Mayor v. Azar

973 F.3d 258

MAYOR and City Council OF BALTIMORE, Plaintiff – Appellee,

v.Alex M. AZAR, II, in his official capacity as the Secretary of Health and Human Services; Diane Foley, M.D., in her official capacity as the Deputy Assistant Secretary, Office of Population Affairs ; United States Department of Health & Human Services; Office of Population Affairs, Defendants – Appellants.

Ohio; Alabama; Arkansas; Indiana; Kansas; Louisiana; Nebraska; Oklahoma; South Carolina; South Dakota; Tennessee; Texas; Utah; West Virginia, Amici Supporting Appellants,

New York, New York City Health + Hospitals and 10 Local Governments; National Health Law Program; Advocates for Youth; American Medical Student Association; American Society for Reproductive Medicine; Community Catalyst; The Endocrine Society; Families USA; in Our Own Voice: National Black Women's Reproductive Justice Agenda; Juvenile Law Center; The Leadership Conference on Civil and Human Rights ; National Council of Jewish Women; NARAL Pro-Choice America; National Abortion Federation; National Immigration Law Center; National Institute for Reproductive Health ; National Latina Institute for Reproductive Health ; National Partnership for Women & Families; National Women's Health Network; National Women's Law Center; Northwest Health Law Advocates ; Positive Women's Network-USA; Power to Decide ; Union for Reform Judaism; Central Conference of American Rabbis; Women of Reform Judaism; Men of Reform Judaism; Unite for Reproductive & Gender Equity ; Whitman-Walker Health; WomenHeart; YWCA of the USA; National Center for Lesbian Rights; GLMA: Health Professionals Advancing LGBT Equality; The LGBT Movement Advancement Project; National LGBTQ Task Force; Equality Federation; Sexuality Information and Education Council of the United States; Family Equality Council; The National Center for Transgender Equality ; HIV Medicine Association ; GLBTQ Legal Advocates & Defenders ; Lambda Legal Defense and Education Fund, Incorporated; The Human Rights Campaign ; Transgender Law Center; Bay Area Lawyers for Individual Freedom ; The Institute for Policy Integrity at New York University School of Law; National Center for Youth Law; American Academy of Pediatrics; American College of Obstetricians and Gynecologists; American College of Physicians; American Medical Association; Society for Adolescent Health and Medicine; Society for Maternal-Fetal Medicine; Zachary D. Clopton; Amanda Frost; Suzette Malveaux; Mila Sohoni; Alan Trammell; California; Nevada; Colorado; Connecticut; Delaware; Hawaii; Illinois; Maine; Maryland; Massachusetts; Michigan; Minnesota; New Jersey; New Mexico; New York; North Carolina; Oregon; Pennsylvania; Rhode Island; Vermont; Virginia; Washington; District of Columbia, Amici Supporting Appellee.

Mayor and City Council of Baltimore, Plaintiff – Appellee,

v.Alex M. Azar, II, in his official capacity as the Secretary of Health and Human Services; Diane Foley, M.D., in her official capacity as the Deputy Assistant Secretary, Office of Population Affairs ; United States Department of Health & Human Services; Office of Population Affairs, Defendants – Appellants.

Kentucky; Alabama; Arkansas; Indiana; Louisiana; Nebraska; Ohio; Oklahoma; South Carolina; South Dakota; Tennessee; Texas; Utah; West Virginia, Amici Supporting Appellants.

American Medical Association; Zachary D. Clopton; Amanda Frost; Suzette Malveaux; Mila Sohoni; Alan Trammell; California; Nevada; Colorado; Connecticut; Delaware; District of Columbia; Hawaii; Illinois; Maine; Maryland; Massachusetts; Michigan; Minnesota; New Jersey; New York; North Carolina; Oregon; Pennsylvania; Rhode Island; Vermont; Virginia; Washington; New Mexico, Amici Supporting Appellee.

No. 19-1614

No. 20-1215

United States Court of Appeals, Fourth Circuit.

Argued: May 7, 2020

Decided: September 3, 2020

ON REHEARING EN BANC

THACKER, Circuit Judge:

In these consolidated appeals, we address the propriety of the district court's preliminary and permanent injunctions. These injunctions halt implementation of a Health and Human Services ("HHS") rule that, inter alia, prohibits physicians and other providers in Title X programs from referring patients for an abortion, even if that is the patient's wish. Instead, it requires them to refer the patient for prenatal care. See Compliance With Statutory Program Integrity Requirements , 84 Fed. Reg. 7714-01 (March 4, 2019) (the "Final Rule"). The Final Rule also requires entities receiving Title X funds, but offering abortion-related services pursuant to another source of funds, to physically separate their abortion-related services from the Title X services.

The Mayor and City Council of Baltimore ("Baltimore" or "Appellee") filed suit against Alex Azar II; Dr. Diane Foley; HHS; and the Office of Population Affairs, the office that administers Title X (collectively, "Appellants" or the "Government"), alleging, in pertinent part, that the Final Rule violates the Administrative Procedure Act ("APA") because it is arbitrary, capricious, and not in accordance with law. The district court first issued a preliminary injunction, concluding that the Final Rule is likely not in accordance with law, and the Government appealed. While the appeal of the preliminary injunction was pending and after discovery, the district court issued a permanent injunction on different grounds -- specifically, the promulgation of the Final Rule was arbitrary and capricious -- and the Government appealed from that judgment as well. We consolidated the appeals, and a majority of the full court voted to hear both cases en banc.

We affirm in part and dismiss in part. We uphold the grant of the permanent injunction on two grounds. First, the Final Rule was promulgated in an arbitrary and capricious manner because it failed to recognize and address the ethical concerns of literally every major medical organization in the country, and it arbitrarily estimated the cost of the physical separation of abortion services. Second, the Final Rule contravenes statutory provisions requiring nondirective counseling in Title X programs and prohibiting interference with physician/patient communications. Because we affirm the permanent injunction in Case No. 20–1215, the appeal of the preliminary injunction in Case No. 19–1614 is moot, and we, therefore, dismiss it.

I.

Congress enacted Title X in 1970 "[t]o promote public health and welfare by expanding, improving, and better coordinating the family planning services and population research activities of the Federal Government[.]" Pub. L. No. 91-572, 84 Stat. 1504 (Dec. 24, 1970). Under Title X, the Secretary of HHS ("Secretary") is

authorized to make grants to and enter into contracts with public or nonprofit private entities to assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services (including natural family planning methods, infertility services, and services for adolescents).

42 U.S.C. § 300(a). "Grants and contracts made under this subchapter shall be made in accordance with such regulations as the Secretary may promulgate," id . § 300a-4(a), and HHS has never allowed grantees to use Title X funds to "provide" abortions as a method of family planning, e.g. , 42 C.F.R. § 59.5(a)(5) (2000) ; see id. § 59.9 (2000).¹

The parties disagree about the propriety of HHS's interpretation of the following provision in Title X: "None of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning ." 42 U.S.C. § 300a-6 (emphasis supplied) (also referred to as "Section 1008" of the Public Health Service Act). HHS's interpretation of this provision has morphed over the last 50 years.

A.

HHS's Changing Interpretation of Section 1008

1.1970–1988

For the first 18 years of the Title X program, HHS interpreted Section 1008 "not only as prohibiting the provision of abortion but also as prohibiting Title X projects from in any way promoting or encouraging abortion as a method of family planning." Statutory Prohibition on Use of Appropriated Funds in Programs Where Abortion is a Method of Family Planning; Standard of Compliance for Family Planning Servs. Projects , 53 Fed. Reg. 2922-01, 2923 (Feb. 2, 1988) (explaining history of Section 1008 interpretation); see also 36 Fed. Reg. 18465, 18466 (Sept. 15, 1971) ; 42 C.F.R. § 59.5(9) (1972). Further, HHS "interpreted [S]ection 1008 as requiring that the Title X program be ‘separate and distinct’ from any abortion activities of a grantee." 53 Fed. Reg. at 2923. In its advisory opinions, the Office of General Counsel of HHS "generally took the view that activity which did not have the immediate effect of promoting abortion or which did not have the principal purpose or effect of promoting abortion was permitted." Id .

Then, in 1981, HHS "went a step further" and

required Title X projects to engage in abortion-related activities under certain circumstances. These guidelines for the first time required nondirective "options counseling" on pregnancy termination (abortion), prenatal care, and adoption and foster care when a woman with an unintended pregnancy requests information on her options, followed by referral for these services if she so requests. These guidelines were premised on a view that "non-directive" counseling and referral for abortion were not inconsistent with the statute and were justified as a matter of policy in that such activities did not have the effect of promoting or encouraging abortion.

53 Fed. Reg. at 2923. This approach was maintained until 1988.

2.1988–1991

In 1988, the Secretary issued new regulations, which prohibited Title X projects from promoting, encouraging, advocating, or providing counseling on, or referrals for, abortion as a method of family planning. See Statutory Prohibition on Use of Appropriated Funds in Programs Where Abortion is a Method of Family Planning; ...