Health Reform WK-EDGE Vita Nuova survives HHS motion to dismiss regarding abortion services
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Monday, May 18, 2020

Vita Nuova survives HHS motion to dismiss regarding abortion services

By Todd Fanter, J.D.

A federal court in Texas granted in part and denied in part HHS’s position that Vita Nuova lacked standing to proceed in its pursuit of a declaratory judgment regarding abortion services and counseling.

Vita Nuova, Inc., a Christian pro-life organization, pursued a declaratory judgement, noting that it intended to apply for future Title X funds, but would refuse to provide abortion referrals or abortion counseling. Vita Nuova sought a declaratory judgment in fear of HHS reverting back to a previous interpretation; an interpretation that would penalize Title X recipients for not providing abortion referrals or counseling. The district court agreed in part, finding that Vita Nuova’s present injury could be redressed, as Vita Nuova stated that it had come to an agreement on the 2019 interpretation of Section 1008 of Title X of the Public Health Service Act (Title X) regarding these services (Vita Nuova, Inc. v. Azar, May 1, 2020, O’Connor, R).

Background. Vita Nuova sought to participate in the federal government’s Title X program. The organization intended to apply for future Title X funds, but Vita Nuova refused to provide abortion referrals or abortion counseling. Vita Nuova asserted that potential donors had informed them that they would not contribute funds unless Vita Nuova received assurance that it would remain eligible to participate in Title X. Based on this, Vita Nuova stated that their organization was suffering present injury due to the uncertain nature of the interpretation of Section 1008 of Title X. Similarly, this uncertainty allegedly harmed Vita Nuova’s attempts to recruit employees.

Vita Nuova also contended 45 C.F.R. §75.300(d), issued by HHS as part of a final rule, presented an additional obstacle. That final rule reads: "[i]n accordance with the Supreme Court decisions in United States v. Windsor and in Obergefell v. Hodges, all recipients must treat as valid the marriages of same-sex couples." Vita Nuova, as a Christian organization, is unwilling to recognize same-sex marriage, and will not accept Title X funds if it is compelled to recognize same-sex marriage as a condition of participation.

Vita Nuova’s third and final claim was a class-action Religious Freedom Restoration Act (RFRA) challenge to 42 U.S.C. §300a-7(c). Vita Nuova argued that 42 U.S.C. §300a-7(c) substantially burdened its exercise of religion because it prevented Vita Nuova from participating in the Title X program unless it allowed its employees to perform and/or assist in elective abortions.

Speculation. The court ruled that Vita Nuova’s first claim of future injury presented multiple layers of speculation. The court found that this claim failed to meet the established requirements that the injury must be concrete, particularized, and actual or imminent. Vita Nuova’s claim of present injury (under this claim) did not survive HHS’s.

No enforcement history. The court also addressed Vita Nuova’s second claim. The court noted that Vita Nuova provided no example of former enforcement of 45 C.F.R. §75.300(d), and HHS noted their history of non-enforcement. The authority to file suit is limited to a prosecutor or government agency because Title X deals with federal funding. As such, the general public does not have standing to file a grievance. Lastly, HHS had expressly disavowed enforcement of §75.300(d). With such limited authority, Vita Nuova stood a negligible chance of being prosecuted under Sec 75.300(d). By this reasoning, Vita Nuova’s second claim did not survive HHS’s motion to dismiss.

Injury. As to Vita Nuova’s third and final claim, the court broke down its analysis by answering (1) whether the future injury was certainly impending; and (2) whether the present injury meets Article III standing on its own. The court found that there was no ability to show substantial risk of future injury based upon this hypothetical event that has no certainty of happening. However, regarding present injury, Vita Nuova need not show it would successfully obtain Title X funding as an applicant because the injury in fact is the presumptive denial of Title X funding that stems from 42 U.S.C. §300a-7(c)’s encumbrance. The statute’s barrier provides an actual injury to Vita Nuova’s ability to receive Title X funding. As a result, Vita Nuova’s present injury can be redressed and the claim survived the motion to dismiss.

The case is No. 4:19-cv-00532-O.

Attorneys: Jonathan F. Mitchell (Mitchell Law PLLC) for Vita Nuova Inc. Andrew Marshall Berniem, U.S. Department of Justice, for Alex M. Azar II.

Companies: Vita Nuova Inc.

Cases: CaseDecisions AccessNews AgencyNews ContraceptionCoverageNews EmployerMandateNews IndividualMandateNews TexasNews NewsFeed

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