747 F.3d 814 (10th Cir. 2014), 11-3235, Planned Parenthood of Kansas & Mid-Missouri v. Moser

Docket Nº:11-3235, 12-3178, 13-3175
Citation:747 F.3d 814
Opinion Judge:HARTZ, Circuit Judge.
Party Name:PLANNED PARENTHOOD OF KANSAS AND MID-MISSOURI, Plaintiff - Appellee, v. ROBERT MOSER, M.D., Secretary, Kansas Department of Health and Environment, Defendant - Appellant. EAGLE FORUM EDUCATION & LEGAL DEFENSE FUND, Amicus Curiae
Attorney:James M. Armstrong, Foulston Siefkin LLP, Wichita, Kansas, for Defendant - Appellant. Elissa Joy Preheim, Arnold & Porter LLP, Washington, D.C. (Lee Thompson and Erin C. Thompson, Thompson Law Firm, LLC, Wichita, Kansas; Roger K. Evans and Helene T. Krasnoff, Planned Parenthood Federation of Amer...
Judge Panel:Before LUCERO, HARTZ, and O'BRIEN, Circuit Judges. LUCERO, J., dissenting. LUCERO, J., dissenting.
Case Date:March 25, 2014
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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747 F.3d 814 (10th Cir. 2014)

PLANNED PARENTHOOD OF KANSAS AND MID-MISSOURI, Plaintiff - Appellee,

v.

ROBERT MOSER, M.D., Secretary, Kansas Department of Health and Environment, Defendant - Appellant.

EAGLE FORUM EDUCATION & LEGAL DEFENSE FUND, Amicus Curiae

Nos. 11-3235, 12-3178, 13-3175

United States Court of Appeals, Tenth Circuit

March 25, 2014

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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS. (D.C. NO. 2:11-CV-02357-JTM-DJW).

James M. Armstrong, Foulston Siefkin LLP, Wichita, Kansas, for Defendant - Appellant.

Elissa Joy Preheim, Arnold & Porter LLP, Washington, D.C. (Lee Thompson and Erin C. Thompson, Thompson Law Firm, LLC, Wichita, Kansas; Roger K. Evans and Helene T. Krasnoff, Planned Parenthood Federation of America, New York, New York and Washington, D.C., with her on the briefs), for Plaintiff - Appellee.

Lawrence J. Joseph, Washington, D.C., for Amicus Curiae.

Before LUCERO, HARTZ, and O'BRIEN, Circuit Judges. LUCERO, J., dissenting.

OPINION

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HARTZ, Circuit Judge.

The federal government subsidizes the cost of family-planning services for low-income individuals through Title X of the Public Health Service Act. It often grants Title X funding directly to a state, which in turn makes subgrants to family-planning service providers. Kansas is one such state.

In May 2011 Kansas Governor Sam Brownback signed into law an appropriations bill restricting the classes of entities eligible for Title X subgrants. It limits the recipients to public entities, hospitals, and federally qualified health centers that provide comprehensive primary and preventative healthcare services. This restriction disqualified two family-planning clinics operated by Planned Parenthood of Kansas and Mid-Missouri (Planned Parenthood). Planned Parenthood sued Governor Brownback and Robert Moser, M.D., in his capacity as the Secretary of the

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Kansas Department of Health and Environment (KDHE), challenging the legislation on the grounds (1) that it violates Title X and is therefore unconstitutional under the Supremacy Clause; (2) that it violates Planned Parenthood's First Amendment rights by penalizing it for associating with providers of abortion and for its advocacy of access to abortion services; and (3) that it violates the Fourteenth Amendment by imposing an unconstitutional burden on the rights of women to choose abortion (a claim not raised on appeal). Ruling that Planned Parenthood had established a likelihood of success on the merits of the first two claims and had otherwise satisfied the requirements for a preliminary injunction, the district court enjoined KDHE from implementing the legislation.

Moser challenges the injunction on several grounds, most of which we need not address. As to the Supremacy Clause claim, we hold that Planned Parenthood cannot establish a likelihood of success on the merits because there is no private cause of action for injunctive relief for the alleged violation of Title X. Although Planned Parenthood and the dissent assert that the view we adopt is contrary to circuit precedent in Chamber of Commerce of U.S. v. Edmondson, 594 F.3d 742, 764 (10th Cir. 2010), and Qwest Corp. v. City of Santa Fe, 380 F.3d 1258 (10th Cir. 2004), this opinion does not call into question the validity of the injunctions affirmed by those two decisions. Our holding is much narrower than what the dissent suggests. We hold only that when actual or threatened state action is allegedly contrary to a federal statute, the Supremacy Clause does not necessarily (it is a matter of statutory interpretation that depends on the specifics of the federal statute) authorize an injunction against the state action when four conditions are all satisfied: (1) the statute does not specifically authorize injunctive relief, (2) the statute does not create an individual right (which may be enforceable under 42 U.S.C. § 1983), (3) the statute is enacted under the Constitution's Spending Clause, and (4) the state action is not an enforcement action in adversary legal proceedings to impose sanctions on conduct prohibited by law.

As to the First Amendment claim, we hold that Planned Parenthood cannot establish a likelihood of success because the legislation does not restrict the rights of speech or association of subgrantees and the motives of individual lawmakers are irrelevant.

After summarizing the relevant background of this case, we will set forth the reasoning behind our two holdings, distinguishing the cases relied on by Planned Parenthood and the dissent. We then vacate the preliminary injunction, reverse, and remand for further proceedings.

I. BACKGROUND

A. Overview of Title X

In 1970 Congress passed the Family Planning Services and Population Research Act (Act). See Pub. L. No. 91-572, 84 Stat. 1504 (1970). The Act's stated purposes include " assist[ing] in making comprehensive voluntary family planning services readily available to all persons desiring such services." Id. § 2, 84 Stat. at 1504. It established the Office of Population Affairs (OPA), the responsibilities of which include " administer[ing] all Federal laws . . . which provide for or authorize the making of grants or contracts related to . . . family planning programs." Id. § § 3-4, 84 Stat. at 1504-05; 42 U.S.C. § 3505b(1). OPA resides within the Department of Health and Human Services (HHS). See 42 U.S.C. § 3505a(a).

Of particular relevance to this appeal, the Act amended the Public Health Service

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Act, Pub. L. No. 410, 58 Stat. 682 (1944), to add a new title: " Title X--Population Research and Voluntary Family Planning Programs" (Title X). Pub. L. No. 91-572, § 6, 84 Stat. 1504, 1506-08 (codified at 42 U.S.C. § § 300-300a-6). Title X facilitates the provision of family-planning services by federally subsidizing such services. It 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 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). Title X is relatively sparse, consisting of just a few short provisions. It mostly confers executive authority. It authorizes the HHS Secretary to make grants for various purposes related to family planning. See id . § 300(a) (family-planning project grants); id. § 300a(a) (formula grants to state health authorities); id. § 300a-1(a) (training grants); id. § 300a-2 (research grants); id. § 300a-3 (grants for educational materials). And it gives the Secretary authority to determine the amounts of grants, see id . § 300a-4(a), the conditions to which grants are subject, see id . § 300a-4(b), and whether projects satisfy the statutory eligibility requirements, see id . § 300a-4(c).

Under Title X, " [l]ocal and regional entities shall be assured the right to apply for direct grants and contracts . . ., and the Secretary shall by regulation fully provide for and protect such right." Id. § 300(b); see also id . § 300a-4(a) (authority to promulgate regulations governing grants). The regulations thus provide that " [a]ny public or nonprofit private entity in a State may apply for a grant under this subpart." 42 C.F.R. § 59.3. The regulations detail the application process and the requirements of a Title X project. See id . § § 59.4, 59.5. HHS provides successful applicants with a " notice of grant award," which informs the grantee how long HHS intends to fund the project before requiring the grantee to recompete for funding. Id. § 59.8. Although this period typically lasts three to five years, the initial grant is usually for only one year; the grantee must submit subsequent applications for " continuation awards" each year, subject to " consideration of such factors as the grantee's progress and management practices, and the availability of funds." Id.

Direct Title X grantees need not provide family-planning services themselves but may contract to have the services provided " by delegate/contract agencies operating under the umbrella of the grantee" (delegate agencies). U.S. Dep't of Health & Human Servs., Office of Pub. Health & Sci., Office of Population Affairs, Program Guidelines for Project Grants for Family Planning Services § 6.1 (2001) (Program Guidelines). But the direct grantee remains " responsible for the quality, cost, accessibility, acceptability, reporting, and performance of the grant-funded activities provided by delegate/contract agencies." Id.; see also Marilyn J. Keefe, Deputy Assistant Sec'y for Population Affairs, Dep't of Health & Human Servs., Memorandum on Title X Grantee Compliance with Grant Requirements and Applicable Law 2 (March 1, 2011) ( " Title X grantees are responsible for conducting periodic reviews of sub-recipient agencies, and must undertake immediate steps to address issues related to lack of compliance with established policies and procedures." ). Although Title X also authorizes direct federal grants to service providers, see Program Guidelines § 6.1, " [m]ost Title X funds flow initially to state and local governmental agencies and non-profit organizations[,

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which] function as intermediaries that in turn distribute the funds to subgrantees who actually administer the programs." Nat'l Family Planning & Reproductive Health Ass'n, Inc. v. Gonzales, 468 F.3d 826, 828, 373 U.S.App. D.C. 346 (D.C. Cir. 2006).

The Title X regulations cross-reference " HHS Department-wide regulations," which apply to Title X grants. 42 C.F.R. § 59.10. The referenced regulations include 42 C.F.R...

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