Vita Nuova, Inc. v. Azar

• Decision Date: 01 May 2020
• Docket Number: Civil Action No. 4:19-cv-00532-O
• Citation: 458 F.Supp.3d 546
• Parties: VITA NUOVA, INC., Plaintiff, v. Alex M. AZAR II, in his official capacity as Secretary of Health and Human Services et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

458 F.Supp.3d 546

VITA NUOVA, INC., Plaintiff,

v.Alex M. AZAR II, in his official capacity as Secretary of Health and Human Services et al., Defendants.

Civil Action No. 4:19-cv-00532-O

United States District Court, N.D. Texas, Fort Worth Division.

Signed May 1, 2020

Jonathan F. Mitchell, Austin, TX, Charles W. Fillmore, H. Dustin Fillmore, III, The Fillmore Law Firm LLP, Fort Worth, TX, for Plaintiff.

Andrew Marshall Bernie, Bradley Philip Humphreys, Daniel M. Riess, United States Department of Justice, Washington, DC, Brian Walters Stoltz, U.S. Attorney's Office, Dallas, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

Reed O'Connor, UNITED STATES DISTRICT JUDGE

At the heart of this case is 42 U.S.C. § 300a-6 —originally Section 1008 of Title X of the Public Health Service Act ("Title X")—the provision prohibiting Title X recipients from using abortion as a method of family planning. Since Title X's genesis, the Department of Health and Human Services's ("HHS") interpretations of § 1008 have resembled a pendulum—oscillating from one stance to another. HHS's current stance supports Plaintiff Vita Nuova, Inc.’s ("Plaintiff" or "Vita Nuova") position. In other words, Vita Nuova and HHS agree on the proper interpretation of § 1008—that the language of Title X does not allow for abortion referrals or abortion counseling. However, Vita Nuova brings this action, inter alia , for a declaratory judgment in fear of a recrudescence toward a former interpretive stance—one that would penalize Title X recipients for not providing abortion referrals or counseling. The facts of this case create a labyrinthine setting to navigate; HHS's history of fluctuating interpretations of § 1008 provides a backdrop that lends credence to Vita Nuova's worries. But worries—without more—are not sufficient to overcome Article III standing requirements. Even so, one of Vita Nuova's three claims manages to reach beyond the maze's periphery.

The parties submitted the following documents for the Court's consideration: Defendants’ Motion to Dismiss Plaintiff's Amended Complaint and Brief in Support ("Motion to Dismiss") (ECF No. 17), filed November 12, 2019; Plaintiff's Brief in Opposition (ECF No. 18), filed December 3, 2019; and Defendants’ Reply (ECF No. 25), filed January 17, 2020. After reviewing the briefing, record, and applicable law, and for the foregoing reasons, the Court finds that Defendants’ Motion to Dismiss should be and is hereby GRANTED in part and DENIED in part .

I. BACKGROUND

A. History of § 1008

California by and through Becerra v. Azar , 950 F.3d 1067 (9th Cir. 2020) (en banc) articulates a summarized timeline of HHS's interpretations of § 1008:

[B]efore the 2018 rulemaking, HHS's interpretations of § 1008 had seesawed through multiple formulations: from permitting—then requiring—nondirective counseling on abortion as a method of family planning (in 1971 and 1981 guidance documents); to prohibiting counseling and referrals for abortion as a method of family planning (in the 1988 Rule, upheld by the Supreme Court in 1991); and then to once again requiring nondirective counseling and referrals for abortion on request (in the 2000 Rule). HHS also vacillated in its interpretation of the federal conscience laws. This uncertain history was the backdrop for HHS's reconsideration of this controversial area in 2018.

Id. at 1079. On March 4, 2019, HHS announced a final rule that would "largely represent[ ] a return to the 1988 Rule." Id. at 1080 ; Compliance with Statutory Program Integrity Requirements, 84 Fed. Reg. 7,714, 7,716 –17, 7788 (Mar. 4, 2019) (hereinafter the "2019 Rule").

The 2019 Rule took effect on May 3, 2019, but two federal district courts issued nationwide preliminary injunctions against its enforcement. See Washington v. Azar , No. 1:19-cv-03040-SAB (ECF No. 54) (E.D. Wash. Apr. 25, 2019); Oregon v. Azar , 389 F.Supp.3d 898 (D. Or. 2019). Two additional district courts enjoined Secretary Alex M. Azar II ("Azar") and the United States Government (collectively "Defendants") from enforcing the 2019 Rule, but those courts declined to issue nationwide injunctions. See California v. Azar , 385 F.Supp.3d 960 (N.D. Cal. 2019) ; City and County of Baltimore v. Azar , 392 F.Supp.3d 602 (D. Md. 2019). On June 20, 2019, a three-judge panel of the Ninth Circuit unanimously stayed the injunctions that had been entered in Washington , Oregon , and California . See California v. Azar , 927 F.3d 1068 (9th Cir. 2019).

On July 3, 2019, the Ninth Circuit ordered the Washington , Oregon , and California cases reheard en banc. See California v. Azar , 927 F.3d 1045 (9th Cir. 2019). That same day, Vita Nuova—incorporated just the day before—filed its Original Complaint in this Court. See Compl., ECF No. 1; Defs.’ Mot. Dismiss 6, ECF No. 17. The en banc Ninth Circuit then issued an order on July 11, 2019 clarifying that its July 3, 2019 order did not vacate the earlier stay of the nationwide injunctions. See California v. Azar , 927 F.3d 1068 (9th Cir. 2019). Four days after the Ninth Circuit issued this clarifying order, Azar began enforcing the 2019 Rule. On October 28, 2019, Vita Nuova filed an Amended Complaint that is the subject of this Motion to Dismiss. See Am. Compl., ECF No. 16.

B. Plaintiff's Claims

Vita Nuova is a Christian, pro-life organization that wishes to participate in the federal government's Title X program. Id. at 9. As such, Vita Nuova refuses to provide abortion referrals or abortion counseling. Id. at 10. Vita Nuova intends to apply for Title X funds at the next available opportunity in November 2020; the next round of grants is scheduled to be awarded in the Spring of 2021. Id. at 9. Vita Nuova contends that the ongoing lawsuits against the 2019 Rule raise the prospect that a court will vacate the 2019 Rule or resurrect the nationwide injunctions against its enforcement. Id. Additionally, Vita Nuova avers that the 2019 Rule is certain to be revoked if a Democratic administration takes office in January 2021. Id. Several potential donors have told Vita Nuova that they are unwilling to contribute funds unless Vita Nuova receives assurance that it will remain eligible to participate in Title X, regardless of what happens in the ongoing litigation over the 2019 Rule or the outcome of the next presidential election. Id. at 9–10. Due to this, Vita Nova argues that it is suffering present-day injury because these uncertainties are hindering its ability to raise funds and recruit employees. Id. at 9. Further, Vita Nuova asserts that there is a substantial risk that it will be disqualified from participating in Title X in the future due to the uncertainties. Id. at 10. Vita Nuova thus requests that the Court declare the Religious Freedom Restoration Act ("RFRA")¹ and federal conscience-protection laws—including the Church Amendments,² the Coats-Snowe Amendment,³ and the Weldon Amendment,⁴ —prohibit the Government from excluding Vita Nuova from the Title X program on account of its unwillingness to provide abortion referrals or abortion counseling. Id.

In addition to § 1008, Vita Nuova highlights two additional obstacles to participating in the Title X program: 1) 45 C.F.R. § 75.300(d) ; and 2) 42 U.S.C. § 300a-7(c)(1)–(2). Id. at 1–2. Vita Nuova's second claim focuses on 45 C.F.R. § 75.300(d) —issued by HHS as part of a final rule that took effect on January 11, 2017. See Health and Human Servs. Grants Regulation, 81 Fed. Reg. 89,393 (Dec. 12, 2016) ; Id. at 11. That final rule reads: "[i]n accordance with the Supreme Court decisions in United States v. Windsor and in Obergefell v. Hodges , all recipients must treat as valid the marriages of same-sex couples." 45 C.F.R. § 75.300(d). Vita Nuova is unwilling to recognize same-sex marriage on account of its Christian beliefs, and it will not accept Title X funds if it is compelled to recognize same-sex marriage as a condition of participating in the Title X program. Am. Compl. 11, ECF No. 16. Vita Nuova claims that the "existence and enforcement" of 45 C.F.R. § 75.300(d) inflicts injury-in-fact because it disqualifies Vita Nuova from obtaining Title X funding unless it agrees to recognize same-sex marriage. Id. at 12. Vita Nuova also states that 45 C.F.R. § 75.300(d) inflicts further injury because it hinders Vita Nuova's efforts to raise funds and build a network of potential providers due to facially disqualifying devoutly Christian entities that oppose same-sex marriage. Id.

To that end, Vita Nuova requests this Court: 1) declare that 45 C.F.R. § 75.300(d) violates RFRA and is not authorized by any congressional enactment; 2) hold unlawful and set aside 45 C.F.R. § 75.300(d) under Section 706 of the APA ( 5 U.S.C. § 706 ); 3) permanently enjoin the Secretary of HHS (hereinafter the "Secretary"), along with his officers, agents, servants, employees, attorneys, designees, subordinates, and successors, as well as any person acting in concert or participation with them (collectively "the Secretary and all relevant persons"), from enforcing 45 C.F.R. § 75.300(d) ; 4) permanently enjoin the Secretary and all relevant persons from requiring any private citizen or entity to recognize same-sex marriage as a condition of receiving federal funds, until Congress enacts legislation that authorizes the Secretary to impose such a requirement; and 5) permanently enjoin the Secretary and all relevant persons from requiring any private citizen or entity that opposes same-sex marriage for sincere religious reasons to recognize same-sex marriage as a condition of receiving federal funds, until Congress enacts legislation that authorizes the Secretary of HHS to impose such a requirement and that exempts the Secretary of HHS from the requirements of RFRA. Am. Compl. 12–13, ECF No. 16.

Vita Nuova's third claim is a class-action RFRA challenge to 42 U.S.C. § 300a-7(c), a provision in the Church Amendments. This statute forbids Title X recipients to "discriminate in the employment, promotion, or...