950 F.3d 1067
9th Cir.2020Background
- Title X (42 U.S.C. §300 et seq.) funds voluntary family‑planning projects; §1008 (42 U.S.C. §300a‑6) bars Title X funds “in programs where abortion is a method of family planning.”
- HHS’s regulatory interpretation of §1008 has shifted: 1988 regulations (the “gag”/separation approach) were upheld in Rust v. Sullivan; 2000 regulations required nondirective counseling and referrals; 2019 Final Rule largely reinstated the 1988 approach but allows nondirective pregnancy counseling that may discuss abortion (without referring for or encouraging it) and reimposes physical/financial separation requirements.
- The 1996 annual appropriations rider has repeatedly stated that Title X funds “shall not be expended for abortions” and that “all pregnancy counseling shall be nondirective.”
- Plaintiffs (states and Title X providers) sued under the APA challenging the 2019 Rule as unlawful and arbitrary and capricious; three district courts issued preliminary injunctions blocking enforcement.
- The Ninth Circuit (en banc) reviewed de novo the key legal questions on the injunction appeals and vacated the district courts’ injunctions, holding the Final Rule is a permissible interpretation of §1008 and is not arbitrary and capricious.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Final Rule violates the annual appropriations rider requirement that “all pregnancy counseling shall be nondirective” | The rider requires nondirective counseling to include referrals and presentation of all options equally, so forbidding abortion referrals violates the rider | HHS reasonably interprets “pregnancy counseling” as distinct from “referrals,” and “nondirective” as neutral presentation (not requiring presentation of every option or referrals) | Held for defendant: Rule reasonably interprets the rider; counseling may discuss abortion but referrals for abortion as a method of family planning may be prohibited |
| Whether the Final Rule conflicts with ACA §1554 (prohibiting HHS from promulgating regulations that create unreasonable barriers, impede timely access, interfere with communications, or violate informed‑consent/ethical standards) | Rule obstructs communications and timely access, forces ethical breaches, and erects physical/financial barriers (separation requirement) | Final Rule governs only the scope of Title X‑funded activities; it conditions funding choices and does not bar providers or patients from acting outside Title X; therefore §1554 is not implicated | Held for defendant: Rule regulates subsidy use and does not contravene §1554 because it doesn’t directly prohibit provider‑patient communications or care outside the Title X project |
| Whether the physical/financial separation requirement is arbitrary and capricious | HHS failed to show a concrete need, ignored reliance interests, and underestimated compliance costs and harms to access | HHS provided reasoned explanations: risk of co‑mingling, public confusion, evidence of collocation, and predictive judgments about compliance costs and program stability within agency expertise | Held for defendant: Separation requirement is supported by reasoned analysis and predictive judgments entitled to deference |
| Whether counseling/referral restrictions and related limits (who may provide counseling; removal of “medically approved” language) are arbitrary and capricious | Restrictions will harm access, conflict with medical ethics, and HHS failed to justify the changes or to address reliance and cost evidence | HHS examined comments, explained statutory alignment with §1008, relied on federal conscience laws, and gave reasoned bases for limiting referrals, defining nondirective counseling, and defining counselor qualifications | Held for defendant: HHS engaged in reasoned decisionmaking; the provisions are not arbitrary and capricious |
Key Cases Cited
- Rust v. Sullivan, 500 U.S. 173 (1991) (upheld 1988 Title X regulations and Chevron deference to HHS interpretation of §1008)
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984) (agency constructions of ambiguous statutes receive deference)
- Harris v. McRae, 448 U.S. 297 (1980) (congressional decision not to subsidize abortion does not constitute a constitutional denial of access)
- Department of Commerce v. New York, 139 S. Ct. 2551 (2019) (deference to agency predictive judgments and policy choices within agency competence)
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (preliminary‑injunction standard: likelihood of success on the merits is critical)
- FERC v. Electric Power Supply Ass’n, 136 S. Ct. 760 (2016) (review of agency action under APA is deferential; agency must show a rational connection between facts and choice)