This case involves the challenge by the Mayor and City Council of Baltimore ("Baltimore City") to a rule promulgated by the United States Department of Health and Human Services that would amend federal regulations with respect to the funding of family planning services. It has been preceded by similar lawsuits in United States District Courts in the states
Specifically, Baltimore City brings a ten-Count Complaint pursuant to the Administrative Procedures Act ("APA") against Alex M. Azar II, in his official capacity as the Secretary of Health and Human Services; United States Department of Health and Human Services ("HHS"); Diane Foley, M.D., in her official capacity as the Deputy Assistant Secretary, Office of Population Affairs; and Office of Population Affairs (collectively, "Defendants" or "the Government"). (Compl., ECF No. 1.) Baltimore City challenges the final rule ("Final Rule") promulgated on March 4, 2019 by HHS amending the regulations developed to administer Title X of the Public Health Service Act,
For the reasons that follow, this Court holds that the Final Rule likely violates provisions of the Affordable Care Act,
BACKGROUND
I. Title X History
A. Inception of Title X
Almost fifty years ago, in 1970, Congress enacted Title X, the only federal program specifically dedicated to funding family planning services. Public Health Service Act,
All grants and contracts must "be made in accordance with such regulations as the Secretary may promulgate."
B. The 1988 Regulations
In 1988, HHS promulgated new regulations "designed to provide 'clear and operational
Title X grantees and doctors who supervised Title X funds promptly challenged the facial validity of the regulations and sought injunctive relief to prevent implementation. Rust ,
These 1988 regulations, however, were never fully implemented. In 1991, President George H. W. Bush issued a memorandum to the HHS Secretary, directing adherence to four principles "compatible with free speech and the highest standards of medical care." Nat'l Family Planning ,
For over 20 years, beginning in 1996, and every year since, Congress has always added a clarifying statement regarding Section 1008 in its Title X appropriations bill. Alongside the statement that "amounts provided to [Title X] projects ... shall not be expended for abortions," Congress has included language that emphasizes that "all pregnancy counseling shall be nondirective" ("Nondirective Mandate"). See, e.g. , Continuing Appropriations Act, 2019, Pub. L. 115-245,
C. The 2000 Regulations
New regulations were finalized in 2000,
D. The Affordable Care Act
In 2010, Congress passed the Affordable Care Act ("ACA") and included language in section 1554 that limited the rulemaking authority of HHS as follows:
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.
E. The Final Rule
On June 1, 2018, HHS published the Final Rule in the Federal Register.
1. The Gag Rule
The Final Rule imposes broad restrictions on what health care providers under the Title X program may inform pregnant patients. It provides that 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."
At the same time, Title X providers must provide all pregnant patients with a referral for prenatal care, regardless of the patients' wishes, on the basis that prenatal referrals are "medically necessary."
2. The Separation Requirement
The Final Rule also contains a Separation Requirement, i.e., that Title X activities be "physically and financially separate" (defined as having an "objective integrity and independence") from prohibited activities, such as the provision of abortion services and any referrals for abortion services that do not meet the Gag Rule requirements.
II. Baltimore City Health Services
Baltimore City has participated in the Title X program since its inception in 1970, receiving its funding as subgrants through the Maryland Department of Health.
The Baltimore City Health Department currently receives $ 1,430,000 annually from the Government in funding subject to Title X rules. (Id. at 7.) It directly operates three community clinics and four school-based health centers that provide Title X services and provides funding to ten additional subgrantees in the city. (
The Baltimore City health clinics served 7,670 Title X clients in 2017, of which nearly one in five were under the age of 18, and almost 84% were female. (Id. at ¶ 36.) Eighty-six percent of the women served in Title X centers in Baltimore had incomes below the poverty line. (
Baltimore City contends that the Final Rule is at odds with its mission and its "patient centered" strategy as a best practice for health care delivery in Baltimore. (Id. at ¶ 37.) Baltimore City asserts that if the Final Rule goes into effect, it will effectively be forced to withdraw from Title X, or abandon its long-standing mission, either of which choice will place the most vulnerable Baltimore City residents at risk. (Id. at ¶¶ 37, 63.) For example, Baltimore City has used Title X funding in its public health efforts and has achieved a 55% reduction in teen pregnancy over the last ten years.
• I - Violation of Administrative Procedures Act ("APA"), 5 U.S.C. § 706 -Contrary to Law-Contrary to Affordable Care Act ("ACA")'s Non-Interference Provision,42 U.S.C. § 18114 .
• II - Violation of APA § 706-Contrary to Law-Contrary to Nondirective Mandate of the Consolidated Appropriations Act of 2018
• III - Violation of APA § 706-Contrary to Law-Contrary to Tile X,42 U.S.C. §§ 300 (a), 300a(a)
• IV - Violation of APA § 706-Contrary to Law-Contrary to Religious Freedom Restoration Act of 1993 ("RFRA"), 42 U.S.C. § 2000bb-1(a).
• V - Violation of APA § 706-Contrary to Constitutional Right-First Amendment
• VI - Violation of APA-Contrary to Constitutional Right-Equal Protection Under Fifth Amendment
• VII - Violation of APA-Arbitrary and Capricious-Inadequately Justified
• VIII - Violation of APA-Arbitrary and Capricious-Objectively Unreasonable
• IX - Violation of APA-Without Observance of Procedure Required by Law
• X - Violation of APA-Contrary to Constitutional Right-Unconstitutionally Vague
Baltimore City requests that this Court enjoin the enforcement of the Final Rule in Maryland during the pendency of this lawsuit. It does not seek a nationwide injunction.
III. Procedural Setting
This case is one of multiple cases that have been filed across the nation seeking to maintain the Title X status quo while the courts consider the legal challenges to the Government's new regulations. See California v. Azar , 3:19-cv-01184--EMC (N.D. Cal.), and related case Essential Access v. Azar , 3:19-cv-01195-EMC (N.D. Cal.); Oregon v. Azar , 6:19-cv-00317-MC (D. Ore.), and related case Am. Med. Ass'n v. Azar , 6:19-cv-00318-MC (D. Ore.); Washington v. Azar , 1:19-cv-03040-SAB (E.D. Wash.) (consolidated); Family Planning Ass'n v. U.S. HHS , 1:19-cv-00100-LEW (D. Me.). Hearings were held in all cases, and decisions have been issued in all but the Maine case.
On April 25, 2019, Judge Stanley A. Bastian, of the United States District Court, Eastern District of Washington, issued an injunction, which enjoins the Government from implementing or enforcing the Final Rule on a nationwide basis. State of Washington v. Azar ,
Most recently, the Government has advised this Court that it is appealing the District of Oregon and the Eastern District of Washington decisions, and it moved for stays of both injunctions pending appeal. See Mot. to Stay, ECF No. 58, State of Washington v. Azar , Nos. 1:19-cv-3040-SAB; 1:19-cv-3045-SAB (E.D. Wash. May 3, 2019); Defs.' Mot. for a Stay, ECF No. 150, Consolidated Civil Action Nos. 6:19-cv-00317-MC (Lead Case), 6:19-cv-00318-MC (D. Or. May 3, 2019).
In the instant case, Baltimore City filed a Motion for Preliminary Injunction (ECF No. 11) on April 16, 2019, seeking to enjoin the Government from "putting into effect certain provisions" of the HHS Final Rule. More specifically, Baltimore City requests that this Court issue an injunction against enforcement of the Final Rule in Maryland. (Pl.'s Mot. Mem. 35, ECF No. 11-1; Reply 29, ECF No. 34.) An accelerated briefing schedule completed with Plaintiff's Reply on Monday, April 29, 2019, and a hearing was held on Tuesday, April 30, 2019. This Court has considered the parties' arguments, reviewed the decisions issued by its sister courts, and finds the reasoning in those decisions persuasive. For the reasons that follow, this Court shall grant Plaintiff's Motion for Preliminary Injunction (ECF No. 11) and shall enjoin the Government from enforcing the Final Rule in the State of Maryland.
STANDARD OF REVIEW
As the United States Court of Appeals for the Fourth Circuit stated in United States v. South Carolina ,
ANALYSIS
I. Likelihood of Success on the Merits
To satisfy the showing for a preliminary injunction, Baltimore City does not need to demonstrate that it is likely to succeed on the merits of all ten causes of action. The City focuses its arguments on the Final Rule violating three separate statutory provisions: (1) The Affordable Care Act Non-Interference Mandate,
The Government argues that the Supreme Court's 1991 decision in Rust v. Sullivan controls. (Defs.' Resp. 8, ECF No. 25 (citing Rust ,
A. The Affordable Care Act Non-Interference Mandate
Baltimore City contends that the Gag Rule violates at least three parts of the ACA Non-Interference Mandate, specifically:
(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;
Medical groups and numerous individual physicians have denounced the rule as a violation of basic medical ethics. See, e.g. , American Medical Association ("AMA") Comment 1-3 (expressing opposition to the Proposed Rule, the AMA stated, "We are very concerned that the proposed changes, if implemented, would undermine patients' access to high-quality medical care and information, dangerously interfere with the patient-physician relationship and conflict with physicians' ethical obligations, exclude qualified providers, and jeopardize public health." (available at http://bit.ly/2Zexyyi)). The AMA strongly opposed the proposed rule as interfering with and undermining
The Government contends that the prefatory language in ACA Section 1554, "[n]otwithstanding any other provision of this Act," limits the scope of Section 1554 to the ACA. (Defs.' Resp. 16, ECF No. 25 (quoting
Accordingly, Baltimore City has shown that the Final Rule likely violates the ACA § 1554 by creating unreasonable barriers for patients to obtain appropriate medical care, interfering with communications between the patient and health care provider, and restricting full disclosure, which violates the principles of informed consent. Baltimore City adds that the Separation Requirement also violates the ACA Non-Interference Mandate by creating unreasonable barriers and by impeding timely access to health care services.
B. Appropriations Nondirective Mandate
Every year since 1996, including the current year, Congress has added a directive to Title X appropriations funding, specifying that pregnancy counseling must be "nondirective." See, e.g. , Pub. L. No. 115-245,
The Government argues that there is a distinction between consulting and referrals, and Congress did not silently supplant Rust and repeal part of Title X with its appropriations language. (Defs.' Resp. 18-20, ECF No. 25.) There is, however, no "silent repeal" at issue because the nondirective counseling provision is not inconsistent with Rust . The Rust Court did not purport to interpret Section 1008 as requiring directive counseling, but rather, it held that the 1988 rule was one permissible interpretation of Section 1008. See
This Court finds persuasive the reasoning in California v. Azar , in which Judge Chen found that "nondirective counseling" encompasses referrals, "as indicated by statute, regulations, and industry practice."
The Final Rule is likely to violate the Nondirective Mandate, because to be nondirective, "the medical professional must 'present[ ] the options in a factual, objective, and unbiased manner ... rather than present[ ] the options in a subjective or coercive manner.' "
C. Administrative Procedures Act Review
Baltimore City also argues that the promulgation of the Final Rule was arbitrary and capricious. (Pl.'s Mot. Mem. 21, ECF No. 11-1.) Under the Administrative Procedures Act, when a court reviews an agency decision, the court "shall hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
An agency rulemaking is arbitrary and capricious if, in coming to its decision, the agency "relied 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." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. ,
Further, where, as here, an agency adopts a rule that directly contradicts prior agency conclusions of fact and law, it must acknowledge that it is doing so and give a reasonable justification for the change. See Encino Motorcars, LLC v. Navarro , --- U.S. ----,
The Government argues that the Final Rule easily satisfies the deferential standard that courts must apply. (Defs.' Resp. 25-26, ECF No. 25) (citing Ohio Valley Envtl. Coal. v. Aracoma Coal Co. ,
However, simply because the Supreme Court in Rust found that the then-Secretary had amply justified the change in interpretation with a reasoned analysis, does not mean that the current Secretary has also done so. The ensuing changes in the societal landscape and in the law over the past 30 years means that HHS cannot rely on the same justifications as it did in 1988. See California v. Azar ,
This Court notes that the California, Oregon, and Washington courts determined that the Final Rule's promulgation was likely arbitrary and capricious. See California v. Azar ,
II. Irreparable Harm
"[A] party seeking a preliminary injunction must prove that he or she is 'likely to suffer irreparable harm in the absence of preliminary relief.' " Pashby v. Delia ,
Should Baltimore City lose Title X funding, which represented $ 1,430,000 in 2017, the lost funds could not be recovered should it ultimately succeed with this litigation, because HHS enjoys sovereign immunity that precludes monetary recovery. See Mountain Valley Pipeline ,
Should Baltimore City choose to comply with the Final Rule in order to retain Title X funding, its medical providers would be forced to contravene their ethical obligations to provide patient-centered, nondirective care. See Richmond Med. Ctr. for Women v. Gilmore ,
This Court finds that Baltimore City has established a likelihood of irreparable harm unless the Final Rule is enjoined. The Government argues that there is no imminent threat of irreparable harm because a nationwide injunction has already been issued. However, the Government has also advised this Court that it is appealing the nationwide injunctions and has requested stays of the injunctions pending appeal. Should the stays be granted or the appeals successful, Baltimore City remains at risk and is not a party to the other cases. The earlier granting of a nationwide injunction does not prevent this
III. Balance of Equities and Public Interest
When a preliminary injunction is sought against the government, and "the government's interest is the public interest," the last two factors merge. Kravitz v. United States Dep't of Commerce ,
Baltimore City seeks to avoid potentially costly and harmful public health problems as well as protect the health and welfare of its citizens, especially women. It is in the public interest to continue the existing structure and network of healthcare that Baltimore City currently provides while this Court addresses legal challenges to the Final Rule. On the other hand, should the Government ultimately succeed in this litigation, it will suffer only a delay in implementation of the Final Rule. It is in the public's interest to ensure that government agencies abide by federal laws such as the ACA Non-Interference Mandate and the Appropriations Nondirective Mandate passed by Congress and still binding law.
Therefore, the balance of equities and public interest weighs in favor of Baltimore City and the issuance of a preliminary injunction.
IV. Scope of Injunction
Having found that Baltimore City is likely to succeed on the merits of at least some of its claims, it is likely to be irreparably harmed absent an injunction, and the balance of equities and public interest weigh in favor of an injunction, this Court shall issue a preliminary injunction.
As noted above, two other United States District Courts have issued injunctions on a nationwide basis. In those cases, the courts had to consider nationwide plaintiffs, such as the National Family Planning and Reproductive Health Association, Planned Parenthood Federation, and the American Medical Association, who are not present in this case.
CONCLUSION
For the foregoing reasons:
1. Plaintiff's Motion for Preliminary Injunction (ECF No. 11) is GRANTED;
2. The Health and Human Services Final Rule, entitled Compliance with Statutory Program Integrity Requirements ,84 Fed. Reg. 7,714 (Mar. 4, 2019), to be codified at 42 C.F.R. Part 59, is ENJOINED as to enforcement in the State of Maryland.
A separate order follows.
Notes
See The Federalist No. 51, at 320 (James Madison) (Clinton Rossiter ed., 1961) ("[T]he constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other...."); see also Sierra Club v. Trump ,
Two United States District Courts issued nationwide injunctions prior to the May 3, 2019 implementation date. See State of Oregon v. Azar , 6:19-cv-00317-MC (Lead Case), 6:19-cv-00318-MC (Trailing Case),
Regardless of the effect of the nationwide injunctions issued by the Oregon and Washington Courts, Baltimore City requests that this Court issue an injunction against enforcement of the Final Rule in Maryland. (Pl.'s Mot. Mem. 35, ECF No. 11-1; Reply 29, ECF No. 34.) As Judge Chen stated in California v. Azar , a nationwide injunction "does not obviate this Court's duty to resolve the dispute before it." Case No. 19-cv-01184-EMC,
Generally, referring to "a rule saying that people are not allowed to speak freely or express their opinions about a particular subject." "gag rule." Merriam-Webster.com , 2019. https://www.meriam-webster.com (20 May 2019). The term has been used by courts to describe the 1988 regulation prohibiting abortion counseling. See, e.g. , Nat'l Family Planning and Reproductive Health Ass'n, Inc. v. Sullivan ,
In Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , the United States Supreme Court held that "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute."
Administrative agencies are required, under the Administrative Procedures Act, to provide notice of proposals to create, amend, or repeal a rule and afford an opportunity for interested persons to comment on the proposal. See
See n.1 infra , noting that two United States District Courts issued nationwide injunctions prior to the May 3, 2019 implementation date.
Charlotte Hager, the Health Program Administrator at the Baltimore City Health Department provided statistics regarding the number of patients served, the ages, sex, and socio-economic status of the patients, cases of sexually transmitted diseases, and savings from preventing unintended pregnancies through access to birth control. (Hager Decl., ECF No. 11-7.) In her declaration, she states that "over the last ten years, through our efforts we have seen a 55% reduction in teen pregnancy." (Id. at ¶ 11.) These results are consistent with a 2017 study, which "estimated that in 2015 the contraceptive care delivered by Title X-funded providers in the U.S. helped women avoid 822,300 unintended pregnancies, which would have resulted in 387,200 unplanned births and 277,800 abortions." (Bailey Decl. 18, ECF No. 11-2 (citing Jennifer J. Frost et al., Guttmacher Inst., Publicly Funded Contraceptive Services at U.S. Clinics, 2015 (Apr. 2017), https://www.guttmacher.org/report/publicly-funded-contraceptiveservices-us-clinics-2015.)) The study concluded that the unintended pregnancy rate among teens would have been 44% higher in the absence of this reduction. (Id. at 19.)
See Nat'l Fed. of Independent Business v. Sebelius ,
For example, Planned Parenthood has stated that it will withdraw if the Final Rule goes into effect. (Pl.'s Mot. Mem. 34, ECF No. 11-1.)
Noting that "preliminary injunctions are by [their] very nature, interlocutory, tentative, provisional, ad interim, impermanent, mutable, not fixed or final or conclusive, characterized by [their] for-the-time-beingness." AlliedSignal, Inc. v. B.F. Goodrich Co. ,
This Court notes that there also exists some skepticism regarding the increased issuance of nationwide injunctions by United States District Judges. See, e.g. , Trump v. Hawaii , --- U.S. ----,