Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH

UNITED STATES COURT OF APPEALSFOR THE TENTH CIRCUIT____________________________________________

July 15, 2024
Christopher M. Wolpert
Clerk of Court

STATE OF OKLAHOMA,
Plaintiff - Appellant,v.

No. 24-6063

UNITED STATES DEPARTMENT
OF HEALTH AND HUMANSERVICES; XAVIER BECERRA, in
his official capacity as the Secretaryof the U.S. Department of Healthand Human Services; JESSICA S.
MARCELLA, in her official
capacity as Deputy Assistant
Secretary for Population Affairs;
OFFICE OF POPULATIONAFFAIRS,
Defendants - Appellees.
---------------------------------------STATES OF MISSISSIPPI;ALABAMA; ALASKA;
ARKANSAS; FLORIDA;GEORGIA; IDAHO; INDIANA;
IOWA; KANSAS; KENTUCKY;LOUISIANA; MISSOURI;MONTANA; NEBRASKA; NORTHDAKOTA; OHIO; SOUTH
CAROLINA; SOUTH DAKOTA;
TENNESSEE; TEXAS; UTAH;
WEST VIRGINIA; WYOMING;THE
AMERICAN ASSOCIATION OF
PRO-LIFE OBSTETRICIANS &GYNECOLOGISTS; THE

Page: 1

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 2CHRISTIAN MEDICAL & DENTAL
ASSOCIATIONS; THE CATHOLIC
MEDICAL ASSOCIATION; THE
NATIONAL ASSOCIATION OFCATHOLIC NURSES, USA;CONSTITUTIONALACCOUNTABILITY CENTER;
AMERICAN CIVIL LIBERTIESUNION; AMERICAN CIVIL
LIBERTIES UNION OF
OKLAHOMA; CENTER FOR
REPRODUCTIVE RIGHTS;
LAWYERING PROJECT,
Amici Curiae.
___________________________________________APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF OKLAHOMA(D.C. No. 5:23-CV-01052-HE)____________________________________________
Zachary Paul West, Director of Special Litigation, Office of Attorney
General, State of Oklahoma, Oklahoma City, Oklahoma (Garry M. Gaskins,
II, Solicitor General, and Audrey A. Weaver, Assistant Solicitor General,
Office of Attorney General, State of Oklahoma, Oklahoma City, Oklahoma;
Barry G. Reynolds, R. Tom Hillis, J. Miles McFadden, Titus Hillis
Reynolds Love, P.C., Tulsa, Oklahoma; and Anthony J. Ferate, Spencer
Fane, Oklahoma City, Oklahoma, with him on the briefs), for Appellant.
Brian J. Springer, Attorney, Appellate Staff, Civil Division, U.S.
Department of Justice (Brian M. Boynton, Principal Deputy AssistantAttorney General, Michael S. Raab and Courtney L. Dixon, Attorneys,
Appellate Staff, Civil Division, with him on the briefs), Washington D.C.,
for Appellees.
Scott G. Stewart, Office of Attorney General for the State of Mississippi,(Lynn Fitch, Attorney General for the State of Mississippi, with him on thebriefs), Jackson, Mississippi, on behalf of States of Alabama, Alaska,
Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky,
Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio,
South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, andWyoming; John J. Bursch, Erin Morrow Hawley, Christopher Paul
2

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 3

Schandevel, Alliance Defending Freedom on behalf of American
Association of Pro-Life Obstetricians and Gynecologists, The Christian
Medical and Dental Associations, The Catholic Medical Association, and
The National Association of Catholic Nurses, USA; Miriam Becker-Cohen,
Brianne J. Gorod, and Elizabeth B. Wydra, Constitutional Accountability
Center on behalf of Constitutional Accountability Center; Andrew Beckand Ryan Mendias, American Civil Liberties Union Foundation on behalfof American Civil Liberties Union; Megan Lambert, American Civil
Liberties Union of Oklahoma Foundation on behalf of American Civil
Liberties Union of Oklahoma; Rabia Muqaddam and Alexander Wilson,
Center for Reproductive Rights, on behalf of Center for Reproductive
Rights; Jamila Asha Johnson and Paige Suelzle, Lawyering Project onbehalf of Lawyering Project, filed amicus curiae briefs.
_______________________________________________
Before BACHARACH, EBEL, and FEDERICO, Circuit Judges.
________________________________________________BACHARACH, Circuit Judge.
________________________________________________
This case involves a congressional program to award grants forfamily-planning projects. When the program was created, Congress
instructed the Department of Health and Human Services to establish
eligibility requirements. HHS complied, and its requirements included
nondirective counseling and referrals for all family-planning options,
including abortion.
The grant recipients included Oklahoma. But Oklahoma expressed
concern to HHS about the eligibility requirements, insisting that new statelaws prohibited counseling and referrals for abortions. HHS responded byproposing that Oklahoma supply individuals with neutral information about3Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 4family-planning options (including abortion) through a national call-in
number. Oklahoma rejected this proposal, so HHS terminated the grant.
Oklahoma challenged termination of the grant and moved for apreliminary injunction. The district court denied the motion, determiningthat Oklahoma wasn’t likely to succeed on the merits.
On appeal, Oklahoma argues that it would likely succeed for threereasons: (1) the spending power didn’t allow Congress to delegate
eligibility requirements to HHS, (2) HHS’s eligibility requirements
violated a statute known as the Weldon Amendment, and (3) HHS acted
arbitrarily and capriciously. We reject these arguments:
1.

2.

Spending Power: The Constitution’s spending power prohibits
Congress from imposing ambiguous conditions on states inexchange for federal funds. Did the district court err in treating
Title X of the Public Health Service Act as unambiguous? Weanswer no, concluding that the court didn’t err when it
determined that•

Title X had likely been unambiguous in conditioning
eligibility on satisfaction of HHS’s requirements and•Oklahoma had likely acted knowingly andvoluntarily in accepting HHS’s requirements.

The Weldon Amendment: A federal law, known as the Weldon
Amendment, prohibits distribution of funds to a federal or stateagency that discriminates against a health-care entity for
declining to provide referrals for abortions. See Consolidated
Appropriations Act, 2005, Pub. L. No. 108-447, div. F,§ 508(d), 118 Stat. 2809, 3163 (2004). Did the district court err
when it concluded that Oklahoma hadn’t shown a likely
violation of the Weldon Amendment? We answer no. HHS had
proposed use of a national call-in number, which would supply
neutral information about family-planning options, and4Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 5

Oklahoma didn’t show a likelihood that the sharing of this callin number would constitute a referral for the purpose of anabortion.
3.

Arbitrary and Capricious Action: Oklahoma argues that HHS
acted arbitrarily and capriciously, raising three sub-issues.
The first sub-issue is whether HHS strayed from Title X increating the eligibility requirements. We answer no, concludingthat the district court didn’t err when it concluded that theeligibility requirements had likely fallen within HHS’s
delegation of statutory authority.
The second sub-issue is whether Oklahoma demonstrated alikely violation of HHS’s regulations. We answer no. In ourview, the district court didn’t err by rejecting Oklahoma’s
proof of a likely violation.
The third sub-issue is whether the district court erred byconcluding that Oklahoma had failed to show a likely disregardof relevant factors. We answer no, concluding the district court
didn’t err by determining that HHS had likely considered all
the relevant factors, such as recent changes in precedent on
abortion and the impact on Oklahoma.
Background1.

Congress empowers HHS to administer the Title X grant
program.
In 1970, Congress enacted Title X of the Public Health Service Act,

which created a grant program for family-planning projects. 42 U.S.C.
§§ 300(a), 300a-4(c); Family Planning Services and Population ResearchAct, Pub. L. No. 91-572, 84 Stat. 1504, 1508 (1970). Under Title X,
Congress authorized HHS to determine eligibility requirements for thefunds. 42 U.S.C. § 300a-4(a)–(b).

5Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 6

Most Title X funds flow to state and local governmental agencies,
which distribute the funds to other entities providing health-care services.
See Nat’l Family Planning & Reproductive Health Ass’n, Inc. v. Gonzales,
468 F.3d 826, 828 (D.C. Cir. 2006). The grants initially last one year, but
can be continued upon HHS’s approval. 42 C.F.R. § 59.8(a)–(b). HHS may
terminate a grant if the recipient violates the conditions, including any
regulatory requirements. See 45 C.F.R. §§ 75.371(c), 75.372(a)(1).
2.

HHS terminates Oklahoma’s grant.

In 2021, HHS enacted a rule imposing conditions on the grant funds.
Ensuring Access to Equitable, Affordable, Client-Centered, Quality Family
Planning Services, 86 Fed. Reg. 56,144 (Oct. 7, 2021); see 42 C.F.R.
§ 59.1 et seq. In this rule, HHS renewed two earlier conditions 1:
1.

Nondirective Counseling: Projects must “[o]ffer pregnant
clients the opportunity” to receive “neutral, factual informationand nondirective counseling” regarding various family-planning
options, including abortion. 42 C.F.R. § 59.5(a)(5)(i)–(ii).

2.

Referral on Request: Projects must also provide a referral
regarding all options when requested. Id. § 59.5(a)(5)(ii). The
referral may include the provider’s name, address, phone
number, and other factual information. 86 Fed. Reg. 56,144,
56,150 (Oct. 7, 2021). But the project “may not take further
affirmative action . . . to secure abortion services for thepatient,” like negotiating fees, making an appointment, or
providing transportation. Id.

Through this rule, HHS readopted the regulations in place from 2000
to 2019. 86 Fed. Reg. 56,144; 56,144 (Oct. 7, 2021).

1

6

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 7

In 2022, HHS approved a grant to Oklahoma’s health department forthe period April 2022 to March 2023. In approving the grant, HHS
reminded Oklahoma that it needed to comply with Title X and the 2021
rule.
While the grant was in place, the Supreme Court issued Dobbs v.
Jackson Women’s Health Organization, stating that there is noconstitutional right to an abortion. 597 U.S. 215 (2022). Following thedecision, HHS informed grant recipients that Dobbs didn’t affect the
obligation to continue offering nondirective counseling and referrals
regarding all family-planning options, including abortions.
Months later, Oklahoma proposed to change its policies, citingchanges in state law. HHS rejected Oklahoma’s proposal, saying that thechanges had violated the 2021 rule. But HHS suggested that Oklahoma
could satisfy the requirement by passing along a national call-in number,which would supply neutral information regarding various family-planning
options.
In March 2023, Oklahoma accepted the grant and agreed to passalong the call-in number. So HHS approved continuation of the grant until
March 2024. A short time later, however, Oklahoma decided to stop
sharing information about the call-in number. With this decision, HHS
informed Oklahoma that it was violating the 2021 rule. When Oklahoma

7

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 8refused to continue telling individuals about the call-in number, HHS
terminated the grant.
Discussion
1.

We apply the abuse-of-discretion standard to the district court’s
denial of a preliminary injunction.
Oklahoma challenged HHS’s termination and sought a preliminary

injunction to keep the grant in place during the litigation. To obtain the
preliminary injunction, Oklahoma needed to show that•

it was likely to succeed on the merits,•

the denial of the preliminary injunction would create
irreparable harm,•

the balance of equities favored a preliminary injunction, and•the preliminary injunction would be consistent with the public
interest.

Derma Pen, LLC v. 4EverYoung Ltd., 773 F.3d 1117, 1119 (10th Cir.
2014). Applying these elements, the district court denied the motion for apreliminary injunction on the ground that Oklahoma hadn’t shown likely
success on the merits.
1.1

We apply the abuse-of-discretion standard to the district court’s
conclusions on likelihood of success.
Oklahoma sought judicial review under the Administrative Procedure

Act, arguing that it was likely to succeed on the claims involving
constraints involving the spending clause, violation of the Weldon
Amendment, and arbitrariness and caprice in terminating Oklahoma’s
8Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 9grant. We review the district court’s decision on likelihood of successunder the deferential abuse-of-discretion standard. See, e.g., Diné Citizens
Against Ruining Our Env’t v. Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016)(“Because each of these elements [including the likelihood-of-successelement] is a prerequisite for obtaining a preliminary injunction, we will
not reverse the district court’s denial of injunctive relief unless we are
persuaded that the court abused its discretion as to all [elements].”); Verlov. Martinez, 820 F.3d 1113, 1128–37 (10th Cir. 2016) (applying the abuseof-discretion standard to review the district court’s determination on
likelihood of success).
We apply this standard based on the realities of decisions on
preliminary injunctions, where the “district court almost always faces anabbreviated set of facts and must hypothesize the probable outcome of acase.” Resol. Tr. Corp. v. Cruce, 972 F.2d 1195, 1198 (10th Cir. 1992); seealso FTC v. Weyerhaeuser Co., 665 F.2d 1072, 1083 (D.C. Cir. 1981)(Ginsburg, J.) (noting that rulings on motions for a preliminary injunction
often involve “time pressure” and incomplete records). Given these
realities, we regard likelihood of success as only a tentative conclusion.
See Homans v. City of Albuquerque, 366 F.3d 900, 904–05 (10th Cir. 2004)(“Courts repeatedly have emphasized that a decision as to the likelihood of
success is tentative in nature and not binding at a subsequent trial on the
merits.”). We generally leave these tentative conclusions to “the sound9

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 10

discretion of the trial court.” Resol. Tr. Corp., 972 F.2d at 1198. For issues
involving questions of law, however, we conduct de novo review. See
Derma Pen, LLC v. 4EverYoung Ltd., 773 F.3d 1117, 1119–20, 1120 n.2(10th Cir. 2014) (explaining that we apply de novo review to legal
determinations involved in the inquiry on likelihood of success).
Because Oklahoma is seeking judicial review of agency action underthe Administrative Procedure Act, the district court had to reach a tentative
conclusion based on the standard that would govern the final decision. See
Aposhian v. Barr, 958 F.3d 969, 978–79, 989 (10th Cir. 2020) (reviewing
likelihood of success in light of the standard of review that would apply
for the final decision), abrogated on other grounds by Garland v. Cargill,
602 U.S. 406 (2024). When reaching a final decision, the district court can
set aside HHS’s termination of the grant only if HHS had acted in a waythat was•“procedurally defective,”•“arbitrary or capricious in substance,”•“manifestly contrary to [a] statute,” or•unconstitutional.

Ukeiley v. EPA, 896 F.3d 1158, 1164 (10th Cir. 2018); see United States v.
Mead Corp., 533 U.S. 218, 227 n.6 (2001) (explaining that review underthe Administrative Procedure Act includes constitutional questions);
People for Ethical Treatment of Prop. Owners v. U.S. Fish & Wildlife
10Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 11Serv., 852 F.3d 990, 999 (10th Cir. 2017) (same). 2 So in reviewing the
district court’s tentative conclusions on likelihood of success, we consider
the standard that will apply at the final stage.
2.

The district court didn’t err in tentatively concluding that
Oklahoma hadn’t proven a violation of the spending power.
Oklahoma argues that the spending power didn’t allow Congress todelegate eligibility to HHS. We reject this argument.
Under the spending power, Congress can “lay and collect Taxes, . . .
to pay the Debts and provide for the common Defence and general Welfareof the United States.” U.S. Const. art. I, § 8. This language allows
Congress to “fix the terms on which it shall disburse federal money to the[s]tates.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17(1981). The disbursement creates a kind of contract, where states agree tofederally imposed conditions in exchange for federal funds. Id. Given thecontractual nature of the terms, two requirements exist:
1.

Congress may impose conditions on federal grants only when
the conditions are unambiguous.

2.

The state must voluntarily and knowingly accept the terms of
the “contract.”

In the body of its opening brief, Oklahoma requests a stay pending
appeal. Because we affirm the district court’s denial of the preliminary
injunction, the motion for a stay is moot. See, e.g., Walmer v. U.S. Dep’t ofDef., 52 F.3d 851, 856 (10th Cir. 1995) (concluding that a stay was
dissolved upon affirmance of the district court’s ruling on a preliminary
injunction).
2

11Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 12Id.
2.1

Title X likely authorizes HHS to impose the disputed condition.
Oklahoma argues that Title X is ambiguous, preventing HHS from

imposing conditions related to counseling and referral. For this argument,
Oklahoma relies on § 1008 of Title X, which prohibits the use of federal
funds “in programs where abortion is a method of family planning.” 42
U.S.C. § 300a-6.
Oklahoma regards § 1008 as ambiguous based on the Supreme
Court’s opinion in Rust v. Sullivan, 500 U.S. 173 (1991). There the Court
had to decide whether § 1008 prohibited HHS from enacting a rule banning
nondirective counseling and referrals. Id. at 179–80. For that decision, theCourt concluded that congressional silence rendered § 1008 ambiguous oncounseling and referrals. Id. at 184. Oklahoma relies on Rust to argue that
Congress’s silence on counseling and referrals renders Title X ambiguous
for purposes of the spending power.
Though § 1008 itself didn’t require the availability of counseling andreferrals, Congress instructed HHS to determine eligibility for Title X
grants. See 42 U.S.C. § 300a-4(a) (“Grants and contracts . . . shall be madein accordance with such regulations as the Secretary may promulgate.”);id. § 300a-4(b) (“Grants under this subchapter shall be . . . subject to suchconditions as the Secretary may determine to be appropriate to assure thatsuch grants will be effectively utilized for the purposes for which made.”).
12

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 13The district court didn’t err in tentatively concluding that this delegation
to HHS wouldn’t violate the spending power.
The Supreme Court considered a similar delegation to an agency in
Bennett v. Kentucky Department of Education, 470 U.S. 656 (1985). There
the agency tried to recoup a federal grant from a state, arguing that thestate had knowingly and voluntarily accepted unambiguous conditions. Id.
at 658–59.
The Supreme Court agreed with the agency. Id. at 669. Under the
grant program, Congress authorized the agency to set grant conditions.
20 U.S.C §§ 241e(a), 241f(a)(1), 242(b) (1976). The Supreme Court
allowed this delegation to the agency, explaining that Congress couldn’t“prospectively resolve every possible ambiguity concerning particularapplications of the requirements.” Bennett, 470 U.S. at 669; see also W.
Va. ex rel. Morrisey v. U.S. Dep’t of the Treasury, 59 F.4th 1124, 1148
(11th Cir. 2023) (“[W]e do not question an agency’s authority to fill ingaps that may exist in a spending condition.”). 3

When the spending power was adopted, Congress had already begun
delegating grant conditions to the executive branch. For example, Congresscreated a benefits program for the army in 1790, stating that payments
would follow “regulations . . . directed by the President.” Act of Apr. 30,
1790, ch. 10, § 11, 1 Stat. 119, 121; see also Act of Sept. 29, 1789, ch. 24,
1 Stat. 95, 95 (similarly delegating executive authority to administer apension program for wounded Revolutionary War veterans).
313

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 14

Despite this authorization, the state grantee invoked the spending
power, arguing that ambiguity in the law prevented deference to theagency’s interpretations. Br. for the Respondent at 24–30, Bennett v. Ky.
Dep’t of Educ., 470 U.S. 656 (1985) (No. 83-1798), 1984 WL 565692; seealso id. at 22–27 (arguing that the recipient of the grant should not be
penalized for interpreting an ambiguous statute differently than theagency).
But the Supreme Court held that the funding conditions wereunambiguous based on the combination of the statute and the agency’s
authorized regulations: “We agree with the [agency] that the [state grantee]
clearly violated existing statutory and regulatory provisions . . . .”Bennett, 470 U.S. at 670 (emphasis added); see id. (considering exercisesof the spending power based on both the “the statutory provisions” and“the regulations . . . and other guidelines provided by the [the agency] atth[e] time” that funding had been accepted); see also Davis v. Monroe
Cnty. Bd. of Educ., 526 U.S. 629, 643 (1999) (holding that agencies’
unambiguous regulations satisfy the notice requirements under the
spending power); South Dakota v. Dole, 483 U.S. 203, 206 (1987)(“Congress . . . has repeatedly employed the spending power ‘to further
broad policy objectives by conditioning receipt of federal moneys uponcompliance by the recipient with federal statutory and administrative14

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 15

directives.’” (emphasis added) (quoting Fullilove v. Klutznick, 448 U.S.
448, 474 (1980))).
Bennett’s reasoning applies here. Like the statute in Bennett, Title X
unambiguously authorized the agency to impose conditions for federal
grants. See 42 U.S.C. § 300a-4(b); 4 see also 86 Fed. Reg. 56,144, 56,154(Oct. 7, 2021) (explaining the critical nature of nondirective counselingand referrals for the delivery of services under Title X). With thisauthorization, HHS established the conditions for Title X grants. So
Oklahoma could make an informed decision based on the combination of
Title X’s language and HHS’s conditions.
Oklahoma points to West Virginia ex rel. Morrisey v. U.S.
Department of the Treasury, 59 F.4th 1124 (11th Cir. 2023). There the
In its reply brief, Oklahoma points to Congress’s authorization,
arguing that it limits HHS’s rulemaking power. Appellant’s Reply Br. at 7–
8 (discussing statutory language that instructs HHS to impose conditions toassure that grants are “utilized for the purposes for which made” (quoting
42 U.S.C. § 300a-4(b))). We need not address this argument because it
didn’t appear in the opening brief. United States v. Hunter, 739 F.3d 492,
495 (10th Cir. 2013).

4

Even if we were to consider this argument, we would reject it. The
statute explicitly allows HHS to impose conditions that it “determine[s] tobe appropriate.” 42 U.S.C. § 300a-4(b) (emphasis added). In the 2021 rule,
HHS explained why it believed that the requirement for nondirective
counseling and referrals would be critical to accomplish the purposes ofTitle X. See 86 Fed. Reg. 56,144, 56,154 (Oct. 7, 2021). We could disturb
HHS’s determination only if it had been procedurally defective, arbitraryor capricious, or manifestly contrary to a statute. See Discussion–Part 1.1,
above.
15

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 16

Eleventh Circuit said that the Treasury Department had violated thespending power by interpreting an ambiguous tax offset provision in a
stimulus act. Id. at 1146–48. We aren’t bound by other circuits. UnitedStates v. Carson, 793 F.2d 1141, 1147 (10th Cir. 1986). But even if
Morrisey were binding, its circumstances differed in two ways.
First, the Treasury Department created a regulatory framework forthe statutory offset provision because the statute itself was confusing andambiguous. Morrisey, 59 F.4th at 1133–34, 1146. But HHS’s requirements
didn’t create a framework to apply a confusing and ambiguous statute.
Second, the Eleventh Circuit said that this generic statutory language
hadn’t authorized the Treasury Department to interpret a major question of
the stimulus act. Id. at 1147. The Eleventh Circuit explained that “[t]heConstitution does not allow the [Treasury Department] to supply content
without which the [o]ffset [p]rovision literally could not function.” Id. at1148. By contrast, HHS’s requirement governs only counseling andreferrals, not the fundamental application of the grant program.
* * *The district court didn’t err when it tentatively concluded that
Oklahoma couldn’t show a violation of the spending power. Oklahoma
points out that § 1008 is silent on counseling and referrals. But § 1008
rests alongside other provisions of Title X that unambiguously direct HHS
to determine the eligibility requirements. So the district court didn’t err by
16

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 17

tentatively determining that the spending power hadn’t prevented
Congress’s delegation of eligibility requirements to HHS.
2.2

Oklahoma likely agreed voluntarily and knowingly to HHS’s
requirement for nondirective counseling and referrals.
The Supreme Court has explained that even when the law isunambiguous, the spending power prohibits Congress from “surpris[ing]participating States with post acceptance or ‘retroactive’ conditions.”
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 25 (1981). So wemust consider the conditions that existed when the state accepted thefederal funds. See Bennett v. Ky. Dep’t of Educ., 470 U.S. 656, 670 (1985)(rejecting a challenge under the spending power because “the State agreed
to comply with . . . the legal requirements in place when the grants weremade”).
In our view, the district court didn’t err when it tentatively
determined that Oklahoma had knowingly and voluntarily agreed to therequirements for nondirective counseling and referrals. Oklahoma accepted
the grants for 2022 and 2023 after HHS had enacted the 2021 rule,
including the requirements regarding nondirective counseling andreferrals. 5 And Oklahoma continued complying with these requirements

Oklahoma points out that it objected to the conditions stated in
HHS’s 2021 rule. But the existence of an objection reflects awareness of
HHS’s conditions.
517

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 18

even after Dobbs had triggered a change in state law. When concerns
emerged, HHS proposed use of a national call-in number and Oklahoma
accepted the proposal. See Background–Part 2, above. 6Given these circumstances, the district court could tentatively
conclude that Oklahoma had voluntarily and knowingly accepted the grantwith awareness of HHS’s eligibility requirements.
2.3

The district court didn’t err in tentatively determining that HHS
hadn’t violated Oklahoma’s sovereignty.
Finally, Oklahoma suggests that HHS’s 2021 rule violates the

spending power by encroaching on state sovereignty. 7 For this suggestion,
Oklahoma assumes that HHS’s requirements force Oklahoma to violate
state criminal law. But Oklahoma likely couldn’t use its state criminal law
to dictate eligibility requirements for the grants. See Planned ParenthoodFed’n of Am., Inc. v. Heckler, 712 F.2d 650, 663 (D.C. Cir. 1983)
Oklahoma argues that acceptance of the 2022 and 2023 grants doesn’t
matter because it would have been impossible to agree to the conditions forthe 2024 grant period. Even if we were to credit this argument, Oklahoma’s
challenge would fail. If we were to focus on the upcoming period,
Oklahoma could simply decline the grant rather than accept HHS’sconditions. See Rust v. Sullivan, 500 U.S. 173, 199 n.5 (1991) (“Therecipient is in no way compelled to operate a Title X project; to avoid theforce of the regulations, it can simply decline the subsidy.”).

6

Oklahoma points out that the HHS Secretary publicly disagreed with
the Supreme Court’s opinion in Dobbs v. Jackson Women’s HealthOrganization, 597 U.S. 215 (2022), and surmises that HHS deliberately
tried to circumvent the opinion. But Oklahoma doesn’t explain how HHS
tried to circumvent Dobbs.

7

18

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 19(“Although Congress is free to permit the states to establish eligibility
requirements for recipients of Title X funds, Congress has not delegatedthat power to the states.”); Valley Fam. Plan. v. North Dakota, 661 F.2d
99, 102 (8th Cir. 1981) (deferring to HHS’s interpretation when state law
conflicted with a regulation on referrals regarding abortions). 8 After all, if
compliance with the requirements would entail a state crime, Oklahoma
could simply decline the grant. See Rust v. Sullivan, 500 U.S. 173, 199 n.5(1991) (“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.”). 9* * *We conclude that the district court didn’t err in its tentative
conclusions that•the combination of Title X and the HHS requirements doesn’t
violate the spending power and•Oklahoma had acted voluntarily and knowingly when accepting
HHS’s conditions.

Oklahoma also suggests that by giving the funds to another entity,
HHS encourages that entity to violate Oklahoma law. But the district court
didn’t err in tentatively concluding that Oklahoma had failed to
substantiate that risk. See Appellant’s Opening Br. at 29–30 (stating onlythat another grantee “risks violating Oklahoma law” (emphasis added)).

8

Under state law, Oklahoma generally can’t use a federal grant toencourage a woman to get an abortion “except to the extent required forcontinued participation in a federal program.” Okla. Stat. tit. 63 § 1741.1(B). This law doesn’t “prohibit a physician from discussing options
with a patient through nondirective counseling.” Id.

919

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 20

So we uphold the district court’s rejection of Oklahoma’s challenge under
the spending power.
3.

The district court didn’t err when tentatively concluding that
HHS hadn’t violated the Weldon Amendment.
Oklahoma also relies on a statutory provision known as the Weldon

Amendment. Since 2004, Congress has adopted the amendment every year
when appropriating funds to HHS. See Nat’l Family Planning &Reproductive Health Ass’n, Inc. v. Gonzales, 468 F.3d 826, 827 (D.C. Cir.
2006).
Oklahoma argues that HHS violated the Weldon Amendment by

3.1•

subjecting Oklahoma’s health department (a health-care entity)
to discrimination for declining to make referrals for abortions
and•forcing Oklahoma (a state government) to discriminate against
other entities receiving funds under the statewide grant.

HHS’s proposal for the national call-in number was unlikely toconstitute a referral for the purpose of facilitating an abortion.
The Weldon Amendment provides:
None of the funds made available in this Act may be madeavailable to a Federal agency or program, or to a State or local
government, if such agency, program, or government subjects
any institutional or individual health care entity todiscrimination on the basis that the health care entity does notprovide, pay for, provide coverage of, or refer for abortions. 10

The Weldon Amendment says that federal funds will not “be madeavailable” to a federal agency that discriminates against a grantee. See text
accompanying note. Given this language, a violation could arguably resultin a denial of funds to HHS. This is not the remedy that Oklahoma wants;
1020

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 21

Consolidated Appropriations Act, 2005, Pub. L. No. 108-447, div. F,§ 508(d)(1), 118 Stat. 2809, 3163 (2004); see also Consolidated
Appropriations Act, 2023, Pub. L. No. 117-328, div. H, § 507(d)(1), 136
Stat. 4459, 4908 (2022) (enacting the amendment for the fiscal year ending
September 30, 2023); Further Consolidated Appropriations Act, 2024, H.R.
2882, 118th Cong. div. D, § 507(d)(1) (2024) (enacting the amendment for
the fiscal year ending September 30, 2024). Interpreting this language
involves a legal question that we review de novo. See, e.g., Sinclair Wyo.
Refin. Co. v. EPA, 887 F.3d 986, 990 (10th Cir. 2017). In conducting denovo review, we start with the Weldon Amendment’s language. Thomas v.
Metro. Life Ins. Co., 631 F.3d 1153, 1161 (10th Cir. 2011). We give thislanguage its “ordinary, everyday” meaning unless the context suggests
otherwise. Navajo Nation v. Dalley, 896 F.3d 1196, 1213 (10th Cir. 2018).
Based on the Weldon Amendment’s language, Oklahoma must prove
two elements for success on the merits:
1.

The entity claiming discrimination (the Oklahoma healthdepartment) constitutes a health-care entity.

2.

The federal government has discriminated against the
Oklahoma health department for declining to refer pregnant
women for abortions.

Oklahoma wants to receive the grant rather than strip HHS of funding. But
HHS doesn’t question Oklahoma’s right to the grant upon proof of
discrimination. HHS instead argues that it didn’t violate the Weldon
Amendment.
21

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 22

Oklahoma relies on the first element, insisting that its healthdepartment constitutes a health-care entity. But the district court relied on
the second element, concluding that Oklahoma likely couldn’t show
discrimination for refusing to refer women for abortions. 11 In our view, thistentative conclusion fits the statutory language.
The Weldon Amendment would apply only if HHS had required thehealth department to make referrals for abortions. HHS recognized that
Oklahoma had criminal laws prohibiting abortion. So HHS informed
Oklahoma that it could inform pregnant women of a national call-in
number. HHS explained that the number would provide neutral,
nondirective information about family-planning options. When informed ofthis option, Oklahoma expressed dissatisfaction. But the district court
didn’t err by tentatively rejecting Oklahoma’s argument that the mere actof sharing the national call-in number would constitute a referral for the
purpose of facilitating an abortion.

On appeal, the parties don’t address the meaning of the phrase refer
for abortions. But we must independently interpret the statutory phrase
irrespective of the parties’ positions. See WWC Holding Co., Inc. v.
Sopkin, 488 F.3d 1262, 1276 n.10 (10th Cir. 2007) (“[W]e are not limited
to the parties’ positions on what a statute means, because we review aquestion of statutory construction de novo.”); see also A.M. v. Holmes, 830
F.3d 1123, 1146 n.11 (10th Cir. 2016) (stating that we can affirm based on
our statutory interpretation even if the appellee had relied on a different
ground to affirm).
1122

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 23

To interpret the Weldon Amendment, we consider the use of
prepositions limiting the scope of the provision. See Kientz v. Comm’r,
SSA, 954 F.3d 1277, 1282 (10th Cir. 2020) (relying on the limiting
function of the preposition on to interpret a statute). The amendment uses
the preposition for to connect abortion with the referral. The preposition
for means because of or on account of. 6 Oxford English Dictionary 25 (2ded. 1989); see also Merriam-Webster Dictionary, http://www.merriamwebster.com/dictionary/for (last visited June 20, 2024) (defining for “as afunction word to indicate purpose,” “an intended goal,” and “the object . . .
of a perception, desire, or activity”). So we generally consider the
preposition for to link conduct to a particular purpose. See Muñoz v.
Garland, 71 F.4th 1174, 1177 (9th Cir. 2023) (interpreting the preposition
for to indicate a purpose); Chamber of Com. of U.S. v. U.S. Dep’t of Lab.,
885 F.3d 360, 373 (5th Cir. 2018) (same); Murfey v. WHC Ventures, LLC,
236 A.3d 337, 346 (Del. 2020) (stating that the preposition for links the
conduct at issue to a particular purpose).
The combined phrase (refer for) thus suggests that the Weldon
Amendment prohibits discrimination against entities for refusing to referindividuals for the purpose of getting abortions. But HHS required onlythat the Title X project offer pregnant women “the opportunity to beprovided information and counsel regarding . . . [p]regnancy termination.”
42 C.F.R. § 59.5(a)(5)(i)(c) (emphasis added). The term regarding is23

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 24

neutral, unlike the term for in the Weldon Amendment. See American
Heritage College Dictionary 1149 (3d ed. 1997) (defining the preposition
regarding as “[i]n reference to; with respect to; concerning”). Given theneutral wording of the requirement, the district court didn’t err when it
tentatively determined that reference to a national call-in number wouldn’t
involve a referral for an abortion. Instead, the call-in number offered an
opportunity to supply neutral information regarding an abortion. Oklahoma
rejected the option of a national call-in number, but didn’t question theneutrality of the information provided. 12
The dissent suggests two reasons why use of the call-in number
would constitute a referral for an abortion based on a pregnant woman’s
use of the information:
1.

An Oklahoma provider would reasonably assume that any
pregnant woman’s request for the call-in number would involvean interest in exploring the possibility of an abortion.

2.

If a pregnant woman gets an abortion after using the nationalcall-in number, her decision to get an abortion turns thereferral into one for the purpose of getting an abortion.

At oral argument, Oklahoma suggested that the call-in number hadn’t
provided neutral information, citing evidence outside the record. We
decline to consider this argument because it didn’t appear in Oklahoma’s
appellate briefs and rested on evidence beyond the record. See UnitedStates v. Anthony, 22 F.4th 943, 952 (10th Cir. 2022) (“We do not consider
arguments raised for the first time at oral argument.”); United States v.
Kennedy, 225 F.3d 1187, 1191 (10th Cir. 2000) (“This court will notconsider material outside the record before the district court.”).
1224

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 25

These arguments rest on a misunderstanding of the call-in number,speculation about a caller’s purpose, and disregard of the statutory focus
on the referring entity’s purpose rather than the pregnant woman’s. 13
HHS proposed use of the call-in number as a way for Oklahoma toprovide pregnant women with information about various family-planning
options. Apart from the dissent, no one has suggested•

that individuals will contact Oklahoma to obtain information
about the call-in number or•that Oklahoma would use the call-in number only for
individuals asking about abortions.

See Verlo v. Martinez, 820 F.3d 1113, 1125–26 (10th Cir. 2016) (statingthat when reviewing a district court’s preliminary-injunction ruling, we
restrict our inquiry to facts in the district court’s record). To the contrary,
HHS provided the national call-in number as a way for Oklahoma to
answer questions about all options available to pregnant women. For
example, a woman might ask: “I’m pregnant, what are my options?”
Appellant’s App’x vol. 3, at 591. Given that question, HHS would require
Oklahoma to provide the call-in number for nondirective counseling about
The dissent states that the Weldon Amendment unambiguously
renders use of the national call-in number a referral for abortion. But
the dissent doesn’t identify anything in the statutory text for thisinterpretation. Instead, the dissent relies solely on the possibility thata pregnant woman might decide to get an abortion after learning
about her options. This reliance not only rests on speculation, butalso disregards the statutory focus on the referring entity’s purpose
rather than how the pregnant woman would use the information.
13

25

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 26“prenatal care, adoption, foster care . . . and also pregnancy termination.”
Id.
The pregnant woman’s ultimate decision doesn’t show a likelihoodthat the court will ultimately regard use of the national call-in number as areferral for an abortion. HHS said that the call-in number provided neutral
information about abortions, and Oklahoma’s briefs and evidence presented
no reason to question the neutrality of the information. Given theneutrality of the call-in information, the Weldon Amendment requires us tofocus on the purpose of the referring entity (Oklahoma) rather than the
pregnant women using the information. Otherwise, the act of sharing thecall-in number would create both a referral for and against an abortion
depending on the pregnant woman’s decision after getting the same
information.
Based on the statutory language and the record, the district court
didn’t err when tentatively concluding that the act of sharing the call-in
number wouldn’t constitute a referral for pregnant women to getabortions. 14 This interpretation is supported by the statutory sponsor of the
HHS points out that Congress annually reenacts the Weldon
Amendment, including in the fifteen years that the amendment existed
alongside HHS’s requirements in 2000 for nondirective counseling andreferrals. See 86 Fed. Reg. 56,144, 56,153 (Oct. 7, 2021) (discussing thelongstanding coexistence of the amendment and the nondirective
counseling-and-referral requirement). HHS theorizes that this longstanding
coexistence shows that Congress didn’t intend for the amendment to14

26

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 27

Weldon Amendment. The sponsor explained that the Weldon Amendment
wouldn’t “affect access to abortion [or] the provision of abortion-related
information or services by willing providers.” 150 Cong. Rec. H10,090(daily ed. Nov. 20, 2004) (statement of Rep. Weldon). 15 We give
substantial weight to the statutory sponsor’s explanation of his amendment.
Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 564 (1976);
Nat’l Credit Union Admin. Bd. v. Nomura Home Equity Loan, Inc., 764
F.3d 1199, 1232 (10th Cir. 2014).
The dissent characterizes Oklahoma’s objection as sincere. Dissent at
20. Even if Oklahoma had sincerely considered use of the national call-in

abrogate HHS’s requirements concerning counseling and referrals. But weneed not address this theory.
In addition, the statutory sponsor explained that the amendment had
two other objectives:
15

1.

Protection of individual health-care providers like “nurses,
technicians, and doctors” who don’t want to “participate in an
abortion, perform an abortion, or be affiliated with doing an
abortion”

2.

Protection of health-care entities from being forced by thegovernment to provide abortion services, citing examples ofstate governments forcing hospitals to perform elective
abortions or build abortion clinics

150 Cong. Rec. H10,090. In these ways, the statutory sponsor explainedthat the amendment would prevent action to force participation in
abortions—not to prevent the sharing of neutral information about
abortions.
27

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 28

number as a referral for abortion under the Weldon Amendment, thelanguage in the amendment doesn’t entrust health-care entities with theauthority to define referral for abortion. Given the statutory language andthe sponsor’s explanation, the district court didn’t err by tentatively
concluding that the national call-in number wasn’t a referral for the
purpose of facilitating an abortion.
* * *The statutory sponsor’s explanation seems to fit the statutoryphrasing, which addresses referrals for abortions. This language suggests a
bar on referrals for the purpose of facilitating abortions rather than on the
sharing of neutral information regarding all family-planning options. The
district court thus didn’t err when tentatively concluding that the act ofsharing the call-in number wouldn’t constitute a referral for the purpose of
facilitating an abortion.
3.2

HHS likely didn’t force Oklahoma to discriminate against other
health-care entities.
Oklahoma also argues that HHS forced the state to discriminate

against other health-care entities that refuse to make referrals forabortions. But HHS clarified that Oklahoma could distribute the grant
funds to other health-care entities as long as Oklahoma itself passed along
the call-in number. See 65 Fed. Reg. 41,270, 41,274 (July 3, 2000)(specifying that while “grantees may not require individual employees who
28Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 29

have objections to provide such counseling . . . in such cases the grantees
must make other arrangements to ensure that the service is available toTitle X clients who desire it”); 86 Fed. Reg. 56,144, 56,148, 56,153 (Oct.
7, 2021) (readopting this requirement with the 2021 rule). Given HHS’sclarification, the district court didn’t err in tentatively concluding that
Oklahoma hadn’t compelled Oklahoma to discriminate against other healthcare entities.
* * *The district court didn’t err when it tentatively concluded that HHS
hadn’t4.

•

discriminated against Oklahoma for declining to make referrals
for abortions or•forced Oklahoma to discriminate against other health-care
entities.

The district court didn’t err by tentatively concluding that HHS
hadn’t acted arbitrarily and capriciously.
Finally, Oklahoma argues that HHS acted arbitrarily and capriciously

in terminating the grant. But the district court didn’t err in tentatively
rejecting Oklahoma’s characterization of HHS’s actions as arbitrary or
capricious.
4.1

The district court didn’t err by tentatively concluding that HHS
had complied with Title X.
Oklahoma argues that HHS misinterpreted § 1008 of Title X, which

prohibits use of Title X for “programs where abortion is a method of29

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 30

family planning.” 42 U.S.C. § 300a-6. Oklahoma and ten other statespresented a similar argument in Ohio v. Becerra, 87 F.4th 759, 770–75 (6thCir. 2023). But Ohio involved a facial challenge to HHS’s requirement. Id.
Here Oklahoma presents an as-applied challenge, focusing on terminationof a grant based on the state’s refusal to pass along the national call-in
number.
Section 1008 is silent on the issue of counseling and referrals. See
Rust v. Sullivan, 500 U.S. 173, 184 (1991) (“Title X does not define theterm ‘method of family planning,’ nor does it enumerate what types of
medical and counseling services are entitled to Title X funding.”). Given
Congress’s silence, the Supreme Court held that HHS could enact
requirements on counseling and referrals. Id. at 185. 16
When a judgment is issued, the district court will presumably need todecide whether HHS strayed from Title X. But here our inquiry is limited,considering only whether the district court erred when tentatively
concluding that HHS had complied with Title X. In our view, the district
court’s tentative conclusion wasn’t erroneous. See Ohio v. Becerra, 87
In Rust v. Sullivan, the Supreme Court applied a two-part test that
had been established in Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). Roughly two weeks ago, the Court
overruled Chevron. Loper Bright Enters. v. Raimondo, 603 U.S. ___, Nos.
22-451, 22-1219, 2024 WL 3208360, at *21 (June 28, 2024). But the Court
clarified that it was not “call[ing] into question prior cases that [had]relied on the Chevron framework.” Id.
1630

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 31

F.4th 759, 772 (6th Cir. 2023) (relying on Rust to conclude that HHS can“treat referrals as either falling inside or outside § 1008’s prohibition, solong as [HHS] adequately explains its choice”).
4.2

The district court didn’t err by tentatively finding compliancewith HHS’s regulations.
Oklahoma also argues that HHS acted inconsistently with its own

requirements, pointing to three snippets:
1.

The phrase allowable under state law in 42 C.F.R. § 59.5(b)(6)2.

The phrase in close physical proximity in 42 C.F.R.
§ 59.5(b)(8)3.

Two sentences in HHS’s preamble

An agency acts arbitrarily and capriciously when it violates its own
regulations. N.M. Farm & Livestock Bureau v. U.S. Dep’t of Interior, 952
F.3d 1216, 1231 (10th Cir. 2020). We grant substantial deference to anagency’s interpretation of its own regulations unless the interpretation is
unreasonable, plainly erroneous, or inconsistent with the plain language.
Oxy USA Inc. v. U.S. Dep’t of Interior, 32 F.4th 1032, 1044 (10th Cir.
2022).
Oklahoma first relies on an HHS regulation that requires Title X
projects to provide for performance of family-planning services “under the
direction of a clinical services provider, with services offered within theirscope of practice and allowable under state law, and with special training
or experience in family planning.” 42 C.F.R. § 59.5(b)(6) (emphasis
31Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 32

added). According to Oklahoma, this regulation prohibits HHS fromforcing Oklahoma to violate its laws.
Even if Oklahoma were correct, its argument would turn on themeaning of HHS’s phrase allowable under state law. HHS interpreted thisphrase to ensure that non-physician health-care providers can directfamily-planning programs so long as the providers are qualified under statelaw. HHS’s explanation is supported by the commentary accompanying the2001 rule. See 86 Fed. Reg. 56,144, 56,163–64 (Oct. 7, 2021) (explainingthat HHS added this regulatory language, including the phrase allowable
under state law, because “other healthcare providers . . . have authority todirect family planning programs and should be included within theregulation”). This commentary indicates that the phrase allowable understate law is meant to expand the categories of qualified providers. Given
HHS’s explanation and the commentary, the district court didn’t err bytentatively concluding that HHS had correctly interpreted its regulation.
Oklahoma also points to a second HHS regulation, which requires
Title X projects to “[p]rovide for coordination and use of referrals andlinkages with [other health-care entities], who are in close physicalproximity to the Title X site, when feasible . . . .” 42 C.F.R. § 59.5(b)(8)(emphasis added). According to Oklahoma, the use of a national call-in
number would violate the requirement of close physical proximity. But theregulation requires physical proximity only when feasible. See Appellant’s
32Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 33

App’x vol. 3, at 457 (HHS guidance on the 2021 rule, stating that “[t]here
are no geographic limits for Title X recipients making referrals for theirclients”). Oklahoma hasn’t explained how it would be feasible to makereferrals in close proximity to a Title X site within the state.
Oklahoma also argues that the call-in number can’t be feasible when
the requirement forces a state to violate its own criminal law. This
argument likely rests on a misreading of the regulation.
The regulation appears to modify the physical-proximity requirement,
which would permit referrals to distant providers when nearby referrals
aren’t possible; the language doesn’t necessarily modify the basic
requirements regarding nondirective counseling and referrals. In thesecircumstances, the district court didn’t err by tentatively concluding that
HHS’s regulatory interpretations hadn’t been arbitrary or capricious.
Finally, Oklahoma points to two stray sentences from the preamble tothe 2021 rule:
1.

“[O]bjecting providers or Title X grantees are not required tocounsel or refer for abortions.”

2.

“[O]bjecting individuals and grantees will not be required tocounsel or refer for abortions in the Title X program inaccordance with applicable federal law.”

86 Fed. Reg. 56,144, 56,163 (Oct. 7, 2021).
We reject arguments based on snippets of a preamble when theregulatory language is otherwise clear. See Sierra Club v. EPA, 964 F.3d
33

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 34

882, 893 (10th Cir. 2020) (rejecting an agency’s argument relying “onsnippets from the regulation’s preamble”); Peabody Twentymile Mining,
LLC v. Sec’y of Lab., 931 F.3d 992, 998 (10th Cir. 2019) (“[T]helimitations that appear in the preamble do not appear in the language of theregulation, and we refuse to engraft those limitations onto thelanguage.”). 17
HHS interprets its requirements to allow a Title X project to issue its
own grants to objecting health-care entities as long as the project otherwise
provides nondirective counseling and referrals. This interpretation is
supported by the regulatory language and HHS’s guidance. With that
support, the district court didn’t err by tentatively concluding that HHS’sinterpretation of its requirements hadn’t been arbitrary or capricious.
4.3

The district court didn’t err by tentatively concluding that HHS
had considered all important aspects of the problem.
Finally, Oklahoma alleges various errors and omissions, suggestingthat HHS ignored two important aspects of the problem. 18
First, Oklahoma alleges that HHS ignored federalism concerns,
including the importance of the Supreme Court’s 2022 opinion in Dobbs v.

At oral argument, Oklahoma agreed, conceding that preamble
language isn’t binding.
17

In its appellate briefs, Oklahoma cites various other state laws,
suggesting that they show a broad policy against abortions. But Oklahoma
concedes that it didn’t refer to these laws in district court. So we decline to18

34

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 35

Jackson Women’s Health Organization, 597 U.S. 215 (2022). But HHS
issued extensive guidance about the effect of Dobbs on the requirements
regarding counseling and referrals. Given that guidance, the district court
didn’t err by tentatively concluding that HHS had adequately considered
Dobbs. Though Dobbs had addressed the constitutional right to an
abortion, the opinion had not expressly addressed the power of the federal
government to set conditions on federal grants. See id. at 231.
Even if the Supreme Court’s opinion had addressed this power, thedistrict court could tentatively conclude that HHS’s requirements wouldn’t
prevent Oklahoma from regulating abortions. “The recipient is in no way
compelled to operate a Title X project; to avoid the force of theregulations, it can simply decline the subsidy.” Rust v. Sullivan, 500 U.S.
173, 199 n.5 (1991).
Second, Oklahoma argues that HHS failed to consider how
termination of Oklahoma’s grant would affect the state. But HHS
considered the impact on Oklahoma patients, funding other providers who
could fill the gap.
* * *address Oklahoma’s new suggestion of a broad policy reflected in theselaws. See Bass v. Potter, 522 F.3d 1098, 1107 n.9 (10th Cir. 2008)(“Because ‘the theory in question was not presented . . . to the district
court,’ the issue ‘is not properly before us’ and we need not comment
further.”).
35

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 36

The district court didn’t err in tentatively concluding that HHS had(1) correctly interpreted Title X and the regulations and (2) considered allimportant aspects of the problem.
Conclusion
The district court acted within its discretion by concluding that
Oklahoma hadn’t shown a likelihood of succeeding on its claims involving
constraints under the spending power, violation of the Weldon Amendment,or arbitrariness and caprice in HHS’s application of its regulations andTitle X. So we affirm the denial of a preliminary injunction. 19

Given Oklahoma’s failure to show a likelihood of success, we neednot consider the other elements of a preliminary injunction. Warner v.
Gross, 776 F.3d 721, 736 (10th Cir. 2015); see Discussion–Part 1, above.
19

36

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 37

No. 24-6063, Oklahoma v. HHS, et al.
FEDERICO, Circuit Judge, dissenting.
For more than 50 years, the Oklahoma State Department of Health(“OSDH”) received federal grant money under Title X of the Public HealthService Act, 42 U.S.C. § 300 et seq., to provide family planning health care for
Oklahomans. This money was primarily used to ensure that low-income andrural patients had access to reproductive and family planning care. Congressappropriated the federal grant money, which was dispersed through aregulatory scheme developed by the United States Department of Health andHuman Services (“HHS”).
Since Title X’s inception in 1970, Congress has been explicit that “[n]oneof the funds appropriated under [Title X] shall be used in programs whereabortion is a method of family planning.” 42 U.S.C. § 300a-6. Beginning in 2004
and every year thereafter, Congress included the so-called “Weldon
Amendment” as an annual appropriations rider to every HHS appropriations
bill. See Further Consolidated Appropriations Act, 2024, Pub. L. No. 118-47,
div. D, tit. V, § 507, 138 Stat. 460, 703. Relevant here, the Weldon Amendment
prohibits disbursement of grant money to government agencies that
discriminate against any health care entity that “does not provide, pay for,provide coverage of, or refer for abortions.” Pub. L. No. 118-47, div. D, tit. V,§ 507(d)(1), 138 Stat. 460, 703.
1

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 38

As the majority explains, this appeal arises from HHS’s regulatory
requirement that all Title X grantees, such as OSDH, provide referrals topatients who desire information on their full range of pregnancy options,
includingpregnancy

termination(“referral

requirement”).

42

C.F.R.

§ 59.5(a)(5). The Supreme Court’s decision in Dobbs v. Jackson Women’s HealthOrganization, 597 U.S. 215 (2022), triggered an abortion ban under Oklahoma
law, see Okla. Stat. Ann. tit. 21, § 861, and Oklahoma determined that OSDH
providers and grantees cannot comply with the referral requirement without
categorically running afoul of Oklahoma state law and policy. Because HHS
disagreed with OSDH’s assessment, it terminated OSDH’s Title X grant.
On its face, the Weldon Amendment covers the more common situationin which funding cannot be denied to individual providers who raise conscienceobjections to the referral requirement. This case, however, presents awholesale objection by a grantee who, under my reading of the Weldon
Amendment, also qualifies as a health care entity as an institutional provider.
To determine whether the Weldon Amendment’s discriminationprohibition applies to this case, we must define its use of the phrase “refer for
abortions.” Applying the natural reading of the Amendment’s language to thefacts of this case, Oklahoma has shown a likelihood of success in proving that
HHS’s termination of the Title X grant to OSDH was unlawful discrimination
against its providers who cannot and will not comply with the referral2Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 39

requirement. I would therefore reverse the district court with instructions togrant the preliminary injunction, and thus, I respectfully dissent.
I
A
To contextualize the motion for preliminary injunction that was before
the district court, we must consider HHS’s historical implementation of Title X
and OSDH’s history as a program grantee. In 1970, Congress enacted Title X,
which authorizes HHS to “make grants to and enter into contracts with public
or nonprofit private entities to assist in the establishment and operation ofvoluntary family planning projects which . . . offer a broad range of acceptableand effective family planning methods and services.” 42 U.S.C. § 300(a). Title
X grants “shall be made in accordance with such regulations as the [HHS]
Secretary may promulgate,” id. § 300a-4(a), and “shall be payable . . . subject
to such conditions as the Secretary may determine to be appropriate to assurethat such grants will be effectively utilized for the purposes for which made,”id. § 300a-4(b).
HHS has discretion under its regulations to determine the allocation of
Title X grant funds among the applicants. See 42 C.F.R. § 59.7(a) (stating that“the Secretary may award grants” (emphasis added)). Title X funds must be
spent in accordance with applicable regulations, see id. § 59.9, and HHS may
terminate a grant if a recipient fails to comply with the terms and conditions,3Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 40

including any incorporated regulatory requirements, see 45 C.F.R. §§ 75.371(c),75.372(a)(1).
For much of the Title X program’s existence, HHS has required – as it
does now – that Title X projects offer pregnant patients the choice to beprovided information and “nondirective ‘options counseling’” about “prenatalcare,” “adoption and foster care,” and “pregnancy termination (abortion),”“followed by referral for [any of] these services if [the patient] so requests.” 53
Fed. Reg. 2922, 2923 (Feb. 2, 1988) (describing regulatory history); see 42
C.F.R. § 59.5(a)(5)(i)(C), (a)(5)(ii) (describing current project requirements,
including “offer[ing] pregnant clients the opportunity to be provided
information and counseling regarding . . . [p]regnancy termination,” and “[i]frequested” to “provide neutral, factual information and nondirective
counseling,” as well as “referral upon request”). HHS requires that patients
receive “complete factual information about all medical options and theaccompanying risks and benefits.” 65 Fed. Reg. 41281, 41281 (July 3, 2000).
Notably, § 1008 of Title X states that “[n]one of the funds appropriated .
. . shall be used in programs where abortion is a method of family planning.”
42 U.S.C. § 300a-6. Consistent with § 1008, HHS has explained that a Title X
project may not “promote[] abortion or encourage[] persons to obtain [an]abortion.” 65 Fed. Reg. at 41281. Any referral for an abortion may consist of“relevant factual information” such as a provider’s “name, address, [and]4Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 41

telephone number,” but Title X projects may not take “further affirmative
action (such as negotiating a fee reduction, making an appointment, [or]providing transportation) to secure abortion services for the patient.” Id.
On two occasions, HHS has promulgated rules requiring the inverse of
the current rule, by placing strict restrictions on the type of counseling andreferrals that Title X grantees may provide. First, in 1988, HHS issued a rulethat prohibited grantees from discussing or referring for abortions. See 86 Fed.
Reg. 19812, 19813 (Apr. 15, 2021) (describing 1988 rule). In Rust v. Sullivan,
500 U.S. 173, 184–90 (1991), the Supreme Court upheld the 1988 rule as a“permissible construction” of the statute in light of the “broad directives
provided by Congress in Title X,” but the rule was “never implemented on anationwide basis.” 65 Fed. Reg. 41270, 41271 (July 3, 2000). HHS issued aninterim rule in 1993 that suspended the 1988 prohibitive rule and returned tothe pre-1988 standards. 58 Fed. Reg. 7462, 7462 (Feb. 5, 1993). It then issued
a rule in 2000 that required nondirective options counseling and a referral for
options the patient requested. See 65 Fed. Reg. at 41271. This rule remainedin effect until 2019. Id.
In 2019, HHS “essentially revive[d]” the 1988 rule that restrained theability of Title X projects to provide pregnancy options counseling andprohibited Title X projects from referring for abortion. Mayor of Balt. v. Azar,
973 F.3d 258, 271 (4th Cir. 2020) (en banc). The Ninth Circuit upheld the rule’s
5Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 42

restrictions, California ex rel. Becerra v. Azar, 950 F.3d 1067, 1101–04 (9th Cir.
2020) (en banc), while the Fourth Circuit enjoined its operation in Maryland,
Mayor of Balt., 973 F.3d at 276–81, 283–90, 296.
In October 2021, HHS promulgated a final rule, which remains in effecttoday, restoring the counseling and referral requirements that have governed
grantees “for much of the program’s history.” 86 Fed. Reg. 56144, 56150 (Oct.
7, 2021). HHS determined that the 2019 rule’s restrictions on counseling andreferrals had “interfered with the patient-provider relationship,” id. at 56146;
had “compromised [the] ability to provide quality healthcare to all clients,” id.;and had “shifted the Title X program away from its history of providing clientcentered quality family planning services,” id. at 56148.
Following the 2021 rule’s promulgation, Oklahoma and several otherStates sued and brought a facial challenge against it in federal court in theSouthern District of Ohio, including the referral requirement. See Ohio v.
Becerra, 87 F.4th 759, 767–68 (6th Cir. 2023). The district court in Becerra
denied the States’ request to enjoin the referral requirement, and the Sixth
Circuit affirmed, reasoning that the requirement is based on a permissible
construction of Title X and HHS adequately explained its decision to restore
the requirement. Id. at 770–75.

6Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 43B
OSDH has been a recipient of Title X grants for decades, 1 including
during the years in which the HHS regulations required Title X projects tooffer nondirective options counseling and referrals for abortion upon a patient’s
request. And in March 2022, HHS again awarded OSDH a Title X grant for theperiod of April 1, 2022, through March 31, 2023.
In June 2022, the Supreme Court issued its decision in Dobbs, which
overturned precedent recognizing a constitutional right to abortion. 597 U.S.
215. Following that decision, HHS advised Title X grantees that the counselingand referral requirements remained in effect. Aplt. App’x III at 58–66; see also
id. at 68 (“[A]ll Title X recipients continue to operate under the federal
requirements of the 2021 Title X rule, including the requirement to provide
nondirective pregnancy options counseling in the event of a positive pregnancy
test and client-requested referrals.” (emphasis removed)). HHS reiterated that
Title X projects are required to offer pregnant patients nondirective options
counseling and a referral upon the patient’s request, including for abortion.
HHS stated that projects may also make out-of-state referrals.

1 There are 68 clinics and entities that receive Title X grant funds in

Oklahoma. See Aplt. App’x II at 41 (Declaration of Tina Johnson, MPH, RN ¶12).
7

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 44

The same day that Dobbs was decided, Oklahoma’s law outlawing
abortion, § 861, took effect. See ACLU, et al. Am. Br. at 31 (discussing Letterfrom John O’Connor, Okla. Att’y Gen., to J. Kevin Stitt, Okla. Governor (June24, 2022)). And in August 2022, OSDH sought to modify its counseling andreferral policies because § 861 became state law.
HHS determined that Oklahoma’s first proposed policy modification did
not comply with federal regulatory requirements, but it offered Oklahoma theoption of submitting an “alternate compliance proposal” with specific examplesof acceptable arrangements, including by providing Title X patients thenumber for a national call-in hotline where operators would supply therequisite information. Aplt. App’x III at 71–72. Initially, Oklahoma agreed tocomply with its counseling and referral obligations by providing nondirective
counseling on all pregnancy options by its staff or through the hotline. And on
March 14, 2023, Oklahoma submitted written assurance of its compliance withthe 2021 rule and program materials showing that patients were being madeaware of the hotline. Based on Oklahoma’s assurances, HHS approved anaward for April 1, 2023, through March 31, 2024.
Shortly after HHS awarded funding, on May 5, 2023, Oklahoma reversed
course, notifying HHS that it had made changes to its Title X project. Under
the new policy, OSDH would “[p]rovide neutral, factual information andnondirective counseling on pregnancy options in Oklahoma by OSDH staff
8

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 45(except for options the client indicated she does not want more informationon),” but would no longer provide counseling through a referral to the hotline.
Aplt. App’x I at 90. In response, HHS informed Oklahoma that this policy “doesnot comply with the Title X regulatory requirements and, therefore,” violates“the terms and conditions of [its] grant.” Id. at 91.
HHS then suspended Oklahoma’s award but allowed it 30 days to bringits program into compliance. Oklahoma, however, “indicated that it would not
be able to comply with the Title X regulation[,] citing state law.” Id. HHS was
unmoved and terminated Oklahoma’s grant. Because Oklahoma “had ample
notification of what is required to maintain compliance with the Title X
regulation,” HHS concluded that termination was “in the best interest of thegovernment” given Oklahoma’s “material non-compliance with [grant] terms
and conditions.” Id. at 91–92. And in September 2023, HHS redirected
Oklahoma’s $4.5 million award to two entities in Missouri. Oklahoma appealed
the termination action to an administrative review panel within HHS. Shortly
before oral argument in this appeal, HHS denied Oklahoma’s administrative
appeal.

9

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 46

After filing a complaint against HHS, Xavier Becerra, 2 Jessica
Marcella, 3 and the Office of Population Affairs (“Defendants”) in the Western
District of Oklahoma, Oklahoma moved for a preliminary injunction seeking
to enjoin Defendants from redirecting the award to other entities. The district
court held a hearing on the motion in March 2024, and, during the hearing,
provided its reasoning orally for denying the motion. The district court
determined that Oklahoma had not shown a likelihood of success on the merits,that it had shown irreparable injury, and that the merged remaining factors
were neutral.
II
We review the district court’s denial of a preliminary injunction for abuseof discretion. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir.
2003). The district court’s factual findings are reviewed for clear error and its
legal determinations are reviewed de novo. Id. Though I agree with most of the
majority’s opinion, 4 I take issue with its interpretation of a federal statute (the2 Becerra is the Secretary of HHS. Oklahoma sues him in his official

capacity.

3 Marcella is the Deputy Assistant Secretary for the Office of Population

Affairs. Oklahoma sues her in her official capacity.

I agree with the majority that the district court did not abuse its
discretion by concluding that the 2021 HHS rule did not violate the Spending
Clause or by concluding that HHS did not otherwise act arbitrarily andcapriciously.
410

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 47

Weldon Amendment), so my review is best framed as whether the district court
abused its discretion by committing an error of law in interpreting andapplying that statute. Att’y Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769,
775 (10th Cir. 2009). To this end, “it is well-established that ‘committing a legal
error . . . is necessarily an abuse of discretion.’” Berdiev v. Garland, 13 F.4th
1125, 1132 (10th Cir. 2021) (quoting Elzour v. Ashcroft, 378 F.3d 1143, 1150
n.9 (10th Cir. 2004)).
To obtain a preliminary injunction, Oklahoma must show:(1) [it] is substantially likely to succeed on the merits; (2) [it] will
suffer irreparable injury if the injunction is denied; (3) [the] . . .
threatened injury [to it] outweighs the injury the opposing party
will suffer under the injunction; and (4) the injunction [is] not . . .
adverse to the public interest.
Fish v. Kobach, 840 F.3d 710, 723 (10th Cir. 2016) (internal quotation marks
omitted) (quoting Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562
F.3d 1067, 1070 (10th Cir. 2009)). When, as here, the government is the
opposing party, factors three and four merge. Nken v. Holder, 556 U.S. 418,
435 (2009). Because it concludes that Oklahoma is not likely to succeed on the
merits, the majority analyzes this first factor only.

11Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 48

Additionally, under the Administrative Procedure Act, 5 U.S.C. § 551 etseq., “[a] person 5 suffering a legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of a relevant
statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. And relevant
here, “final agency action for which there is no other adequate remedy in acourt” is subject to our review. Id. § 704. An agency action is “final” for purposesof § 704 when the action marks the consummation of the agency’s decisionmaking process, Chic. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S.
103, 113 (1948), and is one by which the rights or obligations have been
determined, or from which legal consequences will flow, Port of Bos. Marine
Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970).
This case presents a final agency action subject to our review because HHS
terminated OSDH’s Title X grant and allocated it elsewhere, despite an
ongoing administrative appeal.
The scope of our review of the agency action is determined by statute. 5
U.S.C. § 706. “Informal agency action must be set aside if it fails to meetstatutory, procedural or constitutional requirements or if it was arbitrary,capricious, an abuse of discretion, or otherwise not in accordance with law.”

5 “Person” includes “an individual, partnership, corporation, association,or public or private organization other than an agency.” 5 U.S.C. § 551(2).
12Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 49

Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1575 (10th Cir. 1994)(internal quotations omitted) (quoting Citizens to Pres. Overton Park, Inc. v.
Volpe, 401 U.S. 402, 413–14 (1971)); 5 U.S.C. § 706(2)(A)–(D).
III
Like the majority, I now consider whether the district court abused its
discretion by denying the extraordinary remedy of a preliminary injunction.
Unlike the majority, however, I respectfully conclude that it did. Further, notonly do I conclude Oklahoma has demonstrated it is substantially likely to
succeed on the merits of its claim that the agency action was unlawful, but I
also conclude that the other preliminary injunction factors weigh in
Oklahoma’s favor.
A
Oklahoma has demonstrated a substantial likelihood of success on the
merits. HHS’s decision and action to terminate OSDH’s Title X grant was notlawful because that final agency action violated the Weldon Amendment. It didsobecauseHHS

discriminatedagainstahealthcare

entitythat

programmatically determined that it could not follow the referral requirement
because doing so would violate state law and policy.
This case presents a question of first impression. Indeed, no consciencebased objections were made under the Weldon Amendment until 2017 – morethan a decade after its creation. So, although we are not guided by a large body13

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 50of case law to apply the statute to these facts and circumstances, my analysis
is guided by what I believe to be the best reading of the statutory text.
1
When interpreting a statute, “we start with the statutory text.” Tanzin
v. Tanvir, 592 U.S. 43, 46 (2020). The Weldon Amendment states:(d)(1) None of the funds made available in this Act may be madeavailable to a Federal agency or program, or to a State or local
government, if such agency, program, or government subjects any
institutional or individual health care entity to discrimination on
the basis that the health care entity does not provide, pay for,provide coverage of, or refer for abortions.
(2) In this subsection, the term “health care entity” includes anindividual physician or other health care professional, a hospital,
a provider-sponsored organization, a health maintenanceorganization, a health insurance plan, or any other kind of healthcare facility, organization, or plan.
Pub. L. No. 118-47, div. D, tit. V, § 507, 138 Stat. 460, 703. The only definedterm in the Weldon Amendment is “health care entity.” But like reading any
statute, “we look first to its language, giving the words used their ordinary
meaning.” Artis v. D.C., 583 U.S. 71, 83 (2018) (quoting Moskal v. UnitedStates, 498 U.S. 103, 108 (1990)); Republic of Sudan v. Harrison, 587 U.S. 1, 8
(2019) (noting that courts should strive to find “the most natural” reading ofstatutory text); Maslenjak v. United States, 582 U.S. 335, 336 (2017) (reviewing
statutory text for “the most natural understanding” of its language).

14

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 51

As the majority explains, Oklahoma must prove two elements to show itwill succeed on the merits: (1) OSDH is a “health care entity,” and (2) HHS
discriminated against OSDH for declining to refer pregnant patients forabortions. The majority skips the first element because it decides the issue on
the second. However, the first element is worthy of exploration because it is aprerequisite for, and properly frames the analysis of, the second element. 62
I first consider whether OSDH is a “health care entity” within thedefinition of that term in the Weldon Amendment. All parties agree that OSDH
is a Title X grantee, and I conclude that the Weldon Amendment’s definition ofa “health care entity” also covers OSDH because it is a “health care facility,
organization, or plan.” Pub. L. No. 118-47, div. D, tit. V, § 507(d)(2), 138 Stat.
460, 703. As fleshed out during oral argument, OSDH qualifies as such a“facility, organization, or plan” because it engages in direct patient care at
OSDH clinics. Oral Argument at 3:40–3:55, 4:45–4:55, 5:00–7:20; see also Aplt.
App’x II at 39 (Johnson Declaration ¶ 3, describing job positions at OSDH,
including public nursing at county health clinics). 7

6 The district court briefly considered the first question without drawing

any specific conclusions of law, but noted it is a “threshold matter.” See Aplt.
App’x III at 213–15.
7 The OSDH clinics can be located by county on the OSDH website.

15

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 52

During the back-and-forth discussions about compliance with thereferral requirement, OSDH communicated to HHS that its staff provides
direct patient care. In May 2023, OSDH stated its family planning policy would“[p]rovide neutral, factual information and nondirective counseling on
pregnancy options in Oklahoma by OSDH staff.” Aplt. App’x I at 90 (emphasis
added). In other words, OSDH has facilities to see patients and administer
health care, is an organization that provides health care, and is an institutional
plan with individual medical professionals who provide health care. The
district court also noted the Weldon Amendment “means the provider of theservices.” Aplt. App’x III at 213. I agree and conclude that such language
describes OSDH. 8
There is nothing in the statutory text of the Weldon Amendment thatprohibits a grantee from also being a protected “health care entity.” Indeed,
HHS itself recognizes that grantees and health care entities may be one andthe same in the context of making objections to the referral requirement,
having noted that “objecting individuals and grantees will not be required tocounsel or refer for abortions in the Title X program.” 86 Fed. Reg. at 56153.

8 In Becerra, the Sixth Circuit noted it was “somewhat puzzled about theinteraction between the [2021] Rule’s referral requirement and . . . the Weldon
Amendment[] as applied to State grantees.” 87 F.4th 759, 774 n.8. But it did
not have to resolve this point because the States did not pursue it on appeal or
before the district court. Id.
16

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 53

Thus, because OSDH is an institutional health care entity protected by the
Weldon Amendment, it cannot be discriminated against on the basis that it
does not refer patients for abortions.
3
I now turn to the second inquiry: whether HHS violated the Weldon
Amendment by discriminating against OSDH for declining to refer pregnant
patients for abortions. The key statutory phrase at issue is the meaning of“refer for abortions.” That is, HHS cannot discriminate by denying funding
against any health care entity (such as OSDH) that does not refer its patientsfor abortions. This phrase is not defined in the Weldon Amendment, so as
stated above, we must consider the ordinary or most natural understanding of
this language.
The majority’s primary focus on this issue is the preposition “for” in thephrase “refer for abortions” within the Weldon Amendment, using dictionary
definitions to conclude the language means to refer a pregnant patient for theparticular purpose of getting an abortion. In my view, to best understand thephrase “refer for abortions” in this context, we must consider the providerpatient interaction where the Oklahoma patient requests a referral from
OSDH or other individual provider to discuss all pregnancy options. There is
only one option that is unlawful in Oklahoma – abortion. If the patient desires
information about options that are not abortion, there would be no need for a17

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 54

referral to a national hotline. On the other hand, if a patient requests a
referral, an Oklahoma provider would reasonably assume it is solely to explore
the option of pregnancy termination, which OSDH concluded would run afoulof Oklahoma law and policy.
From OSDH’s perspective, if only one patient in Oklahoma called the“All-Options Talkline” proposed by HHS to comply with the referral
requirement, and ultimately decided to obtain an abortion, this would be areferral for the purpose of obtaining an abortion under the majority’s readingof the Weldon Amendment. It would require OSDH providers to anticipate
whether a referral would result in an abortion, potentially violating Oklahoma
law and policy. And not only would such a reading possibly violate Oklahoma
law and policy, but it may also violate conscience-based objectors’ rights.
The majority calls this speculative and unsupported by the record.
However, when discussing the referral requirement for the Title X grant,
OSDH communicated to HHS that it would “[p]rovide neutral, factual
information and nondirective counseling on pregnancy options in Oklahoma by
OSDH staff (except for options the client indicated she does not want more
information on),” but would no longer provide counseling through a referral tothe hotline. Aplt. App’x I at 90. Thus, OSDH was saying explicitly to HHS thatit could not comply for the reason explained above – because the only
pregnancy option not available in Oklahoma is abortion.
18

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 55

Also, the majority finds fault in this reasoning by saying it disregards
the statutory focus on the referring entity’s purpose rather than the pregnant
patient’s reason or purpose for a request for a referral. The statute says
nothing, not even a hint, about the referring entity’s purpose. Rather, thestatute is a command to government agencies or programs that they cannot
discriminate against health care entities. The statute’s focus is on the agency
that controls the funds, not the entity that is applying to receive them.
Although one point of contention in this litigation is whether the referral
requirement violates state law, no authority has been uncovered that would
require Oklahoma to prove its legal position is correct to be protected fromdiscrimination by the Weldon Amendment. During oral argument before the
district court, Oklahoma informed the court that its Attorney General had
deemed the referral requirement to be unlawful in Oklahoma. Aplt. App’x III
at 159–60. In this context only, why isn’t that enough? The Weldon
Amendment is silent as to whether a health care entity must state its basis forobjecting, or why it does not refer for abortions. Rather, as an objector, theAmendment plainly protects OSDH from discrimination through funding
termination.
And though “[w]hen construing statutes, we begin with the plain
language of the text itself,” “[p]roper interpretation of a word ‘depends upon
reading the whole statutory text, considering the purpose and context of the19Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 56

statute.’” United States v. Ko, 739 F.3d 558, 560 (10th Cir. 2014) (quoting Dolan
v. U.S. Postal Service, 546 U.S. 481, 486 (2006)). Here, the text and purpose of
the Weldon Amendment align to put the focus on agency discrimination, not adetailed probe as to why an entity does not refer for abortions. The record
supports that OSDH raised a sincere objection to compliance with the referral
requirement, which HHS disregarded by terminating the grant.
The majority relies upon HHS’s regulation that requires Title X projects
to offer pregnant patients “the opportunity to be provided information andcounseling regarding . . . [p]regnacy termination.” 42 C.F.R. § 59.5(a)(5)(i)(C).
But Oklahoma’s claim here is a violation of the Weldon Amendment, not anagency regulation, so the agency regulation is of little consequence. With thepassage of the Weldon Amendment, Congress did not delegate to HHS or any
other agency the authority to clarify its meaning. Rather, the text of theAmendment stands on its own, making it the statutory duty of the courts todetermine its meaning when conducting a review of agency action. See 5 U.S.C.
§ 706; see also Sherley v. Sebelius, 689 F.3d 776, 786 (D.C. Cir. 2012)(Henderson, J., concurring) (The Weldon Amendment “reveals no expressdelegation of authority—implicit or explicit—to any agency to administer its
provisions—which is unsurprising given that the [amendment] itself confers
no substantive authority on any agency to do anything; it simply—and
plainly—prohibits the Departments of Labor, Health and Human Services and20

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 57

Education, as well as [r]elated [a]gencies, from using the appropriated funds
for the specifically enumerated purposes.” (internal quotation marks omitted)).
In reviewing the district court’s interpretation and application of the
Weldon Amendment, I do not find it to be the best reading of the statute.
Rather, I read the statute to conclude that HHS’s termination action violated
it. Indeed, in sum, I conclude the best reading of the Weldon Amendment is:(1) OSDH is a health care entity; and (2) HHS discriminated against OSDH on
the basis that it does not provide, pay for, provide coverage of, or refer for
abortions. OSDH’s non-compliance with the referral requirement was raised
as a legitimate objection to not run afoul of state law and policy. There isnothing in the Weldon Amendment, the record of this case, or the parties’arguments that requires more to trigger the anti-discrimination prohibition.
Finally, to support its conclusions, the majority gives weight to the
Weldon Amendment’s legislative history. But I see the legislative history as amixed bag. Representative (“Rep.”) Weldon stated the following regarding the
Weldon Amendment:
The reason I sought to include this provision in the bill is myexperience as a physician, and I still see patients, is that the
majority of nurses, technicians and doctors who claim to be prochoice who claim to support Roe v. Wade always say to me thatthey would never want to participate in an abortion, perform an
abortion, or be affiliated with doing an abortion. This provision ismeant to protect health care entities from discrimination because
they choose not to provide abortion services.
21

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 58***
This provision is intended to protect the decisions of physicians,
nurses, clinics, hospitals, medical centers, and even healthinsurance providers from being forced by the government toprovide, refer, or pay for abortions.
150 Cong. Rec. 25044–45 (2004).
Rep. Weldon also stated the following:This provision is intended to protect the decisions of physicians,
nurses, clinics, hospitals, medical centers, and even healthinsurance providers from being forced by the government toprovide, refer, or pay for abortions.
***This provision only applies to health care entities that refuse toprovide abortion services. Furthermore, the provision only affects
instances when a government requires that a health care entity
provide abortion services. Therefore, contrary to what has beensaid, this provision will not affect access to abortion, the provisionof abortion-related information or services by willing providers or
the ability of States to fulfill Federal Medicaid legislation.
Id.
First, this legislative history was made eighteen years before Dobbs
extinguished the constitutional right to abortion, which had for decades been
ensconced by Roe. Second, as pointed out in City and County of San Francisco
v. Azar, “Representative Weldon used the term ‘refer for’ as separate from theprovision of information, and further explicitly clarified that the Amendment
was not meant to apply to the provision of abortion-related information.” 411
F. Supp. 3d 1001, 1021 (N.D. Cal. 2019). But “the provision of any information
22

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 59

by a ‘health care entity’ that could reasonably lead to a patient obtaining theprocedure at issue would be considered a ‘referral.’” Id. In other words, thestatements of the legislator who sponsored and whose name appears on thisAmendment, even if given substantial weight, do not clearly resolve what was
intended with the words “refer for abortions” because he drew a distinction
between referrals and the provision of abortion-related information that is notin the statutory text. The legislative history should not be used here to muddy
the meaning of the statutory text, especially given the muddiness of the history
itself. See Food Mktg. Inst. v. Argus Leader Media, 588 U.S. 427, 436 (2019)(noting that legislative history may “muddy” the meaning of clear statutory
language).
B
Having determined that Oklahoma is substantially likely to succeed on
the merits of its claim regarding the Weldon Amendment, I turn now to thesecond preliminary injunction factor – irreparable harm. Oklahoma assertsthat the district court properly found that Oklahoma faces irreparable harmbecause it will lose $4.5 million in Title X funding absent an injunction.
To constitute irreparable harm, an injury must be certain, great, actual“and not theoretical.” Heideman, 348 F.3d at 1189 (quoting Wis. Gas Co. v.
FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)). Irreparable harm is more than23

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 60

“merely serious or substantial” harm. Prairie Band of Potawatomi Indians, 253
F.3d at 1250.
To make this showing, Oklahoma must establish “a significant risk that[it] will experience harm that cannot be compensated after the fact bymonetary damages.” Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1258
(10th Cir. 2003) (quoting Adams v. Freedom Forge Corp., 204 F.3d 475, 484–
85 (3d Cir. 2000)). And “[w]hile not an easy burden to fulfill,” “a plaintiff who
can show a significant risk of irreparable harm has demonstrated that theharm is not speculative.” Id. Finally, to be irreparable, “the injury must be‘likely to occur before the district court rules on the merits.’” New Mexico Dep’tof Game & Fish v. U.S. Dep’t of the Interior, 854 F.3d 1236, 1250 (10th Cir.
2017) (quoting Yellowstone Coal, 321 F.3d at 1260).
Oklahoma argues it “will not likely be able to recoup the funds asmonetary damages due to sovereign immunity.” Aplt. Br. at 60. And, indeed,
Oklahoma’s argument succeeded in Becerra, 87 F.4th at 782–83. There, theSixth Circuit held that economic injuries caused by agency action are
unrecoverable because the APA does not waive the federal government’s
sovereign immunity in this context. Id. I agree with the Sixth Circuit’s take on
the issue. The termination of the financial grant is actual, irreparable harm24Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 61that will occur before the district court rules on the merits of the case,warranting relief. 9C
Merging the third and fourth factors that are necessary to merit a
preliminary injunction, I also find they favor Oklahoma. On HHS’s side of thescale, the public has an interest in Title X grantees complying with agency
regulations to receive public funds. The funds, however, are alreadyappropriated by Congress in this context, so whether they go to a grantee in
Oklahoma or are redirected to Missouri as occurred here, the net resultmonetarily is a neutral transaction.
Weighing against HHS’s interest is the reality that the termination of
the grant to OSDH reduces access to health care for those who need it most:patients who visit OSDH clinics for health care because, by virtue of resources
or geography, that is the only option available to them. Additionally, both the
Weldon Amendment and Oklahoma state law § 861 were enacted by elected
representatives in the respective legislatures, federal and state, so compliance

9 The parties filed a motion for expedited review of this appeal because adecision is needed to obligate funds for the next fiscal year, should an
injunction be granted. The need to expedite this appeal further demonstrates
irreparable harm, as what is at stake is the funding of OSDH clinics to provide
health care to low-income and rural patients.
25Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 62

and respect for the law is an interest that commands significant weight.
Oklahoma prevails on this factor as well.
D
Finally, and for the same reasons stated above, I would grant Oklahoma
a stay under 5 U.S.C. § 705. Section 705 provides:
When an agency finds that justice so requires, it may postpone theeffective date of action taken by it, pending judicial review. On
such conditions as may be required and to the extent necessary to
prevent irreparable injury, the reviewing court, including the court
to which a case may be taken on appeal from or on application forcertiorari or other writ to a reviewing court, may issue all necessary
and appropriate process to postpone the effective date of an agency
action or to preserve status or rights pending conclusion of thereview proceedings.
Id. (emphases added).
Oklahoma has satisfied § 705’s requirements. Not only has it
demonstrated a substantial likelihood of success on the merits, but it also has
demonstrated that it would suffer irreparable harm absent an injunction.
IV
This case presents circumstances that ripened only after Dobbs was
decided and Oklahoma’s abortion ban took effect. These two events gave rise
to a change in OSDH’s longstanding policy, as it concluded it could no longer
follow the referral requirement set forth in 42 C.F.R. § 59.5(a)(5) without
running afoul of state law and policy. But rather than complying with its
statutory obligations, HHS terminated OSDH’s grant in violation of the26

Appellate Case: 24-6063

Document: 010111079171

Date Filed: 07/15/2024

Page: 63

Weldon Amendment. Because I conclude that Oklahoma has met its burden, I
would reverse the district court and remand with instruction to grant the
preliminary injunction motion. Accordingly, I respectfully dissent.

27