385 F. Supp. 3d 960
N.D. Cal.2019Background
- Title X (42 U.S.C. §300 et seq.) funds voluntary family planning; Section 1008 bars Title X funds from being used "in programs where abortion is a method of family planning." HHS historically allowed nondirective counseling and referrals (pre-1988 and post-1993 rules) but promulgated restrictive 1988 regulations later vacated/suspended.
- In 2019 HHS issued a Final Rule reinstating many 1988 features: banning abortion counseling/referrals by Title X projects, imposing strict physical and financial separation between Title X and abortion-related activities, restricting who may provide pregnancy counseling (physicians or APPs), removing a "medically approved" requirement, and requiring documentation of attempts to encourage family participation for minors.
- California and Essential Access Health sued, seeking a preliminary injunction. They argued the Final Rule violates the APA, HHS appropriations language requiring nondirective pregnancy counseling, the ACA (Section 1554), and is arbitrary and capricious; Essential Access also raised notice-and-comment and constitutional claims.
- The record contains extensive declarations from California public-health agencies and Title X providers predicting loss of providers (including Planned Parenthood), increased unintended pregnancies, worse public-health outcomes, and significant compliance costs from physical-separation requirements.
- The court evaluated Winter and Ninth Circuit "sliding-scale" standards (Winter; All. for the Wild Rockies) and found plaintiffs likely to suffer irreparable injury, that the balance of equities and public interest favor relief, and that plaintiffs are likely to succeed on several APA claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs show irreparable harm and equities/public interest support a preliminary injunction | Final Rule will force many grantees from Title X, reduce access and quality (time-sensitive abortion care, contraceptive services, STI screening), and impose unrecoverable compliance costs | Harms speculative and depend on third-party responses; government interest in implementing Executive policy | Court: plaintiffs likely to suffer irreparable harm; balance/public interest favor injunction (injunction limited to CA) |
| Whether Final Rule conflicts with appropriations requirement that "all pregnancy counseling shall be nondirective" | Nondirective counseling includes referrals; the Rule's categorical ban on abortion referrals, mandatory prenatal referrals, and referral-list restrictions prevent nondirective counseling | Section 1008 and Rust permit a ban on counseling/referrals; appropriations language doesn't impliedly repeal §1008 and can be reconciled | Court: plaintiffs likely to succeed; key provisions (§§59.14(a), 59.14(b)(1), 59.14(c)(2), 59.5(a)(5)) conflict with nondirective counseling requirement |
| Whether Final Rule violates ACA §1554 (prohibiting rules that create unreasonable barriers, impede timely access, interfere with communication, or violate informed consent/ethical standards) | Final Rule creates unreasonable barriers, impedes timely access and provider-patient communication, and conflicts with medical ethical standards (e.g., informed consent, referrals) | Section 1554 limited to ACA or too vague; Rust's constitutional reasoning insulates rule | Court: plaintiffs likely to succeed on Section 1554 claims; Final Rule violates subsections (1)-(5) and conflicts with ethical standards and HHS's own QFP guidance |
| Whether Final Rule is arbitrary and capricious (APA) — physical separation, counseling/referral bans, APP-only counseling, removal of "medically approved", and cost-benefit analysis | HHS reversed longstanding policy without reasoned explanation, relied on speculative risks of commingling, ignored reliance interests and substantial record evidence of costs, and supplied unsupported cost estimates and speculative benefits | The Rule is a permissible interpretation of §1008 (cites Rust); prophylactic measures and conscience-law compliance justify changes | Court: likelihood plaintiffs prevail. HHS failed to justify change (Fox/State Farm/Encino principles), relied on speculation re misuse and new entrants, ignored record on costs and harms, and provided inadequate cost-benefit analysis |
| Whether Final Rule violated notice-and-comment (logical outgrowth) | Some requirements (e.g., physician/APP limitation, referral-list details) were not a logical outgrowth of the proposed rule | Proposed rule signaled possible limits and HHS considered comments; changes are within scope | Court: plaintiffs unlikely to prevail on this claim; requirements were logical outgrowths (no injunction on this ground) |
Key Cases Cited
- Rust v. Sullivan, 500 U.S. 173 (Sup. Ct.) (upheld 1988 Title X counseling/referral restrictions under Chevron and rejected First and Fifth Amendment challenges)
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (Sup. Ct.) (preliminary injunction standard)
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (Sup. Ct.) (arbitrary and capricious review under APA)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (Sup. Ct.) (agency statutory interpretation/deferral framework)
- Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (Sup. Ct.) (requiring reasoned explanation when agency changes longstanding policy affecting reliance interests)
- All. for the Wild Rockies v. Pena, 865 F.3d 1211 (9th Cir.) (sliding-scale preliminary injunction standard)
- California v. Azar, 911 F.3d 558 (9th Cir.) (nationwide injunction analysis and limits)