State v. Azar
| Citation | 385 F.Supp.3d 960 |
| Decision Date | 26 April 2019 |
| Docket Number | Case No. 19-cv-01195-EMC,Case No. 19-cv-01184-EMC |
| Court | U.S. District Court — Northern District of California |
| Parties | STATE of California, Plaintiff, v. Alex AZAR, et al., Defendants. Essential Access Health, Inc., et al., Plaintiffs, v. Alex M. Azar II, et al., Defendants. |
Anna Margaret Rich, Ketakee Rajiv Kane, Brenda Ayon Verduzco, Kathleen M. Boergers, Attorney General's Office, Oakland, CA, for Plaintiff.
James Mahoney Burnham, Bradley Philip Humphreys, Daniel Martin Riess, United States Department of Justice, Washington, DC, R. Charlie Merritt, United States Department of Justice, Richmond, VA, for Defendants.
EDWARD M. CHEN, United States District Judge Title X of the Public Health Service Act provides federal funding for family-planning services. In the quarter-century since 1993, the Department of Health and Human Services' ("HHS") guidelines, while prohibiting funding of abortion services pursuant to Title X, have required Title X grantees to provide neutral, factual counseling to pregnant clients and to maintain financial separation between their Title X activities and their abortion services. This permitted grantees to operate effectively while complying with Title X. On March 4, 2019, HHS promulgated new regulations implementing Title X which substantially changes those guidelines in a manner that jeopardizes the provision of essential and counseling and care to thousands of women. See 84 Fed. Reg. 7714 (2019) (the "Final Rule"). According to Plaintiffs, the Final Rule will create daunting barriers to California women seeking timely, effective reproductive health care, impose medically and ethically unsound restrictions on Title X providers attempting to provide patient-centered care, and inflict severe public health consequences and costs on the State. They contend the Final Rule violates recent acts of Congress, substantive and procedural provisions of the Administrative Procedures Act ("APA"), and the First and Fifth Amendments to the U.S. Constitution.
The Final Rule goes into effect on May 3, 2019. Plaintiffs in these coordinated actions, the State of California and Essential Access Health, seek to preliminarily enjoin the implementation of the Final Rule.
Unless enjoined, the Final Rule will irreparably harm individual patients and public health in California as a whole. The Final Rule commands medical professionals to provide incomplete and misleading information to women seeking to terminate their pregnancies contrary to what patients want and need, delaying and potentially frustrating their attempts to obtain time-sensitive care, and thereby jeopardizing their health and welfare. The Final Rule threatens to decimate the network of Title X providers in California and drastically restrict patients' access to a wide range of vital services, including contraceptive resources and screenings for sexually transmitted infections, reproductive cancers
, and HIV. As a result, the Final Rule is likely to inflict significant public health consequences and costs on the State and frustrate Essential Access's organizational mission to promote access to quality healthcare. In contrast, Defendants are unable to articulate any real harm they will suffer if the Final Rule is preliminarily enjoined during the pendency of this action.
Plaintiffs have shown that the Final Rule likely violates Congressional directives that Title X providers must be permitted to give pregnant patients neutral, factual information regarding the full range of their medical options, and must not be compelled to act in a way that is contrary to medical ethics. The record evidence indicates that HHS promulgated the Final Rule, which represents a sharp break from prior policy, without engaging in any reasoned decisionmaking. In particular, HHS cited speculative, unsubstantiated fears about the misuse of Title X funds as justification for its change in policy and touted anticipated benefits of the Final Rule that have no basis in the record, while cursorily dismissing overwhelming evidence of the significant adverse impact the Rule will have. The Final Rule is thus contrary to law and arbitrary and capricious.
Having considered the parties' briefs and accompanying submissions, as well as the oral argument of counsel and amici briefs filed herein, the Court finds that Plaintiffs have established they are likely to succeed on the merits on several of their claims, are likely to suffer irreparable injury if the Final Rule is not enjoined, and the balance of hardships and the public interest tip sharply in favor of granting injunctive relief. Accordingly, Plaintiffs' motions for a preliminary injunction are GRANTED in part and DENIED in part .1 The Court enjoins implementation of the Final Rule but limits the injunction to California.
The Public Health Service Act ("PHSA"), an expansive statutory scheme that consolidated existing public health laws and established various agencies and grant programs to support health care and research, was enacted in 1944. In 1970, Congress amended the PHSA to add "Title X—Population Research and Voluntary Family Planning Programs." Pub. L. No. 91-572, § 6, 84 Stat. 1504, 1506–08 (1970) (codified at 42 U.S.C. §§ 300 – 300a-6 ). Title X authorizes the Secretary of HHS "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." 42 U.S.C. § 300(a). Such grants and contracts must "be made in accordance with such regulations as the Secretary may promulgate." Id. § 300a-4. Congress explained that its purpose in enacting Title X was:
Pub. L. No. 91-572 § 2, 84 Stat. 1504.
Per Section 1008 of the PHSA, "[n]one of the funds appropriated under [Title X] shall be used in programs where abortion is a method of family planning." 42 U.S.C. § 300a-6.
Consistent with Section 1008, 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). However, the agency had long interpreted Title X to allow grantees to provide pregnant women with nondirective counseling and referrals about their medical options, including abortion. The initial regulations, issued in 1971, stated that Section 1008 only required that a Title X "project will not provide abortions as a method of family planning." 36 Fed. Reg. 18,465, 18,466 (1971). "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). This distinction was reaffirmed in 1981, when HHS issued guidelines "requir[ing] nondirective ‘options counsleling’ [sic ] on pregnancy termination (abortion), prenatal care, and adoption and foster care when a woman with an unintended pregnancy requests information on her options, followed by referral for these services if she so requests." 53 Fed. Reg. 2922, 2923 (1988). Thus, early on, HHS distinguished nondirective counseling (and referrals) from the actual provision of abortion services, permitting the former but prohibiting the latter.
That policy was reversed in 1988 when HHS promulgated new regulations 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." Id. at 2923–24. The term "family planning" was redefined to encompass solely "preconceptional counseling, education, and general reproductive health care," while expressly excluding "pregnancy care (including obstetric or prenatal care)." 42 C.F.R. § 59.2 (1989).
The thrust of the 1988 regulations was reflected in three main provisions. First, they provided 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," even in response to a client's specific request. Id. § 59.8(a)(1). Second, the regulations prohibited a Title X project from engaging in any activities that "encourage, promote or advocate abortion as a method of family planning." Id. § 59.10(a). Third, Title X projects were required to be "physically and financially separate" from prohibited abortion activities. Id. § 59.9. The regulations enumerated nonexclusive factors for the Secretary of HHS to consult in determining whether the separation requirement was met, including the existence of separate accounting records and...
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