Family Planning Ass'n of Me. v. U.S. Dep't of Health & Human Servs., 1:19-cv-00100-LEW

• Decision Date: 03 July 2019
• Docket Number: No. 1:19-cv-00100-LEW,1:19-cv-00100-LEW
• Citation: 404 F.Supp.3d 286
• Parties: The FAMILY PLANNING ASSOCIATION OF MAINE d/b/a Maine Family Planning, et al., Plaintiffs v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants
• Court: U.S. District Court — District of Maine

404 F.Supp.3d 286

The FAMILY PLANNING ASSOCIATION OF MAINE d/b/a Maine Family Planning, et al., Plaintiffs
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants

No. 1:19-cv-00100-LEW

United States District Court, D. Maine.

Signed July 3, 2019

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Emily S. Ullman, Jennifer H. Saperstein, Covington & Burling LLP, Emily B. Nestler, Center For Reproductive Rights, Washington, DC, Richard L. O'Meara, Murray Plumb & Murray, Portland, ME, Arielle Humphries, Pro Hac Vice, Molly R. Duane, Pro Hac Vice, Center For Reproductive Rights, New York, NY, for Plaintiffs Family Planning Association of Maine, Do J. Doe, MPH.

Adam S. Hochschild, Hochschild Law Firm, LLC, Plainfield, VT, Sarah E. Pitlyk, Thomas More Society, Chicago, IL, Stephen C. Whiting, The Whiting Law Firm, Portland, ME, for Plaintiff Susan B. Anthony List.

Daniel M. Riess, Brinton Lucas, Robert C. Merritt, U.S. Department of Justice, Washington, DC, for Defendants.

DECISION AND ORDER ON MOTION FOR PRELIMINARY INJUNCTION

Lance E. Walker, U.S. District Judge

The matter is again before the Court on Plaintiffs' motion for preliminary injunctive relief.¹ In this action, The Family Planning Association of Maine d/b/a Maine Family Planning, on its own behalf and on

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behalf of its staff and patients, and J. Doe, a doctor of osteopathic medicine, who similarly seeks to vindicate personal and third-party/patient rights ("Plaintiffs"), allege that the United States Department of Health and Human Services, Secretary Alex M. Azar II, and Deputy Assistant Secretary Diane Foley, M.D., through the Department's Office of Population Affairs ("Defendants"), have exercised rulemaking authority under the Title X family planning program in violation of the Administrative Procedures Act, and that the new Final Rule² governing post-conception activities and certain program separation requirements, if allowed to stand, will deprive Plaintiffs and those they represent of fundamental freedoms enshrined in the First and Fifth Amendments to the United States Constitution.

In the course of this decision, I will do my level best to explain why the extraordinary relief of a preliminary injunction is not warranted in this case. For the uninitiated let me stress that in this decision the District Court does not strike down or otherwise circumscribe any right to abortion previously recognized by the Supreme Court. Instead, the Court simply concludes – on a preliminary and non-final basis – that Plaintiffs have failed to meet the burden required by law for preliminary injunctive relief to issue. To that end, my role is circumscribed by Article III of the United States Constitution, which does not charge federal courts with the duty of judging the wisdom of public policy as the Oracle of Delphi heroically saving the republic from the product of its own democratic process. The exercise of sound judicial review must be hallmarked by restraint.

BACKGROUND

The Title X program is a federal welfare program that provides grants to providers to support public access to contraceptive and reproductive health products and services. Plaintiff Maine Family Planning is the sole statewide Title X grantee for the State of Maine. Maine Family Planning is also one of the primary providers and funders of abortion services in Maine, even though the federal statute that creates the Title X program states that "[n]one 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 this civil action, Plaintiffs challenge a Final Rule promulgated by the Department of Health and Human Services that they contend is irrational, unlawful, and unconstitutional because it unduly interferes with their ability to counsel Title X patients about abortion and to provide abortion services within their Title X clinics. Importantly, the Final Rule does not prohibit Plaintiffs from continuing to provide abortion services, although it does raise significant barriers which will require Plaintiffs to reconfigure their operations. The following background is provided to contextualize how Maine Family Planning came to be both the sole Title X grantee for the State of Maine and a major provider of abortion services in Maine, and to lay the groundwork for the legal arguments that inform Plaintiffs' request for preliminary injunctive relief.

I. THE TITLE X PROGRAM

In 1969, President Richard Nixon delivered a special message to Congress focusing on the nation's ever-growing concern with population growth – both globally and in the United States. Richard Nixon, Special

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Message to the Congress on Problems of Population Growth (July 18, 1969).³ President Nixon decried the far-reaching ramifications of "involuntary childbearing" and its role in the perpetuation of poverty.⁴ Id. He concluded: "[N]o American woman should be denied access to family planning assistance because of her economic condition." Id.

On the heels of this presidential imperative, Congress enacted the Family Planning Services and Population Research Act ("the Act") with the primary purpose of "assist[ing] in making comprehensive voluntary family planning services readily available to all persons desiring such services."⁵ Pub. L. No. 91–572, § 2, 84 Stat. 1506 (1970) (codified as amended at 42 U.S.C. §§ 300 – 300a-8 ) ("Title X"). In words that have remained largely unchanged to this day, Congress authorized the Secretary of the Department of Health and Human Services ("the Department") "to make grants to and enter into contracts with public or nonprofit private entities" in order to further Congress's goal of supporting "voluntary family planning projects."⁶ 42 U.S.C. § 300(a). This far-reaching legislation provided authorization for a broad range of grants to meet the needs of affiliated programs and the population they serve. See id. (authorizing family-planning project grants); see also id. § 300a (authorizing formula grants to State health authorities); id. § 300a-1 (authorizing training grants); id. § 300a-2 (authorizing research grants in "biomedical, contraceptive development, behavioral, and program implementation fields related to family planning and population"); id. § 300a-3 (authorizing grants for the development and distribution of educational materials). The Act also empowered the Secretary of the Department with discretion to determine the amount of each grant as well as the conditions to which each grant is subject. 42 U.S.C. § 300a-4(a), (b) ("Grants under this subchapter shall be payable in such installments and 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."). "Grants and contracts under Title X must ‘be made in accordance with such regulations as the Secretary may promulgate.’ "

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Rust v. Sullivan , 500 U.S. 173, 178, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) (quoting 42 U.S.C. § 300a-4(a) ).

Specific to the issue of abortion, Section 1008 of the Act provided (and still provides today) that "[n]one 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. As commented by the Supreme Court, "[t]hat restriction was intended to ensure that Title X funds would ‘be used only to support preventive family planning services, population research, infertility services, and other related medical, informational, and educational activities.’ " Rust , 500 U.S. at 178-79, 111 S.Ct. 1759 (citing H.R. Conf. Rep. No. 91-1667, p. 8 (1970), U.S. Code Cong. & Admin. News 1970, pp. 5068, 5081–82).

II. TITLE X REGULATORY HISTORY , PRIOR TO 2019

A. Initial abortion-related regulations (1970s)

In accordance with Congress's mandate, in 1971, the Department issued regulations indicating that a Title X "project will not provide abortions as a method of family planning." Grants for Family Planning Services, 36 Fed. Reg. 18,465, 18,466 (Sept. 15, 1971) (codified at 42 C.F.R. § 59.5(9) (1972) ). For many years, this prohibition was the extent of the official guidance provided by the Department regarding the topic of abortion and even abortion counseling. However, in this period of rapidly-evolving legal acceptance of abortion, the Department, through its Office of General Counsel opinions, 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." Statutory Prohibition on Use of Appropriated Funds in Programs Where Abortion is a Method of Family Planning; Standard of Compliance for Family Planning Services Projects ("1988 Regulations"), 53 Fed. Reg. 2922, 2923 (Feb. 2, 1988). Thus, as observed by the United States Court of Appeals for the District of Columbia, the Department adopted a permissive viewpoint regarding abortion counseling and "[d]uring the mid–1970s, HHS General Counsel memoranda made a ... distinction between directive...