Mayor of Balt. v. Azar

• Decision Date: 30 May 2019
• Docket Number: Civil Action No.: RDB-19-1103
• Citation: 392 F.Supp.3d 602
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE, Plaintiff, v. Alex M. AZAR II, Secretary of Health and Human Services, et al., Defendants.
• Court: U.S. District Court — District of Maryland

392 F.Supp.3d 602

MAYOR AND CITY COUNCIL OF BALTIMORE, Plaintiff,

v.Alex M. AZAR II, Secretary of Health and Human Services, et al., Defendants.

Civil Action No.: RDB-19-1103

United States District Court, D. Maryland.

Signed May 30, 2019

Andre M. Davis, Suzanne Sangree, Baltimore City Department of Law, Baltimore, MD, Andrew T. Tutt, Pro Hac Vice, Drew A. Harker, Pro Hac Vice, Allyson Tracey Himelfarb, Arnold and Porter Kaye Scholder LLP, Washington, DC, Faren M. Tang, Pro Hac Vice, Reproductive Rights and Justice Project, Yale Law School, New Haven, CT, Marisa White, Pro Hac Vice, Arnold and Porter Kaye Scholer LLP, New York, NY, Stephanie Toti, Pro Hac Vice, Lawyering Project, New York, NY, Priscilla Joyce Smith, Pro Hac Vice, RRJP Clinic, Yale Law School, Brooklyn, NY, for Plaintiff.

Tarra DeShields Minnis, Office of the United States Attorney, Baltimore, MD, Bradley Philip Humphreys, United States Department of Justice, Washington, DC, Robert Charles Merritt, U.S. Department Of Justice Federal Programs Branch, Richmond, VA, for Defendants.

MEMORANDUM OPINION

Richard D. Bennett, United States District Judge

This case involves the challenge by the Mayor and City Council of Baltimore ("Baltimore City") to a rule promulgated by the United States Department of Health and Human Services that would amend federal regulations with respect to the funding of family planning services. It has been preceded by similar lawsuits in United States District Courts in the states of Washington, California, Oregon, and Maine. Now pending before this Court is Baltimore City's Motion for a Preliminary Injunction seeking to prevent the federal government from putting these amended regulations into effect. The City has wisely not sought a nationwide injunction. Wisely so, as this Court most respectfully is not inclined to join the cascade of nationwide injunctions issued by United States District Judges across the country with respect to many administrative policies of the federal government. It is not the role of this Court to become involved in these policy questions. Quite simply, the executive branch of government is entitled to deference with respect to its administrative orders. However, the executive branch of government is not entitled to circumvent by administrative order existing laws passed by the United States Congress. When the executive branch seeks to do so, it must be constrained by the federal judiciary.¹ Accordingly, for the reasons that follow, a Preliminary Injunction shall be entered in this case enjoining the United States Department of Health and Human Services from implementing these new federal regulations in the State of Maryland until this matter is resolved on the merits.

Specifically, Baltimore City brings a ten-Count Complaint pursuant to the Administrative Procedures Act ("APA") against Alex M. Azar II, in his official capacity as the Secretary of Health and Human Services; United States Department of Health and Human Services ("HHS"); Diane Foley, M.D., in her official capacity as the Deputy Assistant Secretary, Office of Population Affairs; and Office of Population Affairs (collectively, "Defendants" or "the Government"). (Compl., ECF No. 1.) Baltimore City challenges the final rule ("Final Rule") promulgated on March 4, 2019 by HHS amending the regulations developed to administer Title X of the Public Health Service Act, 42 U.S.C. §§ 300 to 300a-6, which provides federal funding for family-planning services. (Id. at ¶¶ 1, 3.) Baltimore City's motion seeks a preliminary injunction to prevent the Government from putting into effect certain provisions of the Final Rule that had been scheduled to go into effect on May 3, 2019.² (Pl.'s Mot., ECF No. 11.) This Court held a hearing on April 30, 2019, has heard the arguments of counsel, and has reviewed the submissions of the parties.

For the reasons that follow, this Court holds that the Final Rule likely violates provisions of the Affordable Care Act, 42 U.S.C. § 18114, enacted in 2010, and Congress' nondirective mandate in the Continuing Appropriations Act, 2019, Pub. L. 115–245, 132 Stat. 2981, 3070–71 (2018), which has been consistently included by Congress with respect to Title X appropriations funding every year since 1996. Accordingly, this Court shall GRANT Plaintiff's Motion for Preliminary Injunction (ECF No. 11) against enforcement of the Final Rule in Maryland. The Government shall be enjoined from implementing or enforcing any portion of the Final Rule in the State of Maryland during the pendency of this litigation and until this matter is resolved on the merits.³

BACKGROUND

I. Title X History

A. Inception of Title X

Almost fifty years ago, in 1970, Congress enacted Title X, the only federal program specifically dedicated to funding family planning services. Public Health Service Act, 84 Stat. 1506, as amended 42 U.S.C. §§ 300 to 300a-6. Title X addresses low-income individuals' lack of equal access to family planning services by authorizing the Secretary of Health and Human Services ("the Secretary") 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." Id. § 300(a). Title X grant money is provided in a lump sum and may be used both to cover the costs of family planning care for those with incomes below or near the federal poverty level and to pay for non-service costs like purchasing contraceptives or training staff. Id. § 300. Through this mechanism, low-income families have free or low-cost access to clinical professional contraceptive methods and devices, and testing and counseling services related to reproductive health, including pregnancy testing and counseling.

All grants and contracts must "be made in accordance with such regulations as the Secretary may promulgate." Id. § 300a-4. Section 1008 of the Act provides that "[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning." Id. § 300a–6. Consistent with this restriction, HHS has never permitted Title X grantees to use Title X funds to perform or subsidize abortions. See 42 C.F.R. §§ 59.5(a)(5), 59.9 (1986). The initial regulations, issued in 1971, stated that Section 1008 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." Nat'l Family Planning & Reprod. Health Ass'n, Inc. v. Sullivan , 979 F.2d 227, 229 (D.C. Cir. 1992). In 1981, HHS issued "Program Guidelines" that mandated nondirective abortion counseling by Title X projects upon a patient's request. Id.

B. The 1988 Regulations

In 1988, HHS promulgated new regulations "designed to provide ‘clear and operational guidance’ to grantees about how to preserve the distinction between Title X programs and abortion as a method of family planning." Rust v. Sullivan , 500 U.S. 173, 179, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) (quoting 53 Fed. Reg. 2923–2924 (1988) ). The 1988 regulations established a much broader prohibition on abortion counseling and referrals. They included a "gag rule"⁴ that prohibited Title X projects from counseling or referring clients for abortion as a method of family planning; a "separation requirement" that required grantees to separate their Title X project physically and financially from prohibited abortion-related activities; established compliance standards; and prohibited certain activities that promote, encourage, or advocate abortion, such as using funds for performance of pro-abortion lobbying, materials, or legal action. See 42 C.F.R. § 59 (1991).

Title X grantees and doctors who supervised Title X funds promptly challenged the facial validity of the regulations and sought injunctive relief to prevent implementation. Rust , 500 U.S. at 181, 111 S.Ct. 1759. The regulations were challenged on the grounds that they were not authorized by Title X and that they violated the First and Fifth Amendment rights of the Title X clients and the First Amendment rights of the health providers. Id. A preliminary injunction was initially granted. Id. Ultimately, the challenge came before the United States Supreme Court, which held in Rust v. Sullivan , 500 U.S. at 185, 111 S.Ct. 1759, that the legislative history was ambiguous with respect to Congress' intent in enacting Title X and the prohibition of Section 1008. Applying Chevron⁵ deference to the agency's interpretation, id. at 186-87, 111 S.Ct. 1759, the Supreme Court therefore held that the 1988 regulations were a permissible construction of Title X and did not violate either the First or Fifth Amendments to the Constitution. Id. at 185, 203, 111 S.Ct. 1759.

These 1988 regulations, however, were never fully implemented. In 1991, President George H. W. Bush issued a memorandum to the HHS Secretary, directing adherence to four principles "compatible with free speech and the highest standards of medical care." Nat'l Family Planning , 979 F.2d at 230. "In a press conference, President George H.W. Bush 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.’ " Id. The 1988 regulations were suspended by the Secretary in 1993, resulting in Title X grantees returning to operating under the 1981 guidelines. See 58 Fed. Reg. 7462, 7462 (1993). These 1981 guidelines mandated nondirective abortion counseling upon a patient's request. See California v. Azar , Case No. 19-cv-01184-EMC, 385 F.Supp.3d 960, 971–72, 2019 WL 1877392, at *3 (N.D. Cal. ...