National Family Planning and Reproductive Health Ass'n, Inc. v. Sullivan

• Decision Date: 03 November 1992
• Docket Number: No. 92-5252,92-5252
• Citation: 979 F.2d 227
• Parties: , 61 USLW 2316 NATIONAL FAMILY PLANNING AND REPRODUCTIVE HEALTH ASSOCIATION, INC., et al., Appellee, v. Louis W. SULLIVAN, M.D., Secretary, U.S. Department of Health and Human Services, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 227

979 F.2d 227

298 U.S.App.D.C. 288, 61 USLW 2316

NATIONAL FAMILY PLANNING AND REPRODUCTIVE HEALTH

ASSOCIATION, INC., et al., Appellee, v. Louis W. SULLIVAN, M.D., Secretary, U.S. Department of

Health and Human Services, Appellant.

No. 92-5252.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 14, 1992.

Decided Nov. 3, 1992.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 92cv00935).

Robert V. Zener, Atty., Dept. of Justice, with whom Michael Astrue, Gen. Counsel, Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., and Alfred Mollin, Washington, D.C., were on the brief for appellant.

James L. Feldesman, with whom Eugene R. Fidell, Washington, D.C., were on the brief, for appellee.

Before: MIKVA, Chief Judge, WALD and EDWARDS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

The central issue presented in this case is whether the Department of Health and Human Services ("HHS"), in announcing that a 1988 regulation which had theretofore been construed to strictly prohibit abortion counseling or referral of any kind in Title X programs, would thereafter be interpreted to permit doctors to counsel on abortion within the context of the doctor-patient relationship, erred in failing to first undertake the notice and comment rulemaking prescribed by the Administrative Procedure Act ("APA"), 5 U.S.C. § 553. The new "Directives" neither clarify nor explain the previous regulation, which was adopted by notice and comment rulemaking, but instead effectively amend the 1988 regulation to significantly alter its meaning, as previously interpreted and enforced by HHS and upheld by the Supreme Court in Rust v. Sullivan, --- U.S. ----, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991). Accordingly, we conclude that the new Directives are not exempt from notice and comment rulemaking as an interpretative rule. We therefore affirm the judgment of the district court granting the National Family Planning and Reproductive Health Association, Inc. and the National Association of Nurse Practitioners in Reproductive Health (the "Associations") injunctive and declaratory relief enjoining the Secretary from proceeding with the enforcement of the new Directives without first adhering to the requirements of § 553 of the APA.

I. BACKGROUND

Title X of the Public Health Service Act, 42 U.S.C. §§ 300--300a-6, provides at section 1008 that: "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. In 1971, HHS issued regulations on this section, without notice and comment, ¹ concluding that the statute simply required that a Title X "project will not provide abortions as a method of family planning." 36 Fed.Reg. 18,465, 18,466 (1971) (codified at 42 C.F.R. § 59.5(9) (1972)). During the mid-1970s, HHS General Counsel memoranda made a further distinction between directive ("encouraging or promoting" abortion) and nondirective ("neutral") counseling on abortion, prohibiting the former and permitting the latter. In 1980, through notice and comment rulemaking, HHS made a number of changes to the regulations governing Title X grants not relevant here and retained the 1971 language pertaining to the provision of abortion by Title X projects. 45 Fed.Reg. 37,433, 37,437 (1980) (codified at 42 C.F.R. § 59.5(5) (1980)). The following year, HHS issued "Program Guidelines," without notice or comment, "to assist current and prospective grantees in understanding and utilizing the Title X family planning services grants program." These guidelines mandated nondirective abortion counseling by Title X projects upon a patient's request.

In 1988, HHS promulgated by notice and comment rulemaking new regulations that established a much broader prohibition on abortion counseling or referrals including a "gag rule" applicable to all Title X project personnel against informing or discussing with clients the availability of abortion as an option for individual planning or treatment needs. 53 Fed.Reg. 2922 (1988) (codified at 42 C.F.R. pt. 59). The regulations provide that 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." 42 C.F.R. § 59.8(a)(1) (1991). A Title X project is permitted to refer pregnant clients "for appropriate prenatal and/or social services by furnishing a list of available providers that promote the welfare of mother and unborn child," id. at § 59.8(a)(2), but referrals may not be used

as an indirect means of encouraging or promoting abortion as a method of family planning, such as by weighing the list of referrals in favor of health care providers which perform abortions, by including on the list of referral providers health care providers whose principal business is the provision of abortions, by excluding available providers who do not provide abortions, or by "steering" clients to providers who offer abortion as a method of family planning.

Id. at § 59.8(a)(3).

The Supreme Court upheld both the constitutional and statutory validity of these regulations in Rust v. Sullivan, --- U.S. ----, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991), against a specific challenge that they directly interfered with a doctor's professional right and duty to treat his patient as he thought best.

On November 5, 1991, responding to widespread concerns that § 59.8 would interfere with the doctor-patient relationship, President Bush issued a memorandum to the Secretary of HHS, urging that the "confidentiality" of the doctor-patient relationship be preserved and that operation of the Title X program be "compatible with free speech and the highest standards of medical care." To accomplish this result, the President directed that the implementation of the regulations adhere to four principles:

1. Nothing in these regulations is to prevent a woman from receiving complete medical information about her condition from a physician.

2. Title X projects are to provide necessary referrals to appropriate health care facilities where medically indicated.

3. If a woman is found to be pregnant and to have a medical problem, she should be referred for complete medical care, even if the ultimate result may be the termination of her pregnancy.

4. Referrals may be made by Title X programs to full-service health care providers that perform abortions, but not to providers whose principal activity is providing abortion services.

In a press conference, the President asserted: "[U]nder my directive, they can go ahead--patients and doctors can talk about absolutely anything they want, and they should be able to do that."

The Secretary therefore directed the Assistant Secretary to comply with the principles announced by the President in implementing the regulations. On March 20, 1992, Deputy Assistant Secretary for Population Affairs William Archer issued a memorandum to HHS Regional Health Administrators ("RHAs"). The Archer memorandum restated the President's first principle and explained that "[t]his statement is intended to apply to medical information provided only by a physician directly to his or her patient, in a clinic visit or a subsequent telephone conversation directly with the physician." Collectively, the memoranda from the President, the Secretary and Deputy Assistant Secretary Archer (the "Directives"), distinguished physicians from other health care professionals for purposes of providing medical information, including abortion counseling.

The appellees in this case, organizations composed primarily of Title X grantees and family planning nurse practitioners, filed suit on April 16, 1992, challenging the validity of these Directives, asserting that the process by which they were adopted did not comply with the notice and comment provisions of the APA, and that the new policy embodied in the Directives was arbitrary and capricious. They sought to enjoin the Secretary from implementing § 59.8 as allegedly modified by the Directives. On May 28, 1992, the district court held for the Associations, concluding that the Directives constituted legislative, as opposed to interpretative rulemaking, and thus required notice and comment prior to promulgation. The court also held that the modification of § 59.8's gag rule to allow doctors to freely communicate and advise their Title X patients regarding abortion, while continuing the prohibition for other health care professionals, lacked a rational basis in the record. Accordingly, the court enjoined implementation of the guidelines and remanded the case to the agency for compliance with the APA, denying the Secretary's motion to stay the injunction pending appeal. This court, however, stayed the injunction pending disposition of this appeal.

II. ANALYSIS

HHS is authorized to promulgate regulations governing the distribution of grants to Title X programs. 42 U.S.C. § 300a-4(a). An agency, in light of changing circumstances, is free to alter the interpretative and policy views reflected in regulations construing an underlying statute, so long as any changed construction of the statute is consistent with express congressional intent or embodies a "permissible" reading of the statute, see Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and is otherwise "reasonable," see Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983). In this appeal, we do not ultimately decide whether the agency's revised interpretation of Title X, as announced in the Directives, is either permissible under Chevron or reasonable under State Farm. Cf. Planned Parenthood v. Casey, --- U.S. ----, ----, 112 S.Ct. 2791, 2824, 120 L.Ed.2d 674 (1992) (O'Connor, Kennedy and Souter, JJ.) (reasonable for...