Ohio v. Becerra
| Decision Date | 29 December 2021 |
| Docket Number | Case No. 1:21-cv-675 |
| Citation | 577 F.Supp.3d 678 |
| Parties | State of OHIO, et al., Plaintiffs, v. Xavier BECERRA, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
Benjamin Michael Flowers, Stephen Paul Carney, Ohio Attorney General's Office Chief Counsel's Staff Section, Columbus, OH, Sylvia May Mailman, Pro Hac Vice, Ohio Attorney General, Cleveland, OH, for Plaintiff State of Ohio.
Benjamin Michael Flowers, Ohio Attorney General's Office, Columbus, OH, Thomas Alexander Wilson, Pro Hac Vice, Office of the Attorney General, Montgomery, AL, for Plaintiff State of Alabama.
Benjamin Michael Flowers, Ohio Attorney General's Office, Columbus, OH, Kate Blakeley Sawyer, Pro Hac Vice, Phoenix, AZ, for Plaintiff State of Arizona.
Benjamin Michael Flowers, Ohio Attorney General's Office, Columbus, OH, Nicholas J. Bronni, Pro Hac Vice, Vincent M. Wagner, Pro Hac Vice, Office of the Arkansas Attorney General, Little Rock, AR, for Plaintiff State of Arkansas.
Benjamin Michael Flowers, Ohio Attorney General's Office, Columbus, OH, Natalie Paige Christmas, Pro Hac Vice, Florida Attorney General's Office, Tallahassee, FL, for Plaintiff State of Florida.
Benjamin Michael Flowers, Ohio Attorney General's Office, Columbus, OH, Kurtis Kenneth Wiard, Pro Hac Vice, Kansas Attorney General, Topeka, KS, for Plaintiff State of Kansas.
Benjamin Michael Flowers, Ohio Attorney General's Office, Columbus, OH, Olivia Amlung, Office of the Kentucky Attorney General Office of Civil & Environmental Law, Covington, KY, for Plaintiff Commonwealth of Kentucky.
Benjamin Michael Flowers, Ohio Attorney General's Office, Columbus, OH, D. John Sauer, Pro Hac Vice, Office of the Missouri Attorney General, Jefferson City, MO, for Plaintiff State of Missouri.
Benjamin Michael Flowers, Ohio Attorney General's Office, Columbus, OH, James A. Campbell, Mesa, AZ, for Plaintiff State of Nebraska.
Benjamin Michael Flowers, Ohio Attorney General's Office, Columbus, OH, Zachary Paul West, Pro Hac Vice, Oklahoma Attorney General, Oklahoma City, OK, for Plaintiff State of Oklahoma.
Benjamin Michael Flowers, Ohio Attorney General's Office, Columbus, OH, James Emory Smith, Jr., Pro Hac Vice, Thomas T. Hydrick, Pro Hac Vice, Office of the Attorney General of South Carolina, Columbia, SC, for Plaintiff State of South Carolina.
Benjamin Michael Flowers, Ohio Attorney General's Office, Columbus, OH, Lindsay Sara See, Pro Hac Vice, WV Attorney General's Office, Charleston, WV, for Plaintiff State of West Virginia.
Alexandra Rachel Saslaw, Michael Patrick Clendenen, Robert Charles Merritt, United States Department of Justice, Civil Division, Washington, DC, for Defendants.
Timothy S. Black, United States District Judge This civil case is before the Court on Plaintiffs’ Motion for Preliminary Injunction (Doc. 2), Defendants’ memorandum in opposition (Doc. 27), and Plaintiffs’ reply (Doc. 46).1 Plaintiffs seek an order preliminarily enjoining the Department of Health and Human Services ("the Department," or "HHS") from implementing or enforcing the final rule, Ensuring Access to Equitable, Affordable, Client-Centered, Quality Family Planning Services , 86 Fed. Reg. 56144-01 (Oct. 7, 2021) () ("the Final Rule"). The Final Rule effectively re-adopts HHS's 2000 Rule by eliminating strict physical and financial separation between Title X services and abortion services and by requiring nondirective pregnancy counseling and referrals for abortion services when requested. Because the Court finds Plaintiffs unlikely to succeed on the merits of their APA claim, that the Plaintiff states will not be irreparably harmed when the Final Rule becomes effective, and that enjoining the Final Rule would perpetuate well-documented harm to the public, the Court DENIES injunctive relief to Plaintiffs.
This case is a straightforward application of administrative law to Title X of the Family Planning Services & Population Research Act of 1970 , Pub. L. No. 91-572, 84 Stat. 1504 (1970), codified at 42 U.S.C. §§ 300 et seq. ("Title X" or "the Act"). In 1970, Congress enacted Title X to provide federal funding for family planning services. The statute authorizes the Secretary of the Department of Health and Human Services to promulgate regulations for the distribution of Title X grants. Id. at § 300. Title X expressly requires that "priority will be given" to projects that provide family planning services to "persons from low-income families," id. at § 300a-4, and that funded projects must "offer a broad range of acceptable and effective family planning methods and services," Id. In Section 1008 of Title X, however, Congress qualified that "[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning." Id. at § 300a-6 (emphasis supplied). This language is at the heart of this dispute.
For roughly the first 18 years of Title X's history, participating providers could offer non-directive pregnancy counseling including referrals for abortion at the patient's request.2 The regulations implementing Title X merely required grant applicants to provide "[a]ssurances that ... [t]he project w[ould] not provide abortions as a method of family planning." Project Grants for Family Planning Services , 36 Fed. Reg. 18,465, 18,466 (Sept. 15, 1971).
Then, in 1988, HHS issued regulations that barred providers from referring patients for abortion services or offering them any abortion-related information, and required providers to refer patients to prenatal care regardless of their patients’ wishes. 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 , 53 Fed. Reg. 2,922, 2,927 (Feb. 2, 1988). The 1988 Rule further required physical and financial separation between Title X-funded services and any abortion-related services. Id. The 1988 Rule did not, however, purport to extend its restrictions beyond the "Title X-funded ‘program’ or ‘project.’ " Id. at 2927. HHS found "read[ing] the term ‘program’ in section 1008 as relating to the funded organization as a whole" was "not supportable." Id. The 1988 Rule was immediately challenged in court and was therefore never fully effective nationwide. See Standards of Compliance for Abortion-Related Services in Family Planning Services Projects , 65 Fed. Reg 41,270, 41,271 (July 3, 2000).
In 1991, the Supreme Court upheld the 1988 Rule. Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991). Petitioners in Rust argued that Congress did not intend strict financial and physical separation, nor did Congress intend to ban referrals for abortion-related services where patients requested one. Id. at 184, 189, 111 S.Ct. 1759. In rejecting petitioners’ arguments, the Court held that Section 1008's legislative history was "ambiguous," and thus permitted multiple interpretations. The Supreme Court observed that petitioners’ interpretation "may [have] be[en] a permissible one," but it was "by no means the only one" and "not the one found by the Secretary." Id. at 189, 111 S.Ct. 1759. Thus, the Court accorded the interpretation on which the 1988 Rule was based "substantial deference." Rust , 500 U.S. at 184, 111 S.Ct. 1759.
Where they were in effect, the 1988 Rules did not last long. In February 1993, President William Clinton directed HHS to rescind the 1988 Rules and return to the "compliance standards that were in effect prior to the issuance of the [1988 Rules]." The Title X "Gag Rule ," 58 Fed. Reg. 7,455 (Jan. 22, 1993) ; Standards of Compliance for Abortion-Related Services in Family Planning Service Projects , 58 Fed. Reg. 7,462 (Feb. 5, 1993) (interim rule). HHS simultaneously issued a notice of proposed rulemaking. Standards of Compliance for Abortion-Related Services in Family Planning Service Projects , 58 Fed. Reg. 7,464 ().
Starting in 1996, Congress added a rider to its annual HHS appropriations act that stated: "[A]mounts provided to [Title X] projects ... shall not be expended for abortions, [and] all pregnancy counseling shall be nondirective." Omnibus Consolidated Rescissions and Appropriations Act of 1996 , Pub. L. No. 104–134, 110 Stat. 1321, 1321-221 (Apr. 26, 1996). An identical rider has appeared in every annual HHS appropriations bill since 1996. See, e.g. , Consolidated Appropriations Act, 2021 , Pub. L. No. 116-260, 134 Stat 1182 (Dec. 27, 2020).
After considering the interim rule for nearly seven years, HHS released the final version in July 2000. Standards of Compliance for Abortion-Related Services in Family Planning Services Projects , 65 Fed. Reg. 41,270, 41,271 (July 3, 2000). The 2000 Rule mostly "readopt[ed] the regulations ... that applied to [Title X] prior to February 2, 1988." Id. It permitted referrals for abortion services at the patient's request. Id. at 41,274. It also rejected the strict financial and physical separation requirements from the 1988 Rule. Id. at 41,275 -76. HHS concluded that those requirements were "unenforceable" and inconsistent "with the efficient and cost-effective delivery of family planning services." Id. at 41,275 -76. Simultaneously, HHS published notice of its interpretations of Section 1008's requirements. Provision of Abortion-Related Services in Family Planning Services Projects , 65 Fed. Reg. 41,281 (Jul. 3, 2000). The notice clarified that Section 1008's prohibition on "funds ... used in a program where abortion is a method of family planning" "does not apply to all the activities of a Title X grantee, but only to those within the Title X project." Id. at 41,281. HHS defined "Title X project" as the "set of activities the grantee agreed to perform ... as a condition of receiving Title X funds." Id. The notice warned that "[m]ere technical allocation of funds, attributing...
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