State of Tennessee v. Xavier BecerraState of Tennessee v. Xavier Becerra
Before: GIBBONS, KETHLEDGE, and DAVIS, Circuit Judges.
COUNSEL
ARGUED: Whitney D. Hermandorfer, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellant. Courtney L. Dixon, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Whitney D. Hermandorfer, J. Matthew Rice, Philip Hammersley, Harrison Gray Kilgore, Trenton Meriwether, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellant. Courtney L. Dixon, Brian J. Dixon, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. Justin L. Matheny, OFFICE OF THE MISSISSIPPI ATTORNEY GENERAL, Jackson, Mississippi, Christopher P. Schandevel, ALLIANCE DEFENDING FREEDOM, Lansdowne, Virginia, Eric N. Kniffin, ETHICS & PUBLIC POLICY CENTER, Washington, D.C., Brianne J. Gorod, CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C., for Amici Curiae.
DAVIS, J., delivered the
AMENDED OPINION
DAVIS, Circuit Judge. In 2021, the United States Department of Health and Human Services (“HHS”) promulgated a rule requiring Title X grant recipients to provide neutral, nondirective counseling and referrals for abortions to patients who request it. Tennessee, which has been a Title X recipient for over 50 years, recently outlawed most abortions in the state. After doing so, Tennessee would commit only to conducting counseling and referrals for options deemed legal in the state. HHS considered Tennessee‘s commitment to be out of compliance with its regulatory requirements. So it opted to discontinue the grant. Tennessee filed suit to challenge HHS‘s action and enjoin it from closing the grant. The district court denied Tennessee‘s request for preliminary injunction because it held that Tennessee does not have a strong likelihood of succeeding on the merits of its claim and that the balance of the remaining preliminary injunction factors weigh in HHS‘s favor. For the reasons set forth below, we affirm.
I.
A.
Factual Background. In 1970, Congress enacted Title X of the Public Health Service Act (alternatively, the “Act”) to authorize HHS to award discretionary grants to fund family-planning projects. See
In October 2021, HHS promulgated a rule requiring Title X programs to offer pregnant clients the opportunity to receive “neutral factual information and nondirective counseling” regarding prenatal care and delivery, infant care, foster care, adoption, and abortion.1 Ensuring Access to
In March 2022, HHS awarded the Tennessee Department of Health a Title X grant for the period from April 1, 2022, through March 31, 2023. The notice of award stated that the amount requested represented the one-year “budget period,” (as opposed to the project‘s five-year period), and that it was “not obligated to make additional Federal Funds available.” (R. 1-7, PageID 172).
In June 2022, the Supreme Court handed down its decision in Dobbs v. Jackson Women‘s Health Organization, 597 U.S. 215 (2022), in which it held that there is no individual right under the Constitution to obtain an abortion. Following Dobbs, several states—Tennessee included—implemented laws that criminalized abortion in all but a few circumstances. Reasoning that Dobbs did not affect the Title X grant regime, in January 2023, HHS notified grantees it would be auditing their compliance with its counseling and referral regulations. HHS requested that grantees submit copies of their policies for providing neutral, nondirective options counseling and referrals for abortion services and a signed statement confirming compliance with those regulations.
Tennessee responded by submitting a letter confirming its compliance with the regulation and attaching its policy. The policy stated, in pertinent part, that Title X “[p]atients with positive pregnancy test[s] must be offered the opportunity to be provided information and counseling regarding all options that are legal in the State of Tennessee.” (R. 1-3, PageID 99). The letter did not clarify which options the state deemed “legal in the State of Tennessee,” but seemed to be alluding to a new law that had recently taken effect restricting abortion in the State. See
Procedural History. In October 2023, Tennessee brought the instant action in the United States District Court for the Eastern District of Tennessee seeking: (1) a declaratory judgment under
In November 2023, this court reviewed a similar Title X case and held that HHS‘s 2021 Rule was a permissible construction of the Title X statute. See Ohio, 87 F.4th at 771–72. Based in large part on our decision in Ohio, the district court denied Tennessee‘s preliminary injunction, concluding that Tennessee was not likely to succeed on the merits and that the balance of the equities and the public interest did not favor relief. The district court further concluded that Tennessee had “no basis to force funding from HHS without meeting the obligations upon which the [Title X] funding [was] conditioned.” (R. 30, PageID 857). Tennessee timely appealed.
II.
We review a district court‘s denial of a motion for a preliminary injunction for abuse of discretion. Wonderland Shopping Ctr. Venture Ltd. P‘ship v. CDC Mortg. Cap., Inc., 274 F.3d 1085, 1097 (6th Cir. 2001). We will find that a district court has abused its discretion when it has made “clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard.” Id. at 1097 (quoting Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001)). Though we review de novo the question of whether a movant is likely to succeed on the merits, a district court‘s ultimate determination as to whether the factors weigh in favor of granting or denying preliminary injunctive relief is subject to review for abuse of discretion. Ohio, 87 F.4th at 768 (citing City of Pontiac Retired Emps. Ass‘n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en banc) (per curiam)). Thus, absent a legal or factual error, “the district court‘s weighing and balancing of the equities will be overruled ‘only in the rarest of cases.’” Am. Imaging Servs., Inc. v. Eagle-Picher Indus., Inc. (In re Eagle-Picher Indus., Inc.), 963 F.2d 855, 858 (6th Cir. 1992) (citations omitted).
Courts consider four factors when determining whether to grant a preliminary injunction: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.” Ohio, 87 F.4th at 768 (citing City of Pontiac, 751 F.3d at 430). “Where the federal government is the defendant, as here, the third and fourth factors merge.” Id. (citing Nken v. Holder, 556 U.S. 418, 435 (2009)).
III.
Likelihood of Success on the Merits. Tennessee first argues that it has a strong likelihood of success on the merits because
A.
The Spending Clause. Tennessee maintains that HHS‘s enforcement (through rescission of funding) of the 2021 Rule‘s counseling and referral requirements violated the Spending Clause of the United States Constitution. It argues that HHS‘s imposition of these requirements usurped Congress‘s exclusive authority to regulate Title X funding. The Spending Clause empowers Congress to “lay and collect Taxes . . . to pay the Debts and provide for the common Defence and general Welfare of the United States.”
As a result, Congress‘s legitimacy to legislate under the spending power depends on (1) whether Congress‘s conditions on its grants of federal funds are unambiguous; and (2) “whether the State voluntarily and knowingly accepts the terms of the ‘contract.’” Id. Because the district court reasonably concluded that Congress unambiguously authorized HHS to regulate Title X eligibility; the conditions of the grant were unambiguous; and Tennessee knowingly and voluntarily accepted the grant‘s terms, we find that the district court did not abuse its discretion in concluding that Tennessee is unlikely to succeed on the merits of its Spending Clause claim.
1.
Unambiguous Statutory Authorization. Tennessee argues that Congress did not unambiguously place counseling and referral requirements in Title X and did not grant HHS the authority to add these conditions. Therefore, these conditions violate the Spending Clause. Tennessee‘s arguments here mirror the state of Oklahoma‘s challenge to HHS‘s counseling and referral requirements which it asserted in Oklahoma v. United States Department of Health & Human Servs., 107 F.4th 1209, 1217 (10th Cir. 2024). Under similar facts, the state of Oklahoma also argued that Title X‘s ambiguity prevented HHS from imposing counseling and referral requirements on grant recipients. Like Tennessee, Oklahoma argued that because the Supreme Court, in Rust v. Sullivan, 500 U.S. 173 (1991), held that § 1008‘s language barring usage of federal funds “in programs where abortion is a method of family planning” is ambiguous, then “Congress‘s silence on counseling and referrals render[ed] Title X ambiguous for purposes of the spending power.” Oklahoma, 107 F.4th at 1218 (quoting
To begin, as the Oklahoma court recognized, Congress‘s charge to HHS to promulgate eligibility requirements for Title X funds is explicit; “Grants . . . made under this subchapter shall be made in accordance with such regulations as the Secretary may promulgate” and “shall be
Here, Title X “unambiguously authorized HHS to impose conditions for federal grants” to ensure that the funds issued will be efficaciously put to use for their intended purpose. Oklahoma, 107 F.4th at 1219 (citing
Resisting this conclusion, Tennessee argues that Rust‘s holding that § 1008 is ambiguous as it relates to counseling and referrals for abortions, precluded HHS from requiring counseling and referrals and violated the Spending Clause. But as discussed, the Supreme Court has long recognized Congress‘s power to authorize agencies to issue grants and leave the minutia of its spending programs to be clarified through regulations and other guidelines—even in the face of statutory ambiguity. Id. at 1218 (citing Bennett, 470 U.S. at 670 (“We agree with the [agency] that the [state grantee] clearly violated existing statutory and regulatory provisions . . . .”) (emphasis added) (collecting cases)3). Again, Title X authorizes
Tennessee‘s reliance on Kentucky v. Yellen, 54 F.4th 325 (6th Cir. 2022) and West Virginia ex rel. Morrisey v. U.S. Department of Treasury, 59 F.4th 1124 (11th Cir. 2023) does not increase its likelihood of success on the merits. It insists that these two cases support its proposition that, in the face of an ambiguous statute, regulations alone generally cannot establish conditions. Specifically, Tennessee argues that HHS was barred from resolving § 1008‘s ambiguity through its own interpretations. But Yellen, which grappled with a vague rather than an ambiguous statute, did not reach a holding on the broader question of whether Congress could condition
funding on compliance with agency regulations. 54 F.4th at 353. Indeed, in Yellen, the Department of Treasury argued that statutory language alone sufficiently placed states on notice of its conditions for funding. Id. And in Morrisey,4 the Eleventh Circuit found that grantees were subject to regulations and legal requirements in place when the grants were made. 59 F.4th at 1148 (acknowledging that Congress may require grantees to abide by “‘the legal requirements in place when the grants were made’ [and] [t]hese ‘legal requirements’ include existing regulations.”) (quoting Bennett, 470 U.S. at 670). Thus, because § 1008 is situated among other provisions of Title X that clearly instruct HHS to determine the eligibility requirements, the district court did
2.
Voluntarily and Knowingly. The district court likely also did not err in determining that Tennessee voluntarily and knowingly agreed to HHS‘s requirement for nondirective counseling and referrals. Despite Congress‘s broad powers to set the unambiguous terms of its grants, it may not do so in a manner that “surprise[es] participating States with post acceptance or ‘retroactive’ conditions.” Pennhurst, 451 U.S. at 25. As discussed above, this means that HHS‘s decision to discontinue Tennessee‘s grant based on the state‘s refusal to adhere to the counseling and referral conditions would violate the Spending Clause if it imposed new requirements after Tennessee‘s acceptance of the grant. See Bennett, 470 U.S. at 670 (“[L]iability is determined by[] the legal requirements in place when the grants were made.”). But HHS issued the nondirective counseling and referral requirements in 2021, which then went into effect on November 8, 2021—several months before Tennessee accepted its Title X grant award in March 2022. See 86 Fed. Reg. 56144 and (R. 1-7, PageID 170). Moreover, as the district court aptly observed, the Counseling and Referral Rule has been in place in all but two of the last twenty-nine years. As a decades-long recipient of Title X funds, Tennessee was aware of this fact.
So Tennessee was on clear notice of the 2021 Rule and voluntarily agreed to its requirements when it accepted the grant. See Miss. Comm‘n on Env‘t Quality v. EPA, 790 F.3d 138, 179 (D.C. Cir. 2015) (“[T]he fact that the State has long accepted billions of dollars notwithstanding the challenged conditions may be an additional relevant factor in the contract-like analysis the Court has in mind for assessing the constitutionality of Spending Clause legislation.”).
Tennessee points out that HHS issued the 2021 Rule at a time when the law of the land stated that women had a constitutional right to obtain an abortion. Thus, there was no possibility that the state‘s adherence to the Rule might conflict with a law banning the procedure. But after the Supreme Court‘s decision in Dobbs, Tennessee criminalized the procedure in all but the narrowest of cases. It argues that this “supervening illegality” of abortions in the state demonstrated a clear and permissible public policy statement on an issue within the domain of its own sovereignty. This critical shift in circumstances, according to Tennessee, rendered inadequate any notice of the Rule it had received pre-criminalization because the 2021 Rule did not contemplate such a scenario. (ECF 20, Appellant‘s Br. 30). But to the extent that Tennessee argues that the 2021 Rule is “silent” regarding its obligations post-Dobbs, HHS provided detailed guidance on how its nondirective counseling and referral requirements remained unchanged and active. Consistent with § 1008, HHS reiterated that Title X projects “may not take further affirmative action . . . to secure abortion services for the patient.” (R. 1-6, PageID 165 (citing 65 Fed. Reg. at 41281)). And after Tennessee raised compliance concerns following its criminalization of abortion, HHS offered Tennessee the opportunity to submit an “alternate compliance proposal,” which included the option to use a national call-in hotline where third-party operators would supply the requisite information. (R. 1-9, PageID 190). Thus, given that Dobbs did not address what, if any, effect the decision might have on Title X‘s underlying program requirements, the district court did not err in determining that Tennessee voluntarily
3.
Tennessee‘s Sovereignty. Tennessee also asserts that HHS‘s 2021 Rule violates the spending power because it infringes on Tennessee‘s state sovereignty. It suggests that the 2021 Rule‘s counseling and referral requirements compel Tennessee to undermine its own state criminal abortion laws. But like Oklahoma, Tennessee may not use its state criminal laws to “dictate eligibility requirements” for Title X grants. Oklahoma, 107 F.4th at 1220 (citing Planned Parenthood Fed‘n of Am., Inc. v. Heckler, 712 F.2d 650, 663 (D.C. Cir. 1983) (“Although Congress is free to permit the states to establish eligibility requirements for recipients of Title X funds, Congress has not delegated that power to the states.”)). The 2021 Rule makes no reference to incorporating state law and does not limit compliance with its requirements to the procedures available within a given state. And Tennessee was free to voluntarily relinquish the grants for any reason, especially if it determined that the requirements would violate its state laws. (R. 1-9, PageID 190); see also Rust, 500 U.S. at 199 n.5 (“The recipient is in no way compelled to operate a Title X project; to avoid the force of the regulations, it can simply decline the subsidy.”)). Instead, Tennessee decided to accept the grant, subject to the 2021 Rule‘s counseling and referral requirements.
In addition, Tennessee‘s suggestion that the 2021 Rule violates the Spending Clause by impairing its general police powers to regulate “health and welfare” through “limits on the medical profession” is unsubstantiated. Thus, we find that the district court did not err in its conclusions that Title X and HHS‘s regulations did not violate the spending power and that Tennessee voluntarily and knowingly accepted its grant conditions. Tennessee is not likely to succeed on its Spending Clause claims.
B.
Tennessee‘s APA Challenge. Tennessee next argues that HHS‘s decision to discontinue funding its grant violated the APA. Specifically, Tennessee asserts that HHS‘s action to enforce the 2021 Rule: (1) exceeded HHS‘s regulatory authority under Title X; (2) is unreasonable; (3) is arbitrary and capricious; and (4) represents a new legislative rule which may only be promulgated via notice-and-comment rulemaking.
1.
Compliance with Title X. Tennessee maintains that HHS has misinterpreted § 1008‘s prohibition on the use of Title X funds for “programs where abortion is a method of family planning.”
Several states raised similar arguments before this court in Ohio, 87 F.4th at 770–75. In Ohio, we held that HHS‘s application of the 2021 Rule was within its statutory authority. Id. In deciding Ohio, we relied on the Supreme Court‘s conclusion in Rust, that § 1008 is indeed ambiguous with respect to nondirective counseling and referral options under Chevron step one; and under Chevron step two, HHS‘s “reasoned analysis” for proscribing such actions was a permissible construction of Title X. Rust, 500 U.S. at 187;
Since our decision in Ohio, Chevron deference has fallen. See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 412 (2024). Consequently, given Rust‘s and Ohio‘s application of Chevron deference to HHS‘s actions relating to the provision of neutral, nondirective counseling5 and referrals in those cases, Tennessee challenges their precedential effect. However, the extent to which Loper Bright undermines the validity of prior cases that were decided using Chevron deference depends on several factors not addressed by the parties in their briefing. In its guidance to lower courts, the Court broadly stated that it “do[es] not call into question prior cases that relied on the Chevron framework.” Id. at 376. And it further explained that “[t]he holdings
of those cases that specific agency actions are lawful . . . are still subject to statutory stare decisis despite [its] change in interpretive methodology.” Id. (citing CBOCS West, Inc. v. Humphries, 553 U.S. 442, 457 (2008)). So, while Loper Bright opens the door to new challenges based on new agency actions interpreting statutes, specific agency actions already resolved via Chevron deference analysis will not automatically fall. See id. Unremarked upon was whether statutory stare decisis includes Circuit court precedent. See id.; see also Amy Coney Barrett, Statutory Stare Decisis in the Court of Appeals, 73 Geo. Wash. L. Rev. 317 (2005). For instance, here, Tennessee‘s argument involves the same “specific agency action”6 challenged in Ohio—HHS‘s enforcement of its 2021 Rule interpreting § 1008 to require nondirective counseling and referral options. In Ohio, we concluded that the 2021 Rule was lawful. Regardless of whether Ohio binds us,7 like the Oklahoma court, we find its conclusion upholding the 2021 Rule—and by extension its enforcement against Tennessee here—persuasive. Ohio relied on Rust for its determination that HHS acted within statutory authority in treating referrals as falling outside of
Here, Tennessee argues that Loper Bright abrogated the precedential effect of Rust and Ohio because they relied on Chevron. But Loper Bright declined to “call into question prior cases that relied on the Chevron framework.” Id. This approach makes sense considering, “there
are thousands of such decisions, many settled for decades.” Id. at 477 (Kagan, J. dissenting). And, even if the “specific agency action” in Rust was HHS‘s 1988 Rule prohibiting counseling and referral requirements pursuant to § 1008, our own circuit precedent addressed the inverse specific agency action and notably affirmed HHS‘s authority under Title X to require nondirective counseling and referral options. See Ohio, 87 F.4th at 772. Thus, as we consider, on a tentative basis, whether the district court improperly relied on Rust and Ohio to support its analysis, we cannot say that Loper Bright requires us to find that it did. See In re Baker, 791 F.3d 677, 682 (6th Cir. 2015) (recognizing lower courts’ obligation to follow Supreme Court dicta).
Alternatively, Tennessee argues Ohio and Rust are distinguishable because they only involved facial challenges to § 1008. Tennessee asserts that its claim is an as-applied challenge because the challenge hinges on HHS‘s decision to discontinue its Title X funding—a purportedly different agency action in the wake of Tennessee‘s changed circumstances post-Dobbs. But Tennessee‘s attempt to distinguish HHS‘s promulgation of the 2021 Rule in Ohio from HHS‘s rescindment of Tennessee‘s Title X funding is unavailing because a “specific agency action” attaches to an agency‘s particular construction of a statute. See Loper Bright, 546 U.S. at 376 (connecting “specific agency action” to the “holdings of those cases that specific agency actions are lawful”). In Ohio, this court had already held that HHS‘s 2021 Rule is lawful because it is a permissible construction of § 1008. 87 F.4th at 772.8 Therefore, Ohio‘s holding that the 2021 Rule is lawful is “still subject to statutory stare decisis despite our change in interpretive methodology.” Loper Bright, 603 U.S. at 412; see also Lopez v. Garland, 116 F.4th 1032, 1045 (9th Cir. 2024) (declining to call into question prior Chevron precedent because an administrative body did not promulgate a new interpretation of a statute). And the district court‘s decision is consistent with this approach.
Tennessee further asserts that its as-applied challenge now requires the
Moreover, the “single, best meaning” of § 1008 permits both neutral, non-directive counseling and referrals. Loper Bright, 603 U.S. at 400. As noted earlier, Congress‘s yearly spending rider presumes the provision of such counseling, specifically instructing—like the 2021 Rule—that all pregnancy counseling must be non-directive. Requiring grantees to follow up with additional information to those who request it, in the form of names, addresses, and phone numbers of health care providers, is a natural outgrowth of that counseling. And short of that, HHS has granted Tennessee the option of merely providing patients with a hotline number where they can obtain such health care provider information. Under either scenario, the grant recipient‘s role is informational only. It neither recommends nor promotes any particular pregnancy care option, while, at the same time, it promotes HHS‘s stated intention to advance a patient-centered approach. In this light, it seems quite a stretch to say that merely supplying to patients health provider information or a means to obtain such information elevates a grantee‘s actions to the status of having abortion as a method of family planning. Even accepting the dissent‘s definition of the term “method,” the provision of such information cannot be characterized as a deliberate or systematic action toward a particular end. Offering a list of phone numbers is simply too attenuated an act to characterize an entire program as one that conclusively offers abortion as a “method of family planning.” For this reason, Tennessee is unlikely to succeed on its claim that the 2021 Rule violates the APA. The 2021 Rule‘s counseling and referral requirement is consistent with the meaning of § 1008.
Tennessee also relies on a series of other arguments to attack HHS‘s authority based on § 1008‘s ambiguity. For instance, it argues that because of § 1008‘s ambiguity, HHS‘s actions implicated the major-questions doctrine, which requires agencies to have “clear congressional authorization” before making major policy decisions. W. Virginia v. EPA, 597 U.S. 697, 722 (2022). But, given the limited scope of HHS‘s authority under Title X, the doctrine is likely not implicated. Title X describes HHS‘s authority to “make grants to and enter into contracts with public or nonprofit private entities to assist in establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning
2.
Compliance with HHS Regulations. Tennessee next argues that HHS‘s actions are inconsistent with its own regulations because program services must be “allowable under state law” and referrals must be made to service providers “in close physical proximity.” (ECF 20, Appellant‘s Br. 44 (citing
Allowable Under State Law. “[A] fundamental canon of statutory construction is that when interpreting statutes, the language of the statute is the starting point for interpretation, and it should also be the ending point if the plain meaning of that language is clear.” Saginaw Chippewa Indian Tribe of Mich. v. Blue Cross Blue Shield of Mich., 32 F.4th 548, 557 (6th Cir. 2022) (citations and quotations omitted).
Close Physical Proximity. Tennessee next argues that
3.
Finally, Tennessee contends that HHS‘s counseling and referral conditions are arbitrary and capricious because the agency failed to consider several “important aspect[s]” of its requirement. (ECF 20, Appellant‘s Br. 47 (citing Motor Vehicle Mfrs. Ass‘n v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43 (1983))).
Federalism Concerns. First, Tennessee asserts that HHS ignored federalism concerns because its decision to discontinue Tennessee‘s grant award did not consider the effect of Dobbs on counseling and referral requirements. But as discussed above, HHS issued extensive guidance about the effect of Dobbs on the requirements regarding counseling and referrals. Though Tennessee is correct that the 2021 Rule did not contemplate Dobbs, that case did not address the power of the agency to set conditions on federal grants. 597 U.S. at 231. And as the Supreme Court has previously noted, “[t]he recipient is in no way compelled to operate a Title X project; to avoid the force of the regulations, it can simply decline the subsidy.” Rust, U.S. at 199 n.5. The district court did not err here.
Unlawful Position Switch. Tennessee argues that the rescindment was an “unlawful position switch,” because it came only months after HHS approved Tennessee‘s Title X program with “full awareness the State‘s post-Dobbs policy that ‘[n]o referrals for abortion are made.’” (ECF 20, Appellant‘s Br. 50 (quoting (R. 1-1, PageID 56))). Tennessee points to HHS‘s July 2022 program review of its Title X project to support its argument that the agency unlawfully changed positions. However, the July 2022 program review indicated that there would be a follow-up if Tennessee changed its counseling and referral policies in response to the abortion restriction that was soon to take effect. And regardless, the counseling and referral requirements have been in place since 2021, before Tennessee applied for and received Title X funds.
Reliance Interests. Lastly, Tennessee argues that the rescindment overlooked Tennessee‘s legitimate reliance interests
IV.
Irreparable Harm. Tennessee argues that it will face irreparable harm without an injunction because the rescindment: (1) will cause Tennessee severe financial losses that it cannot later recover; (2) threatens the viability of Tennessee‘s Title X program; (3) causes irreparable reputational harm impacting its ability to secure future federal grants; and (4) interferes with its “sovereign interest” in setting its own abortion laws. Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in chambers).
“A plaintiff‘s harm from the denial of a preliminary injunction is irreparable if it is not fully compensable by monetary damages.” Overstreet v. Lexington-Fayette Urb. Cnty. Gov‘t, 305 F.3d 566, 578 (6th Cir. 2002) (citing Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir. 1992)). Tennessee bears the burden of showing that its injuries are both “certain and
immediate” and not “speculative or theoretical.” D.T. v. Sumner Cnty. Schs., 942 F.3d 324, 327 (6th Cir. 2019) (citation omitted). However, finding harm is not enough for Tennessee to satisfy its burden here. It is “the peculiarity and size of a harm” that “affects its weight in the equitable balance.” Kentucky v. Biden, 57 F.4th 545, 556 (6th Cir. 2023). For instance, when the likelihood of success on the merits is low, plaintiffs must inversely show a higher degree of harm to warrant an injunction. See Friendship Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100, 105 (6th Cir. 1982) (“[I]n general, the likelihood of success that need be shown . . . will vary inversely with the degree of injury the plaintiff will suffer absent an injunction.“) (citation omitted).The district court satisfied itself that Tennessee‘s harm was insufficient to warrant a preliminary injunction because its claims failed to establish a high degree of harm. Tennessee says the court abused its discretion because Tennessee believes it will suffer severe financial, reputational, and sovereign harm. Specifically, it argues that its loss of $7 million in federal Title X funds will cause irreparable harm because the funds are unrecoverable, and this court in Ohio has similarly found lower amounts of lost federal funds sufficient to compel an injunction. 87 F.4th at 782-83. But there, the state of Ohio lost one-fifth of its Title X funding because of HHS‘s contested rule change. Id. Moreover, the court found that Ohio established that it was likely to succeed on the merits of one of its claims, further warranting an injunction. Tennessee‘s situation is different. Unlike Ohio, Tennessee lost its funding because it refused to comply with requirements established
Second, there is no indication that Tennessee will lose its Title X program because of the lack of federal funding. Irreparable injury cannot be speculative. See D.T., 942 F.3d at 327 (requiring that irreparable harm not be speculative); see also Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 154 (6th Cir. 1991) (“[T]he harm alleged must be both certain and immediate, rather than speculative or theoretical.“). As it currently stands, the Tennessee legislature has already provided the state‘s Title X project with the $7 million it would have otherwise received from HHS. (R. 21-1, PageID 335, ¶15). The Tennessee legislature earmarked the appropriations to fund its Title X project as “recurring.” (R. 21-1, PageID 335, ¶15). Because this suggests that Tennessee‘s family planning program will continue to be funded at least in the near-term—Tennessee‘s arguments that it will lose its program based on a lack of federal funding amount to speculation.
Tennessee‘s next claim, that it will suffer irreparable reputational harm, is similarly unpersuasive. Tennessee argues that because HHS is required to report its termination of Tennessee‘s grant to the federal grantee clearinghouse, the Federal Awardee Performance and Integrity Information System (“FAPIIS“), HHS‘s actions threaten Tennessee‘s “ability to obtain [any] future Federal funding.” (see R. 1-9, PageID 190). Tennessee cites ACT, Inc. v. Worldwide Interactive Network, Inc., 46 F.4th 489, 503-04 (6th Cir. 2022), for the proposition that its possible reported status is the type of reputational damage that “constitute[s] irreparable harm” because it is “likely to occur” and “difficult to quantify monetarily.” (ECF 20, Appellant‘s Br. 56). But Tennessee provided no evidence as to how being reported would “affect the grants it currently receives or will receive in the future.” (R. 30, PageID 854 (citing ACT, Inc., 46 F.4th at 503-04). True, the inclusion in FAPIIS “may” affect a grantee‘s ability to obtain future federal funding, (see R. 1-9, PageID 190). But Tennessee does not do its part to establish the evidence of how FAPIIS inclusion has hurt grantees “in the past” or that it “is likely to occur again.” State of Ohio ex rel. Celebrezze v. Nuclear Regul. Comm‘n, 812 F.2d 288, 290 (6th Cir. 1987). Thus, because Tennessee does not provide the “requisite facts and affidavits” supporting its theory of reputational harm, Ohio, 87 F.4th at 784, we agree with the district court that Tennessee‘s reputational-injury claim is too speculative.
Last, Tennessee claims that HHS‘s interference with its “sovereign interest” in setting its abortion laws constitutes a form of irreparable injury. (ECF 20, Appellant‘s Br. 56-57 (citing Maryland, 567 U.S. at 1303)). However, we have already concluded that there is no direct conflict between HHS‘s counseling and referrals requirement and Tennessee‘s recent abortion criminalization laws. Moreover, as discussed above, Tennessee was free to voluntarily relinquish the grants for any reason, especially if it determined the requirements would violate its state laws. (R. 1-9, PageID 190); see also Rust, 500 U.S. at 199 n.5. Thus, because the district court thoroughly addressed each of Tennessee‘s arguments regarding irreparable harm and
V.
The Public Interest. Tennessee argues that declining to issue an injunction harms the public interest because it deprives Tennesseans of family planning services and generates new public-health risks. “[T]he public‘s true interest lies in the correct application of the law.” Kentucky v. Biden, 23 F.4th 585, 612 (6th Cir. 2022) (citation omitted); see also Priorities USA v. Nessel, 860 F. App‘x 419, 423 (6th Cir. 2021) (“[T]he public interest necessarily weighs against enjoining a duly enacted statute, and our assessment that the appellants will likely prevail on the merits tips the public-interest factor further in their favor.“).
The district court found that this factor favored HHS because the court found HHS‘s actions lawful, and both parties had agreed that the public interest lies in the correct application of Title X and its regulations. Because we similarly find that HHS‘s actions were lawful, we find no abuse of discretion here.
VI.
Tennessee cannot demonstrate how HHS‘s decision to discontinue its Title X grant due to the state‘s failure to comply with the 2021 Rule‘s requirements regarding counseling and referral for abortions, violated the Spending Clause or the APA. As a result, Tennessee is unable to prove the likelihood of its claims succeeding on the merits. The district court thoroughly assessed the balance of interests and found that they did not support granting an injunction. The district court‘s handling of Tennessee‘s claims in denying the motion for a preliminary injunction was consistent with this court‘s precedent and did not constitute an abuse of discretion. Because the majority of the preliminary injunction factors do not favor Tennessee‘s position, we find that the balance of the equities weighs in favor of denying a preliminary injunction.
For the reasons above, we AFFIRM the judgment of the district court.
DISSENTING IN PART / CONCURRING IN THE JUDGMENT IN PART
KETHLEDGE, Circuit Judge, dissenting in part and concurring in the judgment in part. Tennessee should succeed on its claim under the
A threshold issue is whether authority definitively to interpret
In the decades since, HHS has gone back and forth as to whether Title X programs may or even must provide abortion counseling and referrals. The 2021 Rule at issue here takes the “must provide” approach. Last year, our court acknowledged that Chevron and hence Rust remained binding precedent—even though the Supreme Court had recently granted certiorari to consider whether to overrule Chevron. See Ohio v. Becerra, 87 F.4th 759, 769 (6th Cir. 2023); Loper Bright Enters. v. Raimondo, 143 S. Ct. 2429 (2023) (mem.). Accordingly, we held, ”Rust‘s holding requires us to reject the States’ argument that the 2021 Rule‘s referral requirement is contrary to law.” Ohio, 87 F.4th at 771.
During the pendency of this appeal, however, the Supreme Court overruled Chevron. See Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2273 (2024). In Loper Bright, the Court observed what the Court in Chevron had not: that
Whether HHS “has acted within its statutory authority” is precisely the question presented here. Yet the Department of Justice (as counsel for HHS) insists that, in answering that question, Loper Bright is of no moment whatever. Specifically, before argument, the Department opposed supplemental briefing as to the effect of Loper Bright upon our decision in this appeal. Instead, the Department merely asserted that, in Rust, the Court concluded that
But the Department studiously overlooks the extent to which lower courts remain bound by the Court‘s “prior cases that relied on the Chevron framework.” Id. And in the very next sentence of Loper Bright, the Chief Justice was surpassingly clear in defining that extent: “The holdings of those cases that specific agency actions are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite our change in interpretive methodology.” Id. (emphasis added).
The “specific agency action” held lawful in Rust was the 1988 Rule, which has since been rescinded. Thus, in this appeal, we have no occasion to defer to that holding. Instead, we “must exercise [our] independent judgment in deciding whether [the] agency has acted within its statutory authority, as the APA requires.” Id. We would therefore contravene Loper Bright if we deferred to the agency‘s interpretation of
So our court must determine for itself whether the 2021 Rule‘s abortion-referral requirement is contrary to law. Again,
Facilitation means assistance toward a particular end. In this context, facilitation
Just as adoption or IVF are methods of family planning for programs that refer patients to providers for those services, therefore, so too is abortion a method of family planning for programs that refer patients to abortion providers. And the 2021 Rule mandates that every Title X program do exactly that. Thus, HHS‘s abortion-referral requirement makes every Title X program one “where abortion is a method of family planning.”
HHS counters, in passing, that Tennessee could comply with the referral requirement “by providing Title X patients the number for a call-in hotline where operators would supply the requisite information.” Br. at 10. But the “hotline” would supply the patient with the same information (“requisite” for obtaining an abortion) that handing her a printed list of abortion providers would. That indeed would transparently be the whole point of the exercise. Providing the patient with the hotline number would facilitate actually obtaining an abortion just as handing her the form would. That the hotline would contrive to add a step to that referral process (namely, that of dialing a phone number) should make zero difference to the analysis under
In sum, the abortion-referral requirement likely violates
* * *
A closer question is whether the 2021 Rule‘s requirement of nondirective counseling regarding abortion is likewise contrary to
A project must:
(i) Offer pregnant clients the opportunity to be provided information and counseling regarding each of the following options:
(A) Prenatal care and delivery;
(B) Infant care, foster care, or adoption; and
(C) Pregnancy termination.
(ii) If requested to provide such information and counseling, provide neutral, factual information and nondirective counseling on each of the options, and, referral upon request, except with respect to any option(s) about which the pregnant client indicates they do not wish to receive such information and counseling.
An action is not a “method” just because it makes a particular outcome more likely. Rather, a method is deliberate or systematic action toward a particular end. And nondirective counseling by definition is not directed toward a particular outcome. (The same is not true of promotion or advocacy: persuading a person to choose a particular outcome is a deliberate step toward reaching it.) Nondirective counseling helps the patient choose her own means of family planning, but advances none of them. Hence nondirective counseling does not amount to deliberate or systematic facilitation of any of the pregnancy options the counseling might cover. Thus, the 2021 Rule‘s requirement of nondirective counseling likely does not violate
An appropriations rider enacted every year since 1996 (including the years relevant here) all but confirms the point. By way of background, Congress “may amend substantive law in an appropriations statute, as long as it does so clearly.” Robertson v. Seattle Audubon Soc., 503 U.S. 429, 440 (1992). “Clearly” need not mean “expressly.” In Robertson, for example, the Court held that an appropriations statute had implicitly (though clearly) “modified” provisions of the Migratory Bird Treaty Act,
Here, the appropriations rider provides in relevant part:
For carrying out the program under Title X . . . to provide for voluntary family planning projects, $286,479.00: Provided, that amounts provided to said projects under such title shall not be expended for abortions, [and] that all pregnancy counseling shall be nondirective[.]
Omnibus Consol. Rescissions and Appropriations Act of 2022, Pub. L. No. 117-103, 136 Stat. 49, 444 (Mar. 15, 2022).
An ordinary reader would understand the phrase “all pregnancy counseling shall be nondirective” to mean that nondirective pregnancy counseling is permissible under Title X. In like fashion, for example, the phrases “all passenger vehicles must have seatbelts” and “all dogs shall be kept on a leash,” proscribe neither manufacturing passenger vehicles nor taking dogs for a walk; instead, those phrases specify a condition for doing those things lawfully. Here, the specified condition is that counseling be “nondirective“; and the rider makes clear enough that pregnancy counseling is lawful under Title X so long as that condition is met.
Moreover, the rider‘s reference to “all” pregnancy counseling suggests that such counseling may concern various topics; and the relevant context—among other things, that the rider‘s preceding clause ends with the word “abortions“—suggests that abortion is one of them. Indeed, in light of
* * *
Given that (in my view) the abortion-referral requirement violates
I respectfully dissent in part and concur in the judgment in part.