State of California v. Azar, 022420 FED9, 19-15974

Docket Nº:19-15974, 19-15979, 19-35386, 19-35394
Opinion Judge:Ikuta Judge, Circuit Judge.
Party Name:STATE OF CALIFORNIA, by and through Attorney General Xavier Becerra, Plaintiff-Appellee, v. ALEX M. AZAR II, in his Official Capacity as Secretary of the U.S. Department of Health & Human Services; U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES, Defendants-Appellants. ESSENTIAL ACCESS HEALTH, INC.; MELISSA MARSHALL, M.D., Plaintiffs-Appellees, v. A...
Judge Panel:Before: Sidney R. Thomas, Chief Judge, and Edward Leavy, Kim McLane Wardlaw, William A. Fletcher, Richard A. Paez, Jay S. Bybee, Consuelo M. Callahan, Milan D. Smith, Jr., Sandra S. Ikuta, Eric D. Miller and Kenneth K. Lee, Circuit Judges. PAEZ, Circuit Judge, joined by THOMAS, Chief Judge, WARDL...
Case Date:February 24, 2020
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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STATE OF CALIFORNIA, by and through Attorney General Xavier Becerra, Plaintiff-Appellee,

v.

ALEX M. AZAR II, in his Official Capacity as Secretary of the U.S. Department of Health & Human Services; U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES, Defendants-Appellants.

ESSENTIAL ACCESS HEALTH, INC.; MELISSA MARSHALL, M.D., Plaintiffs-Appellees,

v.

ALEX M. AZAR II, Secretary of U.S. Department of Health and Human Services; U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES, Defendants-Appellants.

STATE OF OREGON; STATE OF NEW YORK; STATE OF COLORADO; STATE OF CONNECTICUT; STATE OF DELAWARE; DISTRICT OF COLUMBIA; STATE OF HAWAII; STATE OF ILLINOIS; STATE OF MARYLAND; COMMONWEALTH OF MASSACHUSETTS; STATE OF MICHIGAN; STATE OF MINNESOTA; STATE OF NEVADA; STATE OF NEW JERSEY; STATE OF NEW MEXICO; STATE OF NORTH CAROLINA; COMMONWEALTH OF PENNSYLVANIA; STATE OF RHODE ISLAND; STATE OF VERMONT; COMMONWEALTH OF VIRGINIA; STATE OF WISCONSIN; AMERICAN MEDICAL ASSOCIATION; OREGON MEDICAL ASSOCIATION; PLANNED PARENTHOOD FEDERATION OF AMERICA, INC.; PLANNED PARENTHOOD OF SOUTHWESTERN OREGON; PLANNED PARENTHOOD COLUMBIA WILLAMETTE; THOMAS N. EWING, M.D.; MICHELE P. MEGREGIAN, C.N.M., Plaintiffs-Appellees,

v.

ALEX M. AZAR II; U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES; DIANE FOLEY; OFFICE OF POPULATION AFFAIRS, Defendants-Appellants.

STATE OF WASHINGTON; NATIONAL FAMILY PLANNING AND REPRODUCTIVE HEALTH ASSOCIATION; FEMINIST WOMEN'S HEALTH CENTER; DEBORAH OYER, M.D.; TERESA GALL, Plaintiffs-Appellees,

v.

ALEX M. AZAR II, in his official capacity as Secretary of the United States Department of Health and Human Services; U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES; DIANE FOLEY, MD, in her official capacity as Deputy Assistant Secretary for Population Affairs; OFFICE OF POPULATION AFFAIRS, Defendants-Appellants.

Nos. 19-15974, 19-15979, 19-35386, 19-35394

United States Court of Appeals, Ninth Circuit

February 24, 2020

Argued and Submitted September 23, 2019 San Francisco, California

Appeal from the United States District Court for the Northern District of California D.C. No. 3:19-cv-01184-EMC, 3:19-cv-01195-EMC Edward M. Chen, District Judge, Presiding

Appeal from the United States District Court for the District of Oregon D.C. Nos. 6:19-cv-00317-MC, 6:19-cv-00318-MC Michael J. McShane, District Judge, Presiding

Appeal from the United States District Court for the Eastern District of Washington D.C. Nos. 1:19-cv-03040-SAB, 1:19-cv-03045-SAB Stanley Allen Bastian, District Judge, Presiding

Before: Sidney R. Thomas, Chief Judge, and Edward Leavy, Kim McLane Wardlaw, William A. Fletcher, Richard A. Paez, Jay S. Bybee, Consuelo M. Callahan, Milan D. Smith, Jr., Sandra S. Ikuta, Eric D. Miller and Kenneth K. Lee, Circuit Judges.

OPINION

Ikuta Judge, Circuit Judge.

Title X of the Public Health Service Act gives the Department of Health and Human Services (HHS) authority to make grants to support "voluntary family planning projects" for the purpose of offering "a broad range of acceptable and effective family planning methods and services." 42 U.S.C. § 300(a).1 Section 1008 of Title X prohibits grant funds from "be[ing] used in programs where abortion is a method of family planning." Id. § 300a-6.

Since 1970, when Title X was first enacted, HHS has provided competing interpretations of this prohibition. Regulations issued in 1988, and upheld by the Supreme Court in 1991, completely prohibited the use of Title X funds in projects where clients received counseling or referrals for abortion as a method of family planning. Rust v. Sullivan, 500 U.S. 173, 177-79 (1991). Regulations issued in 2000 were more permissive.

In March 2019, HHS promulgated regulations that are similar to those adopted by HHS in 1988 and upheld by Rust. But the 2019 rule is less restrictive in at least one important respect: a counselor providing nondirective pregnancy counseling "may discuss abortion" so long as "the counselor neither refers for, nor encourages, abortion." 42 C.F.R. § 59.14(e)(5). There is no "gag" on abortion counseling. See id.

Plaintiffs, including several states and private Title X grantees, brought various suits challenging the 2019 rule, and three district courts in three states entered preliminary injunctions against HHS's enforcement of the rule. In light of Supreme Court approval of the 1988 regulations and our broad deference to agencies' interpretations of the statutes they are charged with implementing, plaintiffs' legal challenges to the 2019 rule fail. Accordingly, we vacate the injunctions entered by the district courts and remand for further proceedings consistent with this opinion.

I

In 1970, Congress enacted Title X of the Public Health Service Act to give HHS authority to make grants to Title X projects that provide specified family planning services.2 Family Planning Services and Population Research Act, Pub. L. No. 91-572, 84 Stat. 1504, 1508 (1970); 42 U.S.C. § 300a-4(c). The Act gives HHS broad authority to promulgate regulations to administer the grant program, as well as to impose conditions on the grants that HHS "may determine to be appropriate to assure that such grants will be effectively utilized for the purposes for which made." § 1006(a)-(b), 84 Stat. at 1507; 42 U.S.C. § 300a


4(a)-(b).

Congress placed only two limitations on HHS's discretion. First, an individual's acceptance of family planning services has to be "voluntary" and not "a prerequisite to eligibility for or receipt of any other service or assistance from, or to participation in, any other program of the entity or individual that provided such service or information." § 1007, 84 Stat. at 1508; 42 U.S.C. § 300a-5. Second, § 1008 of Title X provides: None of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning.

§ 1008, 84 Stat. at 1508; 42 U.S.C. § 300a-6.

Section 1008, which has never been amended, "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 (quoting H.R. Conf. Rep. No. 91-1667, at 8 (1970)); see also New York v. Sullivan, 889 F.2d 401, 407 (2d Cir. 1989), aff'd sub nom. Rust v. Sullivan, 500 U.S. 173 (1991) (noting a legislator's statement that "[w]ith the 'prohibition of abortion' amendment-title X, section 1008-the [House] committee members clearly intend that abortion is not to be encouraged or promoted in any way through this legislation") (statement of Rep. Dingell). As Rust concluded, in enacting § 1008, Congress made a constitutionally permissible "value judgment favoring childbirth over abortion." 500 U.S. at 192 (quoting Maher v. Roe, 432 U.S. 464, 474 (1977)).

Although the purpose of § 1008 is clear, the Supreme Court has determined that its language is ambiguous because it does not expressly articulate how its prohibition applies to abortion counseling, referral, and advocacy, or how to ensure that funds are not used "in programs where abortion is a method of family planning." Id. at 184. As a result of this ambiguity, HHS has provided a range of alternative interpretations of § 1008 over the years. We provide an overview of this history as context to our analysis of the issues raised by the government's appeals.

A

In 1971, HHS promulgated (without notice and comment) the first regulations designed to implement Title X. Project Grants for Family Planning Services, 36 Fed. Reg. 18, 465, 18, 465-66 (Sept. 15, 1971). The regulations did not address the scope of § 1008. Instead, HHS interpreted § 1008 through opinions from its Office of General Counsel. In the mid-1970s, HHS issued a legal opinion prohibiting directive counseling on abortion ("encouraging or promoting" abortion) in a Title X project, while permitting nondirective ("neutral") counseling on abortion. Nat'l Family Planning & Reprod. Health Ass'n v. Sullivan, 979 F.2d 227, 229 (D.C. Cir. 1992). Subsequent General Counsel opinions interpreted § 1008 as "prohibiting any abortion referrals beyond 'mere referral,' that is, providing a list of names and addresses without in any further way assisting the woman in obtaining an abortion." Statutory Prohibition on Use of Appropriated Funds Where Abortion is a Method of Family Planning, 53 Fed. Reg. 2922, 2923 (Feb. 2, 1988) (the 1988 Rule).

HHS revised its Title X regulations after notice and comment in 1980. See Grants for Family Planning Services, 45 Fed. Reg. 37, 433 (June 3, 1980). But like the 1971 regulations, the 1980 regulations did not address the scope of § 1008. Nat'l Family Planning, 979 F.2d at 229 (citing 45 Fed. Reg. at 37, 437). Instead, in 1981, HHS issued "Program Guidelines for Project Grants for Family Planning Services." See U.S. Dep't of Health & Human Servs., Program Guidelines for Project Grants for Family Planning Services (1981). For the first time, these guidelines required Title X projects to give Title X clients nondirective counseling on and referrals for abortion upon request. Id. § 8.6. The 1981 "guidelines were premised on a view that 'non-directive' counseling and referral for abortion were not inconsistent with [§ 1008] and were justified as a matter of policy in that such activities did not have the effect of promoting or encouraging abortion." 53 Fed. Reg. at 2923.

It was not until 1988 that HHS addressed the scope of § 1008 in notice-and-comment rulemaking. See 53 Fed. Reg. at 2922. The 1988 Rule recognized that "[f]ew issues facing our society today are more divisive than that of abortion." Id. Because § 1008 was intended to create "a wall of separation between Title X programs and abortion as a method of...

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