for
any reason, especially if it determined the requirements
would violate its state laws. (R. 1-9, PageID 190); see also
Rust, 500 U.S. at 199 n.5. Thus, because the district court
thoroughly addressed each of Tennessee’s arguments
regarding irreparable harm and correctly found them
insufficient, we find that the district court did not abuse
its discretion here.
35a
V.
The Public Interest. Tennessee argues that declining
to issue an injunction harms the public interest because
it deprives Tennesseans of family planning services
and generates new public-health risks. “[T]he public’s
true interest lies in the correct application of the law.”
Kentucky v. Biden, 23 F.4th 585, 612 (6th Cir. 2022)
(citation omitted); see also Priorities USA v. Nessel, 860
F. App’x 419, 423 (6th Cir. 2021) (“[T]he public interest
necessarily weighs against enjoining a duly enacted
statute, and our assessment that the appellants will likely
prevail on the merits tips the public-interest factor further
in their favor.”).
The district court found that this factor favored HHS
because the court found HHS’s actions lawful, and both
parties had agreed that the public interest lies in the
correct application of Title X and its regulations. Because
we similarly find that HHS’s actions were lawful, we find
no abuse of discretion here.
VI.
Tennessee cannot demonstrate how HHS’s decision
to discontinue its Title X grant due to the state’s failure
to comply with the 2021 Rule’s requirements regarding
counseling and referral for abortions, violated the
Spending Clause or the APA. As a result, Tennessee is
unable to prove the likelihood of its claims succeeding on
the merits. The district court thoroughly assessed the
balance of interests and found that they did not support
36a
granting an injunction. The district court’s handling of
Tennessee’s claims in denying the motion for a preliminary
injunction was consistent with this court’s precedent
and did not constitute an abuse of discretion. Because
the majority of the preliminary injunction factors do
not favor Tennessee’s position, we find that the balance
of the equities weighs in favor of denying a preliminary
injunction.
For the reasons above, we AFFIRM the judgment of
the district court.
37a
DISSENTING IN PART/CONCURRING IN THE
JUDGMENT IN PART
KETHLEDGE, Circuit Judge, dissenting in part and
concurring in the judgment in part. Tennessee should
succeed on its claim under the Administrative Procedure
Act, 5 U.S.C. § 706(2)(A), that HHS’s abortion-referral
requirement is contrary to law. The relevant law here is
§ 1008 of Title X, which provides that “[n]one of the funds
appropriated under this title shall be used in programs
where abortion is a method of family planning.” 42 U.S.C.
§ 300a-6. Yet HHS’s 2021 Rule specifies—as a condition
of Title X funding—that recipients must, upon a patient’s
request, provide referrals to abortion providers. The
question, then, is whether HHS’s abortion-referral
requirement makes Tennessee’s program one in which
“abortion is a method of family planning[,]” in violation
of § 1008.
A threshold issue is whether authority definitively to
interpret § 1008 lies with the courts or with HHS. In Rust
v. Sullivan, 500 U.S. 173, 184, 111 S. Ct. 1759, 114 L. Ed.
2d 233 (1991), the Supreme Court said the agency had that
authority, under the Court’s decision seven years earlier in
Chevron, U.S.A. Inc. v. Nat’l Res. Defense Council, Inc.,
467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). Rust
was a Chevron case down to its bones: in the first sentence
of its analysis, the Court said that “[w]e need not dwell on
the plain language of” § 1008 because that “language is
ambiguous.” 500 U.S. at 184. The Court then described
the question before it as “whether the agency’s answer
is based on a permissible construction of the statute.”
38a
Id. (quoting Chevron, 467 U.S. at 842-43). The agency’s
answer there was the opposite of its answer here: in its
1988 Rule, HHS stated that, under § 1008, 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.” Id.
at 179 (quoting 42 C.F.R. § 59.8(a)(1) (1989)) (emphasis
added). The Court then deferred to that interpretation
and deemed the 1988 Rule lawful.
In the decades since, HHS has gone back and forth as
to whether Title X programs may or even must provide
abortion counseling and referrals. The 2021 Rule at
issue here takes the “must provide” approach. Last year,
our court acknowledged that Chevron and hence Rust
remained binding precedent—even though the Supreme
Court had recently granted certiorari to consider whether
to overrule Chevron. See Ohio v. Becerra, 87 F.4th 759, 769
(6th Cir. 2023); Loper Bright Enters. v. Raimondo, 143
S. Ct. 2429, 216 L. Ed. 2d 414 (2023) (mem.). Accordingly,
we held, “Rust’s holding requires us to reject the States’
argument that the 2021 Rule’s referral requirement is
contrary to law.” Ohio, 87 F.4th at 771.
During the pendency of this appeal, however, the
Supreme Court overruled Chevron. See Loper Bright
Enters. v. Raimondo, 603 U.S. 369, 144 S. Ct. 2244, 2273,
219 L. Ed. 2d 832 (2024). In Loper Bright, the Court
observed what the Court in Chevron had not: that § 706
of the Administrative Procedure Act “directs that, ‘[t]o
the extent necessary to decision and when presented,
the reviewing court shall decide all relevant questions of
39a
law, interpret constitutional and statutory provisions, and
determine the meaning or applicability of the terms of an
agency action.’” Id. at 2302 (quoting 5 U.S.C. § 706). Hence,
the Court observed, the APA “codifies for agency cases
the unremarkable, yet elemental proposition reflected by
judicial practice dating back to Marbury v. Madison, 5
U.S. 137, 1 Cranch 137, 177, 2 L. Ed. 60 (1803): that courts
decide legal questions by applying their own judgment.”
Loper Bright, 144 S. Ct. at 2261. Thus—in agency cases
as in any other case of statutory interpretation—the
court must identify the statute’s “single, best meaning”
rather than merely a permissible one. Id. at 2266. And in
agency cases specifically, “[c]ourts must exercise their
independent judgment in deciding whether an agency has
acted within its statutory authority, as the APA requires.”
Id. at 2273.
Whether HHS “has acted within its statutory
authority” is precisely the question presented here. Yet
the Department of Justice (as counsel for HHS) insists
that, in answering that question, Loper Bright is of no
moment whatever. Specifically, before argument, the
Department opposed supplemental briefing as to the effect
of Loper Bright upon our decision in this appeal. Instead,
the Department merely asserted that, in Rust, the Court
concluded that § 1008 “‘does not speak’ [“directly” is the
next word in Rust] to ‘counseling’ or ‘referral’”—as if,
even after Loper Bright, the judicial task was therefore
at an end. Dep’t. of Justice 28(j) Letter of July 3, 2024
(citing Rust, 500 U.S. at 184). And at oral argument, the
agency’s counsel repeatedly refused to answer questions
about what § 1008 means—instead asserting (again)
40a
that we remain bound by Rust. Oral Arg. at 20:00-26:45,
33:30-36:20. In support, the Department emphasizes one
sentence from Loper Bright—in which the Court said its
decision did “not call into question prior cases that relied
on the Chevron framework.” 144 S. Ct. at 2273. So in the
Department of Justice’s view, apparently, Chevron lives
on in perpetuity as to any statute that the Supreme Court
has ever deemed ambiguous under that doctrine.
But the Department studiously overlooks the extent
to which lower courts remain bound by the Court’s “prior
cases that relied on the Chevron framework.” Id. And in
the very next sentence of Loper Bright, the Chief Justice
was surpassingly clear in defining that extent: “The
holdings of those cases that specific agency actions are
lawful—including the Clean Air Act holding of Chevron
itself—are still subject to statutory stare decisis despite
our change in interpretive methodology.” Id. (emphasis
added).
The “specific agency action” held lawful in Rust was
the 1988 Rule, which has since been rescinded. Thus, in
this appeal, we have no occasion to defer to that holding.
Instead, we “must exercise [our] independent judgment
in deciding whether [the] agency has acted within its
statutory authority, as the APA requires.” Id. We would
therefore contravene Loper Bright if we deferred to the
agency’s interpretation of § 1008 in the 2021 Rule. (And
to say the agency actually interpreted § 1008 is generous,
since in the Rule the agency nowhere deigns to interpret
it.)
41a
So our court must determine for itself whether the 2021
Rule’s abortion-referral requirement is contrary to law.
Again, § 1008 provides: “None of the funds appropriated
in this title shall be used in programs where abortion
is a method of family planning.” I have no quarrel with
HHS’s definition of “family planning”—under the prior
administration’s 2019 Rule and the 2021 Rule alike—as a
process by which individuals can determine “the number
and spacing” of their children. See 42 C.F.R. § 59.1 (2019);
42 C.F.R. § 59.1 (2021). And the word “where,” as used in
§ 1008, pretty clearly means “in which[.]” See Bryan A.
Garner, Garner’s Modern American Usage 856 (3d ed.
2009); Webster’s Third New International Dictionary
(Unabridged) 2602 (1971). A “method,” in turn, is not
merely a means of obtaining a particular end, but a
“regular, orderly,” or “systematic” means of doing so. See
Webster’s New Universal Unabridged Dictionary 1134 (2d
ed. 1983); Webster’s Third New International Dictionary
2322. So a method is a deliberate or systematic means of
obtaining a particular end.
Section 1008 thus denies funding to programs in which
abortion is a regular or systematic means of enabling
individuals to determine the number and spacing of their
children. For achieving that end, of course, there are many
means other than abortion: contraception, abstinence, in
vitro fertilization, adoption. A program that has nothing to
do with a particular means is not a program in which that
means is a “method.” For a program to be one in which a
particular means “is a method of family planning,” rather,
the program must assist the patient in using or obtaining
that means, and do so in a deliberate or systematic way.
42a
Yet the program itself need not provide the ultimate
service or product necessary for those means: the 2019 and
2021 Rules both expressly contemplate referrals to “actual
providers of services,” 42 C.F.R. § 59.5(b)(8), (9) (2019)
and 42 C.F.R. § 59.5(b)(8), (9) (2021); and surely adoption
and IVF, for example, are methods of family planning
for programs that help patients obtain those services
elsewhere. For a means to be attributable to a program as
a “method,” therefore, deliberate or systematic facilitation
must be enough.
Facilitation means assistance toward a particular
end. In this context, facilitation means assistance
toward a patient’s use of a particular means of family
planning. Referral is such assistance, regardless of the
means the patient seeks. For in family planning, as in
life generally, knowledge of where to obtain a product or
procedure is the first step toward actually obtaining it.
Indeed, in the 2021 Rule, HHS itself acknowledged that
referrals to abortion providers are “affirmative action”
toward actually obtaining an abortion—when HHS
stated that, apart from the referral itself, a Title X funds
recipient “may not take further affirmative action (such
as negotiating a fee reduction, making an appointment,
providing transportation) to secure abortion services
for the patient.” 86 Fed. Reg. 56144, 56150 (Oct. 7, 2021)
(emphasis added). For purposes of § 1008, however, HHS’s
distinction between referrals and these other affirmative
actions is without a difference: all these actions provide
assistance toward “secur[ing] abortion services for the
patient.” Id. And the referral requirement makes that
assistance systematic, since by its terms every recipient
of Title X funds must provide it.
43a
Just as adoption or IVF are methods of family planning
for programs that refer patients to providers for those
services, therefore, so too is abortion a method of family
planning for programs that refer patients to abortion
providers. And the 2021 Rule mandates that every Title
X program do exactly that. Thus, HHS’s abortion-referral
requirement makes every Title X program one “where
abortion is a method of family planning.”
HHS counters, in passing, that Tennessee could
comply with the referral requirement “by providing
Title X patients the number for a call-in hotline where
operators would supply the requisite information.” Br. at
10. But the “hotline” would supply the patient with the
same information (“requisite” for obtaining an abortion)
that handing her a printed list of abortion providers
would. That indeed would transparently be the whole point
of the exercise. Providing the patient with the hotline
number would facilitate actually obtaining an abortion
just as handing her the form would. That the hotline would
contrive to add a step to that referral process (namely, that
of dialing a phone number) should make zero difference
to the analysis under § 1008. Courts enforce legal rules,
rather than allow parties patently to circumvent them.
In sum, the abortion-referral requirement likely
violates § 1008’s proscription, and I would enjoin its
enforcement.
***
44a
A closer question is whether the 2021 Rule’s
requirement of nondirective counseling regarding
abortion is likewise contrary to § 1008. The 2021 Rule
provides in relevant part:
A project must:
(i) Offer pregnant clients the opportunity
to be provided information and counseling
regarding each of the following options:
(A)
Prenatal care and delivery;
(B) Infant care, foster care, or
adoption; and
(C)
Pregnancy termination.
(ii) If requested to provide such information
and counseling, provide neutral, factual
information and nondirective counseling on
each of the options, and, referral upon request,
except with respect to any option(s) about which
the pregnant client indicates they do not wish
to receive such information and counseling.
42 C.F.R. § 59.5 (2021). Counseling on these topics must
therefore be “neutral” and “nondirective[.]” The question,
then, is whether the counseling requirement—to provide,
upon request, nondirective counseling regarding abortion
and various other topics—likewise makes a Title X
program one in which abortion is a method of family
planning.
45a
An action is not a “method” just because it makes
a particular outcome more likely. Rather, a method is
deliberate or systematic action toward a particular end.
And nondirective counseling by definition is not directed
toward a particular outcome. (The same is not true of
promotion or advocacy: persuading a person to choose a
particular outcome is a deliberate step toward reaching
it.) Nondirective counseling helps the patient choose
her own means of family planning, but advances none of
them. Hence nondirective counseling does not amount
to deliberate or systematic facilitation of any of the
pregnancy options the counseling might cover. Thus, the
2021 Rule’s requirement of nondirective counseling likely
does not violate § 1008.
An appropriations rider enacted every year since
1996 (including the years relevant here) all but confirms
the point. By way of background, Congress “may amend
substantive law in an appropriations statute, as long as it
does so clearly.” Robertson v. Seattle Audubon Soc., 503
U.S. 429, 440, 112 S. Ct. 1407, 118 L. Ed. 2d 73 (1992).
“Clearly” need not mean “expressly.” In Robertson, for
example, the Court held that an appropriations statute
had implicitly (though clearly) “modified” provisions of
the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq.,
among two other Acts. 503 U.S. at 438-40.
Here, the appropriations rider provides in relevant
part:
For carrying out the program under Title
X . . . to provide for voluntary family planning
46a
projects, $ 286,479.00: Provided, that amounts
provided to said projects under such title shall
not be expended for abortions, [and] that all
pregnancy counseling shall be nondirective[.]
Omnibus Consol. Rescissions and Appropriations Act of
2022, Pub. L. No. 117-103, 136 Stat. 49, 444 (Mar. 15, 2022).
An ordinary reader would understand the phrase
“all pregnancy counseling shall be nondirective” to mean
that nondirective pregnancy counseling is permissible
under Title X. In like fashion, for example, the phrases
“all passenger vehicles must have seatbelts” and “all dogs
shall be kept on a leash,” proscribe neither manufacturing
passenger vehicles nor taking dogs for a walk; instead,
those phrases specify a condition for doing those things
lawfully. Here, the specified condition is that counseling
be “nondirective”; and the rider makes clear enough that
pregnancy counseling is lawful under Title X so long as
that condition is met.
Moreover, the rider’s reference to “all” pregnancy
counseling suggests that such counseling may concern
various topics; and the relevant context—among other
things, that the rider’s preceding clause ends with the
word “abortions”—suggests that abortion is one of them.
Indeed, in light of § 1008, one can surmise that abortion,
above all, was the topic Congress had in mind when it
mandated that “pregnancy counseling” be nondirective.
Thus—regardless of whether one thinks that § 1008,
47a
construed within its four corners, would bar nondirective
counseling regarding abortion—§ 1008 construed along
with the appropriations rider, in the years in which the
rider is enacted, very likely permits such counseling.
The prior administration thought so, see 84 Fed. Reg.
7714, 7745-46 (Mar. 4, 2019); and I think they were likely
right. Nor should it matter that the 2019 Rule permitted
such counseling, whereas the 2021 Rule requires it: if
nondirective counseling falls outside the proscription
of § 1008, whether an agency permits or requires it is
immaterial for purposes of that proscription. Thus, in my
view, Tennessee is unlikely to prevail on its claim under
the APA that the 2021 Rule’s requirement of nondirective
pregnancy counseling is contrary to law; and so I would
not enjoin that requirement.
***
Given that (in my view) the abortion-referral
requirement violates § 1008, I do not reach Tennessee’s
parallel challenge to that requirement on constitutional
grounds (namely under the Spending Clause). See
Northwest Austin Mun. Utility Dist. No. One v. Holder,
557 U.S. 193, 205, 129 S. Ct. 2504, 174 L. Ed. 2d 140 (2009).
Tennessee does claim that the 2021 Rule’s requirement
of nondirective pregnancy counseling likewise “expressly
violate[s] the Spending Clause by imposing unforeseen
conditions far afield from Congress’s Title X legislation.”
Complaint ¶112. But I think that claim will likely fail, since
the rider plainly contemplates nondirective pregnancy
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counseling and indeed prescribes a rule for its legality
(namely that the counseling be nondirective). Nor do I
think that Tennessee will likely show that the agency’s
actions with regard to the counseling requirement were
arbitrary and capricious under the APA.
I respectfully dissent in part and concur in the
judgment in part.
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APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 24-5220
STATE OF TENNESSEE,
Plaintiff-Appellant,
v.
XAVIER BECERRA, IN HIS OFFICIAL CAPACITY
AS SECRETARY OF HEALTH AND HUMAN
SERVICES; UNITED STATES DEPARTMENT
OF HEALTH AND HUMAN SERVICES; JESSICA
S. MARCELLA, IN HER OFFICIAL CAPACITY
AS DEPUTY ASSISTANT SECRETARY
FOR POPULATION AFFAIRS; OFFICE OF
POPULATION AFFAIRS,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 3:23-cv-00384—Travis Randall McDonough,
District Judge.
Argued: July 18, 2024
Decided and Filed: August 26, 2024
Before: GIBBONS, KETHLEDGE, and DAVIS,
Circuit Judges.
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DAVIS, J., delivered the opinion of the court in which
GIBBONS, J., joined in full. KETHLEDGE, J. (pp. 24–
31), delivered a separate opinion dissenting in part and
concurring in the judgment in part.
OPINION
DAVIS, Circuit Judge. In 2021, the United States
Department of Health and Human Services (“HHS”)
promulgated a rule requiring Title X grant recipients to
provide neutral, nondirective counseling and referrals for
abortions to patients who request it. Tennessee, which has
been a Title X recipient for over 50 years, recently outlawed
most abortions in the state. After doing so, Tennessee
would commit only to conducting counseling and referrals
for options deemed legal in the state. HHS considered
Tennessee’s commitment to be out of compliance with its
regulatory requirements. So it opted to discontinue the
grant. Tennessee filed suit to challenge HHS’s action and
enjoin it from closing the grant. The district court denied
Tennessee’s request for preliminary injunction because it
held that Tennessee does not have a strong likelihood of
succeeding on the merits of its claim and that the balance
of the remaining preliminary injunction factors weigh in
HHS’s favor. For the reasons set forth below, we affirm.
I.
A.
Factual Background. In 1970, Congress enacted
Title X of the Public Health Service Act (alternately “the
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Act”) to authorize HHS to award discretionary grants to
fund family-planning projects. See 42 U.S.C. §§ 300(a),
300a-4(a)–(b); Family Planning Services and Population
Research Act, Pub. L. No. 91-572, 84 Stat. 1504, 1508
(1970). Title X authorizes HHS to “enter into contracts
with public or nonprofit private entities” to establish and
operate these family-planning projects, 42 U.S.C. § 300(a),
and these grants are to be “made in accordance with
such regulations as the Secretary may promulgate,” id.
§ 300a-4(a). Nevertheless, Section 1008 of the Act provides
that “[n]one of the funds appropriated . . . shall be used in
programs where abortion is a method of family planning.”
Id. § 300a-6. HHS has varied in its interpretation of the
limit that § 1008 imposes on its regulatory authority.
As a result, it has vacillated from regulations requiring
funded projects to provide nondirective counseling and
referrals for abortion (2000–2019), to forbidding such
activity (2019–2021), to requiring nondirective counseling
and abortion referrals if requested by the patient (2021–
present). See Ohio v. Becerra, 87 F.4th 759, 765–67 (6th
Cir. 2023) (summarizing the history of the Counseling and
Referral rule). Generally, HHS grants are awarded for a
one-year period and any subsequent continuation awards
are similarly determined one year at a time. 42 C.F.R.
§ 59.8(a)–(b). When “non-Federal” entities fail to comply
with the “[f]ederal statutes, regulations, or the terms and
conditions” of an award, HHS is empowered to terminate
the grant. 45 C.F.R. §§ 75.371(c), 75.372(a)(1).
In October 2021, HHS promulgated a rule requiring
Title X programs to offer pregnant clients the opportunity
to receive “neutral factual information and nondirective
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counseling” regarding prenatal care and delivery, infant
care, foster care, adoption, and abortion.1 Ensuring Access
to Equitable, Affordable, Client-Centered, Quality Family
Planning Services, 86 Fed. Reg. 56144 (Oct. 7, 2021); see
also 42 C.F.R. § 59.1 et seq; 42 C.F.R. § 59.5(a)(5)(i)–(ii).
The 2021 Rule also required Title X programs to provide
referrals for any of these options in response to a patient
request. 42 C.F.R. § 59.5(a)(5)(ii). To comply with § 1008’s
prohibition of funding for programs where abortion is a
method of family planning, the 2021 Rule emphasized that
a referral for abortion services “may include providing
a patient with the name, address, telephone number,
and other relevant factual information” about a medical
provider, but that a Title X project “may not take further
affirmative action (such as negotiating a fee reduction,
making an appointment, providing transportation) to
secure abortion services for the patient.” Ensuring Access,
86 Fed. Reg. at 56150.
In March 2022, HHS awarded the Tennessee
Department of Health a Title X grant for the period
from April 1, 2022, through March 31, 2023. The notice
of award stated that the amount requested represented
the one-year “budget period,” (as opposed to the project’s
five-year period), and that it was “not obligated to make
additional Federal Funds available.” (R. 1-7, PageID 172).
In June 2022, the Supreme Court handed down
its decision in Dobbs v. Jackson Women’s Health
Organization, 597 U.S. 215, 142 S. Ct. 2228, 213 L. Ed.
2d 545 (2022), in which it held that there is no individual
1. Through this rule, HHS readopted the regulations in place
from 2000 to 2019. 86 Fed. Reg. 56144, 56144 (Oct. 7, 2021).
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right under the Constitution to obtain an abortion.
Following Dobbs, several states—Tennessee included—
implemented laws that criminalized abortion in all but a
few circumstances. Reasoning that Dobbs did not affect
the Title X grant regime, in January 2023, HHS notified
grantees it would be auditing their compliance with its
counseling and referral regulations. HHS requested that
grantees submit copies of their policies for providing
neutral, nondirective options counseling and referrals
for abortion services and a signed statement confirming
compliance with those regulations.
Tennessee responded by submitting a letter confirming
its compliance with the regulation and attaching its
policy. The policy stated, in pertinent part, that Title
X “[p]atients with positive pregnancy test[s] must be
offered the opportunity to be provided information and
counseling regarding all options that are legal in the State
of Tennessee.” (R. 1-3, PageID 99). The letter did not
clarify which options the state deemed “legal in the State
of Tennessee,” but seemed to be alluding to a new law that
had recently taken effect restricting abortion in the State.
See Tenn. Code Ann. § 39-15-213. HHS notified Tennessee
that its response appeared to place it out of compliance and
offered Tennessee the option of submitting an “alternate
compliance proposal” with specific examples of acceptable
arrangements. (R. 1-9, PageID 190). For instance, HHS
suggested the option of providing Title X patients with
the number for a national call-in hotline where operators
would supply referral information. Tennessee responded
by reiterating its compliance based on its understanding
of its obligations under state law and federal regulations.
(R. 1-10, PageID 192 (citing Tenn. Code Ann. § 39-15213(a)(1))). HHS disagreed with Tennessee’s assertion
54a
that it was in compliance. On March 20, 2023, the agency
sent the state a letter explaining its decision to decline
to issue a Title X continuation award to the Tennessee
Department of Health. 2
B.
Procedural History. In October 2023, Tennessee
brought the instant action in the United States District
Court for the Eastern District of Tennessee seeking: (1)
a declaratory judgment under 28 U.S.C. § 2201 stating
that HHS’s termination of the state’s Title X funding
was unlawful; (2) dissolution of HHS’s March 20, 2023,
discontinuation decision; (3) a preliminary injunction
enjoining HHS and others from enforcing or implementing
the discontinuation decision; (4) to enjoin HHS from
withholding Title X funds based on the counseling and
referral clause; (5) reinstatement of Title X funds from
the date of discontinuation; and (6) any and all other relief
the court deemed proper.
In November 2023, this court reviewed a similar Title
X case and held that HHS’s 2021 Rule was a permissible
construction of the Title X statute. See Ohio, 87 F.4th at
771–72. Based in large part on our decision in Ohio, the
district court denied Tennessee’s preliminary injunction,
concluding that Tennessee was not likely to succeed on the
merits and that the balance of the equities and the public
interest did not favor relief. The district court further
2. HHS concluded that a continuation award was not “in the
best interest of the government” based on its determination that
Tennessee’s Title X project was not in compliance with the Title X
regulation. (See R. 1-12, PageID 198 (quoting 42 C.F.R. § 59.8(b))).
55a
concluded that Tennessee had “no basis to force funding
from HHS without meeting the obligations upon which
the [Title X] funding [was] conditioned.” (R. 30, PageID
857). Tennessee timely appealed.
II.
We review a district court’s denial of a motion
for a preliminary injunction for abuse of discretion.
Wonderland Shopping Ctr. Venture Ltd. P’ship v. CDC
Mortg. Cap., Inc., 274 F.3d 1085, 1097 (6th Cir. 2001). We
will find that a district court has abused its discretion when
it has made “clearly erroneous findings of fact, improperly
applied the governing law, or used an erroneous legal
standard.” Id. (quoting Bonnell v. Lorenzo, 241 F.3d
800, 809 (6th Cir.2001)). Though we review de novo the
question of whether a movant is likely to succeed on the
merits, a district court’s ultimate determination as to
whether the factors weigh in favor of granting or denying
preliminary injunctive relief is subject to review for abuse
of discretion. Ohio, 87 F.4th at 768 (citing City of Pontiac
Retired Emps. Ass’n v. Schimmel, 751 F.3d 427, 430 (6th
Cir. 2014) (en banc) (per curiam)). Thus, absent a legal or
factual error, “the district court’s weighing and balancing
of the equities will be overruled ‘only in the rarest of
cases.’” Am. Imaging Servs., Inc. v. Eagle-Picher Indus.,
Inc. (In re Eagle-Picher Indus., Inc.), 963 F.2d 855, 858
(6th Cir. 1992) (citations omitted).
Courts consider four factors when determining
whether to grant a preliminary injunction: “(1) whether
the movant has a strong likelihood of success on the
56a
merits; (2) whether the movant would suffer irreparable
injury without the injunction; (3) whether issuance of the
injunction would cause substantial harm to others; and
(4) whether the public interest would be served by issuance
of the injunction.” Ohio, 87 F.4th at 768 (citing City of
Pontiac, 751 F.3d at 430). “Where the federal government
is the defendant, as here, the third and fourth factors
merge.” Id. (citing Nken v. Holder, 556 U.S. 418, 435, 129
S. Ct. 1749, 173 L. Ed. 2d 550 (2009)).
III.
Likelihood of Success on the Merits. Tennessee first
argues that it has a strong likelihood of success on the
merits because HHS’s discontinuation of Title X funds
usurped Congress’s sole Spending Clause powers and
disregarded the Administrative Procedure Act’s (“APA”)
limits.
A.
The Spending Clause. Tennessee maintains that
HHS’s enforcement (through rescission of funding) of the
2021 Rule’s counseling and referral requirements violated
the Spending Clause of the United States Constitution.
It argues that HHS’s imposition of these requirements
usurped Congress’s exclusive authority to regulate Title
X funding. The Spending Clause empowers Congress to
“lay and collect Taxes . . . to pay the Debts and provide for
the common Defence and general Welfare of the United
States.” U.S. Const. art. I, § 8. It grants Congress the
broad power to “set the terms” for when and to whom it
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will disburse federal funds. Cummings v. Premier Rehab
Keller, P.L.L.C., 596 U.S. 212, 216, 142 S. Ct. 1562, 212
L. Ed. 2d 552 (2022). As it regards funds disbursed to
individual states, Congress’s spending power operates like
a contract; “in return for federal funds,” states must agree
to “comply with federally imposed conditions.” Pennhurst
State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 101 S.
Ct. 1531, 67 L. Ed. 2d 694 (1981).
As a result, Congress’s legitimacy to legislate under
the spending power depends on (1) whether Congress’s
conditions on its grants of federal funds are unambiguous;
and (2) “whether the State voluntarily and knowingly
accepts the terms of the ‘contract.’” Id. Because the
district court reasonably concluded that Congress
unambiguously authorized HHS to regulate Title X
eligibility; the conditions of the grant were unambiguous;
and Tennessee knowingly and voluntarily accepted the
grant’s terms, we find that the district court did not abuse
its discretion in concluding that Tennessee is unlikely to
succeed on the merits of its Spending Clause claim.
1.
Unambiguous Statutory Author
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