927 F.3d 1068
9th Cir.2019Background
- Title X (42 U.S.C. § 300a-6) prohibits use of Title X funds in “programs where abortion is a method of family planning.” HHS has regulated that prohibition in different ways over time (1988, 2000, 2019).
- The 1988 regulations banned abortion counseling/referrals and required physical/financial separation of Title X projects from abortion services; Rust v. Sullivan upheld those regulations.
- The 2000 regulations allowed nondirective pregnancy counseling and abortion referrals upon request and removed the physical-separation requirement.
- In 2019 HHS promulgated a Final Rule that largely reinstated the 1988 approach: prohibiting abortion referrals/encouragement, reviving physical separation, and limiting who may provide pregnancy counseling (while permitting neutral information in nondirective counseling).
- States and Title X grantees challenged the 2019 Final Rule and obtained preliminary injunctions in three district courts; HHS sought a stay of those injunctions pending appeal.
- The Ninth Circuit granted HHS’s stay, holding HHS likely to prevail on merits (statutory interpretation and APA review) and finding the other stay factors favored a stay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Final Rule is a permissible interpretation of § 1008 (Title X ban on funding programs "where abortion is a method of family planning") | The Final Rule conflicts with statutory and programmatic purposes; prior changes (2000 regs) and program goals require nondirective counseling and access | The Final Rule is a reasonable interpretation of § 1008 (consistent with Rust) and may lawfully prohibit promotion/referral for abortion | HHS likely to succeed — Final Rule is a permissible interpretation of § 1008 under Chevron and Rust controls |
| Whether a congressional appropriations rider requiring that "all pregnancy counseling shall be nondirective" invalidates the Final Rule | Rider requires nondirective counseling and plaintiffs say the Final Rule’s referral/counseling limits conflict with that mandate | Rider simply requires that any counseling given be nondirective; Final Rule permits nondirective counseling and treats referral as distinct, so no conflict | HHS likely to prevail — no irreconcilable conflict; referrals are distinct from nondirective counseling and Final Rule is consistent with rider |
| Whether ACA § 1554 (prohibiting creation of unreasonable barriers, interference with communications, etc.) renders the Final Rule unlawful | § 1554 forbids regulations that impede access or communications about a full range of options; plaintiffs argue Final Rule does so | § 1554 does not repeal or override § 1008; government may choose to subsidize childbirth over abortion and decline to fund counseling/referrals | HHS likely to prevail — § 1554 does not impliedly repeal § 1008 and Rust forecloses the claim that denying subsidies is an unlawful barrier |
| Whether the Final Rule is arbitrary and capricious under the APA | District courts found agency failed to adequately consider harms, provider ethics conflicts, and burdens on access; decisionmaking was flawed | HHS considered comments, costs, separation rationale, predictions about provider participation, and provided reasoned explanations; predictive judgments deserve deference | HHS likely to prevail — district courts substituted their judgment for the agency and failed to respect the narrow APA review standard |
Key Cases Cited
- Rust v. Sullivan, 500 U.S. 173 (1991) (upheld regulation restricting abortion counseling/referrals under Title X and affirmed agency discretion to decline subsidizing abortion-related activities)
- Nken v. Holder, 556 U.S. 418 (2009) (four-factor test for stays pending appeal)
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (deference to reasonable agency statutory interpretations)
- Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary and capricious standard under the APA)
- Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007) (repeals by implication are disfavored and require clear congressional intent)
- Koon v. United States, 518 U.S. 81 (1996) (district court abuses discretion when it makes an error of law)
- Trout Unlimited v. Lohn, 559 F.3d 946 (9th Cir. 2009) (predictive judgments by agencies receive particular deference)