By Jeffrey H. Brochin, J.D.
The final rule was deemed to be less restrictive than the 1988 rule, which was upheld by the U.S. Supreme Court.
The U.S. Court of Appeals for the 9th Circuit has reversed the preliminary injunctions entered by three district courts that enjoined HHS from implementing the March 2019 final rule (84 FR 7714) regulating Title X family planning clinics. HHS did not exceed its authority when it adopted the final rule, including provisions as to physical separation from abortion facilities, and as the Supreme Court previously concluded, a rule implementing the government’s policy decision to encourage childbirth rather than abortion did not burden or interfere with a client’s health care (California v. Azar, February 24, 2020, Ikuta, CJ).
Title X and its interpretations. Title X of the Public Health Service Act (42 U.S.C. §300a) granted HHS the authority to make grants to support voluntary family planning projects for the purpose of offering a broad range of acceptable and effective family planning methods and services. Section 1008 of Title X prohibited grant funds from being used in programs where abortion is a method of family planning. Since 1970, when Title X was first enacted, HHS has provided competing interpretations of the prohibition. Regulations issued in 1988, and subsequently upheld by the Supreme Court in Rust v. Sullivan, completely prohibited the use of Title X funds in projects where clients received counseling or referrals for abortion as a method of family planning. HHS regulations issued in 2000 were deemed to be more permissive.
March 2019 rule. In March 2019, HHS promulgated regulations similar to those adopted by HHS in 1988 and upheld by Rust. Several states and private Title X grantees brought various suits challenging the 2019 final rule, and three district courts in three states entered preliminary injunctions against HHS’s enforcement of the rule. For the reasons stated below, the appeals court has now vacated those injunctions.
Not a gag rule. The appeals court noted that in order to ensure compliance with federal conscience laws, a Title X provider is not required to discuss abortion upon request; but the final rule at issue does not impose a "gag" on abortion counseling because a counselor may discuss abortion but is not required to do so. Although the final rule permits a Title X project to provide nondirective counseling that includes information about abortion, it does expressly prohibit referrals for abortion as a method of family planning. HHS explained its understanding that referral for abortion as a method of family planning, and such abortion procedure itself, are so linked that such a referral makes the Title X project or clinic a program where abortion is a method of family planning. Although referrals for abortion as a method of family planning are not allowed, the Title X project may give a pregnant client a list of licensed, qualified, comprehensive primary health care providers, which may include providers of prenatal care. Some, but not the majority, of these providers also provide abortion as part of their comprehensive health care services.
Physical and financial separation. The final rule, like the 1988 Rule, requires that a Title X project be organized so that it is physically and financially separate from activities that are prohibited under §1008. HHS explained that the physical and financial separation requirements were necessary to avoid the risk of the intentional or unintentional use of Title X funds for impermissible purposes, the co-mingling of Title X funds, the appearance and perception that Title X funds being used in a given program may also be supporting that program’s abortion activities, and the use of Title X funds to develop infrastructure that is used for the abortion activities of Title X clinics.
Intervening Congressional actions. The complaint argued that HHS’s final rule was arbitrary and capricious, in violation of the APA, and in excess of statutory authority, but that in any event, two intervening Congressional enactments since Rust had so altered the legal landscape so that Rust’s holding was no longer valid. The district courts had weighed the "likely to prevail on the merits" factor of the injunctions in favor of the plaintiffs, however, the appeals court disagreed, ruling that "Rust’s conclusion that §1008 could be interpreted to bar abortion counseling, referral, and advocacy within a Title X project became a part of Title X’s scheme, and we may not lightly infer that Congress intended to overrule that holding in enacting the appropriations rider or §1554 of the ACA." Furthermore, the modification by implication of a settled construction of an earlier and different section by a later enactment is not favored.
Reasonable conclusions by HHS. The appeals court further found that HHS could reasonably have concluded that the physical separation requirements could help minimize the appearance that the government was funding abortion as a method of family planning and that performing all services in the same facility created a risk of the intentional or unintentional use of Title X funds for impermissible purposes. Such risk was not speculative because the co-mingling of Title X funds, and the use of Title X funds to develop infrastructure that was used for the abortion activities of Title X clinics, was a matter of economies of scale and shared overhead.
The case is No. 19-15974.
Attorneys: Anna Rich, Office of the Attorney General, for State of California. Katherine Twomey Allen, U.S. Department of Justice, for Alex M. Azar II and U.S. Department of Health & Human Services.
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