Ohio v. Becerra

87 F.4th 759

State of OHIO; State of Alabama; State of Arkansas; State of Florida; State of Kansas; Commonwealth of Kentucky; State of Missouri; State of Nebraska; State of Oklahoma; State of South Carolina; State of West Virginia, Plaintiffs-Appellants, v. Xavier BECERRA, Secretary, Department of Health and Human Services and Jessica S. Marcella, Deputy Assistant Secretary for Population Affairs, in their official capacities; Department of Health and Human Services; Office of Population Affairs, Defendants-Appellees.

No. 21-4235

United States Court of Appeals, Sixth Circuit

Argued: October 27, 2022

Decided and Filed: November 30, 2023

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 1:21-cv-00675—Timothy S. Black, District Judge.

ARGUED: Benjamin M. Flowers, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants. Courtney L. Dixon, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Benjamin M. Flowers, Stephen P. Carney, Sylvia May Mailman, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, Thomas T. Hydrick, OFFICE OF THE SOUTH CAROLINA ATTORNEY GENERAL, Columbia, South Carolina, for Appellants. Abby C. Wright, Kyle T. Edwards, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Christian B. Corrigan, OFFICE OF THE MONTANA ATTORNEY GENERAL, Helena, Montana, Steven H. Aden, AMERICANS UNITED FOR LIFE, Washington, D.C., Alan E. Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Blair J. Greenwald, OFFICE OF THE NEW YORK ATTORNEY GENERAL, New York, New York, Robin Summers, NATIONAL FAMILY PLANNING & REPRODUCTIVE HEALTH ASSOCIATION, Washington, D.C., Margaret M. Dotzel, Catherine S. Duval, Casey Trombley-Shapiro Jonas, Alyssa M. Howard, ZUCKERMAN SPAEDER LLP, Washington, D.C., for Amici Curiae.

Before: MOORE, THAPAR, and LARSEN, Circuit Judges.

LARSEN, J., delivered the opinion of the court in which THAPAR, J., joined. MOORE, J. (pp. 784-802), delivered a separate opinion concurring in the judgment in part and dissenting in part.

OPINION

LARSEN, Circuit Judge.

In 2021, the Department of Health and Human Services (HHS) issued a final rule governing the Title X grant program, which makes grants to assist in the establishment and operation of family planning projects. Among other things, the Rule interpreted § 1008 of Title X, which bars funds appropriated under the Title X grant program from being "used in programs where abortion is a method of family planning." A group of states sued, seeking to block two provisions of the 2021 Rule. First, the States challenge the 2021 Rule's elimination of a prior HHS rule that required grantees to maintain strict physical and financial separation between their Title X programs and any abortion-related services they might provide. Second, they challenge the Rule's requirement that Title X projects provide referrals for abortion services when requested by the patient.

The Supreme Court has already had occasion to interpret § 1008, the statutory provision at the heart of this case. In Rust v. Sullivan, the Supreme Court held that § 1008 is ambiguous as to program integrity and referrals for abortion and that Chevron deference applies. 500 U.S. 173, 184, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991). Therefore, we defer to the agency's interpretation of § 1008 if the interpretation is permissible. Id. While the doctrinal landscape undergirding Rust has shifted significantly since it was decided, Rust, and its application of Chevron, remain binding on this court. Applying Rust, we cannot say that the 2021 Rule's referral requirement is an impermissible interpretation of § 1008. However, we hold that the 2021 Rule's program-integrity requirements do not represent a permissible interpretation of § 1008. We therefore AFFIRM the district court's denial of a preliminary injunction in part and REVERSE in part.

I.

Title X of the Public Health Service Act empowers the Secretary of Health and Human Services "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). Such grants are "made in accordance with such regulations as the Secretary may promulgate." Id. § 300a-4(a). At the heart of this case is the meaning of § 1008 of Title X, which states: "None of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning." Id. § 300a-6. Since the program's inception, HHS regulations interpreting § 1008's prohibition have flipped back and forth as new administrations have come into power. In particular, HHS has taken different approaches to determining what § 1008 requires with respect to two aspects of Title X program administration. The first is "program integrity"—the degree of separation a grantee must maintain between its Title X grant program and any program it may run that provides abortion-related services.¹See Rust, 500 U.S. at 187, 111 S.Ct. 1759. The second is whether Title X programs must or may make referrals for abortion without running afoul of § 1008.

For context, we briefly recount the history of HHS's various rules interpreting § 1008. Beginning in 1981, HHS issued "Program Guidelines for Project Grants for Family Planning Services," without notice and comment, which required for the first time that Title X programs offer non-directive counseling to a pregnant patient on her options, including abortion, followed by a referral to an abortion provider upon the patient's request. Statutory Prohibition on Use of Appropriated Funds in Programs Where Abortion is a Method of Family Planning, 53 Fed. Reg. 2,922, 2,923 (Feb. 2, 1988) (describing prior agency policies). HHS permitted grantees to provide Title X services and abortion-related services at a single site, so long as they maintained a separation that went beyond a "mere exercise in bookkeeping." Standards of Compliance for Abortion-Related Services in Family Planning Service Projects, 58 Fed. Reg. 7,462, 7,462 (Feb. 5, 1993) (describing prior policies).

HHS changed course in 1988, when the agency addressed the scope of § 1008 in notice-and-comment rulemaking for the first time. The 1988 Rule prohibited Title X projects from promoting, counseling on, or providing referrals for abortion. 53 Fed. Reg. at 2,923-24. The agency interpreted § 1008 to prohibit counseling on and referrals for abortion, reasoning that those "activities are integral parts of the provision of any method of family planning, [so] to interpret section 1008 as applicable only to the performance of abortion would be inconsistent with the broad prohibition against use of abortion as a method of family planning." Id. at 2,923. The 1988 Rule also imposed strict program-integrity rules, which required grantees to keep their Title X programs "physically and financially separate" from all abortion-related activities. Id. at 2,945. HHS interpreted § 1008 to "mandate" physical and financial separation, reasoning that "[h]aving a program that is separate from [abortion] activities is a necessary predicate to any determination that abortion is not being included as a method of family planning in the Title X program." Id. at 2,940. Whether a Title X program had "objective integrity and independence from prohibited activities" was to be determined through a case-by-case review of facts and circumstances. Id. at 2,945. HHS outlined a list of factors it would consider, including "the existence of separate accounting records," the "degree of separation from facilities" like waiting rooms, the "existence of separate personnel," and the extent of overlap between signs and other promotional material. Id.

The Supreme Court upheld these provisions of the 1988 Rule in Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991). The Court first deemed the text of § 1008 "ambiguous," concluding that the statute "does not speak directly to the issues of counseling, referral, advocacy, or program integrity." Id. at 184, 111 S.Ct. 1759. The Court likewise found the "legislative history ... ambiguous and unenlightening" on these questions. Id. at 186, 188, 111 S.Ct. 1759. The Court therefore concluded that Chevron deference applied, and it deferred to HHS's reasonable interpretation of § 1008 as expressed in the 1988 Rule. Id. at 184-90, 111 S.Ct. 1759.

In 2000, HHS revoked the 1988 Rule and replaced it with another. The 2000 Rule required Title X projects to provide pregnant women with nondirective information and counseling regarding their options, including abortion, and to make referrals upon request. Standards of Compliance for Abortion-Related Services in Family Planning Services Projects, 65 Fed. Reg. 41,270, 41,279 (July 3, 2000).

HHS explained that it did not consider the "provision of neutral and factual information about abortion," including referrals, "to promote or encourage abortion as a method of family planning." Id. at 41,270-74. The 2000 Rule also eliminated the 1988 Rule's strict program-integrity requirements. See id. at 41,275-76. HHS said that grantees would still be required to maintain a separation that was more than a "mere exercise in bookkeeping" and "demonstrate" by "financial records, counseling and service protocols, administrative procedures, and other means" that Title X funds were not being used to "promot[e], or encourage[] abortion as a method of family planning." Id. at 41,270, 41,276. But Guidance published alongside the 2000 Rule provided no direction on how to maintain separation beyond "mere ... bookkeeping"; instead, the Guidance provided only examples of permissible integration. Id. at 41,270. Common waiting rooms, common staff,...