MAYOR AND CITY COUNCIL OF BALTIMORE, Plaintiff - Appellee, v. ALEX M. AZAR, II, in his official capacity as the Secretary of Health and Human Services; DIANE FOLEY, M.D., in her official capacity as the Deputy Assistant Secretary, Office of Population Affairs; UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES; OFFICE OF POPULATION AFFAIRS, Defendants - Appellants.
No. 19-1614, No. 20-1215
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
September 3, 2020
ON REHEARING EN BANC
OHIO; ALABAMA; ARKANSAS; INDIANA; KANSAS; LOUISIANA; NEBRASKA; OKLAHOMA; SOUTH CAROLINA; SOUTH DAKOTA; TENNESSEE; TEXAS; UTAH; WEST VIRGINIA,
Amici Supporting Appellants,
NEW YORK, NEW YORK CITY HEALTH + HOSPITALS AND 10 LOCAL GOVERNMENTS; NATIONAL HEALTH LAW PROGRAM; ADVOCATES FOR YOUTH; AMERICAN MEDICAL STUDENT ASSOCIATION; AMERICAN SOCIETY FOR REPRODUCTIVE MEDICINE; COMMUNITY CATALYST; THE ENDOCRINE SOCIETY; FAMILIES USA; IN OUR OWN VOICE: NATIONAL BLACK WOMEN‘S REPRODUCTIVE JUSTICE AGENDA; JUVENILE LAW CENTER; THE LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS; NATIONAL COUNCIL OF JEWISH WOMEN; NARAL PRO-CHOICE AMERICA; NATIONAL ABORTION FEDERATION; NATIONAL IMMIGRATION LAW CENTER; NATIONAL INSTITUTE FOR REPRODUCTIVE HEALTH; NATIONAL LATINA INSTITUTE FOR REPRODUCTIVE HEALTH; NATIONAL PARTNERSHIP FOR WOMEN & FAMILIES; NATIONAL WOMEN‘S HEALTH NETWORK; NATIONAL WOMEN‘S LAW CENTER; NORTHWEST HEALTH LAW ADVOCATES; POSITIVE WOMEN‘S NETWORK-USA; POWER TO DECIDE; UNION FOR REFORM JUDAISM; CENTRAL CONFERENCE OF AMERICAN RABBIS; WOMEN OF REFORM JUDAISM; MEN OF REFORM JUDAISM; UNITE FOR REPRODUCTIVE & GENDER EQUITY; WHITMAN-WALKER HEALTH; WOMENHEART; YWCA OF THE USA; NATIONAL CENTER FOR LESBIAN RIGHTS; GLMA: HEALTH PROFESSIONALS ADVANCING LGBT EQUALITY; THE LGBT MOVEMENT ADVANCEMENT PROJECT; NATIONAL LGBTQ TASK FORCE; EQUALITY FEDERATION; SEXUALITY INFORMATION AND EDUCATION COUNCIL OF THE UNITED STATES; FAMILY EQUALITY COUNCIL; THE NATIONAL CENTER FOR TRANSGENDER EQUALITY; HIV MEDICINE ASSOCIATION; GLBTQ LEGAL ADVOCATES & DEFENDERS; LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INCORPORATED; THE HUMAN RIGHTS CAMPAIGN; TRANSGENDER LAW CENTER; BAY AREA LAWYERS FOR INDIVIDUAL FREEDOM; THE INSTITUTE FOR POLICY INTEGRITY AT NEW YORK UNIVERSITY SCHOOL OF LAW; NATIONAL CENTER FOR YOUTH LAW; AMERICAN ACADEMY OF PEDIATRICS; AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS; AMERICAN COLLEGE OF PHYSICIANS; AMERICAN MEDICAL ASSOCIATION; SOCIETY FOR ADOLESCENT HEALTH AND MEDICINE; SOCIETY FOR MATERNAL-FETAL MEDICINE; ZACHARY D. CLOPTON; AMANDA FROST; SUZETTE MALVEAUX; MILA SOHONI; ALAN TRAMMELL; CALIFORNIA; NEVADA; COLORADO; CONNECTICUT; DELAWARE; HAWAII; ILLINOIS; MAINE; MARYLAND; MASSACHUSETTS; MICHIGAN; MINNESOTA; NEW JERSEY; NEW MEXICO; NEW YORK; NORTH CAROLINA; OREGON; PENNSYLVANIA; RHODE ISLAND; VERMONT; VIRGINIA; WASHINGTON; DISTRICT OF COLUMBIA,
Amici Supporting Appellee.
KENTUCKY; ALABAMA; ARKANSAS; INDIANA; LOUISIANA; NEBRASKA; OHIO; OKLAHOMA; SOUTH CAROLINA; SOUTH DAKOTA; TENNESSEE; TEXAS; UTAH; WEST VIRGINIA,
Amici Supporting Appellants.
AMERICAN MEDICAL ASSOCIATION; ZACHARY D. CLOPTON; AMANDA FROST; SUZETTE MALVEAUX; MILA SOHONI; ALAN TRAMMELL; CALIFORNIA; NEVADA; COLORADO; CONNECTICUT; DELAWARE; DISTRICT OF COLUMBIA; HAWAII; ILLINOIS; MAINE; MARYLAND; MASSACHUSETTS; MICHIGAN; MINNESOTA; NEW JERSEY; NEW YORK; NORTH CAROLINA; OREGON; PENNSYLVANIA; RHODE ISLAND; VERMONT; VIRGINIA; WASHINGTON; NEW MEXICO,
Amici Supporting Appellee.
Appeals from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:19-cv-01103-RDB)
Argued: May 7, 2020
Decided: September 3, 2020
Before GREGORY, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, AGEE, KEENAN, WYNN, DIAZ, FLOYD, THACKER, HARRIS, RICHARDSON, QUATTLEBAUM, and RUSHING, Circuit Judges.
19-1614 dismissed, and 20-1215 affirmed by published opinion. Judge Thacker wrote the opinion, in which Chief Judge Gregory and Judges Motz, King, Keenan, Wynn, Floyd, and Harris joined. Judge Diaz filed a separate opinion concurring in the judgments. Judge Wilkinson wrote a separate dissenting opinion. Judge Richardson wrote a dissenting opinion, in which Judges Wilkinson, Niemeyer, Agee, Quattlebaum, and Rushing joined.
ARGUED: Jaynie Lilley, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Andrew Tutt, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellee. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, Hashim M. Mooppan, Deputy Assistant Attorney General, Brinton Lucas, Senior Counsel, Michael S. Raab, Joshua Dos Santos, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Andre M. Davis, City Solicitor, Dana Petersen Moore, Acting City Solicitor, Suzanne Sangree, Senior Counsel for Public Safety & Director of Affirmative Litigation, CITY OF BALTIMORE DEPARTMENT OF LAW, Baltimore, Maryland; Drew A. Harker, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C.; Stephanie Toti, LAWYERING PROJECT, New York, New York; Priscilla J. Smith, Brooklyn, New York, Faren M. Tang, REPRODUCTIVE RIGHTS & JUSTICE PROJECT AT YALE LAW SCHOOL, New Haven, Connecticut, for Appellee. Dave Yost,
THACKER, Circuit Judge:
In these consolidated appeals, we address the propriety of the district court‘s preliminary and permanent injunctions. These injunctions halt implementation of a Health and Human Services (“HHS“) rule that, inter alia, prohibits physicians and other providers in Title X programs from referring patients for an abortion, even if that is the patient‘s wish. Instead, it requires them to refer the patient for prenatal care. See
The Mayor and City Council of Baltimore (“Baltimore” or “Appellee“) filed suit against Alex Azar II; Dr. Diane Foley; HHS; and the Office of Population Affairs, the office that administers Title X (collectively, “Appellants” or the “Government“), alleging, in pertinent part, that the Final Rule violates the Administrative Procedure Act (“APA“) because it is arbitrary, capricious, and not in accordance with law. The district court first issued a preliminary injunction, concluding that the Final Rule is likely not in accordance with law, and the Government appealed. While the appeal of the preliminary injunction was pending and after discovery, the district court issued a permanent injunction on different grounds -- specifically, the promulgation of the Final Rule was arbitrary and capricious -- and the Government appealed from that judgment as well. We consolidated the appeals, and a majority of the full court voted to hear both cases en banc.
We affirm in part and dismiss in part. We uphold the grant of the permanent injunction on two grounds. First, the Final Rule was promulgated in an arbitrary and capricious manner because it failed to recognize and address the ethical concerns of literally every major medical organization in the country, and it arbitrarily estimated the cost of the physical separation of abortion services. Second, the Final Rule contravenes statutory provisions requiring nondirective counseling in Title X programs and prohibiting interference with physician/patient communications. Because we affirm the permanent injunction in Case No. 20–1215, the appeal of the preliminary injunction in Case No. 19–1614 is moot, and we, therefore, dismiss it.
I.
Congress enacted Title X in 1970 “[t]o promote public health and welfare by expanding, improving, and better coordinating the family planning services and population research activities of the Federal Government[.]” Pub. L. No. 91-572, 84 Stat. 1504 (Dec. 24, 1970). Under Title X, the Secretary of HHS (“Secretary“) is
authorized 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 (including natural family planning methods, infertility services, and services for adolescents).
The parties disagree about the propriety of HHS‘s interpretation of the following provision in Title X: “None of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning.”
A.
HHS‘s Changing Interpretation of Section 1008
1.
1970–1988
For the first 18 years of the Title X program, HHS interpreted Section 1008 “not only as prohibiting the provision of abortion but also as prohibiting Title X projects from in any way promoting or encouraging abortion as a method of family planning.”
Then, in 1981, HHS “went a step further” and
required Title X projects to engage in abortion-related activities under certain circumstances. These guidelines for the first time required nondirective “options counseling” 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. These guidelines were premised on a view that “non-directive” counseling and referral for abortion were not inconsistent with the statute and were justified as a matter of policy in that such activities did not have the effect of promoting or encouraging abortion.
2.
1988–1991
In 1988, the Secretary issued new regulations, which prohibited Title X projects from promoting, encouraging, advocating, or providing counseling on, or referrals for, abortion as a method of family planning. See
- “[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.“;
- “Because Title X funds are intended only for family planning, once a client served by a Title X project is diagnosed as pregnant, she must be referred for appropriate prenatal and/or social services by furnishing a list of available providers that promote the welfare of mother and unborn child.“;
- “A Title X project may not use prenatal, social service or emergency medical or other referrals as an indirect means of encouraging or promoting abortion as a method of family planning, such as by weighing the list of referrals in favor of health care providers which perform abortions, by including on the list of referral providers health care providers whose principal business is the provision of abortions, by excluding available providers who do not provide abortions, or by ‘steering’ clients to providers who offer abortion as a method of family planning.“;
- “Nothing in this subpart shall be construed as prohibiting the provision of information to a project client which is medically necessary to assess the risks and benefits of different methods of contraception in the course of selecting a method; provided, that the provision of this information does not include counseling with respect to or otherwise promote abortion as a method of family planning.”
In 1991, the Supreme Court upheld the 1988 Rule in the face of administrative and constitutional challenges. See Rust v. Sullivan, 500 U.S. 173 (1991).
First, the Rust plaintiffs challenged the 1988 Rule as exceeding the Secretary‘s authority, and as arbitrary and capricious. See Rust, 500 U.S. at 183. The Court applied the familiar two-step test pursuant to Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), which asks (1) if the statute is silent or ambiguous with respect to the issue; and (2) if so, whether the agency‘s interpretation is “based on a permissible
Title X does not define the term “method of family planning,” nor does it enumerate what types of medical and counseling services are entitled to Title X funding. Based on the broad directives provided by Congress in Title X in general and § 1008 in particular, we are unable to say that the Secretary‘s construction of the prohibition in § 1008 to require a ban on counseling, referral, and advocacy within the Title X project is impermissible.
Id. at 185. The Court explained that HHS sufficiently justified a “revised approach” to Section 1008 by explaining that the 1988 Rule was “more in keeping with the original intent of the statute“; “justified by client experience under the prior policy“; and “supported by a shift in attitude against” abortion. Id. at 187.
Second, the Rust plaintiffs brought constitutional attacks, claiming that the 1988 Rule violated the First Amendment “by impermissibly discriminating based on viewpoint” because the Rule “prohibit[s] all discussion about abortion as a lawful option . . . while compelling the clinic or counselor to provide information that promotes continuing a pregnancy to term.” Rust, 500 U.S. at 192 (internal quotation marks omitted). They also asserted that the 1988 Rule violated a woman‘s Fifth Amendment right “to choose whether to terminate her pregnancy.” Id. at 201. The Court rejected both claims. On the First Amendment claim, the Court reasoned, “Nothing in [the 1988 Rule] requires a doctor to represent as his own any opinion that he does not in fact hold.” Id. at 200. On the Fifth Amendment claim, the Court “reaffirmed the long-recognized principle,” that the Due Process Clause does not “generally confer . . . [an] affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.” Id. at 201 (internal quotation marks omitted).
3.
1991–2010
In the wake of Rust, President George H.W. Bush, addressing “widespread concern” that the 1988 Rule would interfere with the physician-patient relationship, issued a memo to the Secretary on November 5, 1991, “urging that the confidentiality of the doctor-patient relationship be preserved and that operation of the Title X program be compatible with free speech and the highest standards of medical care.” Nat‘l Family Planning, 979 F.2d at 230 (internal quotation marks omitted). President Bush then issued four “directives” to which HHS was to adhere in implementing the 1988 Rule, including that referrals “may be made by Title X programs to full-service health care providers that perform abortions,” but not if that is the provider‘s “principal activity.” Id.
Before the 1988 Rule could be fully implemented, Congress passed a bill that
In 1993, HHS suspended the 1988 Rule, and the 1981 Guidelines went back into effect on an interim basis. See
The Nondirective Mandate has appeared in every annual HHS appropriations bill since 1996. See, e.g.,
In 2000, HHS issued a new rule which, like the 1981 Guidelines, required Title X projects to offer and provide “information and counseling” regarding “pregnancy termination,” and “referral upon request,” if the patient desires.
4.
2010
Congress enacted the Affordable Care Act (“ACA“) in 2010. In Subchapter VI, the ACA provides:
Notwithstanding any other provision of this Act, the Secretary of Health and Human Services shall not promulgate any regulation that—
(1) creates any unreasonable barriers to the ability of individuals to obtain appropriate medical care; (2) impedes timely access to health care services;
(3) interferes with communications regarding a full range of treatment options between the patient and the provider;
(4) restricts the ability of health care providers to provide full disclosure of all relevant information to patients making health care decisions;
(5) violates the principles of informed consent and the ethical standards of health care professionals; or
(6) limits the availability of health care treatment for the full duration of a patient‘s medical needs.
5.
2018–2020: The Final Rule
On June 1, 2018, HHS issued a notice of proposed rulemaking “to ensure compliance with, and enhance implementation of, the statutory requirement that none of the funds appropriated for Title X may be used in programs where abortion is a method of family planning and related statutory requirements.”
On March 4, 2019, HHS issued the Final Rule. HHS explained that it was amending the Title X regulations “to clarify grantee responsibilities under Title X, to remove the requirement for nondirective abortion counseling and referral, to prohibit referral for abortion, and to clarify compliance obligations with state and local laws.”
- “A Title X project may not perform, promote, refer for, or support abortion as a method of family planning, nor take any other affirmative action to assist a patient to secure such an abortion.”
84 Fed. Reg. at 7788–89 . - “[O]nce a client served by a Title X project is medically verified as pregnant, she shall be referred to a health care provider for medically necessary prenatal health care.”
Id. at 7789 . - A Title X provider “may . . . choose to provide” “[a] list of licensed, qualified, comprehensive primary health care providers (including providers of prenatal care),” but that list “may be limited to those that do not provide abortion, or may include licensed, qualified, comprehensive primary health care providers (including providers of prenatal care), some, but not the majority, of which also provide abortion as part of their comprehensive health care services. Neither the list nor project staff may identify which providers on the list perform abortion.”
Id. - A Title X provider “may . . . choose to provide” “[n]ondirective pregnancy counseling, when provided by physicians or advanced practice providers [(APPs)2]” but
“is not required to.” Id. at 7789, 7760 . As part of nondirective counseling, “abortion must not be the only option presented by physicians or APPs.”Id. at 7747 . - “Each option discussed in [pregnancy] counseling must be presented in a nondirective manner. This involves presenting the options in a factual, objective, and unbiased manner and (consistent with other Title X requirements and restrictions) offering factual resources that are objective, rather than presenting the options in a subjective or coercive manner.” Physicians or APPs “should discuss the possible risks and side effects to both mother and unborn child” of any option, including abortion.
Id. - “Referrals for abortion as a method of family planning may not be offered. If the patient is provided a list or the contact information of licensed, qualified, comprehensive primary health care service providers (including providers of prenatal care), the list -- and the Title X staff -- must not identify to the woman which, if any, providers on the list offer abortion.”
Id.
The Government posits that the discretion to provide nondirective counseling actually makes it “less restrictive than the 1988 [Rule].” Appellants’ Br. 9.3 In the Final Rule, HHS likewise explained:
In response to commenters who contend the rule will be challenged in court, [HHS] believes the Supreme Court‘s decision in Rust provides broad support for the approach taken in this rule. Although the rule differs in some respects from the 1988 [Rule] upheld in Rust, some of those differences arise from the [HHS]‘s desire to implement statutory provisions that did not exist at the time the 1988 [Rule was] adopted. Other differences, such as the permission for nondirective pregnancy counseling -- which implements an appropriations rider that was adopted as early as 1996 and has been regularly included in HHS‘s appropriations through fiscal year 2019 -- are more permissive than the 1988 [Rule] and less susceptible to the type of challenges that plaintiffs brought (unsuccessfully) in Rust.
B.
On April 12, 2019, Baltimore filed a “Complaint for Vacatur of Unlawful Agency
- Count I -- The Final Rule violates
§ 706 of the APA 4 because it is contrary to the Noninterference Mandate; - Count II -- The Final Rule violates
§ 706 of the APA because it is contrary to the Nondirective Mandate; - Count III -- The Final Rule exceeds HHS‘s authority under the
Title X statute ; - Count IV -- The Final Rule is contrary to the
Religious Freedom Restoration Act of 1993 ; - Count V -- The Final Rule is contrary to the
First Amendment ; - Count VI -- The Final Rule is contrary to the Equal Protection Clause of the
Fifth Amendment ; - Count VII -- The Final Rule is arbitrary and capricious because it is inadequately justified;
- Count VIII -- The Final Rule is arbitrary and capricious because it is objectively unreasonable;
- Count IX -- The Final Rule violates the
APA because HHS did not observe procedure required by law; - Count X -- The Final Rule is unconstitutionally vague.
On June 6, the Government filed a notice of interlocutory appeal and a motion to stay the injunction in the district court, the latter of which was denied on June 19, 2019. A stay was granted by a divided panel of this court on July 2, 2019. See Order, Mayor & City Council of Baltimore v. Azar, No. 19-1614 (4th Cir. filed July 2, 2019), ECF No. 23. A panel of this court heard argument in September 2019.5
While the appeal of the preliminary injunction as to Counts I and II was pending, the district court continued with proceedings on Counts III, V, VI, VII, VIII, and IX. On February 14, 2020, the district court granted summary judgment to the Government as to Counts III, V, VI, and IX, and it granted summary judgment to Baltimore on Counts VII and VIII. The district court then issued a permanent injunction for the entire state of Maryland, enjoining the Government from implementing or enforcing the Final Rule. The Government filed a notice of appeal and a motion for stay of the permanent injunction in the district court. The district court denied the motion to stay on March 4, 2020. In this court, the Government filed a motion to consolidate and a motion for stay of the permanent injunction. Baltimore filed a motion for initial en banc consideration of the permanent injunction appeal. On March 30, 2020, we granted the Government‘s motion to consolidate and Baltimore‘s motion for initial en banc review, and we denied the Government‘s motion for stay.
Then, on March 13, 2020, Baltimore filed a motion to alter or amend the judgment pursuant to
7. Baltimore did not file a notice of appeal of this April 15 order, and the time to do so has expired. Therefore, as explained below, we do not consider it.
II.
A party seeking a permanent injunction must demonstrate “actual success” on the merits, rather than a mere “likelihood of success” required to obtain a preliminary injunction. Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 546 n.12 (1987). The party must demonstrate (1) “it has suffered an irreparable injury“; (2) “remedies available at law, such as monetary damages, are inadequate to compensate for that injury“; (3) “considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted“; and (4) “the public interest would not be disserved by a permanent injunction.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). “The decision to grant or deny permanent injunctive relief is an act of equitable discretion by the district court, reviewable on appeal for abuse of discretion.” Id. We review the district court‘s legal conclusions de novo, and any factual findings for clear error. See Legend Night Club v. Miller, 637 F.3d 291, 297 (4th Cir. 2011). In this case, even though “the district court did not discuss the test for granting a permanent injunction, we discern no abuse of discretion in the court‘s decision to issue the injunction.” Id. at 302.6
The
[r]elied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Citations to the “J.A.” refer to the Joint Appendix, and citations to the “S.J.A.” refer to the Supplemental Joint Appendix, filed by the parties in these consolidated appeals.
Motor Vehicle Mfrs. Ass‘n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). An agency “must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.‘” Id. (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).
In these appeals,7 Baltimore contends the Final Rule is arbitrary and capricious, and also not in accordance with law. We agree on all counts, and even though the district court‘s permanent injunction
A.
The Final Rule was Promulgated in an Arbitrary and Capricious Manner
In issuing the permanent injunction on Counts VII and VIII, the district court concluded that the Final Rule was arbitrary and capricious for three reasons: HHS (1) inadequately explained its decision “to disagree with comments by every major medical organization regarding the Final Rule‘s contravention of medical ethics“; (2) inadequately considered the “reliance interests that would be disrupted by its change in policy“; and (3) inadequately considered the “likely costs and benefits of the physical separation requirement.” S.J.A. 1309 (internal quotation marks omitted). We affirm on the first and third grounds.
1.
Medical Ethics
First, the district court, after a “searching and careful inquiry of the record,” found that “literally all of the nation‘s major medical organizations have grave medical ethics concerns with the Final Rule.” S.J.A. 1309 (internal quotation marks omitted). In the face of “grave concerns” from the medical community, HHS merely stated -- with no support -- that it “disagrees with the commenters contending the [Final Rule] infringes on the legal, ethical, or professional obligations of medical professionals.” Id. at 1311 (alteration and internal quotation marks omitted). Further, HHS stated it “believes” the Final Rule accommodates medical ethical obligations, and “believes” the rule is “not inconsistent” with medical ethics. Id. (internal quotation marks omitted).
These reasons fall flat. An agency, although entitled to deference, cannot simply state it “believes” something to be true -- against the weight of all the evidence before it -- without further support. Indeed, it is the “agency‘s responsibility” to offer an explanation why it made a certain decision, when “every indication in the record points the other way.” State Farm, 463 U.S. at 56-57 (internal quotation marks omitted). The arbitrary and capricious standard of review is not a carte blanche for agencies to issue a rule, and then defend it only by saying, “because we said so.” As explained below, HHS lacks a satisfactory explanation for disagreeing with every major medical association, and thus, it has not “articulate[d] a satisfactory explanation for its action.” Id. at 43.
a.
No Satisfactory Reasoning
Several medical organizations submitted comments to HHS about the Final Rule, and all of them stated that the Final Rule would violate the established principles of medical ethics. For example, the American College of Obstetricians and Gynecologists (“ACOG“) -- which comprises 90% of the nation‘s obstetricians-gynecologists -- cautioned that the Final Rule “would put the patient-physician relationship in jeopardy by placing restrictions on the ability of physicians to make available important medical information, permitting physicians
The American Medical Association (“AMA“), citing to its Code of Medical Ethics, explained that the prohibition on abortion referrals and restrictions on counseling “would not only undermine the patient-physician relationship, but also could force physicians to violate their ethical obligations . . . to counsel patients about all of their options in the event of a pregnancy and to provide any and all appropriate referrals.” S.J.A. 189. The American Academy of Family Physicians, the American Academy of Nursing, the American Academy of Pediatrics, and the American College of Physicians raised similar concerns. See id. at 32-35; 48-53; 192-202; 247-55. Planned Parenthood Federation of America and four states (Washington, New York, Hawaii, and Oregon) all notified HHS that they would have to exit the Title X program because the restrictions are “fundamentally at odds with the professional and ethical obligations of health care professionals.” Id. at 371. The American Academy of Nursing likewise stated the Final Rule “prioritize[s] ideology over evidence-based professional recommendations,” and urged HHS “to remain religiously and morally neutral in its funding, policies, and activities to ensure . . . the ethical obligations of healthcare providers are not compromised.” Id. at 53. Indeed, the Government itself now concedes that no “professional organization of any kind” takes the position that the Final Rule‘s restrictions on referrals are in line with medical ethics. Id. at 1263-64 (summary judgment hearing on January 27, 2020).
In response to these comments, HHS merely stated that it “disagrees” that the Rule “infringes on the legal, ethical, or professional obligations of medical professionals” and it “believes” the Rule is “not inconsistent” with medical ethics. 84 Fed. Reg. at 7724. Notwithstanding, HHS clearly recognizes that “medical ethics obligations require the medical professional to share full and accurate information with the patient, in response to her specific medical condition and circumstance.” Id. (emphasis supplied). But, it fails to address head-on the arguments of all of these medical organizations that the Rule prohibits physicians from sharing full and accurate information. F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 537 (2009) (“An agency cannot simply disregard . . . inconvenient facts[.]“).8
HHS unsuccessfully attempts to rely on Rust v. Sullivan as its silver bullet. It explains,
In Rust, the Supreme Court upheld the prohibition in the 1988 regulations on both referral for, and counseling about, abortion in the Title X program. The Department does not believe the Court in Rust upheld a rule that required the violation of medical ethics, regulations concerning the practice of medicine, or malpractice liability standards.
84 Fed. Reg. at 7748. It also argues that Roe v. Wade “favorably quoted the proceedings of the American Medical Association House of Delegates 220 (June 1970), which declared ‘Neither physician, hospital, nor hospital personnel shall be required to perform any act violative of personally-held moral principles.‘” Id. (quoting Roe v. Wade, 410 U.S. 113, 144 n.38 (1973)).
But Rust never discussed medical ethics, nor did it make any suggestion or presumption as to whether the 1988 Rule was supported by the views of the medical community at that time. The Supreme Court held only that the 1988 Rule did not so “significantly impinge upon the doctor-patient relationship” that it rose to the level of a First Amendment violation. Rust, 500 U.S. at 200. Thus, Rust did not purport to speak to medical ethics requirements.
In briefing, the Government contends that HHS “did not need to identify a professional medical organization that espoused the same view.” Appellants’ Supp. Br. 13. It also notes that “[t]he majority of incumbent providers have remained in the program without any apparent ethical sanction.” Id. at 30. Even if the Government is correct,9 that is not the end of the story.
First, even if HHS did not need to identify a particular medical organization that supported its view, it nonetheless cannot easily brush off the swell of evidence in the record before the agency that the medical community finds this Rule to be repugnant to the ethical rules governing the profession. Thus, by announcing that HHS merely “disagrees” with every major medical organization in the country, without more, the agency failed to “examine the relevant data and articulate a satisfactory explanation for its action” and “offer[] an explanation for its decision that runs counter to the evidence before the agency.” State Farm, 463 U.S. at 43; see also Sierra Club, Inc. v. United States Forest Serv., 897 F.3d 582, 594 (4th Cir. 2018); Ohio River Valley Envtl. Coal., Inc. v. Kempthorne, 473 F.3d 94, 103 (4th Cir. 2006) (The
Second, the fact that some providers have remained in the Title X program says nothing about the reasonableness of the Final Rule at the time it was issued.
b.
Conscience Statutes
The Government also contends that HHS “observed that the various conscience statutes reveal there is no absolute ethical imperative upon physicians to counsel or refer for abortion.” Appellants’ Supp. Br. 30 (internal quotation marks omitted). The Final Rule likewise explains, “Federal and State conscience laws, in place since the early 1970s, have protected the ability of health care personnel to not assist or refer for abortions in the context of HHS funded or administered programs (or, under State law, more generally).” 84 Fed. Reg. at 7748. HHS believes the Final Rule‘s restrictions are necessary “to ensure compliance with [the] federal conscience laws,” such as the Church Amendments,10 Coats-Snowe Amendment,11 and Weldon Amendment.12 Id. at 7746.
To the extent HHS relies on the federal conscience statutes (or state statutes, for that matter)13 to support the ethical nature of the Final Rule, this reliance is of no moment. Conscience statutes are not relevant to the question of whether the Final Rule‘s restrictions are ethical. Allowing a physician with a conscience objection to decline to refer a patient for abortion is quite different from prohibiting a physician from providing full and accurate information about and referring for abortion, when that physician feels ethically bound to do so. Indeed, as the ACOG Committee on Ethics states,
Conscientious refusals that conflict with patient well-being should be accommodated only if the primary duty to the patient can be fulfilled. All health care providers must provide accurate and unbiased information so that patients can make informed decisions. Where conscience implores physicians to deviate from standard practices, they . . . have the duty to refer patients in a timely manner to other providers if they do not feel that they can in conscience provide the standard
reproductive services that patients request.
The Limits of Conscientious Refusal in Reproductive Medicine, No. 385, at 1 (Nov. 2007), reaffirmed 2019, http://bit.ly/2XRZZ4I (saved as ECF opinion attachment); see also S.J.A. 41 (Comment, Nat‘l Ass‘n of Catholic Nurses) (explaining that if a patient determines that her chosen course is abortion, and a provider is unable to offer an abortion referral for conscience reasons, the provider should “offer[] a transfer of care to the client“). The Final Rule fails to recognize or appreciate this distinction.
c.
The Ninth Circuit Decision is Unpersuasive and Inapposite
The Government relies on the Ninth Circuit‘s recent en banc decision in California by & through Becerra v. Azar, 950 F.3d 1067 (9th Cir. 2020) (en banc), which vacated preliminary injunctions of the Final Rule issued by three district courts. The Ninth Circuit decided as a matter of law that the Final Rule was “not arbitrary and capricious,” California, 950 F.3d at 1104, but we find this decision unpersuasive and inapposite.
First, the Ninth Circuit did not have the full administrative record before it, see California, 950 F.3d at 1082-84 & n.11, and so could not “engage in a searching and careful inquiry of the administrative record” that is necessary before a court can adequately “consider whether the agency considered the relevant factors and whether a clear error of judgment was made.” Casa de Maryland, 924 F.3d at 703 (alteration and internal quotation marks omitted); see California, 950 F.3d at 1112 (Paez, J., dissenting) (“We do not have the complete administrative record before us, and neither did the district courts when they issued the preliminary injunctions. Deciding the merits of Plaintiffs’ arbitrary and capricious claim is therefore premature.“).
Second, the Ninth Circuit‘s discussion of medical ethics nowhere mentions the precise issue raised here: HHS‘s failure to justify or explain its conclusion that the Final Rule is consistent with medical ethics in the face of overwhelming contrary evidence. See California, 950 F.3d at 1101-03 & n.34. Moreover, the Ninth Circuit failed to recognize that HHS did not cite any evidence supporting its conclusion regarding medical ethics, and HHS provided no reason for its decision to “disagree” with the AMA‘s conclusion. 84 Fed. Reg. at 7724.14
Therefore, because HHS failed to satisfactorily explain its disagreement with the proliferation of negative comments from the medical community, and failed to appreciate the distinction between conscience laws as a shield for physicians -- rather than a sword for the government to wield as it shoves its way inside the examination room with a woman and her physician -- its decision that the Final Rule is “not inconsistent” with medical ethics is arbitrary and capricious.
2.
Physical Separation
The Final Rule also states that by March 4, 2020, Title X providers were to ensure “clear physical and financial separation between a Title X program and any activities that fall outside the program‘s scope.” 84 Fed. Reg. at 7715. In particular, the separation rule is meant to “protect the statutory integrity of the Title X program, to eliminate the risk of co-mingling or misuse of Title X funds, and to prevent the dilution of Title X resources.” Id. Specifically as to the physical separation requirement, the Final Rule “preclude[s] shared physical space and staff with respect to abortion.” Id. at 7725.
The Final Rule estimates that a Title X provider would face a cost of $30,000 “to come into compliance with physical separation requirements in the first year following publication of a [F]inal [R]ule in this rulemaking.” 84 Fed. Reg. at 7782.15 However, the district court found this to be arbitrary and capricious because “the administrative record reflects comments estimating the likely cost of the requirement far exceeds HHS‘s estimate of $30,000.” S.J.A. 1316. Again, the district court determined that HHS made a “conclusory response” to these “evidence-backed concerns about the serious problems the physical separation requirement will cause,” and as such, “fail[ed] to consider an important aspect of the problem, offer[ed] an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Id. (quoting State Farm, 463 U.S. at 43). The Government challenges the district court‘s conclusion that “HHS did not adequately consider the likely costs of the physical separation requirement.” Id.; see Appellants’ Supp. Br. 40-43.
In the administrative record, there are multiple comments estimating the likely cost to comply with the physical separation requirement to be much higher than $30,000. For example, a comment by City Health Department Leaders from Baltimore, Kansas City, Boston, San Antonio, Chicago, Los Angeles, and Cleveland estimated that the Final Rule would impose ongoing compliance costs, such as the “needless administrative cost of maintaining separate accounts for [] funding streams” and associated staffing needs. S.J.A. 112. Moreover, the “burden imposed upon Title X providers will lead to the shuttering of a number of invaluable clinics across the nation.” Id. Planned Parenthood estimated average capital costs of nearly $625,000 per affected service site. Id. at 387-88. The Family Planning Council of Iowa explained, “it typically costs hundreds of thousands, or even millions, of
Yet, here again, HHS has no response. There is no justification in the Final Rule for the $30,000 amount, as evidenced by counsel‘s vague answer at oral argument. Oral Arg. at 2:45-3:15, Mayor & City Council of Baltimore, Nos. 20-1215 & 19-1614 (4th Cir. May 7, 2020) (When asked, “What studies were done by HHS to arrive at the $30,000 estimate for the physical separation?” Government counsel replied, “The agency considered the costs associated with complying with the physical separation requirement and arrived [at the amount] using its expertise at a quantitative as well as qualitative assessment of those costs.“). And the Rule itself likewise refers to vague “updated quantitative estimates” made “in response to the[] comments,” but does not explain what those estimates are or where they come from. 84 Fed. Reg. at 7781. For all we can tell, this number was pulled from thin air.
We are not requiring a “false precision,” as the primary dissent suggests. Richardson Dissenting Op. at 121. Rather, we expect a figure that makes at least some modicum of sense. In sum, HHS certainly did not provide the “hard and reasoned look” for which the primary dissent gives it credit. Id. at 117.16 HHS failed to consider “an important aspect of the problem,” and failed to “offer[] an explanation for its decision that runs counter to the evidence before the agency.” State Farm, 463 U.S. at 43.
The Government does not contend that the cost of such drastic measures is not “an important aspect of the problem.” Nor could it. Indeed, in some cases the physical separation provision would require clinics to hire new staff, engage in construction, and set up new bookkeeping methods, all of which would easily cost multiples of $30,000. See California, 950 F.3d at 1115 n.16 (Paez, J., dissenting) (“[E]ven just hiring a single front desk staff member to staff a new entrance to a facility would exceed [$30,000], not to mention all the other costs that would accompany[] creating and maintaining such a facility.” (emphasis in original)). These facilities are entitled to more explanation than a passing reference to unspecified assessments. “If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.” Dep‘t of Commerce v. New York, 139 S. Ct. 2551, 2576 (2019).
B.
The Final Rule is Not in Accordance with Law
We not only conclude that the Final Rule is arbitrary and capricious, but we also hold that the Final Rule is “not in accordance with law,” that is, the Nondirective and Noninterference Mandates.
1.
Nondirective Mandate
The Nondirective Mandate dictates that in order for a family planning program to receive Title X funding, “all pregnancy counseling shall be nondirective.”
where the physician or [APP] is not suggesting or advising one option over another.”
Requiring providers to refer a patient to prenatal health care even when the patient has expressly stated that she does not want prenatal care is coercive, not “nondirective.” Requiring providers to provide a referral list that is limited to those that do not provide abortion, even if the client specifically requests an abortion referral, is coercive, not “nondirective.” Requiring providers to exclude abortion as one of multiple options available to a client facing an unwanted pregnancy, especially if she has asked about that option, is coercive, not “nondirective.”
J.A. 266. We agree with the district court and the dissenting judges in the Ninth Circuit, who reasoned, “The [Final] Rule is nothing but directive. By its very terms, it requires a doctor to refer a pregnant patient for prenatal care, even if she does not want to continue the pregnancy, while gagging her doctor from referring her for abortion, even if she has requested specifically such a referral.” California, 950 F.3d at 1107 (Paez, J., dissenting).
The Government does not dispute that HHS has an obligation to comply with the Nondirective Mandate, but it raises a scattershot argument in an attempt to demonstrate that the mandate is inapplicable here. None of the arguments lobbed by the Government are convincing.
Counseling Versus Referrals
The Government first contends -- and the primary dissent agrees -- that although the Final Rule prohibits referrals to abortion providers, the Nondirective Mandate uses the word “counseling,” and, the Government asserts, “counseling” is distinct from “referrals.” Appellants’ Br. 24. In other words, the Government argues, referrals are categorically excluded from the Nondirective Mandate.
First and foremost, nowhere in the Final Rule does HHS state that counseling and referrals are two separate Title X services, such that the Mandate applies only to the former. To the contrary, in the Rule itself, counseling and referrals are discussed as part of the same course of service, with the “nondirective” term applying to both. See, e.g.,
Thus, the idea that referrals are not subject to the Nondirective Mandate is nothing but a convenient litigation position which does not support the validity of the Final Rule. See Roe v. Dep‘t of Def., 947 F.3d 207, 220 (4th Cir. 2020) (“We consider the record made before the agency at the time the agency acted, so post-hoc rationalizations have traditionally been found to be an inadequate basis for review.” (alteration and internal quotation marks omitted)).
The Government‘s argument and the primary dissent‘s view are also contrary to Congress‘s view that nondirective counseling actually includes “referrals.” See, e.g.,
Finally, we employ the rule of common sense. In reality, a physician cannot make a referral without first speaking with and counseling a patient. In their amicus brief to this court, ACOG, which as noted above represents more than 90% of all obstetrician-gynecologists in the United States, and other reputable and nonpartisan medical organizations19 echo the commonsense notion that,
As commonly understood by medical practitioners and in daily medical practice, counseling patients may include and, in some cases, must include, providing referrals. Well-established medical ethical principles not only recognize referrals as part of counseling, but impose obligations on practitioners to provide patients with appropriate and necessary health care, including information about their treatment options and referrals.
Amicus Br., Am. Coll. of Obstetricians & Gynecologists, at 5. It follows, then, that where a patient has made her preferences known to her physician or APP, and those preferences are rejected by a referral for a service she does not want, the physician or APP has acted in a directive manner. Yet, this is precisely what the Final Rule requires Title X providers to do.
b.
Permissive Nondirective Counseling
Next, in an attempt to cast the Final Rule as benign, the Government and the primary dissent point out that the Final Rule (unlike the 1988 Rule) “allows, but does not require, ‘nondirective pregnancy counseling, which may discuss abortion,’ provided it does ‘not encourage, promote or advocate abortion as a method of family planning.’” Appellants’ Br. 9 (quoting
But the Government insists “[t]he [Final] Rule expressly permits ‘nondirective pregnancy counseling, which may discuss abortion.’” Appellants’ Br. 28 (quoting
For example, in a hypothetical example set forth in the Final Rule, a provider “offers [the client] nondirective pregnancy counseling,” even though the provider “[cannot] refer for, nor encourage[], abortion.”
c.
Failure to Refer
Next, the Government is of the view that “[a] Title X provider‘s failure to refer a patient for an abortion . . . neither counsels nor directs the patient to do anything; it simply declines to facilitate an abortion with taxpayer dollars, consistent with the best reading of § 1008.” Appellants’ Br. 14 (emphases in original). But it is not a “failure” to refer when a provider is directed not to do so. Moreover, Congress’ use of “nondirective” means that patients are entitled to neutral counseling. Being required to refuse (not failing) to refer a patient to a physician who performs abortions when the patient has requested as much, and instead, referring her for prenatal care, is far from neutral.
d.
Rust v. Sullivan
The Government‘s final argument with respect to the Nondirective Mandate is that because the Nondirective Mandate appeared continually in an appropriations rider beginning in 1996, it could not have supplanted Rust v. Sullivan to accomplish an “implied repeal[]” of “HHS‘s statutory authorization for these regulations.” Appellants’ Br. 22. This argument is a paper tiger.
In any event, Rust was decided before Congress enacted the Nondirective Mandate. As a result, Rust simply does not speak to the specific challenges in this case. In Rust, the Supreme Court entertained a challenge to the facial validity of the 1988 Rule. See 500 U.S. at 181. Applying Chevron, the Court held first that the phrase “shall be used in programs where abortion is a method of family planning” in Section 1008 is ambiguous because it “does not speak directly to the issues of counseling, referral, advocacy, or program integrity.” Id. at 184. Then, the Court turned to whether “the agency‘s answer [wa]s based on a permissible construction of the statute.” Id. (internal quotation marks omitted). The Court reasoned:
Title X does not define the term “method of family planning,” nor does it enumerate what types of medical and counseling services are entitled to Title X funding. Based on the broad directives provided by Congress in Title X in general and § 1008 in particular, we are unable to say that the Secretary‘s construction of the prohibition in § 1008 to require a ban on counseling, referral, and advocacy within the Title X project is impermissible.
Id. The Court also relied on the lack of “clear and operational guidance to [Title X grantees]”; “client experience under the prior policy”; and “a shift in attitude against the elimination of unborn children by abortion.” Id. at 187 (internal quotation marks omitted).
This holding has no applicability in HHS‘s interpretation in 2019. Because HHS had changed its interpretation of Section 1008, the Rust Court determined whether the change was supported by a “reasoned analysis,” which involved looking to the Secretary‘s determinations about “client experience under the prior policy” and “a shift in attitude against” abortion. Rust, 500 U.S. at 187. These “justifications” -- changes in client trends and attitudes in 1988 -- were “sufficient to support the Secretary‘s revised approach.” Id.; see also id. at 186–87 (“An agency is not required to establish rules of conduct to last forever, but rather must be given ample latitude to adapt its rules and policies to the demands of changing circumstances.” (alterations and internal quotation marks omitted) (emphasis supplied)).
These justifications cannot legally control a step two analysis of a new agency change in policy 30 years later. See Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 143 (2000) (“At the time a statute is enacted, it may have a range of plausible meanings. Over time, however, subsequent acts can shape or focus those meanings.”). And crucially, HHS made this regulatory change in 2019 against the backdrop of newly enacted prohibitions on directive pregnancy counseling and interference with communications regarding patient treatment options.
The Court could not have decided whether the content of the 1988 Rule contravened a provision passed eight years later. Indeed, as pointed out by the Government, the 1988 Rule prohibited nondirective (or any) counseling on abortion, whereas the Final Rule makes it permissive. See Appellants’ Br. 21 (Unlike the “1988 regulations,” the Final Rule “permits, but does not require, nondirective
e.
For these reasons, the Final Rule violates the Nondirective Mandate that has appeared in every HHS appropriations rider since 1996.
2.
The Noninterference Mandate
The Final Rule is also contrary to law because it violates the Noninterference Mandate, a provision in the ACA. The Noninterference Mandate provides that, notwithstanding other ACA provisions, HHS “shall not promulgate” any regulation that “creates any unreasonable barriers to the ability of individuals to obtain appropriate medical care”; “impedes timely access to health care services”; “interferes with communications regarding a full range of treatment options between the patient and the provider”; “restricts the ability of health care providers to provide full disclosure of all relevant information to patients making health care decisions”; and “violates the principles of informed consent and ethical standards of health care professionals.”
Prohibiting Title X health care providers from referring a woman for an abortion when she requests it, as the Final Rule does, quite clearly “interferes with communications” about medical options between a patient and her provider.
In a distressingly poignant hypothetical, the primary dissent posits that a “failure to act” by an expert swimmer does not impede or interfere with a nearby drowning person‘s position, and in the same way, HHS may choose to fund projects that meet its requirements without impeding or interfering with others that do not. Richardson Dissenting Op. at 106. But this case is not about a failure to act. Rather, this case is about placing limits on the ability to act -- that is, providing funds on which
a.
Rust v. Sullivan
Here again, the Government attempts to rely on Rust v. Sullivan, quoting from that case: “The difficulty that a woman encounters when a Title X project does not provide abortion counseling or referral . . . leaves her in no different position than she would have been if the Government had not enacted Title X.” Appellants’ Br. 20 (quoting Rust, 500 U.S. at 202). But this quotation has nothing to do with the challenge here -- that is, an APA challenge to the legality of an agency rule promulgation. Rather, the quoted language comes from Rust‘s analysis of whether the 1988 Rule violated a woman‘s Fifth Amendment right to choose whether to terminate her pregnancy. That inquiry involved due process questions of whether the Government had a “constitutional duty to subsidize an activity merely because the activity is constitutionally protected.” Rust, 500 U.S. at 201.
As it did with the Nondirective Mandate, the Government also contends that the ACA cannot act as an implied repeal of HHS‘s authority to promulgate the Final Rule. But as explained above, the Government wholly misconstrues the issue. Again, Rust does not control here because the ACA Noninterference Mandate was enacted after that decision. Moreover, since Rust, Congress has explicitly recognized in the ACA the importance of removing barriers to full disclosure in a health care setting and preserving a private and plenary consultation between a patient and her health care provider. In addition,
as a factual matter, the Final Rule‘s referral list restrictions go far beyond anything in the 1988 [Rule]. The new restrictions: (1) permit a Title X project to give a patient who specifically requests a referral for abortion a referral list that contains no abortion providers; (2) require the project to compile a list of providers, a majority of whom are not responsive to the patient‘s request; (3) prevents the project from identifying which providers on the list are responsive to the patient‘s needs; and (4) does not require the project to even alert the patient that the list is incomplete and non-responsive. Because of these provisions, patients in need of time-sensitive medical care will be delayed or altogether prevented from obtaining that care because they will receive referrals that they do not realize are not for the services they requested. In other words, under the Final Rule, the Government would be subsidizing the misdirection of unsuspecting patients. Unlike in Rust, the Final Rule may well make patients worse off than if they had not sought help from a Title X project to begin with.
California v. Azar, 385 F. Supp. 3d 960, 997–98 (N.D. Cal. 2019) (citations omitted) (emphases in original), vacated and remanded, 950 F.3d 1067.21
Waiver
The Government also argues that the argument that the Final Rule contravenes the ACA Noninterference Mandate was not raised to the agency during the comment period and therefore, it is waived. See Appellants’ Br. 34. Not so.
“As a general matter, it is inappropriate for courts reviewing appeals of agency decisions to consider arguments not raised before the administrative agency involved.” 1000 Friends of Md. v. Browner, 265 F.3d 216, 227 (4th Cir. 2001) (internal quotation marks omitted). To do otherwise would “usurp[] the agency‘s function” and would “deprive[] the [agency] of an opportunity to consider the matter, make its ruling, and state the reasons for its action.” Unemployment Comp. Comm’n v. Aragan, 329 U.S. 143, 155 (1946). However, if the public‘s comments “sufficiently raised the question” that is challenged in court, the issue is not waived. Browner, 265 F.3d at 228. In Browner, the comments “[did] not include a separately delineated section devoted to” the claim at issue, and were “perhaps . . . phrased somewhat generally,” but they “nonetheless refer[red] (at least implicitly) to” the issue on appeal. Id.
Like in Browner, the concerns raised in this lawsuit regarding the ACA Noninterference Mandate were sufficiently raised at the administrative level. There were multiple comments raised about the authority to interfere with medical conversations between physicians and patients. See, e.g., Comment HHS-OS-2018-0008-69480, https://www.regulations.gov/document?D=HHS-OS-2018-0008-69480 (July 23, 2018) (saved as ECF opinion attachment) (“There is no legitimate medical or legal justification for the proposed rule, which is contrary to the standards of the medical profession, an invasion of patient privacy, and clearly discriminatory in both intent and effect. It is therefore plainly contrary to the public interest and likely unlawful.”).
Commenters also told HHS that the Rule would erect unreasonable barriers to care, impede timely access to care, interfere with physician-patient communications, deny patients access to medically relevant information, and require doctors to violate medical ethics. See, e.g., HHSOS-2018-0008-30266, http://bit.ly/2XI8Han (saved as ECF opinion attachment) (“Patient‘s [sic] have a right to unbiased, informed consent about all of their options. This rule does a great disservice to women and puts unreasonable barriers on general providers of care and hurts the honest, open conversation that healthcare providers should be having with their patients.” (June 29, 2018)); HHS-OS-2018-0008-198615, http://bit.ly/2VJantI (saved as ECF opinion attachment) (Final Rule “creates barriers to receiving the information needed to obtain abortion care” (Aug. 1, 2018)); HHS-OS-2018-0008-179339, http://bit.ly/2ZjlEDt (saved as ECF opinion attachment) (from ACOG: “The Proposed Rule would interfere with the patient-physician relationship, restrict the information available to patients, and hinder the ability of physicians to practice medicine in accordance with their ethical obligations.” (Aug. 1, 2018)); HHS-OS-2018-0008-106624,
Significantly, HHS responded to these comments, fully recognizing that “medical ethics obligations require the medical professional to share full and accurate information with the patient, in response to her specific medical condition and circumstance.”
c.
Thus, we conclude that the district court was correct in holding that, on the merits, the Final Rule violates the ACA Noninterference Mandate.
3.
The primary dissent relies heavily on Rust, a case decided before the Nondirective and Noninterference Mandates, both of which altered the landscape of health care funding and patient privacy and protection. The dissent downplays these Mandates, describing Baltimore as “scour[ing] the congressional record for some other statute that might preclude the regulations.” Richardson Dissenting Op. at 86. But the dissent does not, and cannot, argue these laws are any less “lawful” than any other statute or appropriation passed by Congress. And by describing HHS as a “democratically responsive agency” and an
C.
Scope and Vacatur
The parties also disagree about the proper substantive and physical scope of the injunction.
1.
Severability Statement
First, the Government points to a severability statement in the Final Rule, which provides, “The Department believes that each component of the rule is legally supportable, individually and in the aggregate. To the extent a court may enjoin any part of the rule, the Department intends that other provisions or parts of provisions should remain in effect.”
The Supreme Court has held that the inclusion of a severability clause in a statute “creates a presumption that Congress did not intend the validity of the statute in question to depend on the validity of the . . . offensive provision.” Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 (1987). “In such a case, unless there is strong evidence that Congress intended otherwise, the objectionable provision can be excised from the remainder of the statute.” Id.; see also Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191 (1999) (Unless “it is evident that the [lawmaking body] would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.”).
To determine whether we should merely excise the offending section of the Final Rule, we ask, “Would the [rulemaking body] have passed the statute without the [offending] section?” Leavitt v. Jane L., 518 U.S. 137, 139 (1996) (per curiam). “Severance and affirmance of a portion of an administrative regulation is improper if there is substantial doubt that the agency would have adopted the severed portion on its own.” North Carolina v. Envtl. Prot. Agency, 531 F.3d 896, 929 (D.C. Cir. 2008) (internal quotation marks omitted); see also MD/DC/DE Broadcasters Ass‘n v. Fed. Commc‘ns Comm‘n, 253 F.3d 732, 739 (D.C. Cir. 2001) (Tatel, J., dissenting from denial of rehearing en banc) (explaining, “[a]gency intent has always been the touchstone of our inquiry into whether an invalid portion of a regulation is severable”).
Despite the severability clause, the Final Rule is not severable because it is clear HHS “intended the [Final Rule] to stand or fall as a whole,” and the agency desired “a single, coherent policy, the predominant purpose of which” is to reinstitute the 1988 Rule. Mille Lacs Band of Chippewa Indians, 526 U.S. at 191. We have “substantial doubt” that HHS would have adopted the remaining portions of the Final Rule without the prohibitions on abortion counseling and referrals, restrictions on referral lists, physical separation requirement, and exclusion of abortion as one of multiple options available to a client facing an unwanted pregnancy.
The primary purpose of this rule is to finalize, with changes in response to public comments, revisions to the Title X family planning regulations proposed on June 1, 2018. This rule, promulgated pursuant to the Department‘s authority, will ensure compliance with, and enhance implementation of, the statutory requirement that none of the funds appropriated for Title X may be used in programs where abortion is a method of family planning, as well as related statutory requirements.
Id. (footnotes omitted) (emphasis supplied). Without the challenged provisions, the Final Rule loses its primary purpose.
For these reasons, the substantive scope of the district court‘s injunction is proper.
2.
Physical Scope
Next, the Government challenges the district court‘s decision to enjoin enforcement of the Final Rule throughout the state of Maryland, rather than limiting relief to Baltimore City and its subgrantees. The Government contends, “Neither Baltimore nor the district court articulated a tenable justification for that sweeping relief.” Appellants’ Supp. Br. 44.
The scope of injunctive relief “rests within the ‘sound discretion’ of the district court.” South Carolina v. United States, 907 F.3d 742, 753 (4th Cir. 2018) (quoting Dixon v. Edwards, 290 F.3d 699, 710 (4th Cir. 2002)). But its “powers are not boundless.” Ostergren v. Cuccinelli, 615 F.3d 263, 288 (4th Cir. 2010). The district court‘s choice of
relief “should be carefully addressed to the circumstances of the case,” Va. Soc‘y for Human Life, Inc. v. Fed. Election Comm‘n, 263 F.3d 379, 393 (4th Cir. 2001), overruled on other grounds by Real Truth About Abortion, Inc. v. Fed. Election Comm‘n, 681 F.3d 544 (4th Cir. 2012), and “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs,” Madsen v. Women‘s Health Ctr., Inc., 512 U.S. 753, 765 (1994).
A district court abuses its discretion if its injunctive order “is guided by erroneous legal principles or rests upon a clearly erroneous factual finding,” or it “otherwise acts arbitrarily or irrationally in its ruling.” South Carolina, 907 F.3d at 753 (internal quotation marks omitted). “As with any equity case, the nature of the violation determines the scope of the remedy.” Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971).
The district court offered the following explanation in support of a statewide injunction:
Baltimore City is close in proximity to multiple other States and municipalities whose people make use of its health system. Loss of funding in neighboring states will put pressure on Baltimore‘s health system, as mobile patients come from neighboring communities to make use of Baltimore‘s resources. In this case, a permanent injunction that is limited to Maryland is narrowly tailored to avoid irreparable harm to the sole Plaintiff, Baltimore City.
S.J.A. 1318. This finding is based on a declaration submitted to the district court by Charlotte Hager, Health Administrator
Baltimore‘s public health services will have to spend more non-Title X funds due to the loss of Title X funds by providers in Maryland and neighboring states. Because the Baltimore City Health Department serves as the final safety net for the community, loss of Title X services for residents of Baltimore and surrounding areas would mean further strain on city funds in order to meet the health care needs of residents as well as non-residents who use the city health care system.
Decl. Charlotte Hager ¶ 19, S.J.A. 972. Thus, the district court reasoned that if Title X providers elsewhere in Maryland or in nearby states are forced to exit the Title X program or must offer a limited array of reproductive health services, women in Maryland and other nearby states -- who would have sought services elsewhere -- will necessarily be funneled to Title X providers in Baltimore. For example, without the statewide injunction, a Virginia woman seeking an abortion referral would be obliged to travel to a Title X provider in Baltimore. By contrast, with the statewide injunction, she could obtain a referral from a Maryland Title X provider located closer to the Virginia–Maryland border.
Importantly, the district court‘s conclusion is buttressed by other evidence in the record, including:
- Title X providers must accept all patients, regardless of their ability to pay for services, and “are already stretched thin trying to meet the demand for services in their communities,” S.J.A. 722;
- For 60% of Title X patients, their Title X provider was their only source of medical care in the last year, see id. at 708;
- Some nationwide providers and several states notified the Department of Health and Human Services that they would be forced to exit the Title X program if the Final Rule went into effect, see id. at 371;
- In 2017, Baltimore‘s Title X network served 16,000 people -- 86% of whom had incomes at or below the federal poverty line, see id. at 969;
- Of those persons served in Baltimore, 7,670 people were served by Title X providers that receive funding from Baltimore City‘s grant, see id. at 970;
- Title X providers are already “the final safety net” for one-third of women in Baltimore City, id. at 969; and
- Maryland‘s Title X providers are often some of the only family planning providers in Maryland that accept Medicaid, and 22% of Maryland residents are enrolled in Medicaid or the Children‘s Health Insurance Program, see id. at 970.
Therefore, in concluding that a statewide injunction is necessary to afford Baltimore complete relief, the district court was not guided by erroneous legal principles or factual findings, nor did it otherwise act arbitrarily or irrationally in its ruling. We affirm the statewide scope of the permanent injunction as a permissible exercise of the district court‘s broad discretion.
3.
Vacatur
Finally, in its supplemental response brief in Case No. 20–1215, Baltimore argues that as to the district court‘s February 14, 2020 opinion, “The district
“A cross-petition is required . . . when the respondent seeks to alter the judgment below.” Nw. Airlines, Inc. v. Cty. of Kent, Mich., 510 U.S. 355, 364 (1994); see also El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473, 479 (1999) (“Absent a cross-appeal, an appellee . . . may not attack the [lower court] decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary.” (internal quotation marks omitted)); JH ex rel. JD v. Henrico Cty. Sch. Bd., 326 F.3d 560, 567 n.5 (4th Cir. 2003) (explaining that, without a cross appeal, the prevailing party may not present an argument that would “lead to a reversal or modification of the judgment” (alteration and internal quotation marks omitted)).
The district court was clear in its February 14, 2020 opinion that it was “set[ting] aside the Final Rule” as arbitrary and capricious, and enjoining enforcement of the Rule in Maryland. S.J.A. 1317. Its clarifying orders explained that the Rule was “vacated . . . in the State of Maryland,” and reasoned, “[w]hile the Court did not explicitly state that the Final Rule was vacated and set aside in Maryland, vacatur in the State of Maryland was the precise effect of the ruling.” Id. at 1336; see also Mem. Op. at 11, Mayor & City Council of Baltimore v. Azar, No. 1:19-cv-1103 (D. Md. filed April 15, 2020), ECF No. 115 (“While vacatur and injunctive relief may be distinct remedies, in this case, their result is the same: the proscription of enforcement of the HHS Final Rule in the State of Maryland.“).
Now, in its supplemental response brief, Baltimore asks us to “correct [this] error” because “an order vacating agency action under [the APA] cannot be restricted geographically or to the parties.” Appellee‘s Supp. Br. 55, 53. But if we were to adopt Baltimore‘s argument and remove the geographic scope from the district court‘s vacatur of the Final Rule, it “would require us to modify the court‘s judgment below and enlarge [Baltimore‘s] rights thereunder.” Rosenruist-Gestao E Servicos LDA v. Virgin Enterprises Ltd., 511 F.3d 437, 447 (4th Cir. 2007). Baltimore has not cross-appealed from the district court‘s February 26 clarification order, nor its April 15 denial of Baltimore‘s 59(e) motion. Indeed, the time to do so has passed.23 See
D.
Preliminary Injunction Appeal and Permanent Injunction Appeal
Finally, in Case No. 19–1614, Baltimore has filed a motion to dismiss the appeal as moot. We grant the motion. Because we have affirmed the district court‘s grant of the permanent injunction on the ground that the Final Rule is not in accordance with law, its preliminary
IV.
For the foregoing reasons, we affirm the district court‘s grant of the permanent injunction in Case No. 20–1215. Because we affirm the permanent injunction, we dismiss the appeal of the preliminary injunction in Case No. 19–1614 as moot.
19–1614 -- DISMISSED;
20–1215 -- AFFIRMED
DIAZ, Circuit Judge, concurring in the judgments:
For the reasons ably explained in the majority opinion, I agree that the Final Rule runs afoul of both the Nondirective and the Noninterference Mandates. And because this conclusion is sufficient to affirm the district court‘s grant of a permanent injunction, I decline to join that portion of the majority opinion holding that the Final Rule was promulgated in an arbitrary and capricious manner. In all other respects, I concur in the judgments.
WILKINSON, Circuit Judge, dissenting:
The one medical procedure mentioned in the above provision is that of abortion. No other was referenced. There was, for example, no bar to federal funding of cancer screenings or STD treatments. The purpose of singling out this one procedure could only have been Congress‘s desire not to subsidize the performance of abortion with the federal fisc. The Rule in question permissibly seeks to further this purpose. It may not be the only permissible means of effectuating what was Congress‘s apparent intent, but, as Rust v. Sullivan noted, it was certainly one permissible way of doing so. 500 U.S. 173, 184 (1991). The provision allows agencies some latitude in this regard without running afoul of the statute or the arbitrary and capricious test in the
This latitude stems from a distinct sort of ambiguity. Often a statute has an undeniable purpose, but ambiguity exists on how to effectuate that purpose. Such is the case here.
While its purpose is
Rather, as Judge Richardson explains in his fine dissent, we must respect the authority of the administrative agency, Congress, and not incidentally, the Supreme Court‘s role in delineating the same. Here, in a perfect trifecta, all three have been simultaneously snubbed. Before us is a milder version of a rule that the Supreme Court has already upheld, see Rust, 500 U.S. 173, and I cannot understand why the result here, out of simple respect for our highest Tribunal, would not be open and shut.
Federal funding has been the quintessential point of compromise between the opposing factions in this fraught and volatile area. We are not talking about a constitutional issue here: a woman‘s right to choose does not “carr[y] with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.” Harris v. McRae, 448 U.S. 297, 316-17 (1980); see also Rust, 500 U.S. at 201-203. What we are talking about is the possibility of a statutory compromise through the political process.*
The elements of the compromise may vary in their detail, but the overall components of compromise have remained quite consistent and clear. Congress, on the one hand, does not seek to bar or directly restrain the right established by the Supreme Court in Roe v. Wade and its progeny. Congress, on the other hand, seeks to respect those who hold moral or religious objections to the contested practice by withholding federal funds from it. Like all compromises, this one may not be fully acceptable to the heartfelt and passionate views on either side of this debate. But perhaps it is for that very reason that the compromise on federal funding should be respected.
The court today does not respect it. It jettisons the Rule and, in so doing, proceeds to cut the middle from out of the abortion debate. Here too, as Yeats feared, the center may no longer hold. In rejecting statutory compromises such as that before us, the court cedes the field to more absolute forces. This is the last direction in which a torn country needs to travel, and I respectfully note my dissent.
RICHARDSON, Circuit Judge, with whom Judges WILKINSON, NIEMEYER, AGEE, QUATTLEBAUM, and RUSHING join, dissenting:
This appeal raises two familiar questions of administrative law. We first ask whether
In 2019, HHS promulgated a Final Rule amending the regulatory scheme that governs Title X of the Public Health Service Act. Title X authorizes HHS to administer a limited federal-grant system for preconception family-planning programs. HHS‘s Final Rule interprets
The Mayor and City Council of Baltimore sued to set aside the Final Rule under the
In my view, the Final Rule falls well within HHS‘s established statutory authority, and the record shows that it was a product of reasoned decisionmaking. At the outset, Baltimore‘s statutory challenge faces a significant problem: The Supreme Court has already ruled that the regulations fall inside the scope of Title X‘s broad mandate. The ‘new’ Rule substantially returns the Title X regulations to the version that HHS adopted in 1988, and which the Supreme Court upheld as a permissible interpretation of Title X in Rust v. Sullivan, 500 U.S. 173 (1991). Rust remains binding precedent, and the relevant text of Title X has not changed. In response to this roadblock, Baltimore asserts that two post-Rust congressional enactments require us to deviate from the Supreme Court‘s holding. But neither renders HHS‘s interpretation unreasonable. So precedent dictates the same result for the same Chevron challenge to the same requirements.
Baltimore‘s arbitrary-and-capricious challenge similarly fails. In Rust, the Supreme Court rejected an arbitrary-and-capricious challenge to remarkably similar regulations, justified on remarkably similar rationales. Yet, in the majority‘s view, HHS capriciously dismissed commenters’ ethical objections to the referral regulations and arbitrarily estimated the costs of the separation requirement. Again, I disagree. Whatever courts or commenters think about the wisdom of an agency‘s
In reaching the opposite conclusion, the majority not only thumbs its nose at the Supreme Court but substitutes its own judgment for that of an executive agency accountable to the elected President. Then, brushing aside the traditional limits on our remedial authority, the majority enjoins enforcement of the entire Final Rule throughout all of Maryland. And since we are the first Circuit bold enough to skirt Rust and enjoin the Final Rule, our decision rips open a circuit split. See California ex rel. Becerra v. Azar, 950 F.3d 1067 (9th Cir. 2020) (en banc). Today‘s decision ignores text, abandons administrative-law principles, and forsakes the limited role of courts, particularly inferior ones, in our constitutional structure. Because I disagree with the majority‘s faulty analysis and flawed result, I respectfully dissent.
I. Background
The issue we face today is not whether abortions are permitted. We instead face legal issues surrounding rules issued to address the use of federal funds for preconception family-planning programs.
In 1970, Congress enacted Title X of the Public Health Service Act. Pub. L. No. 91-572, 84 Stat. 1504 (codified at
In various Title X provisions, Congress outlines the scope of the Secretary‘s grant-making authority. For instance,
None of the funds appropriated under [Title X] shall be used in programs where abortion is a method of family planning.
These 1988 regulations placed three key limitations on the use of Title X funds.
Providers challenged the 1988 Rule on statutory and constitutional grounds. And in Rust, the Supreme Court considered, among other claims, whether the 1988 HHS regulations “exceed[ed] the Secretary‘s authority under Title X” or were “arbitrary and capricious.” Id. at 183.
Applying the familiar Chevron framework, the Supreme Court first held that “[t]he broad language of Title X plainly allows the Secretary‘s construction of the statute.” Id. at 184. The Court explained that the text of
The Supreme Court next held that the regulations were not “arbitrary and capricious” under State Farm. The Secretary, the Court explained, “amply justified” the regulations “with a ‘reasoned analysis.‘” Id. at 187 (quoting State Farm, 463 U.S. at 41). The Court credited the Secretary‘s determinations that the 1988 referral regulations were “necessary to provide clear operational guidance to grantees,” “justified by
After the Supreme Court upheld the 1988 regulations in Rust, they remained in force until 1993. See 58 Fed. Reg. 7462 (1993) (interim rule); 65 Fed. Reg. 41270 (2000) (finalized rule). And while the Title X regulations have changed over time, the statutory text has not.5 Relying on that text, in 2018 HHS published a proposed rule that would substantially return the regulations to the 1988 framework. 83 Fed. Reg. 25502 (2018). HHS considered over half-a-million public comments and adapted its proposal in response. 84 Fed. Reg. 7714, 7722 (2019).
In March 2019, HHS adopted the Final Rule at issue in this appeal. As in 1988, HHS promulgated the 2019 Final Rule to “provide much needed clarity regarding the Title X program‘s role as a family planning program that is statutorily forbidden from paying for abortion and funding programs/projects where abortion is a method of family planning.” Id. at 7721. HHS now imposes some of the same limitations on the use of Title X funds as in 1988 to support the separation mandated by
The new regulations differ from the 1988 regulations in one significant respect. While the 1988 regulations prohibited any family-planning counseling about abortion,
But while that appeal was pending, Baltimore continued to advance on the second front. In that portion of the case, Baltimore argued that the 2019 Final Rule was “arbitrary and capricious.” See State Farm, 463 U.S. at 43. The district court agreed, and it granted a permanent injunction before we could rule on the preliminary injunction. Again, HHS appealed, and in a “sharp break with settled practice,” we consolidated the cases for this initial-en-banc review. See Mayor & City Council of Baltimore v. Azar, 799 F. App‘x 193, 195 (4th Cir. 2020) (Richardson, J., dissenting from the order denying the motion to stay).7
II. Discussion
Every agency regulation must be supported by two pillars of administrative law. If one pillar crumbles, the regulation falls. Each pillar embodies fundamental legal tenets and functional assumptions that rationalize the modern administrative state. Challengers of agency action often call on the federal courts to inspect the integrity of these pillars. And when called on, ours is a familiar, two-part inquiry.
The first pillar rises from the supposition that the President—and thus executive agencies—execute the will of Congress. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) (The Constitution “enjoins upon its branches separateness but interdependence, autonomy but reciprocity.“). As executors of congressional will, executive agencies must ground regulations in “a permissible construction of [a] statute.” Chevron, 467 U.S. at 843; City of Arlington v. F.C.C., 569 U.S. 290, 304 n.4 (2013). The reason is simple: An agency‘s “power to make rules that
affect substantial individual rights and obligations carries with it the responsibility . . . to remain consistent with the governing legislation” that authorizes the agency to act. Morton v. Ruiz, 415 U.S. 199, 232 (1974). And so an agency‘s regulatory authority reaches only as far as its congressional mandate reasonably extends. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988).
Accordingly, when called on to examine this first pillar, a court asks whether regulations exceed an agency‘s statutory authority. Thus, the scope of the congressional text is the touchstone for our inquiry. See Chevron, 467 U.S. at 843. In reviewing the text, we examine “whether the agency‘s construction of the statute is faithful to its plain meaning, or if the statute has no [one] plain meaning, whether the agency‘s interpretation ‘is based on a permissible construction.‘” Arent v. Shalala, 70 F.3d 610, 615 (D.C. Cir. 1995) (citing Chevron, 467 U.S. at 843); see also Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16 (1971). If the regulation survives this scrutiny, the first pillar stands firm. But as “the final authorities on issues of statutory construction,” the federal courts need not tolerate a regulation “inconsistent with [the agency‘s] statutory mandate.” Fed. Mar. Comm‘n v. Seatrain Lines, Inc., 411 U.S. 726, 745-46 (1973) (internal quotations and citations omitted); see also
The second pillar holds that agencies are subject-matter experts accountable to the elected President, and they bring their reasoned expertise to bear when adopting regulations. See State Farm, 463 U.S. at 52-53; see also Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 103 (1983). With the “enlightenment gained from administrative experience,” the Supreme Court teaches that agencies are “often in a better position than [] courts” to determine the best way to fulfill their statutory mandates. F.T.C. v. Colgate-Palmolive Co., 380 U.S. 374, 385 (1965). So when the administrative record shows that an agency employed that expertise by formulating reasoned regulatory policy, its judgment is to be respected by the courts—even when we disagree as to a policy‘s propriety. See id.
So a second question for reviewing courts is whether the administrative record shows that a democratically responsive agency employed its expertise by conducting a “reasoned analysis.” State Farm, 462 U.S. at 42; Rust, 500 U.S. at 187. If the agency has “cogently explain[ed]” its regulations in a reasoned manner, we will assume its regulation a product of expertise, and give it the deference that expertise is due. See State Farm, 462 U.S. at 48. But when an agency fails to provide the necessary reasoned analysis, we lack confidence that the agency applied its expertise. We will then find the regulation “arbitrary” or “capricious,” additional grounds by which we may set it aside. Id. at 52; see also
Baltimore takes a page from the book of Judges, wraps its arms around both these pillars of administrative law, and pulls with all its might. Our inquiry today is limited to whether the pillars that support the 2019 Final Rule survive the strain. So first, we ask whether HHS permissibly construed § 1008—here a classic Chevron question. Second, we turn to whether the Final Rule is supported by a reasoned analysis—a record-centric inquiry governed by State Farm. As in Rust, I would answer both questions in the affirmative. Baltimore is no Samson. The pillars stand firm. Or at least they should.
When HHS speaks with the force of law, we generally defer to its reasonable legal interpretation of a genuinely ambiguous statute. United States v. Mead Corp., 533 U.S. 218, 227 (2001); see also Chevron, 467 U.S. at 843-44. Of course, a reasonable agency interpretation within the zone of ambiguity may differ from the best judicial interpretation of a statute. Nat‘l Cable & Telecomm. Ass‘n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005); see also Michigan v. E.P.A., 576 U.S. 743, 760 (2015) (Thomas, J., concurring). Rather, it offers one permissible way that an agency might read the law—sometimes one of several. And where an agency interprets the ambiguous text of a “broad mandate,” one reasonable interpretation may “sharp[ly] break” from another. Rust, 500 U.S. at 186; see also Chevron, 467 U.S. at 862. Here, the Title X regulations have been subject to three such breaks: in 1988,8 in 1993,9 and now in 2019.10
Whether or not interpretive discontinuities are wise as a matter of policy, see Jonathan Masur, Judicial Deference and the Credibility of Agency Commitments, 60 VAND. L. REV. 1021, 1037-60 (2007),11 they are permitted as a matter of law. An agency may revise its interpretation of an ambiguous statute so long as the new interpretation is reasonable, Brand X, 545 U.S. at 980, and the change itself is reasoned, State Farm, 463 U.S. at 42. The Supreme Court justifies this administrative flexibility on structural and policy grounds—regulatory elasticity allows an agency responsive to the elected President to “consider varying interpretations and the wisdom of its policy on a continuing basis.” Chevron, 467 U.S. at 863-64; see also Brand X, 545 U.S. at 981 (relying on State Farm, 463 U.S. at 59 (Rehnquist, J., concurring in part and dissenting in part)). Our role as an inferior court is simply to apply this legal framework as given.
HHS has once again reinterpreted Title X, and the reasonableness of this interpretation is the first question before us. Far from “irrelevant,” Appellee Br. 42, Rust serves as the starting point for the Chevron analysis. Today, as in 1988, HHS spoke with the force of law when it engaged in the notice-and-comment rulemaking authorized by Congress. See
To reach this conclusion, Rust applied the now-familiar Chevron two-step framework. In step one, we ask whether a statute is genuinely ambiguous. If applying the traditional tools of statutory interpretation provides an unambiguous answer, the statute has one—and only one—reasonable interpretation. Chevron, 467 U.S. at 842-43 & n.9; see also Kisor v. Wilkie, 139 S. Ct. 2400, 2414-15 (2019). The analysis thus ends. Either the agency adopts that interpretation, or its administrative action is prohibited. In contrast, where the traditional tools of interpretation fail to resolve a statute‘s ambiguity, we go to step two. There, we consider whether the agency‘s interpretation falls “within the bounds of reasonable interpretation,” meaning an interpretation “within the zone of ambiguity.” Kisor, 139 S. Ct. at 2416 (quoting City of Arlington, 569 U.S. at 296).
Rust proceeded through both Chevron steps, and its holdings at both steps inform the decision today. At step one, the Supreme Court found that it “agree[d] with every court to have addressed the issue that the language is ambiguous.” Rust, 500 U.S. at 184 (emphasis added). The Court explained that the ambiguity arises because § 1008 “does not speak directly to the issues of counseling, referral, advocacy, or program integrity.” Id. And at step two, the Court held that HHS‘s interpretation was a reasonable one, falling within the “broad directives” of “Title X in general and § 1008 in particular.” Id. Title X‘s language has not changed, and Rust remains good law.
Rust thus requires that we find the materially identical regulations to be a reasonable interpretation of § 1008 of Title X. Accord Becerra, 950 F.3d at 1084-85. Recognizing the Rust roadblock, Baltimore scours the congressional record for some other statute that might preclude the regulations. Baltimore claims to have discovered two such provisions: (1) an appropriations rider and (2) a “Miscellaneous Provisions” subtitle of the Affordable Care Act (“ACA“). Baltimore argues that these laws, enacted after Rust, abrogate HHS‘s authority to adopt otherwise reasonable regulations under Title X. Appellee Br. 44 (“[T]he legislative and regulatory landscape has shifted since Rust such that the new Rule is not a permissible interpretation of § 1008.“). I disagree.
1. The appropriations rider does not prohibit the Final Rule
The first statutory provision that allegedly abrogates HHS‘s authority to issue the Final Rule is an annual appropriations rider. Congress has attached this rider to the appropriation of funds for HHS to carry out Title X in every appropriations act since 1996. The Fiscal Year 2019 rider provides:
For carrying out the program under [T]itle X of the [Public Health Service] Act to provide for voluntary family planning projects, $286,479,000: Provided, [t]hat amounts provided to said projects under such title shall not be expended for abortions, that all pregnancy counseling shall be nondirective, and that such amounts shall not be expended for any activity (including the publication or distribution of literature) that in any way tends to promote public support or opposition to any legislative proposal or candidate for public office.
At first glance, the rider‘s ban on expending funds “for abortions” reinforces § 1008‘s separation between Title X funds and “programs where abortion is a method of family planning.” And it requires any pregnancy counseling to be “nondirective.” 132 Stat. at 3071. So for instance, a program cannot steer a pregnant woman toward or away from obtaining an abortion. Accord 84 Fed. Reg. at 7747. And the rider‘s final clause again forbids the use of public money in political endeavors. Accord
But Baltimore asks that we squint at the second clause of the rider: “[A]ll pregnancy counseling shall be nondirective.” 132 Stat. at 3070-71. In Baltimore‘s view, this “nondirective counseling mandate” prohibits the 2019 Final Rule‘s (a) restrictions on referrals for abortion or to abortion centers and (b) required referrals for prenatal care.12
According to Baltimore, each of these referral regulations is impermissible “directive” counseling.
To begin, I note that HHS spoke with the force of law when it interpreted the appropriations rider. HHS analyzed and considered the rider as part of its statutorily authorized notice-and-comment rulemaking. See
We start with the relevant text of the rider: “all pregnancy counseling shall be nondirective.” 132 Stat. at 3070-71; see also Marx v. Gen. Revenue Corp., 568 U.S. 371, 376 (2013) (statutory interpretation starts with the text). By its own terms, this clause applies only to “counseling.” And, as HHS emphasizes, the challenged regulations govern “referrals“—not “counseling.” See
Counseling is “the giving of advice, opinion, and instruction to direct the judgment or conduct of another.” Counseling, STEDMAN‘S MEDICAL DICTIONARY 451 (28th ed. 2005); see also, e.g., Counseling, 3 OXFORD ENGLISH DICTIONARY 1013 (2d ed. 1989); accord Appellee Br. 50-51.13 Although “[o]rdinarily, a word‘s usage accords with its dictionary definition,” Yates v. United States, 574 U.S. 528, 537 (2015), “reasonable statutory interpretation must account for both ‘the specific context in which . . . language is used’ and ‘the broader context of the statute as a whole.‘” Util. Air Regulatory Grp. v. E.P.A., 573 U.S. 302, 321 (2014) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)); see also Comm‘r v. Nat‘l Carbide Corp., 167 F.2d 304, 306 (2d Cir. 1948), aff‘d, 336 U.S. 422 (1949) (Hand, J.) (“[W]ords are chameleons, which reflect the color of their environment.“).
Here, the rider‘s “nondirective” requirement bears directly on the meaning of counseling. Directive means “[h]aving the quality or function of directing, authoritatively13
guiding, or ruling.” Directive, 4 OXFORD ENGLISH DICTIONARY 705; see also 84 Fed. Reg. at 7716. So “nondirective counseling” is “the giving of advice, opinion, and instruction” without “direct[ing] judgment or conduct.” Counseling, STEDMAN‘S MEDICAL DICTIONARY 451. Indeed, this ordinary meaning of nondirective counseling matches the use of that term in the medical context. HHS has explained—and Baltimore agrees—that nondirective counseling is “the meaningful presentation of options where the physician or advanced practice provider is ‘not suggesting or advising one option over another.‘” 84 Fed. Reg. at 7716; Appellee Br. 47.14
In contrast with “nondirective counseling,” “referral” is “the process of directing or redirecting (as a medical case or a patient) to an appropriate specialist or agency for definitive treatment.” Referral, Merriam-Webster‘s Medical Dictionary Online (2020); see also Referral, 13 OXFORD ENGLISH DICTIONARY 467 (“[T]he directing (usu[ally] by a general practitioner) of a patient to a medical consultant for specialist treatment.“); Referral, BLACK‘S LAW
deciding.“). As Baltimore concedes based on many of the same sources: “Referral is ‘giving advice to’ a patient about where to go for appropriate treatment.” Appellee Br. 51.
Consistent with HHS‘s interpretation, these definitions suggest that nondirective counseling and referral are two different—each important—stages of a physician-patient relationship. Accord Majority Op. 44 (noting that “a referral” must follow “speaking with and counseling a patient“). While nondirective counseling involves an exchange of information and discussion of options, a referral is the directing of a patient to an appropriate specialist to pursue her chosen next steps. Far from one in the same, a doctor may provide counseling without referral, or referral without counseling. See 84 Fed. Reg. at 7748 (Prenatal referral is “the result of the woman‘s pregnancy diagnosis” and the need “preexists” any discussion with a counselor.). In other words, nondirective counseling involves discussing with the patient the options for what to do; referrals concern the provider‘s direction about who to see to have it done.15
Moreover, HHS‘s distinction between the two recognizes the different hats a provider must wear in each stage of the physician-patient relationship. In a nondirective counseling role, a physician aims to “empower the client” by informing her “about a range of options.” 84 Fed. Reg. at 7716; accord Appellee Br. 48, 50. By refraining from “suggesting or advising one option over another,” the provider encourages “clients [to]15
take an active role in processing their experiences” and to select the appropriate path in a uniquely personal context. 84 Fed. Reg. at 7716.
In contrast, when making a referral, physicians are expected to take an active role in directing a patient to one or more recommended providers. Once the patient has selected a definitive treatment with the counselor‘s assistance, there is no need for the neutrality of nondirective counseling. Although always entitled to change her mind tomorrow, the patient has reached her decision today. Thus, if consistent with the congressional and regulatory restrictions, a provider may affirmatively direct a patient to the best specialist to pursue her decision. See
In any event, equating referrals with nondirective counseling would lead to anomalous legal results. Although Title X pregnancy counseling must be nondirective, referrals are directive—they are the directing of a patient. So if nondirective pregnancy counseling encompasses referrals, the rider would preclude Title X grantees from referring, or “directing,” their pregnant clients anywhere. If Congress intended to bring about such a broad result, it would have said so.
For these reasons, I would find that the rider‘s “nondirective counseling” requirement does not impact the referral regulations. This is the best interpretation of the rider, making it at least reasonable under Chevron.
Despite all of this, Baltimore (and the majority) points to a statement of purpose in the Children‘s Health Act of 2000 to suggest that “referrals” may be “included in” “nondirective counseling.” Appellee Br. 51-52; Majority Op. 43-44. There, Congress described the “purpose of developing and implementing programs to train the designated staff of eligible health centers in providing adoption information and referrals to pregnant women on an equal basis with all other courses of action included in nondirective counseling to pregnant women.” Pub. L. No. 106-310, 114 Stat. 1101, 1132, § 1201 (Oct.16
17, 2000). According to Baltimore, this language points to referrals as one “course[] of action included in nondirective counseling.” Appellee Br. 51-52.
This argument is unpersuasive. To begin with, “counseling” and “referrals” are not treated as one and the same throughout the Children‘s Health Act. See, e.g., 114 Stat. at 1160, § 2401 (“counsel, refer, or treat patients“). And even were this statement read in isolation, it would not require Baltimore‘s interpretation. A doctor‘s “referral” is not itself a “course of action.” Rather, a referral is the directing of a patient to the next steps in pursuit of her chosen course of action—e.g., abortion, adoption, or keeping the child.17 So the
“referrals” are “nondirective counseling.” In any event, to the extent there is doubt over how to best read this portion of the Children‘s Health Act, the other times that Congress has distinguished counseling from referrals in that Act (and other acts) persuade us that the distinction between counseling and referrals in ordinary speech is also reflected in their statutory usage.
Next, the majority takes a different tack, asserting that HHS itself never distinguished counseling and referrals in its Final Rule. Frankly, this assertion boggles the mind. “First and foremost,” the majority reasons, “nowhere in the Final Rule does HHS state that counseling and referrals are two separate Title X services.” Majority Op. 42. So they must be one in the same service. See id. And, the majority asserts, HHS‘s contention to the contrary is just a “convenient litigation position.” Majority Op. 43.
There are three apparent problems with this argument. First, the majority improperly imposes a burden of proof where none exists. We give words in statutes and regulations their plain meaning in context. See Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566 (2012) (“When a term goes undefined in a statute, we give the term its ordinary meaning.“). And where (as here) the plain meanings of two terms differ, we do not require a legal text to state the obvious. Traffic codes, for instance, instruct drivers to take different actions when a light changes from red to green. There is no need to state that red and green are different colors. See, e.g.,
Second, the context and usage of these terms within the Final Rule show that HHS considered them distinct. Consider, for example, the following sentence from the Rule: “Unlike abortion referral, nondirective pregnancy counseling would not be considered encouragement, promotion, support, or advocacy of abortion.” 84 Fed. Reg. at 7745. “Unlike” in common usage means, “Not like something else . . . ; different from, dissimilar to.” Unlike, 19 OXFORD ENGLISH DICTIONARY 102. So this reasonably indicates that “abortion referral” is “different from” “nondirective pregnancy
HHS again signals that counseling and referrals are distinct by the very act of imposing disjunctive requirements. See, e.g., 84 Fed. Reg. at 7730 (“[T]he Department has concluded that Title X projects may allow a physician or [medical professional] to provide nondirective counseling on abortion generally as a part of nondirective pregnancy counseling, . . . but may not refer for abortion as a method of family planning.“). Of course, two (in the majority‘s view) conflicting requirements cannot be imposed on a singular18
element. This would be contradictory and thus impossible with which to comply. So equating counseling and referrals cannot be correct in context. On the contrary, I would find it abundantly clear that counseling and referrals are distinct within the Final Rule.19
And third, even if the Final Rule were ambiguous, we might need to give credence to the agency‘s interpretation of its own regulation. See Kisor, 139 S. Ct. at 2408; see also Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14 (1945). This may include the agency‘s positions advanced for the first time in litigation as long as they reflect the agency‘s “fair and considered” judgment, Auer v. Robbins, 519 U.S. 452, 462 (1997); Kisor, 139 S. Ct. at 2417 n.6, and do not create “unfair surprise,” Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 170 (2007); Kisor, 139 S. Ct. at 2418. The mere assertion that HHS advances only a litigating position is yet another example of the majority glossing over what deference HHS may be due.
The majority also asserts that HHS failed to distinguish counseling and referrals because they are discussed together as part of the same course of service suggesting that the ‘nondirective’ term applies to both. Majority Op. 42. Yet again, this analysis is less than persuasive for four reasons.19
Start with the majority‘s contention that because counseling and referrals are often discussed together, HHS has not adequately distinguished them. First, discussing two items together does not suggest a lack of distinction. On the contrary, it suggests each has independent meaning. See Leocal v. Ashcroft, 543 U.S. 1, 12 (2004) (“[W]e must give effect to every word of a statute wherever possible.“). Hotdogs and hamburgers, for instance, are often discussed together. But a hotdog is not a hamburger. And, if they were the same, there would be no need to mention them both.
Second, while these two items are often discussed together, sometimes they are not. This makes the times that the terms are used individually (e.g., where the Final Rule describes “nondirective pregnancy counseling” without reference to referrals, see 84 Fed. Reg. at 7747, or prohibits “referrals for abortion” without reference to counseling, id.) all the more significant. See Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003) (When items “are members of
Third, consider the majority‘s implication that because two items are part of the “same course of service” the same restrictions must apply to both. Majority Op. 42. Again, I am not persuaded. Standing in line and riding a roller coaster are part of the same course of service at an amusement park. But different restrictions apply: One must wear restraints on the roller coaster and stay seated, but one need not wear restraints while standing in line. Dinner and dessert are part of the same course of service at a restaurant. But a child might be prevented from selecting a sugary dessert while given free rein of the main menu. Different rules often accompany different steps in the same process.
And fourth, take the majority‘s assertion that in the phrase, “nondirective counseling and referrals,” the adjective nondirective must apply to both counseling and referrals. Majority Op. 42. Again, I disagree. When a sentence takes the form of ‘adjective noun 1 and noun 2,’ the result is generally ambiguous. See, e.g., Maurice B. Kirk, Legal Drafting: The Ambiguity of “And” And “Or,” 2 TEX. TECH. L. REV. 235, 238-39 (1971). The adjective may modify noun 1 alone or modify both noun 1 and noun 2. Context resolves the ambiguity, and the context here is clear: “Nondirective counseling” has its own unit of meaning. It means “presenting the options in a factual, objective, and unbiased manner and (consistent with other Title X requirements and restrictions) offering factual resources that are objective, rather than presenting the options in a subjective or coercive manner.” 84 Fed. Reg. at 7747. This is confirmed by how ‘nondirective’ is used throughout the Final Rule. “Nondirective” is consistently used directly before “counseling” and never before “referral” alone. Because “nondirective counseling” itself has a discrete meaning, the adjective nondirective limits “counseling,” not “referral.”
In sum, the rider is limited to “nondirective counseling” and does not impact the referral regulations. The majority‘s arguments to the contrary fail, and they do not establish that HHS has adopted an impermissible interpretation of Title X.
2. Section 1554 of the ACA does not prohibit the Final Rule
The second statutory provision that Baltimore argues overcomes HHS‘s authority to issue the Final Rule is a “Miscellaneous Provisions” subtitle within the ACA:
Notwithstanding any other provision of this Act, the Secretary of Health and Human Services shall not promulgate any regulation that—
(1) creates any unreasonable barriers to the ability of individuals to obtain appropriate medical care;
(2) impedes timely access to health care services;
(3) interferes with communications regarding a full range of treatment options between the patient and the provider;
(4) restricts the ability of health care providers to provide full disclosure of all relevant information to patients making health care decisions;
(5) violates the principles of informed consent and the ethical standards of health care professionals; or
(6) limits the availability of health care treatment for the full duration of a patient‘s medical needs.
Pub. L. No. 111-148, 124 Stat. 119, 259, § 1554 (Mar. 23, 2010) (codified at
permitting grantees to provide nondirective pregnancy counseling. And for its part, the Final Rule‘s separation requirement provides:
A Title X project must be organized so that it is physically and financially separate, as determined in accordance with the review established in this section, from activities which are prohibited under section 1008 . . . . Factors relevant to [determining whether a project is separate] shall include:
- The existence of separate, accurate accounting records;
- The degree of separation from facilities (e.g., treatment, consultation, examination and waiting rooms . . .) in which prohibited activities occur and the extent of such prohibited activities;
- The existence of separate personnel, electronic or paper-based health care records, and workstations; and
- The extent to which signs and other forms of identification of the Title X project are present, and signs and material referencing or promoting abortion are absent.
Baltimore has failed to demonstrate that § 1554 prohibits these portions of the Final Rule. First, Baltimore has failed to show that § 1554‘s prohibitions eclipse the Secretary‘s authority under
a. Section 1554 does not eclipse HHS‘s authority under § 1008
The first reason that Baltimore‘s § 1554 argument fails is because Baltimore cannot show that § 1554 overcomes the statutory authority recognized in Rust. That authority allowing HHS to issue the Final Rule remains intact. Section 1554 of the ACA cabins the Secretary‘s rulemaking authority, “[n]otwithstanding any other provision of this Act [i.e., the ACA].” § 1554 (emphasis added). “The ordinary meaning of ‘notwithstanding’ is ‘in spite of.‘” N.L.R.B. v. SW Gen., Inc., 137 S. Ct. 929, 939 (2017) (internal citation omitted). So here, Congress‘s use of the term “notwithstanding” reflects its
In the context of the ACA, a “notwithstanding” clause makes good sense. The ACA is a major piece of legislation with “10 titles stretch[ing] over 900 pages and contain[ing] hundreds of provisions” that provide copious new rulemaking authority. Nat‘l Fed‘n of Indep. Bus. v. Sebelius, 567 U.S. 519, 538–39 (2012). By limiting HHS‘s power to regulate the healthcare and insurance industries pursuant to expansive new grants of authority, Congress mitigated the chance of unintended consequences in yet-to-be-promulgated rules.
And critically, Congress used “notwithstanding” clauses liberally within the ACA, 124 Stat. 119, specifying the application at different levels of generality—from sentences (§§ 1341, 2101), to paragraphs (§ 1313), to subsections and sections (§ 3105), to subtitles (§ 7003(b)), to titles (§ 1303), to the ACA itself (§ 1554), and to “any other law or rule of law” (§ 4377), as well as to specific provisions in other laws (§ 2022(h)).
In § 1554, Congress chose to apply the six provisions notwithstanding any other provision of the ACA—not in spite of “any other law,” nor Title X specifically. And we must give effect to the level of generality that Congress has specified—particularly where Congress has repeatedly taken such care in its application of notwithstanding clauses. See Digital Realty Tr., Inc. v. Somers, 138 S. Ct. 767, 777 (2018). Even though it only discovered this position at the eleventh hour, Baltimore now claims the “notwithstanding” clause overcomes even Title X. But if Congress, in the ACA, wished to overcome HHS‘s existing rulemaking authority from other congressional acts, Congress knew precisely what to do. In fact, it did so in other provisions of the ACA. For instance, in § 10325, Congress limited the Secretary‘s rulemaking authority relating to billing for Skilled Nursing Facilities “[n]otwithstanding any other provision of law.” Pub. L. No. 111-148, 124 Stat. at 960 (emphasis added). In contrast, its use of the Act-specific provision in § 1554 signals the opposite—an intention not to eclipse existing rulemaking authority outside the ACA. See Rubin v. Islamic Republic of Iran, 138 S. Ct. 816, 824 (2018). The Secretary‘s authority to set forth standards for Title X grants is “the engine that drives nearly all of Title [X],” and as such, we would expect Congress to amend or abrogate it clearly. Whitman v. Am. Trucking Ass‘ns, 531 U.S. 457, 468 (2001); see also Morton v. Mancari, 417 U.S. 535, 549–50 (1974). “Congress,” the Supreme Court has held, “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.” Whitman, 531 U.S. at 468. I would therefore conclude that § 1554‘s general miscellaneous provisions do not overcome the specific authority recognized in Rust under
b. The Final Rule does not violate § 1554
Baltimore also fails to show that the Final Rule actually conflicts with § 1554. The Final Rule‘s referral regulations and separation requirement do not “create any unreasonable barriers,” “impede[] . . . access,” “interfere[] with communications,” or otherwise violate § 1554. As I noted early on, the Final Rule is not about the legality of abortions. It simply decides which Title X programs the government
The verbs used in subsections (1) through (6) of § 1554 (“creates,” “impedes,” “interferes,” “restricts,” “violates,” and “limits“) show that this provision is concerned with affirmative interference rather than a decision not to offer a subsidy. The Oxford English Dictionary defines those verbs: create means “[t]o make, form, constitute, or bring into legal existence (an institution, condition, action, mental product, or form, not existing before)“; impede means “[t]o retard in progress or action by putting obstacles in the way; to obstruct; to hinder; to stand in the way of“; interfere means “[o]f persons: To meddle with; to interpose and take part in something, esp[ecially] without having the right to do so, to intermeddle“; restrict means “[t]o confine (some person or thing) to or within certain limits; to limit or bound“; violate means “[t]o break, infringe, or transgress unjustifiably; to fail duty to keep or observe . . . [a] law, commandment, rule, etc.“; limit means “[t]o confine within limits, to set bounds to (rarely in material sense); to bound, restrict.” OXFORD ENGLISH DICTIONARY.21
These verbs are striking: each relates to affirmative interference. See United States v. Williams, 553 U.S. 285, 294–95 (2008) (interpreting the “string of operative verbs” in
Baltimore asks us to equate limits on the use of subsidies with affirmative interference. Appellee Br. 62. In other words, Baltimore contends that HHS‘s regulations “‘create[] . . . unreasonable barriers,’ ‘impede[] timely access to health care services,’ ‘interfere[] with communications,’ ‘restrict[] the ability of health care providers to provide full disclosure,’ and ‘violate[] the principles of informed consent,‘” all by imposing limits on “access to grant funds.” Id. (quoting
So too here. HHS may choose to fund only those projects that meet the program‘s requirements without “impeding” others. Service providers have no preexisting right to public grant funds, and the choice to limit the use of those funds does not “interfere” with providers’ services. A prospective Title X program grantee may make its own choice to refuse funds (or decline to apply for them). See Agency for Int‘l Dev. v. All. for Open Soc‘y Int‘l, Inc., 570 U.S. 205, 214 (2013) (“As a general matter, if a party objects to a condition on the receipt of federal funding, its recourse is to decline the funds.“). This creates no unreasonable barrier, impediment of access, interference with communications, restriction on disclosure, or violation of informed consent.
Baltimore‘s argument to the contrary repackages constitutional assertions that the Supreme Court rejected in Rust. There, the Supreme Court explained that HHS‘s decision to subsidize childbirth but not abortion “places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy,” simply “leav[ing] her in no different position than she would have been in if the Government had not enacted Title X.” Rust, 500 U.S. at 201–02;23 see also Harris v. McRae, 448 U.S. 297, 326–27 (1980) (holding that the Hyde Amendment creates no obstacle to an abortion but encourages alternative activity through differential subsidization); Maher v. Roe, 432 U.S. 464, 474 (1977) (explaining that Connecticut‘s decision not to subsidize elective abortions “places no obstacles—absolute or otherwise—in the pregnant woman‘s path to an abortion“).24 So Rust confirms that we assess whether a barrier has been created from an unsubsidized
The majority distinguishes the Supreme Court‘s explanation in Rust on the grounds that the Court was addressing a Fifth Amendment claim concerning the right to an abortion. Majority Op. 52–53; Rust, 500 U.S. at 201. But this supposed distinction—based on only the source of challenge—misses the logical point. The Supreme Court ultimately rejected the Fifth Amendment arguments based on the general principle that “unequal subsidization” is not an obstacle. Rust, 500 U.S. at 201. This argument carries just as much force in the statutory as in the constitutional context, so I see no reason to deviate from Rust‘s logic. Cf. Agency for Int‘l Dev., 570 U.S. at 213, 216–17 (affirming Rust‘s principle that Congress‘s power to allocate funds for public purposes includes “the authority to impose limits on the use of such funds to ensure they are used in the manner Congress intends“).
In any event, Baltimore‘s argument proves too much. And its implications are far reaching. If the withdrawal of a subsidy “creates” an affirmative obstacle, then healthcare subsidies become a one-way ratchet: The government may not later reduce what it once offered without violating § 1554. I doubt Congress intended such sweeping consequences. Rather, § 1554 is best interpreted to prevent the government from affirmative interference.
In sum, the Final Rule does not conflict with § 1554—and it certainly does not do so with sufficient certainty to overcome the canons favoring the Final Rule‘s consistency with § 1554 in cases of doubt.
* * *
When an agency speaks with the force of law, the Supreme Court has carefully delineated the scope of judicial review. As the Supreme Court held in Rust, HHS has reasonably interpreted Title X‘s ambiguous text. And Baltimore has failed to identify a post-Rust enactment that renders that interpretation impermissible. See generally Becerra, 950 F.3d at 1085–95. Thus, Baltimore does not show that it is likely to succeed on the merits. So I would vacate the district court‘s preliminary injunction.
B. Pillar two: HHS‘s Rule is reasoned
Baltimore has also failed in its attempt to pull down the second pillar of administrative law. When agencies responsive to the elected President promulgate regulations, they must “engage in ‘reasoned decisionmaking.‘” Dep‘t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1905 (2020) (quoting Michigan, 576 U.S. at 750). “[T]he agency has latitude not merely to find facts and make judgments, but also to select the policies deemed in the public interest. The function of the court is to assure that the agency has given reasoned consideration to all the material facts and issues.” Greater Bos. Television Corp. v. F.C.C., 444 F.2d 841, 851 (D.C. Cir. 1970) (emphasis added); see Allentown Mack Sales & Serv., Inc. v. N.L.R.B., 522 U.S. 359, 374 (1998). Only then will courts be assured that the course taken by the agency is a product of its judgment and thus worthy of respect. See Michigan, 576 U.S. at 749–50; see also Franklin v. Massachusetts, 505 U.S. 788, 796 (1992).
Accordingly, “an agency must ‘articulate a satisfactory explanation for its action including a rational connection between the facts found and the choices made.‘” Sierra Club v. U.S. Dep‘t of the Interior, 899 F.3d 260, 293 (4th Cir. 2018) (quoting State Farm, 463 U.S. at 43); see also Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) (An “agency must give adequate reasons for its decisions.“). Otherwise, the APA directs that we “set aside” an agency action as “arbitrary” or “capricious.”
Although we are to engage in a careful review of the facts and record, our ultimate standard of review is narrow and deferential: “[A] court is not to substitute its judgment for that of the agency.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009) (cleaned up); see also Ohio Valley Envtl. Coal v. Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir. 2009) (Our review is “highly deferential, with a presumption in favor of finding the agency action valid.“). Rather than substituting our inexpert and unaccountable views for those of an expert and accountable agency, we are limited to confirming that “the agency has [] really taken a ‘hard look’ at the salient problems.” Greater Bos. Television Corp., 444 F.2d at 851; see also SEC v. Chenery Corp., 318 U.S. 80, 95 (1943) (“[A]n administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained.“). As long as “the agency‘s explanation is clear enough that its path may reasonably be discerned,” Encino Motorcars, LLC, 136 S. Ct. at 2125, we must respect its policy choice.
The requirement of reasoned decisionmaking applies whether the agency launches a policy for the first time, or—as here—decides to change course. When changing course, the agency “must show that there are good reasons for the new policy,” but it “need not demonstrate to a court‘s satisfaction that the reasons for the new policy are better than the reasons for the old one.” Fox, 556 U.S. at 515; see also Dep‘t of Homeland Sec., 140 S. Ct. at 1905.
The Supreme Court in Rust found nearly identical regulations to be the rational product of reasoned decisionmaking. Rust, 500 U.S. at 187. The Court credited the Secretary‘s reasonable determination that the referral regulations were “necessary to provide clear operational guidance to grantees about how to preserve the distinction between Title X programs and abortion as a method of family planning,” “more in keeping with the original intent of [§ 1008],” “justified by client experience,” and “supported by a shift in attitude against the elimination of unborn children by abortion.” Id. (internal quotations and citations omitted). And for the 1988 separation requirements, the Supreme Court “deferred” to this “reasoned determination that the [separation] requirements are necessary to implement the prohibition” of § 1008, keeping Title X funds “separate and distinct from abortion-related activities.” Id. at 190.
HHS relied on Rust, and its rationales, throughout in justifying the Final Rule. See, e.g., 84 Fed. Reg. at 7721, 7747, 7766. As in Rust, the agency determined that the better interpretation of § 1008‘s prohibition on spending Title X funds on programs “where abortion is a method of family planning” barred programs accepting those funds from making “referrals for abortion as a method of family planning.” 84 Fed. Reg. at 7761 (emphasis added); see also id. at 7717, 7746. So too for the Final Rule‘s separation requirement, which HHS found best complied with the statutory command of § 1008. 84 Fed. Reg. at 7764–65; see also 84 Fed. Reg. at 7714–15, 7718, 7783. And the Supreme Court recently confirmed that an agency may justify its
Despite Rust and HHS‘s reasoning, the majority finds the Final Rule is arbitrary and capricious on two grounds. First, the majority agrees with Baltimore that HHS‘s conclusion that the referral regulations are consistent with medical ethics “is unsupported by the evidence in the Record and inadequately explained.” Appellee Supp. Br. 5. Second, the majority determines that HHS inadequately assessed the costs of the separation requirement. Neither ground suffices to overcome Rust and permits us to second guess the predictions and policy judgments made by HHS.
1. Medical ethics
Baltimore first argues that HHS inadequately considered medical ethics. The majority agrees, holding that the Final Rule is arbitrary and capricious because “HHS merely stated that it ‘disagrees’ that the Rule ‘infringes on the legal, ethical, or professional obligations of medical professionals’ and it ‘believes’ the Rule is ‘not inconsistent’ with medical ethics.” Majority Op. 29 (citing 84 Fed. Reg. at 7724). Of course, this would not be enough: When “the agency decision” about an important element of a problem “is not accompanied by any explanation, let alone a satisfactory one,” its action is arbitrary and capricious. Sierra Club, 899 F.3d at 293; see also, e.g., Fred Meyer Stores, Inc. v. N.L.R.B., 865 F.3d 630, 638 (D.C. Cir. 2017).
Yet the majority‘s analysis mows down a straw man. By focusing on only the first two sentences of HHS‘s explanation, it does not surprise me that the majority finds the agency‘s explanation deficient. But a topic sentence is not the entire explanation—it “set[s] up the point to be developed in the paragraph.” ROBERT E. BACHARACH, LEGAL WRITING: A JUDGE‘S PERSPECTIVE ON THE SCIENCE AND RHETORIC OF THE WRITTEN WORD 104 (2020). So although HHS stated that it “disagrees” with commenters and “believes” the Rule “not inconsistent” with medical ethics, Majority Op. 29, this is merely how HHS introduced its analysis—not the entirety of it. If an agency “cannot simply disregard . . . inconvenient facts,” Fox, 556 U.S. at 537, I think judges may not similarly disregard inconvenient agency analysis.
I would find that the agency provided a sufficiently reasoned basis for deciding that the Final Rule did not violate medical ethics. First, the record shows that HHS described what medical ethics generally require: “[S]haring full and accurate information with the patient, in response to her specific medical condition and circumstance.” 84 Fed. Reg. at 7724. Quoting from the American Medical Association‘s Code of Ethics, the agency elaborated that it would be “ethically unacceptable” for a provider to “withhold[] information without [a] patient‘s knowledge or consent.” Id. at 7745. And HHS acknowledged the “[m]any commenters” claiming that “prohibitions on abortion counseling and referral would directly conflict with” medical ethics. Id.; see also Majority Op. 28–29 (collecting comments).
Then, HHS explained why it believed that the regulations are consistent with medical ethics, despite the objections. See Fox, 556 U.S. at 515 (“[I]t suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better.“). HHS disagreed with the commenters’ premise—the regulations do not require providers to withhold information from patients without their knowledge:
Under the terms of the final rule, a physician or [provider] may provide nondirective pregnancy counseling to pregnant Title X clients on the patient‘s pregnancy options, including abortion. Although this occurs in a postconception setting, Congress recognizes and permits pregnancy counseling within the Title X program, so long as such counseling is nondirective. The permissive nature of this nondirective pregnancy counseling affords the physician or APP the ability to discuss the risks and side effects of each option, so long as this counsel in no way promotes or refers for abortion as a method of family planning. It permits the patient to ask questions and to have those questions answered by a medical professional. Within the limits of the Title X statute and this final rule, the physician or APP is required to refer for medical emergencies and for conditions for which non-Title X care is medically necessary for the health and safety of the mother or child.
84 Fed. Reg. at 7724.
Simply put, during nondirective counseling, a Title X provider is free to discuss with a patient the full range of options, including abortion. See also id. at 7747 (Nondirective counseling “involves presenting the options in a factual, objective, and unbiased manner. . . . Physicians or [providers] should discuss the possible risks and side effects to both mother and unborn child of any pregnancy option presented, consistent with the obligation of health care providers to provide patients with accurate information to inform their health care decisions.“). If a patient seeks a referral for a non-emergency abortion, the Title X provider is free to explain that “the project does not consider abortion a method of family planning and, therefore, does not refer for an abortion.” 84 Fed. Reg. at 7789; see also id. at 7748 (Title X is “a matter of Congress‘s choice of what activities it will fund, not about what all clinics or medical professionals may or must do outside the context of the federally funded project.“).25 So as HHS explains, there is no withholding of information without the patient‘s knowledge and thus no violation of medical ethics.
I find the agency‘s explanation clear enough to discern its reasons for rejecting the commenters’ contentions. See Encino Motorcars, 136 S. Ct. at 2125. And that reasoning shows that HHS took a hard look at those comments, but it disagreed with the premise on which they were based. Whether or not I (or the commenters) agree with the agency‘s conclusion,26
But the agency did not stop there. In response to “commenters who contend the rule will require health care professionals to violate medical ethics,” the agency also looked to “Federal and State conscience laws” as probative of what ethics require. 84 Fed. Reg. at 7748; see also Majority Op. 32–33. Those laws, the agency explained, “have protected the ability of health care personnel to not assist or refer for abortions in the context of HHS funded or administered programs,” 84 Fed. Reg. at 7748, and reflect “personally-held moral principles” of providers, id. (quoting Roe v. Wade, 410 U.S. 113, 144 n.38 (1973) (quoting American Medical Association House of Delegates 220 (June 1970))). Thus, HHS reasoned, if ethics permit providers to decline to refer for abortions, then ethics cannot simultaneously require referrals for abortions. See id. (citing Nat‘l Inst. of Fam. & Life Advocates, 138 S. Ct. at 2371–76).27
The majority disagrees, arguing that conscience-based restrictions are “not relevant” to “whether the Final Rule‘s restrictions are ethical.” Majority Op. 33. But I think it manifestly reasonable for the agency to consider laws reflecting “moral principles” as probative of what ethics require. What are “ethics” if not a system “relating to morals[?]” Ethics, 5 OXFORD ENGLISH DICTIONARY 421. And it is “well known” that the moral principles that form legitimate ethical theories must be “internally consistent.” Richard T. De George, Ethics and Coherence, 64 Proceedings and Addresses of the American Philosophical Association 39 (1990). So it was fully reasonable for HHS to draw upon conscience laws as probative of what ethics require and to evaluate its Final Rule accordingly. Whether I (or the American College of Obstetricians and Gynecologists) agree is of no moment.
The Final Rule bars Title X grantees from making abortion referrals as a method of family planning (while permitting referrals for emergency abortions). HHS reasoned that a program that makes referrals for an abortion as a method of family planning is a program “where abortion is a method of family planning, contrary to the [§ 1008] prohibition against the use of Title X funds in such programs.” See 84 Fed. Reg. at 7717; see also id. at 7729, 7745–46, 7759, 7761–62. In doing so, the agency adequately considered the objection that limiting the Title X program in this way violated medical ethics and thus acted neither arbitrarily nor capriciously.
2. Costs of the separation requirement
Next, the parties dispute whether HHS adequately considered the likely cost of
First, I must address the standard by which we determine whether an agency has adequately considered costs. The Supreme Court has explained that agencies generally “must consider cost—including, most importantly, cost of compliance—before deciding whether [a] regulation is appropriate.” Michigan, 576 U.S. at 759. But, at the same time, agencies are not required (unless Congress says otherwise) “to conduct a formal cost-benefit analysis in which each advantage and disadvantage is assigned a monetary value.” Id. Yet if an agency chooses to account for cost, a reviewing court need only be satisfied that the agency gave a hard and reasoned look at the problem to uphold the regulation. See Minisink Residents for Envtl. Pres. & Safety v. F.E.R.C., 762 F.3d 97, 112 (D.C. Cir. 2014); Alaska Factory Trawler Ass‘n v. Baldridge, 831 F.2d 1456, 1460 (9th Cir. 1987); Sierra Club v. Sigler, 695 F.2d 957, 977 n.15 (5th Cir. 1983).28 In doing so, we must give an agency‘s predictive judgments about uncertain future events particular deference. See Fox, 556 U.S. at 521; Baltimore Gas, 462 U.S. at 103.
HHS rightly began its cost analysis by assessing the scope of the separation requirement. The agency first anticipated that the compliance costs for the separation requirement would only apply to a fraction of the existing providers. See 84 Fed. Reg. at 7781–82; id. at 7781 (estimating, based on a Congressional Research Service Report, that around 10 percent of existing providers offered abortion as a method of family planning); id. (estimating that around 20 percent of all Title X service sites had “their Title X services and abortion services . . . currently collocated” in violation of the separation requirement). In HHS‘s view, the compliance costs—difficult to predict in any generalized fashion—would have only “minimal effect on the majority of current Title X providers.” Id.; see also Becerra, 950 F.3d at 1098.
Next, the agency turned to the extent of the costs for the providers that would be affected. It determined that “10% to 20%” of Title X sites would be affected, “with a central estimate of 15%.” 84 Fed. Reg. at 7781. It then estimated the costs to each impacted site. On average, HHS explained, it would require forty hours of work, divided between management and lawyers, for each impacted grantee to determine how to proceed. Id. at 7782. And HHS “estimate[ed] that an average of between $20,000 and $40,000, with a central estimate of $30,000, would be incurred to come into compliance.” Id. Tallying up these costs, HHS found that the separation requirement would impose “costs of $36.08
Acknowledging “the substantial uncertainty regarding the magnitude of these effects,” id. at 7781, HHS emphasized that the Final Rule permitted “case-by-case determinations on whether physical separation is sufficiently achieved to take the unique circumstances of each program into consideration” and that the agency would “help grantees successfully implement the Title X program” and develop “workable plan[s]” for complying with the separation requirement, id. at 7766; see also Becerra, 950 F.3d at 1098. And HHS “encourage[d] grantees to contact the program office with questions, discuss ways to comply with the physical separation requirement, and put a workable plan in place to meet the [one-year] compliance deadline.” 84 Fed. Reg. at 7766.
Baltimore and the majority object to this analysis in two ways. First, they claim that “HHS made a ‘conclusory response’ to [the commenters‘] ‘evidence-backed concerns‘” about HHS‘s cost estimates. Majority Op. 37 (quoting S.J.A. 1316). Indeed, as HHS acknowledged, some commenters “provided extremely high cost estimates based on assumptions that they would have to build new facilities to comply.” 84 Fed. Reg. at 7782. But HHS did not have to accept these pessimistic estimates as long as it provided a reason. See Dep‘t of Commerce, 139 S. Ct. at 2571. And HHS did just that:
The Department does not anticipate that entities will necessarily engage in construction of new facilities to comply with the new requirements, rather that entities will usually choose the lowest cost method to come into compliance.
84 Fed. Reg. at 7781. HHS then explained how providers could avoid building new facilities:
For example, Title X providers which operate multiple physically separated facilities and perform abortions may shift their abortion services, and potentially other services not financed by Title X, to distinct facilities, a change which likely entails only minor costs.
Id. at 7781.29 And for providers unavoidably and severely impacted, HHS anticipated that they would drop out of the program rather than incur high costs, allowing for other providers—not subject to those costs—to take their place. See id. at 7782, 7766 (“If certain grantees and/or subrecipients choose not to continue in the Title X program because they elect not to comply with the physical separation requirements . . . the Department will be in a position to continue to fulfill the purpose of Title X by funding projects sponsored by entities that will comply with the physical separation requirement and provide a broad range of family planning methods and services to low income clients.“).30
Second, Baltimore and the majority fault HHS for its $30,000 cost estimate for facilities to come into compliance. In the majority‘s
And here, the record provides a basis where none is required. The record shows that the agency appropriately recognized and considered the uncertainty surrounding the $30,000 number. First, HHS identified the specific challenges that it faced in reaching a more precise number: insufficient data, vastly different circumstances of grantees that make generalizations difficult, and an expectation that high-cost grantees will be replaced by new applicants. See 84 Fed. Reg. at 7766, 7781. Second, HHS updated its estimates in response to submissions from commenters. Id. at 7782 (“This estimate is an increase from . . . the proposed rule.“). Third, HHS explained why it found competing estimates too high and noted that the data submitted by commenters was insufficient. Id. at 7781. Fourth, HHS broke down the remaining elements of the problem into its constituent parts to reach an overall cost estimate. Id. at 7781–82; see also Becerra, 950 F.3d at 1101 n.32.
In HHS‘s view, § 1008 “require[s] clear physical separation between Title X projects and places ‘where’ abortion is a method of family planning.” 84 Fed. Reg. at 7765. Prioritizing statutory program integrity, the agency adopted the separation requirement. Id. at 7714, 7783. And in the process took a hard and serious look at costs and made a predictive point estimate. HHS‘s analysis was neither arbitrary nor capricious.
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Rationality is the touchstone of arbitrary and capricious review. Whether or not I agree with the agency‘s policy choices, this Court may not disturb its regulations so long as the agency has made a rational connection between the facts found and the choices made. Here, the agency has done what is required of it. So I would vacate the district court‘s permanent injunction.
C. Remedial overbreadth
Although I believe the law requires us to uphold the regulations in full, I would be remiss if I did not object to the overbroad remedy approved by the majority. My colleagues enjoin enforcement of the entire
First, the majority improperly enjoins enforcement of the entire Final Rule (rather than just the unlawful provisions). The doctrine of severability and judicial restraint ordinarily counsel against such sweeping relief. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 294–95 (1988). A court should refrain from enjoining more of a regulation than is necessary: “[W]henever a [regulation] contains unobjectionable provisions separable from those found to be un[lawful], it is the duty of [the] court to so declare, and to maintain the [regulation] in so far as it is valid.” Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684–86 (1987) (quoting Regan v. Time, Inc., 468 U.S. 641, 652 (1984) (plurality opinion)). And the standard for severability is well established. Unless it is evident that the regulations would not have been promulgated without the unlawful provisions, the remainder is not to be impaired. See Buckley, 424 U.S. at 108.
This inquiry is straightforward when, as here, a regulation contains a severability clause. The Final Rule provides, “To the extent a court may enjoin any part of the rule, the Department intends that other provisions or parts of provisions should remain in effect.” 84 Fed. Reg. at 7726. Despite this explicit statement, the majority purports to divine a clear intent that HHS “intended the [Final Rule] to stand or fall as a whole.” Majority Op. 59. We must presume HHS means what it says and says what it means when interpreting its Final Rule. See Conn. Nat. Bank v. Germain, 503 U.S. 249, 253–54 (1992). Absent “strong evidence” to the contrary, the unlawful provisions are severable. Alaska Airlines, 480 U.S. at 686. I find no such evidence in the Federal Register. Thus, any injunction should be limited to those provisions found unlawful.
Second, the majority improperly enjoins enforcement of the Final Rule throughout the whole State of Maryland (rather than just within the City of Baltimore). But the judicial Power is limited to affording necessary relief only to those parties in the case or controversy before us. See, e.g., Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017); see also Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 318–19 (1999). Compounding my doubts that equity permits today‘s result, see Dep‘t of Homeland Sec., 140 S. Ct. at 600 (Gorsuch, J., concurring); Madsen v. Women‘s Health Ctr., Inc., 512 U.S. 753, 765 (1994), the district court identified little actual evidence that justifies extending injunctive relief to the entire state, see Majority Op. 61–63. And so, were an injunction proper, I believe it must be limited to the City of Baltimore.
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The judicial role in reviewing agency action is modest. When an agency responsive to the elected President has spoken with the force of law, as judges, we must defer to the agency‘s reasonable interpretation of an ambiguous statute. And we are forbidden from second guessing the analysis and policy judgments that undergird the agency‘s regulations. Yet the majority oversteps its role and fails to give HHS the deference it is due. Today‘s decision is wrong, and the resulting circuit split is needless. I respectfully dissent.
Notes
The First Amendment challenge failed because the regulations were “designed to ensure that the limits of the federal program are observed,” and such limits were permissible because of the “basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy,” id. (cleaned up). The regulations did not affect actions outside the Title X program, and, even within the program, the “regulations do not significantly impinge upon the doctor-patient relationship.” Id. at 193–201.
The Fifth Amendment challenge failed because “[t]he Government has no constitutional duty to subsidize an activity merely because the activity is constitutionally protected and may validly choose to fund childbirth over those relating to abortion.” Id. at 201. So “its decision to fund childbirth but not abortion places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy.” Id. Instead, “unequal subsidization” merely “encourages alternative activity deemed in the public interest.” Id. (cleaned up). Title X clients whose access was otherwise limited by indigency were “in no worse position than if Congress had never enacted Title X” because these “financial constraints that restrict an indigent woman‘s ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortion, but rather of her indigency.” Id. at 203 (cleaned up).
Political foes, as the majority explains, used the adjective “Gag” because the 1988 Rule withheld Title X funding from programs that discussed the “availability of abortion as an option for individual planning.” Majority Op. 12 (quoting Nat‘l Family Planning & Reprod. Health Ass‘n, Inc. v. Sullivan, 979 F.2d 227, 229 (D.C. Cir. 1992)). The 2019 Final Rule contains no such prohibition. To the contrary, it permits Title X providers to provide nondirective pregnancy counseling that includes discussion about abortions.
Even the Founders questioned the wisdom of rapid policy change:
The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?
THE FEDERALIST NO. 62, at 381 (Madison) (C. Rossiter ed., 1961) (emphasis added).The regulations state:
“A Title X project may not . . . refer for . . . abortion as a method of family planning, nor take any other affirmative action to assist a patient to secure such an abortion.”
“[O]nce a client served by a Title X project is medically verified as pregnant, she shall be referred to a health care provider for medically necessary prenatal health care.”
Baltimore also challenges how the regulations regulate the list of referral options. As in the 1988 regulations, the 2019 regulations prohibit providers from steering a pregnant woman to an abortion provider.
“A Title X project may not use the provision of any prenatal, social service, emergency medical, or other referral, of any counseling, or of any provider lists, as an indirect means of encouraging or promoting abortion as a method of family planning.”
“The list of licensed, qualified, comprehensive health care providers . . . may be limited to [facilities] that do not provide abortion, or may include licensed, qualified, comprehensive primary health care providers (including providers of prenatal care), some, but not the majority, of which also provide abortion as part of their comprehensive health care services. Neither the list nor project staff may identify which providers on the list perform abortion.”
To avoid this waiver doctrine, the majority finds that § 1554 was raised and considered in the rulemaking. Majority Op. 54-57. I disagree. But if so, then HHS would be due Chevron deference. Yet the majority inadequately considers the deference due.
The self-evident purpose of the statute is to bar federal funding for abortions. The Rule seeks to ensure that this purpose is respected. Invalidating the Rule frees Title X recipients to refer patients directly to abortion providers, who thereupon realize the resulting revenue.