STAYED,9CCA REMAND,CONSOLIDATED,LC01
Eastern District of Washington U.S. District Court (Yakima) CIVIL DOCKET FOR CASE #: 1:19-cv-03040-SAB

State of Washington v. Azar et al Assigned to: Chief Judge Stanley A Bastian related Case: 1:19-cv-03045-SAB
Case in other court: 9CCA, 19-35394 Cause: 5:701 Judicial Review of Agency Decision

Date Filed: 03/05/2019 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff State of Washington

represented by Jeffrey T Sprung Attorney Generals Office - Seattle (Tort) 800 Fifth Avenue Suite 2000 Seattle, WA 98104 206-326-5492 Email: jeff.sprung@atg.wa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristin Beneski Attorney Generals Office - Seattle (Tort) 800 Fifth Avenue Suite 2000 Seattle, WA 98104 206-464-7744 Email: kristin.beneski@atg.wa.gov ATTORNEY TO BE NOTICED

Paul Michael Crisalli Attorney Generals Office - Seattle (Tort) 800 Fifth Avenue Suite 2000 Seattle, WA 98104 206-389-3822

Plaintiff
National Family Planning & Reproductive Health Association

Email: Paul.Crisalli@atg.wa.gov ATTORNEY TO BE NOTICED
represented by Joseph R Shaeffer MacDonald Hoague & Bayless 705 Second Avenue Suite 1500 Seattle, WA 98104 206-622-1604 Fax: 206-343-3961 Email: Joe@MHB.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anjali Dalal American Civil Liberties Union 125 Broad St, 18th Floor New York, NY 10004 646-905-8932 Email: adalal@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Brandon D Harper O'Melveny & Myers LLP - NY 7 Times Square New York,, NY 10036 212-326-2000 PRO HAC VICE ATTORNEY TO BE NOTICED
Brigitte Amiri American Civil Liberties Union 125 Broad St, 18th Floor New York, NY 10004 212-519-7897 Email: bamiri@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Deutsch American Civil Liberties Union 125 Broad St, 18th Floor New York, NY 10004 646-905-2671

Email: edeutsch@aclu.org TERMINATED: 08/22/2019 PRO HAC VICE
Emily Chiang ACLU of Washington 901 5th Avenue Suite 630 Seattle, WA 98164 206-624-2184 Email: echiang@aclu-wa.org TERMINATED: 01/29/2020
Fiona Kaye American Civil Liberties Union 125 Broad St, 18th Floor New York, NY 10004 646-905-8933 Email: fkaye@aclu.org TERMINATED: 12/17/2019 PRO HAC VICE
Jennifer Sokoler O'Melveny & Myers LLP - NY 7 Times Square New York,, NY 10036 212-326-2000 Email: jsokoler@omm.com TERMINATED: 02/28/2020 PRO HAC VICE
John Ballif Midgley ACLU of Washington 901 5th Avenue Suite 630 Seattle, WA 98164 206-624-2184 Fax: 206-624-2190 Email: jmidgley@aclu-wa.org ATTORNEY TO BE NOTICED
Nicole M Argentieri O'Melveny & Myers LLP - NY 7 Times Square New York,, NY 10036 212-326-2122

Plaintiff Feminist Women's Health Center

Email: nargentieri@omm.com PRO HAC VICE ATTORNEY TO BE NOTICED
Ruth E Harlow American Civil Liberties Union 125 Broad St, 18th Floor New York, NY 10004 212-284-7314 Email: rharlow@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Sara Zdeb O'Melveny & Myers LLP - DC 1625 Eye Street, NW Washington,, DC 20006 202-383-5300 Email: szdeb@omm.com TERMINATED: 08/30/2019 PRO HAC VICE
represented by Joseph R Shaeffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anjali Dalal (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brandon D Harper (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brigitte Amiri (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Deutsch (See above for address) TERMINATED: 08/22/2019

Plaintiff
Deborah Oyer MD

PRO HAC VICE
Emily Chiang (See above for address) TERMINATED: 01/29/2020
Fiona Kaye (See above for address) TERMINATED: 12/17/2019 PRO HAC VICE
Jennifer Sokoler (See above for address) TERMINATED: 02/28/2020 PRO HAC VICE
John Ballif Midgley (See above for address) ATTORNEY TO BE NOTICED
Nicole M Argentieri (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ruth E Harlow (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sara Zdeb (See above for address) TERMINATED: 08/30/2019 PRO HAC VICE
represented by Joseph R Shaeffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anjali Dalal (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Brandon D Harper (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brigitte Amiri (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Deutsch (See above for address) TERMINATED: 08/22/2019 PRO HAC VICE
Emily Chiang (See above for address) TERMINATED: 01/29/2020
Fiona Kaye (See above for address) TERMINATED: 12/17/2019 PRO HAC VICE
Jennifer Sokoler (See above for address) TERMINATED: 02/28/2020 PRO HAC VICE
John Ballif Midgley (See above for address) ATTORNEY TO BE NOTICED
Nicole M Argentieri (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ruth E Harlow (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sara Zdeb (See above for address)

Plaintiff Teresa Gall

TERMINATED: 08/30/2019 PRO HAC VICE
represented by Joseph R Shaeffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anjali Dalal (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brandon D Harper (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brigitte Amiri (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Deutsch (See above for address) TERMINATED: 08/22/2019 PRO HAC VICE
Emily Chiang (See above for address) TERMINATED: 01/29/2020
Fiona Kaye (See above for address) TERMINATED: 12/17/2019 PRO HAC VICE
Jennifer Sokoler (See above for address) TERMINATED: 02/28/2020 PRO HAC VICE
John Ballif Midgley (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Alex M Azar, II in his official capacity as Secretary of the United States Department of Health and Human Services

Nicole M Argentieri (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ruth E Harlow (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sara Zdeb (See above for address) TERMINATED: 08/30/2019 PRO HAC VICE
represented by Andrew Marshall Bernie United States Department of Justice DC L St 1100 L Street NW Washington, DC 20005 202-616-8488 Email: andrew.m.bernie@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley P Humphreys United States Department of Justice DC L St 1100 L Street NW Washington, DC 20005 202-305-0878 Email: bradley.humphreys@usdoj.gov ATTORNEY TO BE NOTICED
Robert C Merritt US Department of Justice - Federal Programs Branch 919 East Main Street Suite 1900 Richmond, VA 23219 202-616-8098

Defendant United States Department of Health and Human Services
Defendant Diane Foley MD, in her official capacity as Deputyh Assistant Secretary for Population Affairs
Defendant Office of Population Affairs

Email: robert.c.merritt@usdoj.gov ATTORNEY TO BE NOTICED
represented by Andrew Marshall Bernie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley P Humphreys (See above for address) ATTORNEY TO BE NOTICED
Robert C Merritt (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Marshall Bernie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley P Humphreys (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert C Merritt (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Marshall Bernie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley P Humphreys (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert C Merritt (See above for address) ATTORNEY TO BE NOTICED

Amicus
American College of Obstetricians and Gynecologists

represented by Daniel W Richards Ropes & Gray LLP - CA 1900 University Avenue, Sixth Floor East Palo Alto, CA 94303 650-617-4028 Email: daniel.richards@ropesgray.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Douglas H Hallward-Driemeier Ropes & Gray - DC 2099 Pennsylvania Avenue NW Washington, DC 20006 202-508-4776 Email: douglas.hallwarddriemeier@ropesgray.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lisa H Bebchick Ropes & Gray LLP - NY 1211 Avenue of the Americas New York, NY 10036 212-596-9740 Email: lisa.bebchick@ropesgray.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas N Bulleit Ropes & Gray - DC 2099 Pennsylvania Avenue NW Washington, DC 20006 202-508-4605 Email: tom.bulleit@ropesgray.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Catherine J Djang Ropes & Gray LLP - NY 1211 Avenue of the Americas

Amicus American Academy of Pediatrics

New York, NY 10036 212-596-9400 Email: catherine.djang@ropesgray.com TERMINATED: 08/22/2019 PRO HAC VICE
Haley E Eagon Ropes & Gray LLP - MA 800 Boylston Street Boston, MA 02199 617-951-7227 Email: haley.eagon@ropesgray.com TERMINATED: 11/19/2020 PRO HAC VICE
Taylor Washburn Lane Powell PC - SEA 1420 Fifth Avenue Suite 4200 PO Box 91302 Seattle, WA 98111-9402 207-223-7000 Email: washburnt@lanepowell.com ATTORNEY TO BE NOTICED
represented by Daniel W Richards (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Douglas H Hallward-Driemeier (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lisa H Bebchick (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas N Bulleit

Amicus American College of Physicians

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Catherine J Djang (See above for address) TERMINATED: 08/22/2019 PRO HAC VICE
Haley E Eagon (See above for address) TERMINATED: 11/19/2020 PRO HAC VICE
Taylor Washburn (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel W Richards (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Douglas H Hallward-Driemeier (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lisa H Bebchick (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas N Bulleit (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Catherine J Djang (See above for address)

Amicus
Society for Maternal-Fetal Medicine

TERMINATED: 08/22/2019 PRO HAC VICE
Haley E Eagon (See above for address) TERMINATED: 11/19/2020 PRO HAC VICE
Taylor Washburn (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel W Richards (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Douglas H Hallward-Driemeier (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lisa H Bebchick (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas N Bulleit (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Catherine J Djang (See above for address) TERMINATED: 08/22/2019 PRO HAC VICE
Haley E Eagon (See above for address) TERMINATED: 11/19/2020 PRO HAC VICE

Amicus Society for Adolescent Health Medicine
Amicus

Taylor Washburn (See above for address) ATTORNEY TO BE NOTICED
represented by Catherine J Djang (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel W Richards (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Douglas H Hallward-Driemeier (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lisa H Bebchick (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas N Bulleit (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Haley E Eagon (See above for address) TERMINATED: 11/19/2020 PRO HAC VICE
Taylor Washburn (See above for address) ATTORNEY TO BE NOTICED

Institute of Policy Integrity at New York University School of Law
Amicus State of Ohio

represented by Jason A Schwartz Institute for Policy Integrity New York Univeristy School of Law 139 MacDougal Street, Wilf Hall, 3rd Floor New York, NY 10012 617-571-9672 Email: jason.schwartz@nyu.edu LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Madison E Condon Institute for Policy Integrity New York University School of Law 139 MacDougal Street, Wilf Hall, 3rd Floor New York, NY 10012 978-518-7234 Email: madison.condon@nyu.edu LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Taylor Washburn (See above for address) ATTORNEY TO BE NOTICED
represented by Joel Bernard Ard Ard Law Group PO Box 11633 Bainbridge Island, WA 98110 206-701-9243 Email: joel@ard.law LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin M Flowers Ohio Attorney General Appeals Section 30 East Broad Street 17th Floor Columbus, OH 43215 614-466-8980

Amicus Susan B. Anthony List

PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Adam S Hochschild Thomas More Society 309 West Washington Street Suite1250 Chicago, IL 60606 314-503-0326 Email: adam@hochschildlaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah E Pitlyk Thomas More Society 309 West Washington Street Suite1250 Chicago, IL 60606 312-782-1680 Email: pitlyk@thomasmoresociety.org TERMINATED: 12/04/2019 PRO HAC VICE
George M Ahrend Ahrend Law Firm PLLC 100 East Broadway Avenue Moses Lake, WA 98837 509-764-9000 Fax: 509-464-6290 Email: gahrend@ahrendlaw.com ATTORNEY TO BE NOTICED

Date Filed 03/05/2019
03/05/2019

# Docket Text

COMPLAINT for Declaratory and Injunctive Relief against All

1

Defendants ( Filing fee $ 400; Receipt # 0980-3107729) Filed by

State of Washington. (Attachments: # 1 Civil Cover Sheet,

# 2 Summons, # 3 Summons, # 4 Exhibit Exhibit A)(Sprung,

Jeffrey) (Entered: 03/05/2019)

Notice of Judge Assignment. Judge Stanley A Bastian assigned to case. (LR, Case Administrator) (Entered: 03/05/2019)

03/05/2019 03/05/2019 03/18/2019 03/18/2019
03/18/2019 03/18/2019 03/18/2019 03/22/2019 03/22/2019

2 Summons Issued as to Alex M Azar, II. (Attachments: # 1 Summons Issued as to U.S. Department of Health and Human Services)(LR, Case Administrator) (Entered: 03/05/2019)

3 CERTIFICATE OF SERVICE as to 1 Complaint, filed by State
of Washington. (Sprung, Jeffrey) (Entered: 03/05/2019)

4 NOTICE of Appearance by Andrew Marshall Bernie on behalf of All Defendants (Attorney Andrew Marshall Bernie added to party Alex M Azar, II(pty:dft), Attorney Andrew Marshall Bernie added to party United States Department of Health and Human Services(pty:dft))(Bernie, Andrew) (Entered: 03/18/2019)

5 NOTICE of Appearance by Bradley P Humphreys on behalf of Alex M Azar, II, United States Department of Health and Human Services (Attorney Bradley P Humphreys added to party Alex M Azar, II(pty:dft), Attorney Bradley P Humphreys added to party United States Department of Health and Human Services(pty:dft))(Humphreys, Bradley) (Entered: 03/18/2019)

6 Joint MOTION to Expedite and Set Briefing Schedule on Motions for Preliminary Injunction by State of Washington. Motion Hearing set for 3/20/2019 Without Oral Argument before Judge Stanley A Bastian. (Attachments: # 1 Proposed Order)(Sprung, Jeffrey) (Entered: 03/18/2019)

7 Unopposed MOTION to Consolidate Cases for Pretrial Proceedings by State of Washington. Motion Hearing set for 3/20/2019 Without Oral Argument before Judge Stanley A Bastian. (Attachments: # 1 Proposed Order)(Sprung, Jeffrey) (Entered: 03/18/2019)

Order Granting 7 Motion to Consolidate; 6 Motion to Expedite, and

8

Setting Briefing Schedule. In Court Hearing on Plaintiffs' Motions

for Preliminary Injunction set for 4/25/2019 at 10:00 AM in

Yakima, Courtroom 203. Signed by Judge Stanley A Bastian. (PL,

Case Administrator) (Entered: 03/18/2019)

MOTION for Preliminary Injunction by State of Washington.

9

Motion Hearing set for 4/25/2019 at 10:00 AM in Yakima

Courtroom 203 before Judge Stanley A Bastian. (Attachments:

# 1 Text of Proposed Order Proposed Order)(Sprung, Jeffrey)

(Entered: 03/22/2019)

10 DECLARATION by Karl Eastlund in Support re 9 MOTION for Preliminary Injunction filed by State of Washington. (Sprung, Jeffrey) (Entered: 03/22/2019)

03/22/2019 03/22/2019 03/22/2019
03/22/2019 03/22/2019 03/22/2019 03/22/2019
03/22/2019

11 DECLARATION by Cynthia Harris in Support re 9 MOTION for Preliminary Injunction filed by State of Washington. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2)(Sprung, Jeffrey) (Entered: 03/22/2019)
12 DECLARATION by Anuj Khattar, M.D. in Support re 9

MOTION for Preliminary Injunction filed by State of Washington. (Sprung, Jeffrey) (Entered: 03/22/2019)
13 DECLARATION by Dr. Judy Kimelman in Support re 9

MOTION for Preliminary Injunction filed by State of Washington. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5)(Sprung, Jeffrey) (Entered: 03/22/2019)
14 DECLARATION by Bob Marsalli in Support re 9 MOTION for Preliminary Injunction filed by State of Washington. (Sprung, Jeffrey) (Entered: 03/22/2019)
15 DECLARATION by David Schumacher in Support re 9

MOTION for Preliminary Injunction filed by State of Washington. (Sprung, Jeffrey) (Entered: 03/22/2019)
16 DECLARATION by Dr. Judy Zerzan-Thul in Support re 9

MOTION for Preliminary Injunction filed by State of Washington. (Sprung, Jeffrey) (Entered: 03/22/2019)

17 DECLARATION by Kristin Beneski in Support re 9 MOTION for Preliminary Injunction filed by State of Washington. (Attachments: # 1 Exhibit Exhibit 1a-1t, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7)(Sprung, Jeffrey) (Entered: 03/22/2019)

MOTION for Preliminary Injunction by Feminist Women's Health

18

Center, Teresa Gall, National Family Planning & Reproductive

Health Association, Deborah Oyer. Motion Hearing set

for 4/25/2019 at 10:00 AM in Yakima Courtroom 203 before Judge

Stanley A Bastian. (Attachments: # 1 Text of Proposed

Order)(Chiang, Emily) (Entered: 03/22/2019)

03/22/2019
03/22/2019 03/22/2019 03/22/2019 03/22/2019 03/22/2019 03/22/2019

19 DECLARATION by Clare Coleman in Support re 18
MOTION for Preliminary Injunction filed by Feminist Women's Health Center, Teresa Gall, National Family Planning & Reproductive Health Association, Deborah Oyer. (Attachments: # 1 Exhibit, # 2 Exhibit)(Chiang, Emily) Modified on 4/10/2019 See Corrected Declaration filed at ECF No. 39 (LR, Case Administrator). (Entered: 03/22/2019)
20 DECLARATION by Dr. Kathryn Kost in Support re 18
MOTION for Preliminary Injunction filed by Feminist Women's Health Center, Teresa Gall, National Family Planning & Reproductive Health Association, Deborah Oyer. (Chiang, Emily) (Entered: 03/22/2019)
21 DECLARATION by Connie Cantrell in Support re 18
MOTION for Preliminary Injunction filed by Feminist Women's Health Center, Teresa Gall, National Family Planning & Reproductive Health Association, Deborah Oyer. (Chiang, Emily) (Entered: 03/22/2019)
22 DECLARATION by Kristin A. Adams, Ph.D. in Support re 18
MOTION for Preliminary Injunction filed by Feminist Women's Health Center, Teresa Gall, National Family Planning & Reproductive Health Association, Deborah Oyer. (Chiang, Emily) (Entered: 03/22/2019)
23 DECLARATION by J. Elisabeth Kruse, M.S., C.N.M., A.R.N.P. in
Support re 18 MOTION for Preliminary Injunction filed by Feminist Women's Health Center, Teresa Gall, National Family Planning & Reproductive Health Association, Deborah Oyer. (Chiang, Emily) (Entered: 03/22/2019)
24 DECLARATION by Tessa Madden, M.D., M.P.H. in Support re 18
MOTION for Preliminary Injunction filed by Feminist Women's Health Center, Teresa Gall, National Family Planning & Reproductive Health Association, Deborah Oyer. (Attachments: # 1 Exhibit)(Chiang, Emily) (Entered: 03/22/2019)
25 DECLARATION by Heather Maisen in Support re 18
MOTION for Preliminary Injunction filed by Feminist Women's Health Center, Teresa Gall, National Family Planning &

03/22/2019 04/09/2019 04/09/2019 04/09/2019 04/09/2019 04/09/2019

Reproductive Health Association, Deborah Oyer. (Chiang, Emily) (Entered: 03/22/2019)
26 DECLARATION by Sarah Prager, M.D., M.A.S. in Support re 18
MOTION for Preliminary Injunction filed by Feminist Women's Health Center, Teresa Gall, National Family Planning & Reproductive Health Association, Deborah Oyer. (Attachments: # 1 Exhibit)(Chiang, Emily) (Entered: 03/22/2019)
27 NOTICE of Appearance by Taylor Washburn on behalf of American College of Obstetricians and Gynecologists, American Academy of Pediatrics, American College of Physicians, Society for Maternal-Fetal Medicine, Society for Adolescent Health Medicine (Washburn, Taylor) (Entered: 04/09/2019)
28 MOTION to Appear Pro Hac Vice re Attorney: Daniel W. Richards. Filing fee $ 200, receipt number 0980-3136848. by American Academy of Pediatrics, American College of Obstetricians and Gynecologists, American College of Physicians, Society for Adolescent Health Medicine, Society for Maternal-Fetal Medicine. Motion Hearing set for 5/9/2019 Without Oral Argument before Judge Stanley A Bastian. (Attachments: # 1 (Proposed Order))(Washburn, Taylor) (Entered: 04/09/2019)
29 MOTION to Appear Pro Hac Vice re Attorney: Catherine J. Djang. Filing fee $ 200, receipt number 0980-3136977. by American Academy of Pediatrics, American College of Obstetricians and Gynecologists, American College of Physicians, Society for Adolescent Health Medicine, Society for Maternal-Fetal Medicine. Motion Hearing set for 5/9/2019 Without Oral Argument before Judge Stanley A Bastian. (Attachments: # 1 (Proposed Order))(Washburn, Taylor) (Entered: 04/09/2019)
30 MOTION to Appear Pro Hac Vice re Attorney: Douglas H. Hallward-Driemeier. Filing fee $ 200, receipt number 09803136991. by American Academy of Pediatrics, American College of Obstetricians and Gynecologists, American College of Physicians, Society for Adolescent Health Medicine, Society for Maternal-Fetal Medicine. Motion Hearing set for 5/9/2019 Without Oral Argument before Judge Stanley A Bastian. (Attachments: # 1 (Proposed Order))(Washburn, Taylor) (Entered: 04/09/2019)
31 MOTION to Appear Pro Hac Vice re Attorney: Haley Eagon. Filing fee $ 200, receipt number 0980-3137010. by American Academy of Pediatrics, American College of Obstetricians and Gynecologists, American College of Physicians, Society for Adolescent Health Medicine, Society for Maternal-Fetal Medicine. Motion Hearing set for 5/9/2019 Without Oral Argument before Judge Stanley A

04/09/2019
04/09/2019
04/09/2019 04/10/2019 04/10/2019 04/10/2019 04/10/2019

Bastian. (Attachments: # 1 (Proposed Order))(Washburn, Taylor) (Entered: 04/09/2019)
32 MOTION to Appear Pro Hac Vice re Attorney: Lisa H. Bebchick. Filing fee $ 200, receipt number 0980-3137027. by American Academy of Pediatrics, American College of Obstetricians and Gynecologists, American College of Physicians, Society for Adolescent Health Medicine, Society for Maternal-Fetal Medicine. Motion Hearing set for 5/9/2019 Without Oral Argument before Judge Stanley A Bastian. (Attachments: # 1 (Proposed Order))(Washburn, Taylor) (Entered: 04/09/2019)
33 MOTION to Appear Pro Hac Vice re Attorney: Thomas N. Bulleit. Filing fee $ 200, receipt number 0980-3137043. by American Academy of Pediatrics, American College of Obstetricians and Gynecologists, American College of Physicians, Society for Adolescent Health Medicine, Society for Maternal-Fetal Medicine. Motion Hearing set for 5/9/2019 Without Oral Argument before Judge Stanley A Bastian. (Attachments: # 1 (Proposed Order))(Washburn, Taylor) (Entered: 04/09/2019)
34 Unopposed MOTION for Leave to File Amicus Brief by American Academy of Pediatrics, American College of Obstetricians and Gynecologists, American College of Physicians, Society for Adolescent Health Medicine, Society for Maternal-Fetal Medicine. Motion Hearing set for 5/9/2019 Without Oral Argument before Judge Stanley A Bastian. (Attachments: # 1 Exhibit A, # 2 (Proposed Order))(Washburn, Taylor) (Entered: 04/09/2019)
35 NOTICE of Appearance by Taylor Washburn on behalf of Institute of Policy Integrity at New York University School of Law (Washburn, Taylor) (Entered: 04/10/2019)
36 MOTION to Appear Pro Hac Vice re Attorney: Madison Condon. Filing fee $ 200, receipt number 0980-3137606. by Institute of Policy Integrity at New York University School of Law. Motion Hearing set for 5/10/2019 Without Oral Argument before Judge Stanley A Bastian. (Attachments: # 1 (Proposed Order))(Washburn, Taylor) (Entered: 04/10/2019)
37 MOTION to Appear Pro Hac Vice re Attorney: Jason A. Schwartz. Filing fee $ 200, receipt number 0980-3137614. by Institute of Policy Integrity at New York University School of Law. Motion Hearing set for 5/10/2019 Without Oral Argument before Judge Stanley A Bastian. (Attachments: # 1 (Proposed Order))(Washburn, Taylor) (Entered: 04/10/2019)
38 Unopposed MOTION for Leave to File Amicus Brief by Institute of Policy Integrity at New York University School of Law. Motion

04/10/2019 04/10/2019
04/10/2019 04/12/2019 04/12/2019 04/12/2019 04/15/2019

Hearing set for 5/10/2019 Without Oral Argument before Judge Stanley A Bastian. (Attachments: # 1 Exhibit A, # 2 (Proposed Order))(Washburn, Taylor) (Entered: 04/10/2019)
39 DECLARATION of Clare Coleman Corrected re 19 Declaration in Support of Motion, by Feminist Women's Health Center, Teresa Gall, National Family Planning & Reproductive Health Association, Deborah Oyer. (Chiang, Emily) (Entered: 04/10/2019)
40 ORDER GRANTING 34 MOTION FOR LEAVE TO FILE PROPOSED BRIEF OF AMICI CURIAE; GRANTING 28 , 29 , 30 , 31 , 32 AND 33 PRO HAC VICE MOTIONS. Added Attorneys Daniel W Richards, Catherine J Djang, Douglas H Hallward-Driemeier, Haley Eagon, Lisa H Bebchick, and Thomas N Bulleit for American Academy of Pediatrics, American College of Obstetricians and Gynecologists, American College of Physicians, Society for Adolescent Health Medicine, and Society for Maternal-Fetal Medicine. Signed by Judge Stanley A Bastian. (LR, Case Administrator) (Entered: 04/10/2019)
41 ORDER GRANTING 38 UNOPPOSED MOTION FOR LEAVE TO FILE PROPOSED BRIEF OF AMICI CURIAE; GRANTING 36 AND 37 PRO HAC VICE MOTIONS. Added Attorneys Madison Condon and Jason A Schwartz for Institute of Policy Integrity at New York University School of Law. Signed by Judge Stanley A Bastian. (LR, Case Administrator) (Entered: 04/10/2019)
42 MOTION to Appear Pro Hac Vice re Attorney: Benjamin M. Flowers. Filing fee $ 200, receipt number 0980-3140006. by State of Ohio. Motion Hearing set for 5/13/2019 Without Oral Argument before Judge Stanley A Bastian. (Attachments: # 1 Text of Proposed Order)(Ard, Joel) (Entered: 04/12/2019)
43 MOTION for Leave to File Amicus Brief by State of Ohio. Motion Hearing set for 5/13/2019 Without Oral Argument before Judge Stanley A Bastian. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Ard, Joel) (Entered: 04/12/2019)

44

MEMORANDUM in Opposition re 18 MOTION for

Preliminary Injunction , 9 MOTION for Preliminary Injunction filed by All Defendants. (Humphreys, Bradley) (Entered: 04/12/2019)
45 The Amici States' Motion for Leave to File Amicus Brief, ECF No. 43 , is GRANTED. The Amici States' Motion for

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04/18/2019

Admission Pro Hac Vice, ECF No. 42 , is GRANTED. Benjamin Flower is hereby admitted to practice in the United States District Court for the Eastern District of Washington in the above-captioned case. Pursuant to Local Rule 83.2(c), the States' Amici local counsel of record, Joel Ard, shall sign all pleadings, motions, and other papers prior to filing, and shall meaningfully participate in the case. Signed by Judge Stanley A Bastian. Text entry; no PDF document will issue. This text-only entry constitutes the court order on the matter. (TR, Case Administrator) (Entered: 04/15/2019)
46 MOTION to Appear Pro Hac Vice re Attorney: Sarah E. Pitlyk. Filing fee $ 200, receipt number 0980-3142498. by Susan B. Anthony List. Motion Hearing set for 5/23/2019 Without Oral Argument before Judge Stanley A Bastian. (Attachments: # 1 Text of Proposed Order proposed Order)(Ahrend, George) (Entered: 04/16/2019)
47 MOTION to Appear Pro Hac Vice re Attorney: Adam S. Hochschild. Filing fee $ 200, receipt number 0980-3142517. by Susan B. Anthony List. Motion Hearing set for 5/23/2019 Without Oral Argument before Judge Stanley A Bastian. (Attachments: # 1 Text of Proposed Order proposed Order)(Ahrend, George) (Entered: 04/16/2019)
48 MOTION for Leave to File Amicus Curiae Brief by Susan B. Anthony List. Motion Hearing set for 5/23/2019 Without Oral Argument before Judge Stanley A Bastian. (Attachments: # 1
proposed Amicus Curiae Brief, # 2 Text of Proposed Order proposed Order)(Ahrend, George) (Entered: 04/16/2019)
49 TEXT ORDER: Susan B. Anthony List's Unopposed Motion for Leave to File Brief of Amicus Curiae in Support of Defendants, ECF No. 48 , is GRANTED. The Applications for Leave to Appear Pro Hac Vice for Sarah E. Pitlyk, ECF No. 46 , and Adam Hochschild, ECF No. 47 , are GRANTED. Sarah E. Pitlyk and Adam Hochschild are hereby admitted to practice in the United States District Court for the Eastern District of Washington in the above-captioned case. Pursuant to Local Rule 83.2(c), Susan B. Anthony List's local counsel of record, George M. Ahrend, shall sign all pleadings, motions, and other papers prior to filing, and shall meaningfully participate in this case. Signed by Judge Stanley A Bastian. Text entry; no PDF document will issue. This text-only entry constitutes the court order on the matter. (LR, Case Administrator) (Entered: 04/16/2019)
50 SUMMONS Returned Executed by Deborah Oyer, Feminist Women's Health Center, National Family Planning & Reproductive

04/19/2019 04/19/2019 04/25/2019
04/25/2019 05/02/2019 05/03/2019
05/03/2019

Health Association, Teresa Gall re Alex M Azar, II, Diane Foley, United States Department of Health and Human Services. (Shaeffer, Joseph) (Entered: 04/18/2019)
51 REPLY MEMORANDUM re 18 MOTION for Preliminary Injunction filed by Feminist Women's Health Center, Teresa Gall, National Family Planning & Reproductive Health Association, Deborah Oyer. (Chiang, Emily) (Entered: 04/19/2019)

52

REPLY MEMORANDUM re 9 MOTION for Preliminary

Injunction filed by State of Washington. (Sprung, Jeffrey) (Entered:

04/19/2019)

53 Minute Entry for proceedings held before Judge Stanley A Bastian:

Motion Hearing held on 4/25/2019 re 18 MOTION for Preliminary Injunction filed by Deborah Oyer, Teresa Gall, Feminist Women's Health Center, National Family Planning & Reproductive

Health Association, 9 MOTION for Preliminary Injunction filed by State of Washington. (Reported/Recorded by: Lynette F. Walters) (EC, Courtroom Deputy) (Entered: 04/25/2019)
ORDER GRANTING PLAINTIFFS' MOTIONS FOR 54
PRELIMINARY INJUNCTION, granting 18 Motion for

Preliminary Injunction; granting 9 Motion for Preliminary Injunction. Signed by Judge Stanley A Bastian. (LR, Case Administrator) (Entered: 04/25/2019)
55 NOTICE by All Defendants (Attachments: # 1 Exhibit)(Humphreys, Bradley) (Entered: 05/02/2019)
56 NOTICE OF TELEPHONIC SCHEDULING CONFERENCE:A Telephonic Scheduling Conference has been set for 5/23/2019 at 10:00 a.m. via Teleconference before Judge Stanley A Bastian. Participants should plan to call the Court Conference line: 1-888-636-3807 / Access code: 8839796 (No security code) five minutes before the conference. (Attachments: # 1 Consent to Magistrate)(EC, Courtroom Deputy) (Entered: 05/03/2019)
LODGED NOTICE OF APPEAL from District Court decision as 57
to 54 Order on Motion for Preliminary Injunction, by All Defendants. Filing fee $ 505, receipt number WAIVED. (Humphreys, Bradley) (Entered: 05/03/2019)

05/03/2019
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58 MOTION to Stay re 54 Order on Motion for Preliminary Injunction, by All Defendants. Motion Hearing set for 5/10/2019 Without Oral Argument before Judge Stanley A Bastian. (Attachments: # 1 Affidavit, # 2 Text of Proposed Order)(Humphreys, Bradley) (Entered: 05/03/2019)
61 NOTICE OF INTERLOCUTORY AND PRELIMINARY

INJUNCTION APPEAL as to 54 Order on Motion for Preliminary Injunction, by All Defendants. cc: Court Reporter: Lynette Walters. (LR, Case Administrator) Modified on 5/6/2019 9CCA Case No. 19-35394 (LR, Case Administrator). (Entered: 05/06/2019)
59 MOTION to Expedite Hearing on Motion for Stay of Preliminary Injunction by All Defendants. Motion Hearing set for 5/10/2019 Without Oral Argument before Judge Stanley A Bastian. (Attachments: # 1 Text of Proposed Order)(Humphreys, Bradley) (Entered: 05/04/2019)
60 Errata filed by All Defendants : Re 58 MOTION to Stay re 54

Order on Motion for Preliminary Injunction, . (Attachments: # 1 Affidavit, # 2 Text of Proposed Order)(Humphreys, Bradley) (Entered: 05/04/2019)

62 9CCA Payment Notification form re 61 Notice of Interlocutory and Preliminary Injunction Appeal. Fee Waived. (LR, Case Administrator) (Entered: 05/06/2019)

Letter from Appeal Deputy Clerk to Andrew Marshall Bernie and

63

Bradley P Humphreys dated 5/6/2019. (Attachments: # 1 Notice of

Appeal, # 2 Public Docket Sheet)(LR, Case Administrator)

(Entered: 05/06/2019)

64 9CCA Appeal Case Number 19-35394 for 61 Notice of Interlocutory and Preliminary Injunction Appeal filed 5/3/2019. (LR, Case Administrator) (Entered: 05/06/2019)

RESPONSE to Motion re 59 MOTION to Expedite Hearing on

65

Motion for Stay of Preliminary Injunction filed by All Plaintiffs.

(Sprung, Jeffrey) (Entered: 05/06/2019)

66 TEXT ORDER: Defendants' Motion to Expedite, ECF No. 59 , is DENIED. The hearing set for May 10, 2019 on Defendant's Motion to Stay, ECF No. 58 , is continued to May 23, 2019. The deadline for filing Plaintiffs' response to Defendant's Motion to Stay is May 17, 2019. The deadline for any reply is May 22, 2019. Signed by Judge Stanley A Bastian. Text entry; no PDF document will issue.

05/08/2019
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This text-only entry constitutes the court order on the matter. (LR, Case Administrator) (Entered: 05/07/2019)
67 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing. Proceedings held on April 25, 2019 in Yakima, Washington before Judge Stanley A Bastian. Page Numbers: 1-105
Parties have seven (7) business days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.
Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
Information regarding the policy can be found on the court website at www.waed.uscourts.gov.
To purchase a copy of the transcript contact Court Reporter/Transcriber Lynette F. Walters at 509-573-6613 or Lynette_Walters@waed.uscourts.gov. Redaction Request due 5/29/2019. Redacted Transcript Deadline set for 6/10/2019. Release of Transcript Restriction set for 8/6/2019. (Walters, Lynette) (Entered: 05/08/2019)
68 NOTICE of Appearance by Robert C Merritt on behalf of All Defendants (Attorney Robert C Merritt added to party Alex M Azar, II(pty:dft), Attorney Robert C Merritt added to party Diane Foley(pty:dft), Attorney Robert C Merritt added to party Office of Population Affairs(pty:dft), Attorney Robert C Merritt added to party United States Department of Health and Human Services(pty:dft))(Merritt, Robert) (Entered: 05/09/2019)
69 Unopposed MOTION for Extension of Time to File Answer re 1
Complaint, or Otherwise Respond to Plaintiffs' Complaints by All Defendants. Motion Hearing set for 5/10/2019 Without Oral Argument before Judge Stanley A Bastian. (Attachments: # 1 Text of Proposed Order)(Merritt, Robert) (Entered: 05/09/2019)
70 TEXT ORDER: Defendants' Unopposed Motion for Extension of Time to Respond to Complaints and for Expedited Consideration, ECF No. 69 , is GRANTED. The deadline for responding to Plaintiffs' complaints is extended to June 24, 2019. Signed by Judge Stanley A Bastian. Text entry; no PDF document will issue. This

05/13/2019 05/17/2019 05/17/2019
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text-only entry constitutes the court order on the matter. (LR, Case Administrator) (Entered: 05/09/2019)
71 Joint Certificate Pursuant to Rule 26 / Rule 16 and Proposed Discovery Plan by All Plaintiffs. (Sprung, Jeffrey) (Entered: 05/13/2019)
72 RESPONSE to Motion re 58 MOTION to Stay re 54 Order on Motion for Preliminary Injunction, filed by State of Washington. (Beneski, Kristin) (Entered: 05/17/2019)
73 MEMORANDUM in Opposition re 58 MOTION to Stay re 54
Order on Motion for Preliminary Injunction, filed by Feminist Women's Health Center, Teresa Gall, National Family Planning & Reproductive Health Association, Deborah Oyer. (Chiang, Emily) (Entered: 05/17/2019)
74 NOTICE OF CHANGE OF TIME RE: SCHEDULING CONFERENCE - Text entry;no PDF document: The Telephonic Scheduling Conference set for 5/23/2019 at 10:00 a.m. has been reset for 10:15 a.m. via Teleconference before Judge Stanley A Bastian. Participants should plan to call the Court Conference line: 1-888-636-3807 / Access code: 8839796 (No security code) five minutes before the conference. (CHANGE OF TIME ONLY)(ES, Courtroom Deputy) (Entered: 05/20/2019)
75 REPLY MEMORANDUM re 58 MOTION to Stay re 54 Order on Motion for Preliminary Injunction, filed by All Defendants. (Humphreys, Bradley) (Entered: 05/21/2019)
76 SUMMONS Returned Executed by Deborah Oyer, Feminist Women's Health Center, National Family Planning & Reproductive Health Association, Teresa Gall re Office of Population Affairs. (Shaeffer, Joseph) (Entered: 05/21/2019)
77 Minute Entry for TELEPHONIC proceedings held before Judge Stanley A Bastian: Status Conference held on 5/23/2019. (Reported/Recorded by: None) (ES, Courtroom Deputy) (Entered: 05/23/2019)
78 NOTICE OF TELEPHONIC STATUS CONFERENCE - Text entry;no PDF document. - By Court: A Telephonic Status Conference has been set for 8/1/2019 at 10:00 a.m. (PST) via Teleconference before Judge Stanley A Bastian. Participants should plan to call the Court Conference line: 1-888-636-3807 / Access code: 8839796 (No security code) five minutes before the conference. (ES, Courtroom Deputy) (Entered: 05/23/2019)

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79 MOTION to Stay Proceedings Pending Appeal by All Defendants. Motion Hearing set for 6/24/2019 Without Oral Argument before Judge Stanley A Bastian. (Attachments: # 1 Text of Proposed Order)(Merritt, Robert) (Entered: 05/24/2019)
80 Unopposed MOTION for Extension of Time to File Answer re 1

Complaint, or Otherwise Respond to Plaintiffs' Complaints by All Defendants. Motion Hearing set for 6/24/2019 Without Oral Argument before Judge Stanley A Bastian. (Attachments: # 1 Text of Proposed Order)(Merritt, Robert) (Entered: 05/24/2019)

81 ORDER SETTING TELEPHONIC STATUS CONFERENCE Telephonic Status Conference set for 8/1/2019 at 10:00 AM via Teleconference before Judge Stanley A Bastian. Signed by Judge Stanley A Bastian. (LR, Case Administrator) (Entered: 05/24/2019)

ORDER DENYING 58 DEFENDANTS' MOTION TO STAY

82

PRELIMINARY INJUNCTION PENDING APPEAL. Signed by

Judge Stanley A Bastian. (LR, Case Administrator) (Entered:

06/03/2019)

83 RESPONSE to Motion re 79 MOTION to Stay Proceedings Pending Appeal Opposition filed by Feminist Women's Health Center, Teresa Gall, National Family Planning & Reproductive Health Association, Deborah Oyer. (Chiang, Emily) (Entered: 06/07/2019)

84 RESPONSE to Motion re 79 MOTION to Stay Proceedings Pending Appeal filed by State of Washington. (Beneski, Kristin) (Entered: 06/07/2019)

85 NOTICE by All Defendants (Attachments: # 1 Exhibit)(Bernie, Andrew) (Entered: 06/13/2019)

86 ORDER DENYING 79 DEFENDANTS' MOTION TO STAY PROCEEDINGS PENDING APPEAL, and granting 80 Defendants' Unopposed Motion for Extension of Time to Respond to Complaints. Signed by Judge Stanley A Bastian. (LR, Case Administrator) (Entered: 06/14/2019)

COPY OF 9CCA ORDER as to 61 Notice of Appeal. The motion

87

for a stay pending appeal is GRANTED. 9CCA: 19-35394. (LR,

Case Administrator) (Entered: 06/20/2019)

88 NOTICE by Alex M Azar, II, Diane Foley, Office of Population Affairs, United States Department of Health and Human Services re Administrative Record (Humphreys, Bradley) (Entered: 06/24/2019)

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89 COPY OF 9CCA ORDER as to 61 Notice of Appeal, re Emergency Motions for Reconsideration En Banc. 9CCA: 19-35394. (LR, Case Administrator) (Entered: 06/25/2019)

90 COPY OF 9CCA ORDER as to 61 Notice of Appeal. Amended Order re Emergency Motions for Reconsideration En Banc. 9CCA: 19-35394. (LR, Case Administrator) (Entered: 06/25/2019)

91 COPY OF 9CCA ORDER as to 61 Notice of Appeal, re leave to file an amicus brief in support of the emergency motion for reconsideration en banc. 9CCA: 19-35394. (LR, Case Administrator) (Entered: 07/01/2019)

92 COPY OF 9CCA ORDER as to 61 Notice of Appeal, re cases be reheard en banc. 9CCA: 19-35394. (LR, Case Administrator) (Entered: 07/03/2019)

93 COPY OF 9CCA ORDER as to 61 Notice of Interlocutory Appeal, re: denial of motion for administrative stay of the three-judge panel, 9CCA: 19-35394. (CLP, Case Administrator) (Entered: 07/11/2019)

94 Joint MOTION for Extension of Time to File Status Certificate by Feminist Women's Health Center, Teresa Gall, National Family Planning & Reproductive Health Association, Deborah Oyer. Motion Hearing set for 7/19/2019 Without Oral Argument before Judge Stanley A Bastian. (Attachments: # 1 Text of Proposed Order)(Chiang, Emily) (Entered: 07/19/2019)

95 TEXT ORDER: The parties' Joint Motion of All Parties to Defer Status Report and Status Conference for Two Weeks and for Expedited Consideration, ECF No. 94 , is GRANTED. The deadline for filing the status certificate is extended to August 12, 2019, and the telephonic status conference currently set for August 1, 2019 is continued to August 22, 2019, at 10:30 a.m. PST. Participants should plan to call the Court Conference line: 1-888-204-5984 / Access Code: 6790153 five minutes before the conference. Text entry; no PDF document will issue. This text-only entry constitutes the court order on the matter. Signed by Judge Stanley A Bastian. (LR, Case Administrator) (Entered: 07/22/2019)

COPY OF 9CCA ORDER as to 61 Notice of Appeal, re: en banc

96

oral argument, 9CCA: 19-35394. (LR, Case Administrator)

(Entered: 07/29/2019)

97 COPY OF 9CCA ORDER as to 61 Notice of Appeal, re: parties should be prepared to discuss at oral argument the district courts' preliminary injunction orders on the merits. 9CCA: 19-35394. (LR, Case Administrator) (Entered: 08/01/2019)

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98 STATUS REPORT Joint Status Certificate and Scheduling Proposal of All Parties by Feminist Women's Health Center, Teresa Gall, National Family Planning & Reproductive Health Association, Deborah Oyer. (Chiang, Emily) (Entered: 08/12/2019)
99 COPY OF 9CCA ORDER as to 61 Notice of Appeal re motions for full court en banc reconsideration are DENIED. 9CCA: 19-35394. (LR, Case Administrator) (Entered: 08/16/2019)
100 COPY OF 9CCA ORDER as to 61 Notice of Appeal, re majority of en banc court has voted to deny the motions for reconsideration 9CCA: 19-35394. (LR, Case Administrator) (Entered: 08/21/2019)
101 COPY OF 9CCA ORDER as to 61 Notice of Appeal, re oral argument in en banc cases 9CCA: 19-35394. (LR, Case Administrator) (Entered: 08/21/2019)
102 Minute Entry for TELEPHONIC proceedings held before Judge Stanley A Bastian: Status Conference held on 8/22/2019. (Reported/Recorded by: None) (ES, Courtroom Deputy) (Entered: 08/22/2019)
103 NOTICE OF WITHDRAWAL OF COUNSEL by Catherine J Djang on behalf of Amicus Parties American Academy of Pediatrics, American College of Obstetricians and Gynecologists, American College of Physicians, Society for Adolescent Health Medicine, Society for Maternal-Fetal Medicine (Djang, Catherine) (Entered: 08/22/2019)
104 NOTICE OF WITHDRAWAL OF COUNSEL by Elizabeth Deutsch on behalf of Plaintiffs Feminist Women's Health Center, Teresa Gall, National Family Planning & Reproductive Health Association, Deborah Oyer (Deutsch, Elizabeth) (Entered: 08/22/2019)
105 COPY OF 9CCA ORDER as to 61 Notice of Interlocutory Appeal re Within seven days of order parties and amici to forward to Clerk of Court addtl copies of briefs, amicus briefs and excerpts of record. 9CCA: 19-35394. (VR, Courtroom Deputy) (Entered: 08/29/2019)
106 NOTICE OF WITHDRAWAL OF COUNSEL by Sara Zdeb on behalf of Plaintiffs Feminist Women's Health Center, Teresa Gall, National Family Planning & Reproductive Health Association, Deborah Oyer (Zdeb, Sara) (Entered: 08/30/2019)
107 COPY OF 9CCA ORDER as to 61 Notice of Appeal, re: Motion of Amici Curiae Ohio, et al., to participate in oral argument and be granted an additional separate five minutes of argument is DENIED, without prejudice to renew. 9CCA: 19-35394. (LR, Case Administrator) (Entered: 09/05/2019)

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108 ORDER SETTING BRIEFING SCHEDULE, adopting proposed briefing schedule re 98 Joint Status Report. Signed by Judge Stanley A Bastian. (LR, Case Administrator) (Entered: 09/27/2019)
109 NOTICE OF HEARING - Text entry; no PDF document. - By Court: At the request of counsel, the hearing date for oral argument on motions has been scheduled for 2/13/2020 at 1:15 p.m. in Spokane Courtroom 755 before Judge Stanley A Bastian. Re: ECF No. 108 - Order Setting Briefing Schedule. (ES, Courtroom Deputy) (Entered: 09/27/2019)
110 Consent MOTION for Leave to File Excess Pages by Alex M Azar, II, Diane Foley, Office of Population Affairs, United States Department of Health and Human Services. Motion Hearing set for 11/6/2019 Without Oral Argument before Judge Stanley A Bastian. (Attachments: # 1 Text of Proposed Order)(Humphreys, Bradley) (Entered: 10/07/2019)
111 TEXT ORDER: Defendants' Motion to Exceed Page Limits, ECF No. 110 , is GRANTED. Defendants are granted leave to file a memorandum in support of their motion to dismiss, or in the alternative, for summary judgment of up to fifty pages in length. Plaintiffs are granted leave to file a memorandum in support of their motion for summary judgment or opposition to Defendants' motion of up to fifty pages in length. Signed by Judge Stanley A. Bastian. Text entry; no PDF document will issue. This text-only entry constitutes the court order on the matter. (LR, Case Administrator) (Entered: 10/07/2019)
112 MOTION to Dismiss for Failure to State a Claim or, in the Alternative, for Summary Judgment by Alex M Azar, II, Diane Foley, Office of Population Affairs, United States Department of Health and Human Services. Motion Hearing set for 2/13/2020 at 01:15 PM in Spokane Courtroom 755 before Judge Stanley A Bastian. (Attachments: # 1 Text of Proposed Order)(Humphreys, Bradley) Modified on 11/4/2019 to change hearing location from Yakima to Spokane (ES, Courtroom Deputy). (Entered: 10/07/2019)
113 NOTICE SETTING TELEPHONIC STATUS CONFERENCE Text entry; no PDF document. - By Court: A Telephonic Status Conference has been set for 11/19/2019 at 10:00 AM by teleconference before Judge Stanley A Bastian. Participants should plan to call the Court Conference line: 1-888-204-5984 / Access Code: 6790153 five minutes before the conference.(ES, Courtroom Deputy) (Entered: 11/06/2019)
114 NOTICE RESETTING TELEPHONIC STATUS CONFERENCE Text entry; no PDF document. - By Court: The Telephonic Status

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11/20/2019

Conference set 11/19/2019 at 10:00 a.m. has been reset for 11/13/2019 at 1:15 PM by teleconference before Judge Stanley A Bastian. Participants should plan to call the Court Conference line: 1-888-204-5984 / Access Code: 6790153 five minutes before the conference.(ES, Courtroom Deputy). (Entered: 11/12/2019)
115 Joint MOTION for Leave to File Excess Pages and for Expedited Consideration by All Plaintiffs. Motion Hearing set for 11/19/2019 Without Oral Argument before Judge Stanley A Bastian. (Attachments: # 1 Text of Proposed Order)(Chiang, Emily) (Entered: 11/12/2019)
117 Minute Entry for TELEPHONIC proceedings held before Judge Stanley A Bastian: Status Conference held on 11/13/2019. (Reported/Recorded by: None) (ES, Courtroom Deputy) (Entered: 11/14/2019)
124 Amended Minutes re 117 Status Conference held 11/13/2019. (ES, Courtroom Deputy) (Entered: 11/22/2019)
116 TEXT ORDER: Plaintiffs' Joint Motion to Exceed Page Limits and for Expedited Consideration, ECF No. 115 , is GRANTED. Plaintiffs are granted leave to each file a memorandum in support of their motions for summary judgment / oppositions to Defendants' dispositive motion of up to 75 pages. Signed by Judge Stanley A. Bastian. Text entry; no PDF document will issue. This text-only entry constitutes the court order on the matter. (LR, Case Administrator) (Entered: 11/14/2019)
118 RESPONSE to Motion re 112 MOTION to Dismiss for Failure to State a Claim or, in the Alternative, for Summary Judgment filed by State of Washington. (Attachments: # 1 Text of Proposed Order Proposed Order)(Beneski, Kristin) (Entered: 11/20/2019)
119 DECLARATION by Kristin Beneski in Opposition re 112 MOTION to Dismiss for Failure to State a Claim or, in the Alternative, for Summary Judgment filed by State of Washington. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 1 cont., # 3 Exhibit Exhibit 1 cont., # 4 Exhibit Exhibit 2, # 5 Exhibit Exhibit 3, # 6 Exhibit Exhibit 4)(Beneski, Kristin) (Entered: 11/20/2019)
120 DECLARATION by Lacy M. Fehrenbach, MPH, CPH in Opposition re 112 MOTION to Dismiss for Failure to State a Claim or, in the Alternative, for Summary Judgment filed by State of Washington. (Attachments: # 1 Exhibit 1)(Beneski, Kristin) (Entered: 11/20/2019)

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121 MEMORANDUM in Opposition re 112 MOTION to Dismiss for Failure to State a Claim or, in the Alternative, for Summary Judgment and Cross-Motion for Summary Judgment filed by Feminist Women's Health Center, Teresa Gall, National Family Planning & Reproductive Health Association, Deborah Oyer. (Attachments: # 1 Text of Proposed Order)(Chiang, Emily) (Entered: 11/20/2019)
122 AFFIDAVIT by Ruth E. Harlow in Opposition re 112 MOTION to Dismiss for Failure to State a Claim or, in the Alternative, for Summary Judgment and in Support of Plaintiffs' Cross-Motion for Summary Judgment filed by Feminist Women's Health Center, Teresa Gall, National Family Planning & Reproductive Health Association, Deborah Oyer. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(Chiang, Emily) (Entered: 11/20/2019)
123 NOTICE RESETTING HEARING - Text entry; no PDF document. - By Court: re 112 MOTION to Dismiss for Failure to State a Claim or, in the Alternative, for Summary Judgment. The Dispositive Motion Hearing set for 2/13/2020 at 1:15 p.m. has been rescheduled for 2/27/2020 at 10:00 AM in Spokane Courtroom 755 before Judge Stanley A Bastian. (ES, Courtroom Deputy) (Entered: 11/22/2019)
125 NOTICE OF WITHDRAWAL OF COUNSEL by George M Ahrend on behalf of Amicus Susan B. Anthony List (Ahrend, George) Modified on 12/4/2019 Document filed without signatures and by incorrect attorney. Left message for filing attorney to correct these deficiencies and have withdrawing attorney re-file. (LR, Case Administrator). (Entered: 12/04/2019)
126 MOTION to Withdraw as Attorney (atty Sarah E. Pitlyk) by Susan B. Anthony List. Motion Hearing set for 1/3/2020 Without Oral Argument before Judge Stanley A Bastian. (Pitlyk, Sarah) Modified on 12/4/2019 Document incorrectly filed as a motion, instead of a Notice. Undersigned CA terminated the motion and withdrawing counsel pursuant to this Notice. (LR, Case Administrator). (Entered: 12/04/2019)
127 Unopposed MOTION for Extension of Time to File Response/Reply as to 118 Response to Motion, 121 Memorandum in Opposition to Motion, by All Defendants. Motion Hearing set for 1/10/2020 Without Oral Argument before Judge Stanley A Bastian. (Attachments: # 1 Text of Proposed Order)(Humphreys, Bradley) (Entered: 12/11/2019)
128 TEXT ORDER: Defendants' Motion to Extend Deadlines, ECF No. 127 , is GRANTED. Defendants' opposition to Plaintiffs'

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motions for summary judgment and reply in support of Defendants' motion to dismiss, or in the alternative, for summary judgment is due on January 10, 2020. Plaintiffs' replies in support of their motions for summary judgment are due on February 3, 2020. Signed by Judge Stanley A. Bastian. Text entry; no PDF document will issue. This text-only entry constitutes the court order on the matter. (LR, Case Administrator) (Entered: 12/16/2019)

129 NOTICE OF WITHDRAWAL OF COUNSEL by Fiona Kaye on behalf of Plaintiffs Feminist Women's Health Center, Teresa Gall, National Family Planning & Reproductive Health Association, Deborah Oyer (Kaye, Fiona) (Entered: 12/17/2019)

130 Unopposed MOTION for Leave to File Excess Pages by All Defendants. Motion Hearing set for 2/10/2020 Without Oral Argument before Judge Stanley A Bastian. (Attachments: # 1 Text of Proposed Order)(Humphreys, Bradley) (Entered: 01/10/2020)

REPLY MEMORANDUM re 112 MOTION to Dismiss for Failure

131

to State a Claim or, in the Alternative, for Summary Judgment and

in Opposition to Plaintiffs' Cross Motions for Summary

Judgment filed by All Defendants. (Humphreys, Bradley) (Entered:

01/10/2020)

132 ORDER: Defendants' Motion to Exceed Page Limits, ECF No. 130 , is GRANTED. Defendants are granted leave to file a memorandum of up to forty-five (45) pages in length. Signed by Judge Stanley A. Bastian. Text entry; no PDF document will issue. This text-only entry constitutes the court order on the matter. (LR, Case Administrator) (Entered: 01/13/2020)

133 NOTICE by All Defendants of Filing of Administrative Record (Humphreys, Bradley) (Entered: 01/22/2020)

134 MOTION for Leave to File Amicus Curiae in Support of Defendants by Susan B. Anthony List. Motion Hearing set for 2/27/2020 Without Oral Argument before Judge Stanley A Bastian. (Ahrend, George) (Entered: 01/23/2020)

135 MOTION for Leave to File Amicus Curiae Brief in Support of Defendants by Susan B. Anthony List. Motion Hearing set for 2/27/2020 Without Oral Argument before Judge Stanley A

01/24/2020

Bastian. (Attachments: # 1 (Entered: 01/23/2020)

Amicus Brief)(Ahrend, George)

136 MOTION for Leave to File Excess Pages by All Plaintiffs. Motion Hearing set for 1/31/2020 Without Oral Argument before Judge Stanley A Bastian. (Attachments: # 1 Text of Proposed Order)(Harlow, Ruth) (Entered: 01/24/2020)

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02/03/2020 02/03/2020 02/03/2020

137 ORDER: The Court GRANTS the Joint Motion to Exceed Page Limits in Reply Briefs and for Expedited Consideration, ECF No. 136 . The State Plaintiff and the NFPRHA Plaintiffs each have leave to file a reply memorandum of up to 30 pages in support of their motions for summary judgment. Signed by Judge Stanley A. Bastian. Text entry; no PDF document will issue. This text-only entry constitutes the court order on the matter. (PL, Case Administrator) (Entered: 01/28/2020)

138 TEXT ORDER: The Court GRANTS the Joint Motion to Exceed Page Limits in Reply Briefs and for Expedited Consideration, ECF No. 136 . The State Plaintiff and the NFPRHA Plaintiffs each have leave to file a reply memorandum of up to 30 pages in support of their motions for summary judgment. Signed by Judge Stanley A. Bastian. Text entry; no PDF document will issue. This text-only entry constitutes the court order on the matter. (TR, Case Administrator) (Entered: 01/28/2020)

139 NOTICE of Appearance and Substitution by John Ballif Midgley on behalf of Feminist Women's Health Center, Teresa Gall, National Family Planning & Reproductive Health Association, Deborah Oyer (Attorney John Ballif Midgley added to party Feminist Women's Health Center(pty:pla), Attorney John Ballif Midgley added to party Teresa Gall(pty:pla), Attorney John Ballif Midgley added to party National Family Planning & Reproductive Health Association(pty:pla), Attorney John Ballif Midgley added to party Deborah Oyer(pty:pla))(Midgley, John) (Entered: 01/29/2020)

140 TEXT ORDER: Susan B. Anthony Lists Motion for Leave to File Brief of Amicus Curiae in Support of Defendants, ECF No. 134 , 135 , is GRANTED. Signed by Judge Stanley A. Bastian. Text entry; no PDF document will issue. This text-only entry constitutes the court order on the matter. (LR, Case Administrator) (Entered: 02/03/2020)

141 REPLY MEMORANDUM re 112 MOTION to Dismiss for Failure to State a Claim or, in the Alternative, for Summary Judgment Reply In Support of State of Washington's Cross Motion for Summary Judgment filed by State of Washington. (Beneski, Kristin) (Entered: 02/03/2020)

REPLY MEMORANDUM re 112 MOTION to Dismiss for Failure

142

to State a Claim or, in the Alternative, for Summary Judgment -

Reply In Support of NFPRHA Plaintiffs' Cross Motion for Summary

Judgment filed by Feminist Women's Health Center, Teresa Gall,

National Family Planning & Reproductive Health Association,

Deborah Oyer. (Harlow, Ruth) (Entered: 02/03/2020)

02/19/2020 02/24/2020 02/24/2020 02/28/2020 03/05/2020 03/06/2020
05/08/2020 05/22/2020

143 NOTICE by Feminist Women's Health Center, Teresa Gall, National Family Planning & Reproductive Health Association, Deborah Oyer of Decision in Related Case (Attachments: # 1 Exhibit Attachment A)(Harlow, Ruth) (Entered: 02/19/2020)
144 9CCA Slip Opinion: Decision of the District Courts' preliminary injunction orders are vacated and the cases are remanded for further proceedings. 9CCA Case No. 19-35394. (LR, Case Administrator) (Entered: 02/24/2020)
145 ORDER STRIKING HEARING; ORDERING BRIEFING. Signed by Judge Stanley A Bastian. (LR, Case Administrator) (Entered: 02/24/2020)
146 NOTICE OF WITHDRAWAL OF COUNSEL by Jennifer Sokoler on behalf of Plaintiffs Feminist Women's Health Center, Teresa Gall, National Family Planning & Reproductive Health Association, Deborah Oyer (Sokoler, Jennifer) (Entered: 02/28/2020)
147 STATEMENT re 145 Order, Terminate Deadlines and Hearings on behalf of all parties by Feminist Women's Health Center, Teresa Gall, National Family Planning & Reproductive Health Association, Deborah Oyer. (Harlow, Ruth) (Entered: 03/05/2020)
148 TEXT ORDER - Pursuant to the request of the parties, ECF No. 147 , the Court holds the above-captioned case in abeyance, pending any further appellate review of the Ninth Circuits February 24, 2020 decision. The parties are directed to file a joint status report on or before June 5, 2020. For court docket management purposes only, Defendants Motion to Dismiss for Failure to State a Claim, or in the Alternative, for Summary Judgment, ECF No. 112 , and Plaintiffs Cross-Motions for Summary Judgment, ECF Nos. 118 and 121 , are STRICKEN, with leave to renew. The District Court Executive is directed to set a case management deadline. Signed by Judge Stanley A. Bastian. Text entry; no PDF document will issue. This text-only entry constitutes the court order on the matter. (LR, Case Administrator) (Entered: 03/06/2020)
149 COPY OF 9CCA ORDER as to 61 Notice of Interlocutory Appeal, 9CCA: 19-35394. The Petitions are DENIED. (LR, Case Administrator) (Entered: 05/08/2020)
150 MANDATE from 9CCA as to 61 Notice of Interlocutory Appeal. Decision of the District Courts' preliminary injunction orders are vacated and the cases are remanded for further proceedings. 9CCA: 19-35394. (LMR, Case Administrator) (Entered: 05/22/2020)

06/05/2020 06/22/2020 10/06/2020 10/09/2020 10/19/2020 11/19/2020
02/22/2021 03/08/2021 03/09/2021 04/28/2021 06/01/2021 06/02/2021

151 STATUS REPORT - JOINT by All Parties. (Beneski, Kristin) Modified on 6/8/2020 to correct docket text to reflect being filed by all parties (LMR, Case Administrator). (Entered: 06/05/2020)

ORDER RE: JOINT STATUS REPORT. Signed by Judge Stanley

152

A Bastian. (LMR, Case Administrator) (Entered: 06/22/2020)

Petition for a writ of certiorari received by 9CCA. (LMR, Case

153

Administrator) (Entered: 10/06/2020)

154 STATUS REPORT - JOINT by All Defendants. (Humphreys, Bradley) (Entered: 10/09/2020)

155 ORDER RE: JOINT STATUS REPORT. Signed by Chief Judge Stanley A Bastian. (LMR, Case Administrator) (Entered: 10/19/2020)

156 NOTICE OF WITHDRAWAL OF COUNSEL by Haley E Eagon on behalf of Amicus Parties American Academy of Pediatrics, American College of Obstetricians and Gynecologists, American College of Physicians, Society for Adolescent Health Medicine, Society for Maternal-Fetal Medicine (Eagon, Haley) (Entered: 11/19/2020)

The petition for a writ of certiorari is granted, received from the

157

Supreme Court of the United States. (LMR, Case Administrator)

(Entered: 02/22/2021)

158 STATUS REPORT (JOINT) by All Defendants. (Humphreys, Bradley) (Entered: 03/08/2021)

159 ORDER CONTINUING TO HOLD CASE IN ABEYANCE. Signed by Chief Judge Stanley A Bastian. (LMR, Case Administrator) (Entered: 03/09/2021)

160 Received letter from the Supreme Court dated 4/26/2021 directing The Acting Solicitor General to file a letter brief. (LMR, Case Administrator) (Entered: 04/28/2021)

161 STATUS REPORT (Joint) by All Defendants. (Humphreys, Bradley) (Entered: 06/01/2021)

162 TEXT ORDER: Pursuant to the parties' Joint Status Report Pursuant to the Court's March 9, 2021 Order, ECF No. 161 , the parties shall file a status report on or before June 11, 2021 to update the Court on the status of and anticipated next steps in these matters. Signed by Chief Judge Stanley A. Bastian. Text entry; no PDF document will issue. This text-only entry constitutes the court order on the matter. (CLP, Case Administrator) (Entered: 06/02/2021)

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1:19-cv-03040SAB 2.60

 
 Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.1 Page 1 of 90

1 Jeffrey T. Sprung, WSBA #23607 Kristin Beneski, WSBA #45478
2 Paul M. Crisalli, WSBA #40681 Assistant Attorneys General
3 ROBERT W. FERGUSON ATTORNEY GENERAL
4 Washington Attorney General’s Office 800 Fifth Avenue, Suite 2000
5 Seattle, WA 98014 (206) 464-7744
6

7

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

8

AT YAKIMA

9 STATE OF WASHINGTON,

NO. 1:19-cv-3040

10

11

v.

Plaintiff,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

12 ALEX M. AZAR II, in his official capacity as Secretary of the United
13 States Department of Health and Human Services; and UNITED
14 STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,
15 Defendants.
16

17

18

19

20

21

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

i

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.2 Page 2 of 90

1

TABLE OF CONTENTS

I. INTRODUCTION.....................................................................................1 2

II. PARTIES...................................................................................................5 3

III. JURISDICTION AND VENUE................................................................7 4

IV. RELEVANT FACTS ................................................................................8 5

A. Statutory and Regulatory Background............................................8 6

1. History, Text, and Purpose of Title X ..................................8 7

a. Historical background ................................................8 8

b. Text and purpose of Title X .......................................9 9

c. Section 1008 .............................................................12 10

2. Five Decades of Title X Regulations..................................13 11

a. Early Title X regulations require nondirective

12

pregnancy counseling...............................................13

13

b. The anomalous 1988 gag rule ..................................14

14

c. Rebuffing limits on medical counseling after Rust v.

Sullivan .....................................................................15 15

d. The Current Regulations restore the status quo .......17 16

3. Statutes Requiring Nondirective Pregnancy Counseling and

17

Limiting Government Interference with Health Care ........22

18

a. The Nondirective Mandate.......................................23

19

b. Section 1554 of the Affordable Care Act.................24

20

4. Impact of Title X ................................................................24

21

B. Washington’s Title X Program .....................................................28

22

C. HHS’s 2018 Final Rule.................................................................32

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

ii

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.3 Page 3 of 90

1

1. The Coercive and Misleading Counseling Requirements ..32

2

2. The “Separation” Requirements .........................................42

3

3. Removal of the “Medically Approved” Requirement........52

4

4. Extra-Statutory Primary Health Services Requirement......54

5

5. Changes Subjecting Adolescents to More Coercive

Practices ..............................................................................56

6

6. New Grant Eligibility Hurdles............................................58

7

7. New Limitations on Use of Federal Funds.........................60

8

8. The Final Rule’s Unlawful Purpose and Effect..................61

9

D. Injuries to the State of Washington and Its Residents ..................63

10

1. The Final Rule will expel providers representing 89% of

11

Washington’s Title X network ...........................................64

12

2. A DOH program that complied with the restrictions of the

Final Rule would be contrary to Washington law..............69

13

3. The loss of Title X funds Would Irreparably Harm

14

Washington and Its Most Vulnerable Residents ................71

15

a. Reducing the effectiveness of Washington’s family

planning program .....................................................71

16

b. Financial harm to State Medicaid and related

17

programs ...................................................................74

18 V. CLAIMS FOR RELIEF ..........................................................................78

19 VI. PRAYER FOR RELIEF..........................................................................86

20

21

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

iii

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.4 Page 4 of 90

1

I. INTRODUCTION

2

1. The State of Washington seeks to enjoin and set aside the Federal

3 Government’s March 4, 2019 Final Rule that, should it become effective, will

4 cripple Washington’s Title X family planning network serving tens of thousands

5 of Washingtonians annually, to achieve ends unrelated to Congress’ Title X

6 program.

7

2. Congress enacted Title X in 1970 to equalize access to voluntary

8 family planning services. Title X sought to help low-income women reduce their

9 rate of unintended pregnancies and exercise control over their economic lives and

10 health by offering federally-funded access to effective contraception and

11 reproductive health care. Congress authorized the Department of Health and

12 Human Services (HHS or the Department) to award grants to public and

13 non-profit private entities to provide a “broad range of acceptable and effective

14 family planning methods and services” to patients in need. 42 U.S.C. § 300(a).

15

3. Every year since 1971, the State of Washington has competed for

16 and been a direct grantee of Title X funds. As a result, Washington has built a

17 family planning network that has been a remarkable success for the State and its

18 residents. In 2017 alone, it enabled over 18,000 women to avoid unintended

19 pregnancies and eliminated the need for over 6,000 abortions, and it saved the

20 State over $113 million in health care costs. It now comprises 85 clinics providing

21 free or low-cost contraceptives and other reproductive health services to

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.5 Page 5 of 90

1 low-income people in 32 of Washington’s 39 counties. If not curtailed because

2 of the Final Rule, it will serve 98,000 Washingtonians in 2019.

3

4. The Final Rule dramatically and unlawfully alters the longstanding

4 regulations governing Title X grants for family planning services. It is slated to

5 go into effect on May 3, 2019. The Final Rule will destroy Washington’s family

6 planning network, irreparably harming thousands of Washingtonians.

7

5. The Final Rule makes numerous changes that impose the

8 Administration’s views contrary to congressional will and five decades of

9 regulations, including the following:

10

a. Coercive practices; denying patient access to medical

11 facts. The Final Rule attempts to deprive pregnant patients of voluntary

12 decision-making about their health care. It eliminates the requirement that they

13 receive nondirective pregnancy counseling. It requires directive referrals to

14 prenatal care for all pregnant patients, while forbidding referrals for abortion care

15 even if requested by patients. The Final Rule permits Title X providers’ own

16 views to dictate the information a patient receives, by withholding factual

17 medical information and offering only biased information, regardless of the

18 patient’s wishes. These aspects of the rule violate Congress’s requirement that

19 Title X subsidizes only voluntary family planning services and its repeated

20 mandate that all pregnancy counseling in a Title X program “shall be

21 nondirective” (the Nondirective Mandate). These provisions also violate the

22 Patient Protection and Affordable Care Act (ACA), which prohibits HHS from

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

2

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.6 Page 6 of 90

1 enacting any regulation that denies patients “full” information on their treatment

2 options and “full” disclosure of information relevant to their health care

3 decisions.

4

b. The separation requirements. The Final Rule denies Title X

5 funding to entities that provide comprehensive reproductive health care services

6 at the same clinical site, even though abortion care has always occurred outside

7 the scope of any Title X program without using federal funds. The Final Rule

8 establishes onerous and unnecessary “separation” requirements that obligate

9 providers to physically separate their facilities, staff, and materials and wastefully

10 duplicate their operations if they wish to provide abortion care or even referral.

11 These unworkable new requirements, along with the coercive and directive

12 practices mandated by the Final Rule, will disqualify almost 90% of

13 Washington’s Title X network providers—an outcome HHS ignores. The

14 separation provisions violate the ACA because they unreasonably interfere with

15 and impede timely access to care, and they violate Title X itself by making it

16 harder or impossible for the vast majority of people intended to benefit from the

17 program to use it.

18

c. Other requirements. Along with the coercive counseling

19 and separation provisions, the Final Rule imposes numerous additional new

20 requirements that further undermine the quality of medical care, interfere with

21 the provider–patient relationship, reduce access to services, and contravene

22 Title X’s purposes.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

3

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.7 Page 7 of 90

1

6. In addition to violating three distinct statutory mandates—the

2 Nondirective Mandate, the ACA, and Title X itself—the Final Rule is also

3 arbitrary and capricious for a host of reasons. It reverses longstanding policies

4 and agency interpretations of Title X with no rational explanation or evidentiary

5 support, backtracks from evidence-backed standards of care included in HHS’s

6 own Program Requirements and guidance, and adds unsupported, illogical, and

7 counterproductive new requirements, while ignoring contrary record evidence

8 and failing to consider the grave public health harms the new requirements will

9 cause. Furthermore, the Final Rule unconstitutionally conditions Title X funding

10 on the relinquishment of rights to free expression and association, violates

11 principles of federalism, and is unconstitutionally vague.

12

7. The Final Rule’s harmful effects will fall particularly hard on

13 uninsured patients and those in rural areas, especially in Eastern Washington,

14 who in some cases will have no other feasible option for obtaining family

15 planning services. Under the Final Rule, the number of counties in Eastern

16 Washington without a Title X provider will nearly triple. Across all of

17 Washington, the number of counties without a Title X provider will jump from 5

18 to 21. More than half of Washington’s counties will be without Title X care. As

19 a result, thousands of Washingtonians who rely on Title X for contraception and

20 other family planning services will lose access to those services, irreparably

21 harming the public health and increasing health care costs in Washington.

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

4

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.8 Page 8 of 90

1

8. The Final Rule harms the very people Title X was enacted to help.

2 To avert irreparable injury to the State and its residents, Washington brings this

3 suit to vacate and set aside the Final Rule.

4

II. PARTIES

5

9. Plaintiff the State of Washington is represented by its Attorney

6 General, who is the State’s chief legal adviser. The powers and duties of the

7 Attorney General include acting in federal court on matters of public concern to

8 the State.

9

10. As a current recipient of Title X grant funds, Washington is directly

10 affected by the Final Rule. Washington brings this action to redress harms to its

11 sovereign, proprietary, and quasi-sovereign interests and its interests as parens

12 patriae in protecting the health and well-being of its residents. It is the public

13 policy of the State of Washington that every individual has the fundamental right

14 to choose or refuse birth control, to choose or refuse abortion, and to be free from

15 state interference in those decisions and from state discrimination against the

16 exercise of those rights. RCW 9.02.100, et seq.

17

11. Washington law recognizes that access to reproductive health care

18 is vitally important to individuals’ health and well-being, no matter their income

19 level. The Washington Legislature declared that:

20

• Reproductive health care is the care necessary to support the

reproductive system, the capability to reproduce, and the

21

freedom and services necessary to decide if, when, and how

often to do so, which can include contraception, cancer and

22

disease screenings, abortion, preconception, maternity,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

5

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.9 Page 9 of 90

1

prenatal, and postpartum care. This care is an essential part of

primary care for women and teens, and often reproductive

2

health issues are the primary reason they seek routine medical

care;

3 • Neither a woman’s income level nor her type of insurance

4

should prevent her from having access to a full range of

reproductive health care, including contraception and

5

abortion services;

6

• Restrictions and barriers to health coverage for reproductive health care have a disproportionate impact on low-income

7

women, women of color, immigrant women, and young women, and these women are often already disadvantaged in

8

their access to the resources, information, and services necessary to prevent an unintended pregnancy or to carry a

9

healthy pregnancy to term;

10

• This state has a history of supporting and expanding timely access to comprehensive contraceptive access to prevent

11

unintended pregnancy;

12

• Nearly half of pregnancies in both the United States and Washington are unintended. [. . .]

13

• Access to contraception has been directly connected to the

economic success of women and the ability of women to

14

participate in society equally.

15 Reproductive Parity Act, 2018 Wash. Legis. Serv. Ch. 119 (S.S.B. 6219).

16

12. Washington is a direct grantee of federal Title X funds. It

17 administers a highly effective and successful statewide family planning program

18 that will be devastated by the Final Rule. Washington is a regulated entity directly

19 affected by the Final Rule, is directly injured by it, and the relief requested will

20 redress the injury.

21

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

6

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.10 Page 10 of 90

1

13. Washington and its residents will suffer significant and irreparable

2 harm if the Final Rule goes into effect. The Final Rule will dismantle

3 Washington’s family planning network and inhibit patients’ access to care.

4

14. Defendant Alex M. Azar II is the Secretary of HHS (the Secretary).

5 He is sued in his official capacity.

6

15. Defendant HHS is the federal agency responsible for implementing

7 Title X. HHS promulgated the Final Rule challenged in this lawsuit. HHS’s

8 sub-agency, the Office of Population Affairs, administers and oversees the Title

9 X program.

10

III. JURISDICTION AND VENUE

11

16. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (action

12 arising under the laws of the United States), 28 U.S.C. § 1346 (United States as

13 a defendant), and 5 U.S.C. §§ 701-706 (Administrative Procedure Act). An actual

14 controversy exists between the parties within the meaning of 28 U.S.C. § 2201(a),

15 and this Court may grant declaratory relief, injunctive relief, and other relief

16 pursuant to 28 U.S.C. §§ 2201-2202 and 5 U.S.C. §§ 705-706.

17

17. Defendants’ publication of the Final Rule in the Federal Register on

18 March 4, 2019, constitutes a final agency action and is therefore judicially

19 reviewable within the meaning of the Administrative Procedure Act. 5 U.S.C.

20 §§ 704, 706.

21

18. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e)

22 because this is a judicial district in which the State of Washington resides and

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

7

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.11 Page 11 of 90

1 this action seeks relief against federal agencies and officials acting in their official

2 capacities. See California v. Azar, 911 F.3d 558, 569–70 (9th Cir. 2018).

3

IV. RELEVANT FACTS

4 A. Statutory and Regulatory Background

5

1. History, Text, and Purpose of Title X

6

a. Historical background

7

19. Title X originated as a response to the growing body of evidence in

8 the 1960s demonstrating adverse health and economic outcomes caused by

9 low-income individuals’ unequal access to modern, effective contraception.

10 Low-income women had twice the rates of unwanted pregnancies compared to

11 more affluent women, and their more closely spaced pregnancies led to poor

12 health outcomes for themselves and their children. Unintended, mistimed, and

13 unwanted childbearing worsened poverty levels and educational attainment,

14 limiting women’s control over their lives. At the same time, evidence showed

15 that newly available and highly effective contraceptive options, such as “the Pill,”

16 were unaffordable for too many. In light of these findings, there was bipartisan

17 agreement that the federal government should support voluntary family planning

18 programs as a means of equalizing access to modern, effective contraceptive

19 methods and improving public health outcomes.

20

20. The first presidential message on population in the United States

21 was delivered by President Nixon on July 18, 1969. His message to Congress

22 called for the establishment of a federal family planning program and proposed

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

8

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.12 Page 12 of 90

1 “as a national goal the provision of adequate family planning services within the

2 next five years to all those who want them but cannot afford them.”1

3

b. Text and purpose of Title X

4

21. In response to the growing national concerns regarding family

5 planning needs, Congress passed the Family Planning Services and Population

6 Research Act of 1970, 42 U.S.C. § 300 et seq., which added Title X to the Public

7 Health Service Act. Title X provides for the HHS Secretary to award grants for

8 the “establishment and operation of voluntary family planning projects which

9 shall offer a broad range of acceptable and effective family planning methods and

10 services . . . .” 42 U.S.C. § 300(a). Grants are to be awarded based on four

11 criteria: “the number of patients to be served, the extent to which family planning

12 services are needed locally, the relative need of the applicant, and its capacity to

13 make rapid and effective use of such assistance.” Id. § 300(b). Grantees must

14 provide assurance that “priority will be given in [their] project or program to the

15 furnishing of such services to persons from low-income families.”

16 Id. § 300a-4(c)(1). Title X sought to fulfill President Nixon’s 1969 promise that

17 “no American woman should be denied access to family planning assistance

18 because of her economic condition.”

19

20

21

1 Richard M. Nixon, Special Message to the Congress on Problems of Population

22 Growth (Jul. 18, 1969).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

9

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.13 Page 13 of 90

1

22. Developed and passed with strong bipartisan support, the goal of

2 Title X was to “assist in making comprehensive, voluntary family planning

3 services readily available to all persons desiring such services.” Pub. L. No.

4 91-572, § 2, 84 Stat. 1504 (1970). Congress’s concern was for the “medically

5 indigent”—individuals who, because of their economic condition, were “forced

6 to do without, or to rely heavily on the least effective nonmedical techniques for

7 fertility control” where public health or charitable services were not available.

8 S. Rep. No. 91-1004, at 9 (1970). Congress emphasized that the “problems of

9 excess fertility for the poor result to a large extent from the inaccessibility of

10 family planning information and services.” H.R. Rep. No. 91-1472, at 6 (1970).

11

23. Title X requires in two separate provisions that the acceptance of

12 family planning services “shall be voluntary” and must not be a condition for

13 receipt of any other public service or assistance. 42 U.S.C. §§ 300(a), 300a–5.

14 The requirement that Title X services be “voluntary” was important to Congress,

15 which emphasized that “explicit safeguards” were needed “to insure that the

16 acceptance of family planning services and information relating thereto must be

17 on a purely voluntary basis by the individuals involved[.]” S. Rep. No. 91-1004,

18 at 12.

19

24. Consistent with the goal of facilitating access to the most effective

20 forms of contraception and reducing rates of unintended pregnancy, Congress

21 provided that some Title X funding should be spent on “research in the

22 biomedical, contraceptive development, behavioral, and program

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

10

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.14 Page 14 of 90

1 implementation fields related to family planning and population.” 42 U.S.C.

2 § 300a-2. Such funding has supported development of, access to, and voluntary

3 use of modern, evidence-backed, effective contraceptive methods and delivery of

4 family planning services.

5

25. Today, Title X funds a broad range of family planning health care

6 services. In addition to offering a broad range of effective and acceptable

7 contraceptive methods to patients on a voluntary and confidential basis,

8 Title X-funded service sites provide contraceptive education and counseling;

9 breast and cervical cancer screening; sexually transmitted infection (STI) and

10 human immunodeficiency virus (HIV) testing, treatment, referral, and prevention

11 education; and pregnancy diagnosis and counseling.2 Title X’s primary goal

12 continues to be “to provide contraceptive supplies and information to all who

13 want and need them, with priority given to persons from low-income families.”3

14 It currently makes family planning services available for free or at low cost to

15 those with limited economic means throughout the United States, including in

16 Washington.

17

26. The State is the only direct grantee of Title X funds in Washington.

18 Its Department of Health (DOH) administers and co-funds a family planning

19
2 U.S. Office of Population Affairs, Title X Family Planning Annual Report:
20
2017 National Summary (Aug. 2018) (2017 FPAR), available at https://www.hhs.gov/opa/

21

sites/default/files/title-x-fpar-2017-national-summary.pdf (last accessed January 9, 2019).

22

3 Id.

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11

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1 program comprised of public and nonprofit subgrantee organizations operating

2 an extensive network of clinics throughout the state. Title X facilities in

3 Washington offer a broad range of services, including contraceptive services

4 (such as insertions of long-acting reversible contraceptives (LARCs) and

5 provision of oral contraceptive pills onsite, among other services), pregnancy

6 testing and counseling on all options with regard to a confirmed pregnancy, and

7 referrals to other medical providers for health care needs outside the scope of the

8 Title X program. Some of these subgrantee organizations also provide abortion

9 care at their clinics independent of the Title X program. Consistent with section

10 1008 of Title X, abortion care is not provided within any Title X program and is

11 not provided using federal funding.

12

c. Section 1008

13

27. Title X funds have never been permitted to be used to perform

14 abortions as a method of family planning. Section 1008 of Title X, entitled

15 “Prohibition of Abortion,” provides that “[n]one of the funds appropriated under

16 this subchapter shall be used in programs where abortion is a method of family

17 planning.” 42 U.S.C. § 300a-6.

18

28. Washington’s Title X program has always ensured that each

19 subrecipient maintains the required financial separation between Title X funds

20 and any abortion care they may provide.

21

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

12

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.16 Page 16 of 90

1

2. Five Decades of Title X Regulations

2

29. Title X provides that grants will be made “in accordance with such

3 regulations as the Secretary [of HHS] may promulgate.” Id. § 300a–4(a). From

4 the 1970s onward, the Secretary’s regulations have implemented Title X by

5 establishing specific requirements for grantees’ provision of a broad range of

6 effective contraception and other medically approved family planning and related

7 services, including nondirective pregnancy counseling and referrals for

8 out-of-program medical care. Aside from the Final Rule, there has been one

9 anomaly in Title X’s nearly 50-year history: the 1988 “gag rule,” which limited

10 Title X providers’ ability to provide counseling and referral to their patients. The

11 1988 rule was swiftly enjoined, and was never fully implemented due to ongoing

12 litigation and bipartisan concern over its invasion of the medical provider–patient

13 relationship. It was formally suspended after being on the books for four years.

14

30. The Final Rule imposes even stricter restrictions than the 1988 gag

15 rule, and erects even higher barriers impeding patients’ access to wanted and

16 needed care. In numerous respects, it is a significant departure from decades’

17 worth of regulations and from the Title X statute itself.

18

a. Early Title X regulations require nondirective pregnancy

counseling 19

31. In 1971, the Department issued its first regulations implementing

20

Title X. They required each grantee of Title X funds to provide assurances that,

21

inter alia, priority will be given to low-income individuals, services will be

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

13

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.17 Page 17 of 90

1 provided “solely on a voluntary basis” and “in such a manner as to protect the

2 dignity of the individual,” and the “project will not provide abortions as a method

3 of family planning.” 36 Fed. Reg. 18,465, 18,466 (1971), codified at 42 C.F.R.

4 § 59.5(9) (1972). Each program was to provide “medical services related to

5 family planning including physician’s consultation, examination, prescription,

6 continuing supervision, contraceptive supplies, and necessary referral to other

7 medical facilities when medically indicated” and include “[p]rovision for the

8 effective usage of contraceptive devices and practices.” Id.

9

32. In 1980, HHS promulgated new regulations that retained many of

10 the same provisions as the 1971 regulations, including those discussed above.

11 45 Fed. Reg. 37,433, 37,437 (1980), codified at 42 C.F.R. § 59.5(5) (1980). The

12 following year, the Department issued “Program Guidelines” “to assist current

13 and prospective grantees in understanding and utilizing the Title X family

14 planning services grants program.” These guidelines provided that Title X

15 projects were to provide nondirective pregnancy counseling, including on the

16 option of abortion if a patient wanted such counseling.

17

b. The anomalous 1988 gag rule

18

33. In 1988, the Reagan Administration promulgated extensive new

19 regulations related primarily to section 1008. The 1988 regulations provided for

20 the first time that Title X covers “preconceptional” services only. 53 Fed. Reg.

21 2922 § 59.2 (Feb. 2, 1988).

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

14

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1

34. The 1988 regulations established a broad prohibition on abortion

2 counseling and referral, including a “gag rule” applicable to all Title X project

3 personnel that prohibited them from providing “counseling concerning the use of

4 abortion as a method of family planning” and “referral for abortion as a method

5 of family planning.” Id. § 59.8. The 1988 regulations also imposed a new

6 requirement that a “Title X project must be organized so that it is physically and

7 financially separate” from abortion-related services. Id. § 59.9. Whether adequate

8 separation existed was based on a set of factors including the degree of separation

9 between treatment, consultation, examination, and waiting rooms and separate

10 personnel. See id.

11

35. The Supreme Court upheld the 1988 regulations in Rust v. Sullivan,

12 500 U.S. 173 (1991), on the record before it in that case. At that time, the Court

13 viewed Congress’ directives on Title X pregnancy counseling as ambiguous and

14 the agency’s 1988 gag rule a permissible construction of section 1008’s

15 “ambiguous” requirement in that regard.

16

36. As detailed below, the 1988 regulations generated enormous

17 controversy and were never fully implemented. Congress subsequently removed

18 any ambiguity from section 1008 through superseding legislation.

19

c. Rebuffing limits on medical counseling after Rust v.

Sullivan

20 37. On November 5, 1991, responding to widespread concerns (both

21 before and after Rust) that the 1988 gag rule unduly interfered in the medical

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

15

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.19 Page 19 of 90

1 provider–patient relationship, President George H.W. Bush issued a

2 memorandum to the Secretary of HHS. President Bush urged that the

3 “confidentiality” of the doctor–patient relationship be preserved and that

4 operation of the Title X program be “compatible with free speech and the highest

5 standards of medical care.”4 To accomplish this result, President Bush directed

6 that the implementation of the regulations adhere to four principles:

7

1) Nothing in these regulations is to prevent a woman from

receiving complete medical information about her condition

8

from a physician.

9

2) Title X projects are to provide necessary referrals to

appropriate health care facilities where medically indicated.

10

3) If a woman is found to be pregnant and to have a medical

11

problem, she should be referred for complete medical care,

even if the ultimate result may be termination of her

12

pregnancy.

13

4) Referrals may be made by Title X programs to full-service

health care providers that perform abortions, but not to

14

providers whose principal activity is providing abortion

services.5

15

38. President Bush’s memorandum and HHS’s implementing

16

directives, however, had not followed required administrative processes, nor had

17

they gone far enough in correcting the counterproductive aspects of the 1988

18

19
4 George H.W. Bush, Message to the Senate Returning Without Approval the Family
20
Planning Amendments Act of 1992 (Sept. 25, 1992).

21

5 Nat’l Family Planning & Reproductive Health Ass’n, Inc. v. Sullivan, 979 F.2d 227,

22 230 (D.C. Cir. 1992).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

16

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.20 Page 20 of 90

1 regulations. The Bush actions were promptly enjoined in National Family

2 Planning and Reproductive Health Ass’n v. Sullivan, 929 F.2d 227 (D.C. Cir.

3 1992), because they were issued without notice and comment and did not resolve

4 the errors in the still-extant 1988 regulations.

5

39. Because of the ongoing litigation, the 1988 regulations were never

6 implemented on a nationwide basis. In early 1993, the HHS Secretary suspended

7 the 1988 regulations and issued a proposed rule that would revoke the gag rule

8 and reinstate the policies and interpretations that had been in effect prior to the

9 1988 regulations. 58 Fed. Reg. 7464 (Feb. 5, 1993).

10

d. The Current Regulations restore the status quo

11

40. The 1993 regulations were finalized in 2000, memorializing the

12 same regulatory approaches as had governed since Title X’s inception, and have

13 been in place ever since. 65 Fed. Reg. 41270 (Jul. 3, 2000), codified at 42 C.F.R.

14 Part 59. (Current Regulations). The Current Regulations formally reinstated the

15 requirement of providing nondirective pregnancy counseling, in which the

16 provider covers all options about which a pregnant patient wishes to receive

17 information, including referral for abortion upon request; required referrals for

18 out-of-program care when “medically indicated”; and required financial, but not

19 physical, separation of Title X-eligible and non-Title X-eligible activities and

20 services. Id.

21

41. Under the Current Regulations, each Title X project must “[p]rovide

22 a broad range of acceptable and effective medically approved family planning

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

17

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.21 Page 21 of 90

1 methods (including natural family planning methods) and services (including

2 infertility services and services for adolescents)”; offer services “solely on a

3 voluntary basis” and “without subjecting individuals to any coercion”; and give

4 “priority in the provision of services” to “persons from low-income families.”

5 42 C.F.R. § 59.5. Projects must provide for “medical services related to family

6 planning” and “necessary referral to other medical facilities when medically

7 indicated[.]” Id. Consistent with section 1008 of Title X, the Current Regulations

8 provide that Title X projects must “[n]ot provide abortion as a method of family

9 planning” and require that “[a]ny funds granted under this subpart shall be

10 expended solely for the purpose for which the funds were granted in accordance

11 with . . . the regulations of this subpart . . . .” Id. §§ 59.5, 59.9.

12

42. The Current Regulations state that the nondirective pregnancy

13 counseling requirement means providers must offer neutral information about all

14 pregnancy options and referral (including referral for abortion) if desired by the

15 patient. Each Title X project must “[o]ffer pregnant women the opportunity to be

16 provided information and counseling regarding each of the following options:”

17

(A) prenatal care and delivery;

18

(B) infant care, foster care, and adoption; and

19

(C) termination of pregnancy.

20 42 C.F.R. § 59.5. “If requested to provide such information and counseling” as

21 to the options listed above, the project is to “provide neutral, factual information

22 and nondirective counseling on each of the options, and referral upon request,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

18

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1 except with respect to any option(s) about which the pregnant woman indicates

2 she does not wish to receive such information and counseling.” Id. These

3 patient-focused requirements ensure that every patient at a Title X facility

4 receives the information she wants and needs when a pregnancy is confirmed.

5

43. In promulgating the Current Regulations, the HHS Secretary noted

6 that “the requirement for nondirective options counseling has existed in the Title

7 X program for many years, and, with the exception of the period 1988–1992, it

8 has always been considered to be a necessary and basic health service of Title X

9 projects.” 65 Fed. Reg. 41273 (Jul. 3, 2000). “Indeed, pregnancy testing is a

10 common and frequent reason for women coming to visit a Title X clinic” and

11 nondirective counseling for pregnant patients is “consistent with the prevailing

12 medical standards recommended by national medical groups such as the

13 American College of Obstetricians and Gynecologists and the American Medical

14 Association.” Id.

15

44. In addition to the Current Regulations, HHS has established

16 Program Requirements that summarize Title X as follows:

17

The program is designed to provide contraceptive supplies and

information to all who want and need them, with priority given to

18

persons from low-income families. All Title X-funded projects are

required to offer a broad range of acceptable and effective medically

19

(U.S. Food and Drug Administration (FDA)) approved

contraceptive methods and related services on a voluntary and

20

confidential basis. Title X services include the delivery of related

preventive health services, including patient education and

21

counseling; cervical and breast cancer screening; sexually

transmitted disease (STD) and human immunodeficiency virus 22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

19

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.23 Page 23 of 90

1

(HIV) prevention education, testing, and referral; and pregnancy

diagnosis and counseling.6

2 45. Title X grantees are also required to follow the “QFP”—a 2014

3 publication entitled “Providing Quality Family Planning Services:

4 Recommendations of CDC and the U.S. Office of Population Affairs”7 that is

5 incorporated into the Program Requirements. The QFP, prepared by the Centers

6 for Disease Control and Prevention (CDC) and the Office of Population Affairs

7 (OPA), both of which are housed within HHS, is a careful, extensive,

8 evidence-based description of the best practices for providing family planning

9 services in the United States. Its recommendations were “developed jointly under

10 the auspices of CDC’s Division of Reproductive Health (DRH) and the Office of

11 Population Affairs (OPA), in consultation with a wide range of experts and key

12 stakeholders,” which included a “multistage process that drew on established

13 procedures for using clinical guidelines” developed by “family planning clinical

14 providers, program administrators, representatives from relevant federal

15

16

6 “Program Requirements for Title X Funded Family Planning Projects,” Office of

17 Population Affairs (April 2014), available at

18

https://www.hhs.gov/opa/sites/default/files/Title-X-2014-Program-Requirements.pdf (last

accessed February 20, 2019).
19
7 “Providing Quality Family Planning Services: Recommendations of CDC and the
20
U.S. Office of Population Affairs,” Morbidity and Mortality Weekly Report Vol. 63, No. 4

21

(April 25, 2014), available at https://www.cdc.gov/mmwr/pdf/rr/rr6304.pdf (last accessed

22 January 2, 2019) (the QFP).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

20

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1 agencies, and representatives from professional medical organizations.”8 This

2 process included “[s]ystematic reviews of the published literature from January

3 1985 through December 2010,”9 and the report itself (exclusive of appendices)

4 contains over 150 citations to scholarly publications in the endnotes.10

5

46. The QFP requires that for pregnant patients, “[o]ptions counseling

6 should be provided in accordance with recommendations from professional

7 medical associations, such as ACOG [the American College of Obstetricians and

8 Gynecologists] and AAP [the American Academy of Pediatrics].”11 ACOG and

9 AAP’s Guidelines for Perinatal Care state that providers should “[a]ssess all

10 patients’ desire for pregnancy. If the patient indicates that the pregnancy is

11 unwanted, she should be fully informed in a balanced manner about all options,

12 including raising the child herself, placing the child for adoption, and abortion.”12

13

14

15

16

17

18

8 QFP, supra n.7, p. 30 (Appendix A).

9 Id.
19
10 Id., pp. 25–29.

20

11 Id. at 14.

21

12 American Academy of Pediatrics & The American College of Obstetricians &

22 Gynecologists, Guidelines for Perinatal Care, p. 127 (7th ed. 2016).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

21

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1

47. On December 22, 2017, the CDC published an update to the QFP

2 (QFP Update),13 which stated that after a thorough review, “CDC and the Office

3 of Population Affairs determined that none of the newly published

4 recommendations [since 2014] marked a substantial shift in how family planning

5 care should be provided” as set forth in the QFP.14 That is, as of December 2017,

6 no new evidence supported any significant changes to the QFP.

7

3. Statutes Requiring Nondirective Pregnancy Counseling and

Limiting Government Interference with Health Care 8

48. In its annual appropriations acts, Congress has consistently required

9

that all pregnancy counseling in Title X programs must be nondirective. In

10

addition, Congress has broadly forbidden the Secretary of HHS from

11

promulgating “any” regulation that interferes with provider–patient

12

communications or patients’ access to information, that requires providers to

13

violate medical ethics requirements, or that impedes patients’ timely access to

14

health care.

15

16

17

18
13 “Update: Providing Quality Family Planning Services – Recommendations from
19
CDC and the U.S. Office of Population Affairs, 2017,” Morbidity and Mortality Weekly
20
Report Vol. 66, No. 50 (December 22, 2017), available at https://www.cdc.gov/mmwr/

21

volumes/66/wr/pdfs/mm6650a4-H.pdf (last accessed January 2, 2019) (the QFP Update).

22

14 Id.

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22

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1

a. The Nondirective Mandate

2

49. Since 1996, Congress has passed annual legislation requiring that all

3 pregnancy counseling within a Title X program must be nondirective (the

4 “Nondirective Mandate”). Specifically, the Department of Health and Human

5 Services Appropriations Act, 2019, states that, with respect to the amounts

6 appropriated “for carrying out the program under title X of the [Public Health

7 Service] Act to provide for voluntary family planning projects, . . . all pregnancy

8 counseling shall be nondirective[.]” Pub. L. No. 115-245 (Sept. 28, 2018). The

9 Nondirective Mandate has been included in every appropriations act since

10 1996.15

11

50. In issuing the proposed rule that preceded the Final Rule, the

12 Secretary acknowledged that “nondirective counseling is the provision of

13 information on all available options without promoting, advocating, or

14 encouraging one option over another.”16

15

16

17

15 Pub. L. No. 115-31; Pub. L. No. 115-141; Pub. L. No. 114-113; Pub. L. No.

18

113-76; Pub. L. No. 113-235; Pub. L. No. 112-74; Pub. L. No. 111-117; Pub. L. No. 111-8;

Pub. L. No. 111-322; Pub. L. No. 110-161; Pub. L. No. 109-149; Pub. L. No. 108-199; Pub.
19
L. No. 108-7; Pub. L. No. 108-447; Pub. L. No. 107-116; Pub. L. No. 106-554; Pub. L. No.
20
106-113; Pub. L. No. 105-78; Pub. L. No. 105-277; Pub. L. No. 104-134; Pub. L. No.

21 104-208.

22

16 83 Fed. Reg. 25512, n.41 (Jun. 1, 2018).

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23

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1

b. Section 1554 of the Affordable Care Act

2

51. In 2010, Congress passed the Patient Protection and Affordable Care

3 Act (ACA), which includes section 1554 (“Access to therapies”). That section

4 provides that the Secretary of HHS “shall not promulgate any regulation” that,

5 inter alia:

1) creates any unreasonable barriers to the ability of individuals

6

to obtain appropriate medical care;

7

2) impedes timely access to health care services;

8

3) interferes with communications regarding a full range of

treatment options between the patient and the provider; 9

4) restricts the ability of health care providers to provide full

10

disclosure of all relevant information to patients making

health care decisions; or

11

5) violates the principles of informed consent and the ethical

12

standards of health care professionals.

13 42 U.S.C. § 18114.

14

4. Impact of Title X

15

52. The bipartisan concerns that led to Title X’s passage in 1970 are just

16 as salient today: an article cited in the QFP Update in December 2017 recognizes

17 that unintended pregnancy “can result in negative health consequences for

18 women and children and an enormous financial burden to the health care system,”

19

20

21

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

24

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1 as well as creating “undue financial burdens in many families.”17 Title X has been

2 extremely successful in addressing these problems in a win-win

3 fashion—generating cost savings while empowering women and families and

4 improving health outcomes.

5

53. Title X’s positive impact on the reproductive health of low-income

6 Americans cannot be overstated. Title X clinics serve more than four million

7 women, men, and young people every year. In 2017, Title X clinics served 2.8

8 million patients seeking contraception, and Title X funds helped provide over

9 4 million STI tests for chlamydia, gonorrhea, and syphilis, 1.2 million

10 confidential HIV tests, and over 1.5 million screenings for cervical and breast

11 cancer. More than two thirds of people who received preventive care through the

12 Title X program in 2017 were living in poverty, and 90% had incomes at or below

13 250% of the federal poverty level.18

14

54. Title X clinics typically provide significantly better access to

15 contraceptive care than any other type of safety-net provider. A study published

16 by HHS administrators within the Office of Population Affairs in 2016 showed

17 that Title X clinics do a better job overall than non-Title X clinics in providing

18 safety-net reproductive health care that is consistent with current, evidence-based

19
17 https://journals.lww.com/greenjournal/fulltext/2016/02000/Committee_ Opinion_
20
No__654___Reproductive_Life.53.aspx (cited in QFP Update) (last accessed
21 March 4, 2019).

22

18 2017 FPAR, supra n.2.

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25

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.29 Page 29 of 90

1 clinical guidelines.19 As just one example, Title X sites are more likely to offer

2 intra-uterine devices (IUDs) and contraceptive implants onsite.20 Those methods,

3 often grouped under the umbrella term “long-acting reversible contraceptives”

4 (LARCs), are by far the most effective non-permanent contraceptive methods.

5

55. Title X’s impact on public health is significant, even beyond its

6 central role in helping women avoid unintended pregnancies. Title X providers

7 are critical in identifying and treating STIs—for example, screening for

8 chlamydia and treating it early to prevent infertility from an untreated infection.

9 Title X sites are more likely than other public non-Title X providers and private

10 providers to follow chlamydia screening guidelines for testing those most at risk

11

12

13
19 Carter, et al., Four aspects of the scope and quality of family planning services in
14
US publicly funded health centers: Results from a survey of health center administrators,

15

94 J. Contraception 340 (2016), http://dx.doi.org/10.1016/j.contraception.2016.04.009 (last

16 accessed March 4, 2019).

17

20 See, e.g., Bocanegra, et al., Onsite Provision of Specialized Contraceptive Services:

18

Does Title X Funding Enhance Access?, J. Women’s Health (May 2014),

https://www.liebertpub.com/doi/full/10.1089/jwh.2013.4511 (last accessed March 4, 2019)
19
(finding IUD availability at 90% of Title X clinics, as opposed to 51% of public non-Title X
20
clinics and 38% of private clinics; and finding onsite contraceptive implant availability at

21

58% of Title X clinics, as opposed to 19% of public non-Title X clinics and 7% of private

22 clinics).

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26

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1 for chlamydia.21 In addition to STI testing, Title X providers perform hundreds

2 of thousands of screenings for breast, cervical, and testicular cancer each year,

3 facilitating early diagnosis and treatment that can be lifesaving.

4

56. Title X’s role within the broader health care system is distinctly

5 important because many women seek out reproductive health specialists for their

6 family planning needs. Studies have shown that, even where women have

7 primary care options available, they prefer to get reproductive health and family

8 planning care from clinicians who specialize in those areas—as most Title X

9 providers do. As one study explained, “[l]arge majorities of women … said that

10 they chose the family planning clinic because the staff is knowledgeable

11 about—or easy to talk to about—sexual and reproductive issues or because the

12 clinic makes it easy for them to get the contraceptive method they want, and to

13 do so directly, without having to make a separate trip to a pharmacy to have a

14 prescription filled.”22 Because healthy women of child-bearing age tend to seek

15

16

21 Chow, et al., Comparison of adherence to chlamydia screening guidelines among

17 Title X providers and non-Title X providers in the California Family Planning, Access, Care,

18

and Treatment Program, J. Women’s Health Vol. 21, No. 8 (Aug. 2012),

https://www.ncbi.nlm.nih.gov/pubmed/22694761 (last accessed March 4, 2019).
19
22 E.g., Frost, et al., Specialized Family Planning Clinics in the United States: Why
20
Women Choose Them and Their Role in Meeting Women's Health Care Needs, 22 Women’s

21

Health Issues 519 (2012), https://doi.org/10.1016/j.whi.2012.09.002 (last accessed

22 March 4, 2019).

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1 out such specialized care, Title X health centers serve a critical role in fostering

2 trust and encouraging women to seek and receive needed and wanted health care.

3

57. The Title X program’s impact is particularly significant in rural

4 areas, and for communities of color. Of the 4 million patients across the country

5 who were served by Title X health centers in 2017, 31% self-identified with at

6 least one nonwhite race category and 33% self-identified as Hispanic or Latino.23

7 And in rural areas, Title X health centers are often the only provider of

8 reproductive health services for low-income individuals. In one out of five

9 counties in America, a Title X clinic is the only family planning center for people

10 without the means to see a private physician.

11

58. The Final Rule, which fundamentally alters the regulatory

12 requirements that have been in place for decades and contradicts evidence-backed

13 standards of care and principles of medical ethics, threatens to reverse Title X’s

14 exceptional success by dismantling provider networks and dramatically reducing

15 patients’ access to needed services—including in Washington.

16 B. Washington’s Title X Program

17

59. The Washington State Department of Health (DOH) is the sole

18 grantee of Title X funds in Washington and runs the statewide Title X program,

19 which is jointly funded by federal and state dollars. The Washington Legislature

20 has directed the Secretary of DOH to “[e]nter into contracts and enter into and

21

22

23 2017 FPAR, supra n.2.

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1 distribute grants on behalf of the department,” and through this authority the

2 Secretary operates the state-administered Title X family planning program.

3 RCW 43.70.040(5).

4

60. Washington’s Title X program serves as an umbrella organization

5 for 16 subrecipients of Title X funding that operate 85 clinics throughout the

6 state: Washington’s Title X network. DOH anticipates that, absent disruption

7 caused by the Final Rule, the Title X program would serve approximately 98,000

8 individual Washingtonians from April 1, 2019 through March 31, 2020.

9

61. In 2017, the total expenditure for Washington’s Title X program was

10 approximately $13 million. The federally funded amount was approximately

11 $4 million, and the state-funded amount was approximately $9 million.

12

62. For the current Title X funding period, DOH initially received a

13 grant for a three-year period, which began on April 1, 2017. Partway through that

14 period, DOH received a letter from HHS shortening the project period to one

15 year, ending March 31, 2018. HHS did not announce a new funding opportunity

16 in time to make awards for the next project period before March 31, 2018, so

17 DOH was granted an extension of the grant period to August 31, 2018. DOH

18 applied for and received a grant in the amount of $2,783,000 for the period of

19 September 1, 2018 to March 31, 2019.

20

63. On January 10, 2019, DOH submitted an application for a new

21 three-year Title X grant, to begin on April 1, 2019.

22

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Seattle, WA 98104-3188

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1

64. Washington’s Title X program served 91,285 patients in 2017, with

2 128,409 patient visits. Fifty-six percent of Title X program clients in 2017 had

3 annual incomes at or below the federal poverty level,24 and 81% had incomes

4 below 200% of the federal poverty level. Seventeen percent of clients were

5 women of color; of those, 58% were at or below the federal poverty level, and

6 80% had incomes below 200% of the federal poverty level. Nine percent of

7 clients were under the age of 18. DOH estimates that services provided through

8 Washington’s Title X project in 2017 helped women avoid over 18,000 unwanted

9 pregnancies. The resulting net savings created by services provided through the

10 program (including contraceptive services, STI testing, and cancer screening)

11 was over $113 million.

12

65. Title X is a competitive program, and DOH spends a tremendous

13 amount of time preparing its application for a Title X grant. Washington’s

14 application is prepared by the staff of DOH’s Office of Family and Community

15 Health Improvement, and it is subjected to three levels of review within DOH.

16 For DOH’s most recent application, it spent over 300 hours of staff time

17 preparing the application, gathering the required materials, and ensuring

18 accuracy.

19

20

21

24 The federal poverty level for 2018 was $12,140 for a single-person household and

22 $20,780 for a three-person household.

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Seattle, WA 98104-3188

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1

66. Of the 16 subrecipients of Title X funds in Washington, five operate

2 clinics that offer abortion care independently of the Title X project. These clinics

3 provided 89% of all Title X patient visits in 2017. Consistent with the Current

4 Regulations and medical standards of care, all subrecipients’ clinics provide

5 referrals for out-of-program abortion care if desired by the patient.

6

67. A number of counties in Washington have only one Title X provider

7 or subrecipient each: Adams, Benton, Clallam, Cowlitz, Grays Harbor, Klickitat,

8 San Juan, Wahkiakum, Lewis, Thurston, Jefferson, Whatcom, Skagit,

9 Snohomish, Clark, Skamania, Kittitas, Chelan, Ferry, Stevens, Pend Oreille,

10 Franklin, Whitman, and Walla Walla. The following counties currently have no

11 Title X provider: Island, Lincoln, Columbia, Garfield, and Asotin.

12

68. DOH selects subrecipients using robust criteria to ensure their

13 capacity to provide large numbers of patients with a broad range of high-quality

14 family planning services in a voluntary, noncoercive, client-directed manner that

15 respects and is appropriate to the populations in their communities. Abortion care

16 is not provided as part of Washington’s Title X project. Subrecipients’ written

17 policies must state clearly and unequivocally that no Title X funds will be used

18 for abortion services. DOH’s contract with each subrecipient in its network

19 affirms that the subrecipient does “not provide abortion as a method of family

20 planning within the Title X Project (42 CFR 59.5(5)).”

21

22

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1 C. HHS’s 2018 Final Rule

2

69. On June 1, 2018, HHS issued a proposed rule25 that would overhaul

3 the longstanding Title X regulations in numerous respects. HHS received over

4 500,000 public comments opposing the proposed rule—including extensive

5 comments from major medical associations, major Title X providers and policy

6 and research organizations, nearly 200 members of Congress, and several states,

7 including Washington.

8

70. On March 4, 2019, HHS published a final rule entitled “Compliance

9 with Statutory Program Integrity Requirements,” 84 Fed. Reg. 7714 (the Final

10 Rule) (attached as Exhibit A). Despite the outpouring of opposition through

11 public comments, the Final Rule retains key provisions of the proposed rule,

12 significantly altering HHS’s previous interpretation of Title X. The Final Rule

13 introduces numerous changes to the Title X regulations that have been in place

14 for decades, including those discussed below.

15

1. The Coercive and Misleading Counseling Requirements

16

71. The Final Rule restricts communications within the medical

17 provider–patient relationship. It broadly prohibits Title X providers from

18 referring pregnant patients for abortion, and strikes the Current Regulations’

19
25 Compliance With Statutory Program Integrity Requirements (Proposed rule), 83
20
Fed. Reg. 25,502 (Jun. 1, 2018), available at https://www.federalregister.gov/documents/

21

2018/06/01/2018-11673/ compliance-with-statutory-program-integrity-requirements (last

22 accessed March 4, 2019).

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1 provision for referral for out-of-program care if requested by the patient. It also

2 forbids Title X projects to “promote, refer for, or support abortion as a method of

3 family planning” or “take any other affirmative action to assist a patient to secure

4 such an abortion.” Final Rule § 59.14(a); see also id. § 59.5(a)(5).

5

72. The Final Rule provides that all patients with a confirmed pregnancy

6 “shall” be referred to a health care provider for “prenatal health care”—regardless

7 of whether the patient wants to continue the pregnancy, and regardless of the Title

8 X provider’s medical judgment as informed by the patient’s individual

9 circumstances. Id. § 59.14(b). Despite the statutory requirement that services be

10 “voluntary,” the Final Rule strikes the Current Regulations’ requirement that a

11 project refrain from providing information when the patient “indicates she does

12 not wish to receive” that information. The mandatory referral is directive, since

13 it pushes patients toward a certain type of care regardless of their wishes.

14

73. Citing no medical evidence or authority, HHS deems prenatal health

15 care to be “medically necessary” for all pregnant patients. Id. § 59.14(d);

16 see also, e.g., Supplementary Information, 84 Fed. Reg. 7761 (“Prenatal care is

17 medically necessary for any patient who is pregnant[.]”); id. at 7728, 7730, 7747

18 & n.75, 7748. This is arbitrary and irrational, as there is typically no medical

19 reason for a patient whose pregnancy will be terminated to receive prenatal care.

20 HHS’s assertion is based on an unsupported and erroneous assumption that if a

21 certain type of care is “medically necessary” for purposes of Medicaid coverage,

22

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Seattle, WA 98104-3188

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1 all patients must receive that type of care. See id. at 7762. HHS failed to give the

2 public an opportunity to comment on this rationale for the mandatory referral.

3

74. The Final Rule eliminates the longstanding requirement that

4 pregnant patients be offered nondirective counseling in response to a pregnancy.

5 Instead, in addition to providing the mandatory prenatal care referral, providers

6 may choose to provide pregnant patients with the following “counseling and/or

7 information”: (1) Nondirective pregnancy counseling, if provided by a physician

8 or “advanced practice provider”; (2) a list of “comprehensive primary health care

9 providers (including providers of prenatal care)”; (3) referral to “social services

10 or adoption agencies”; and/or (4) information about “maintaining the health of

11 the mother and unborn child during pregnancy.” Id. § 59.14(b)(1)–(4). Thus,

12 although doctors and “advanced practice providers” may choose to provide what

13 the Final Rule refers to as “nondirective” pregnancy counseling (along with the

14 directive referral for prenatal care), a provider or clinic may alternatively choose

15 to provide only biased, one-sided information about carrying the pregnancy to

16 term, or they may choose to provide no information other than the directive

17 prenatal care referral. Yet HHS acknowledges elsewhere that offering

18 information about only one option is directive and therefore impermissible.

19 See Supplementary Information, 84 Fed. Reg. 7747.

20

75. HHS’s new definition of “advanced practice provider” excludes

21 registered nurses and others who may lack a “graduate level degree” and a

22 “license to diagnose, treat, and counsel” patients. Final Rule § 59.2 (emphasis

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1 added). The Final Rule prohibits individuals who are not physicians or “advanced

2 practice providers” from providing so-called “nondirective” pregnancy

3 counseling to patients—though the same prohibition does not apply to the

4 directive counseling permitted by the Final Rule. See id. § 59.14(b)(1)–(4). HHS

5 fails to rationally explain why it has limited the ability of qualified professionals

6 and trained staff to provide “nondirective” pregnancy counseling as part of a Title

7 X program, or why the same limitation does not apply to directive pregnancy

8 counseling.

9

76. The list of “comprehensive primary health care providers (including

10 providers of prenatal care)” permitted by section 59.14(b)(2) “may” (but need

11 not) include some providers who “also provide abortion as part of their

12 comprehensive health care services.” Final Rule § 59.14(c)(2). Such providers

13 must not be identified as such and must not comprise a majority of the list. Id. A

14 Title X provider’s theoretical ability to include providers of abortion on this

15 obfuscated list is illusory: in Washington, there are no publicly known primary

16 health care providers that offer abortion care.

17

77. Limiting medical referrals to “primary health care providers” delays

18 patients’ access to care—whether abortion care or any other type of care that

19 primary health care providers do not offer. As to abortion in particular, even if

20 there were providers who could be included on the referral list (which is not the

21 case in Washington), the required obfuscation and misdirection would delay or

22 obstruct patients’ access to care, putting them at greater risk of the complications

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ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

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1 associated with abortions later in pregnancy. Although abortion is very safe and

2 much safer than childbirth,26 the risk increases with each week of delay. HHS

3 failed to acknowledge or address these concerns.

4

78. The Current Regulations require that all patients be referred for

5 “medically indicated” out-of-program care, including medically indicated

6 abortion. Current Regulations § 59.5(b)(1). The Final Rule strikes this

7 requirement and prohibits referrals for abortion in all circumstances except

8 “cases in which emergency care is required[.]” Id. § 59.14(b). The Final Rule

9 prohibits referrals for abortion (or to reproductive health specialists generally)

10 even in cases where carrying a pregnancy to term will endanger the patient’s life

11 or health but there is no acute medical “emergency,” in cases of rape or incest,27

12
26 Studies show that abortion is “markedly safer than childbirth.”
13
https://www.ncbi.nlm.nih.gov/pubmed/22270271 (last accessed March 4, 2019); see also,
14
e.g., Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2311 (2016) (reviewing

15

evidence that “abortion in Texas was extremely safe with particularly low rates of serious

16 complications and virtually no deaths occurring on account of the procedure”).

17

27 A footnote in the Supplementary Information accompanying the Final Rule states

18

that “in cases involving rape and/or incest, it would not be considered a violation of the

prohibition on referral for abortion as a method of family planning if a patient is provided a
19
referral to a licensed, qualified, comprehensive health service provider who also provides
20
abortion, provided that the Title X provider has complied with any applicable State and/or

21

local laws requiring reporting to, or notification of, law enforcement or other authorities and

22 such reporting or notification is documented in the patient’s record.” Supplementary

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1 and in cases where a patient is concerned about the inherent dangers of

2 childbirth.28

3

79. Subsection 59.5(b)(1)’s general requirement that Title X projects

4 provide “referral to other medical facilities when medically necessary” is made

5 subject to subsection 59.14(a)’s “[p]rohibition on referral for abortion.” Id.

6 § 59.5(b)(1). In addition, this provision now uses the term “medically necessary”

7 instead of “medically indicated.” Compare Final Rule § 59.5(b)(1) with Current

8 Regulations § 59.5(b)(1). This change in terminology appears to limit the

9 circumstances in which referral for out-of-program medical care is required. HHS

10 offers no explanation for this change. See Supplementary Information, 84 Fed.

11 Reg. 7752.

12

Information, 84 Fed. Reg. 7747 n.76. Not only are these unique provisions for “cases
13
involving rape and/or incest” found nowhere in the Final Rule itself, but HHS offers no
14
explanation or support for them.

15

28 Maternal mortality (i.e., death related to pregnancy or birth) has been rising in the

16 United States, as shown in a recent, widely cited study analyzing maternal mortality data

17 from all U.S. states. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5001799/ (last accessed

18

March 4, 2019) (“[T]he maternal mortality rate for 48 states and Washington D.C. from

2000-2014 was higher than previously reported, is increasing, and places the U.S. far behind
19
other industrialized nations.”). The United States has the highest maternal mortality rate
20
compared to 40 other countries in the developed world, with the risks being “especially high”

21

for women of color. https://www.worldcat.org/title/deadly-delivery-the-maternal-health-care-

22 crisis-in-the-usa/ oclc/694184792 (last accessed March 4, 2019).

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1

80. These provisions endanger patients’ lives and health by interfering

2 in the provider–patient relationship, and unreasonably restrict patients’ timely

3 access to wanted and needed information and medical care. They contradict

4 HHS’s own evidence-based assessment of the importance of nondirective

5 counseling and medically appropriate referrals as reflected in the QFP, which

6 HHS reaffirmed in the December 2017 QFP Update. HHS offers no new evidence

7 to support this departure from the extensively evidence-backed QFP standards,

8 and never mentions the QFP in the Supplementary Information accompanying

9 the Final Rule.

10

81. The Final Rule defies patients’ expectations that their medical care

11 providers—regardless of their funding source—will offer complete, medically

12 accurate, and nondirective information in a candid, confidential, and respectful

13 manner. These expectations are enshrined in principles of medical ethics and

14 providers’ fiduciary duties to their patients, as well as federal law. HHS does not

15 meaningfully address this, myopically asserting that these expectations and

16 principles are not part of the “purpose of Title X,” even though Title X inherently

17 involves medical care. Supplementary Information, 84 Fed. Reg. 7746.

18

82. Doctors, physicians’ assistants, and nurses all have affirmative

19 ethical duties to give patients complete information about all care options and to

20 make medically appropriate referrals. For example, the American Medical

21 Association (AMA) advises that patients have a right to “receive information

22 from their physicians and to have an opportunity to discuss the benefits, risks,

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1 and costs of appropriate treatment alternatives[.]”29 ACOG specifically advises

2 that after a pregnancy is confirmed, “[t]he patient should be fully informed in a

3 balanced manner about all options, including raising the child herself, placing the

4 child for adoption and abortion.”30 When the care that patients seek is beyond the

5 scope of clinicians’ practice, clinicians fulfill their obligations to patients through

6 referral to other professionals who have the appropriate skills and expertise to

7 address the situations.31

8

83. Numerous public comments, including from members of the

9 medical community, overwhelmingly oppose the Final Rule based on these and

10 other ethical and legal concerns, providing extensive detail and support. HHS

11 dismisses such concerns without directly addressing any of the specific ethical or

12 legal problems created by the Final Rule.

13
29 AMA Code of Medical Ethics Opinions on Patient–Physician Relationships § 1.1.3
14
(citing AMA Principles of Medical Ethics: I, IV, V, VIII, IX).

15

30 American College of Obstetricians and Gynecologists (ACOG), Guidelines for

16 Women’s Health Care: A Resource Manual, 719-20 (4th ed. 2014).

17

31 See, e.g., AMA Code of Medical Ethics Opinions on Patient–Physician

18

Relationships, supra n.27, § 1.2.3 (“Physicians’ fiduciary obligation to promote patients’ best

interest and welfare can include … referring patients to other professionals to provide care.”)
19
(citing AMA Principles of Medical Ethics IV, V, VI); World Medical Association,
20
International Code of Medical Ethics (2018) (“Whenever an examination or treatment is

21

beyond the physician’s capacity, he/she should consult with or refer to another physician who

22 has the necessary ability.”).

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ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

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1

84. The Final Rule will damage patients’ trust in Title X providers and

2 the health care system more broadly, by misdirecting patients who want abortions

3 to providers that do not perform them, and by referring patients for prenatal care

4 they may not want or need. Far from treating patients with “dignity,” as required

5 by the regulations, these unethical practices shame and humiliate them. This

6 reduces the likelihood that patients will seek Title X or other health care services

7 in the future, leading to poorer health outcomes.

8

85. HHS fails to rationally explain why referrals for abortion care are

9 the only prohibited referrals, whereas referrals for all other types of

10 out-of-program care are permitted (and in some cases, required). See Final Rule

11 § 59.5(b)(1) (requiring referral for “medically necessary” out-of-program care,

12 except abortion care); § 59.14(b) (requiring referral for out-of-program prenatal

13 care).

14

86. As a primary justification for the coercive counseling and related

15 provisions, HHS cites federal “conscience” statutes that in certain circumstances

16 absolve medical care providers from being required to care for patients in a

17 manner that is inconsistent with the provider’s own conscience. Supplementary

18 Information, 84 Fed. Reg. 7716–17, 7719, 7746–47. Contrary to HHS’s assertion,

19 these statutes do not justify prohibiting all providers from offering referrals for

20 medically appropriate care. The gag rule would affirmatively require many

21 providers to violate their own consciences, to the extent their consciences are

22 consistent with the ethical standards discussed above. Moreover, HHS’s rationale

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1 improperly shifts Title X’s focus from patients in need of reproductive health

2 care to providers who have objections to reproductive health care without

3 adequate justification.

4

87. The Final Rule will impose a Hobson’s choice on existing Title X

5 providers: comply with the coercive counseling and related provisions, or comply

6 with their ethical and legal obligations to patients. These new provisions, and/or

7 others such as the onerous separation requirements discussed below, will drive

8 most (if not all) providers and clinics out of Washington’s Title X network

9 entirely. Four Planned Parenthood affiliates and the entity that operates the Cedar

10 River Clinics—five subrecipients that represent 89% of Title X network coverage

11 in the state—have announced that they are unable to continue participating in

12 Washington’s Title X program subject to the Final Rule. The Final Rule’s impact

13 on Washington’s network will deprive a great many patients of access to a Title X

14 provider.

15

88. Studies show that when specialized family planning clinics such as

16 Planned Parenthood are excluded from statewide networks, patients lose access

17 to care because clinics close, reduce their hours, offer fewer services and

18 contraceptive options, see fewer patients, require longer wait times for

19

20

21

22

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1 appointments, and raise their fees, while clinics that remain in the network are

2 unable to fill the gaps even when the program is adequately funded.32

3

89. HHS disregards the Final Rule’s effect on providers as established

4 in the administrative record, and asserts with no evidence that it “does not believe

5 that the rule will limit the ability of individuals to access affordable health care[.]”

6 Supplementary Information, 84 Fed. Reg. 7725; see also id. at 7766, 7775, 7785.

7

2. The “Separation” Requirements

8

90. The Final Rule requires that Title X projects be “physically and

9 financially separate” from abortion care and referral, and from various expressive

10 and associational activities related to abortion that are outside the Title X

11

12

32 See Kari White et al., The Impact of Reproductive Health Legislation on Family

Planning Clinic Services in Texas, 105 Am. J. of Public Health 851 (May 2015); Center for
13
Reproductive Rights & National Latina Institute for Reproductive Health, Nuestra Voz,
14
Nuestra Salud, Nuestro Texas: The Fight for Women’s Reproductive Health in the Rio

15

Grande Valley 6 (Nov. 2013), http://www.nuestrotexas.org/wp-content/uploads/2015/03/NT-

16 executive-summary-EN1.pdf (last accessed March 4, 2019); Amanda J. Stevenson et al.,

17 Effect of Removal of Planned Parenthood from the Texas Women’s Health Program, 374

18

New Eng. J. of Med. 853 (2016); Tony Leys and Barbara Rodriguez, State family planning

services decline 73 percent in fiscal year as $2.5M goes unspent, Des Moines Register (Oct.
19
18, 2018), available at
20
https://www.desmoinesregister.com/story/news/health/2018/10/18/iowa-health-care-family-

21

planning-contraception-services-planned-parenthood-abortion-medicaid/ 1660873002/ (last

22 accessed March 4, 2019).

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1 project’s scope. Final Rule § 59.15. These new separation requirements go far

2 beyond the financial separation required by section 1008 and are a drastic

3 departure from decades of Title X regulations.

4

91. “Factors relevant to” adequate separation include whether Title X

5 and non-Title X facilities have separate treatment, consultation, examination and

6 waiting rooms; separate office entrances and exits; separate phone numbers and

7 email addresses; separate websites; separate educational services; separate

8 personnel; separate workstations; and separate health care records. Id. An

9 additional factor is the “extent to which” any “signs and material referencing or

10 promoting abortion are absent” from Title X facilities. Id. The Final Rule does

11 not indicate what degree of separation is required for each factor, or how the

12 “factors” will be evaluated or balanced in assessing compliance. See id.

13

92. The separation requirements reverse HHS’s longstanding regulatory

14 position (reflected in the Current Regulations) that while provision of abortion

15 care must be separate and distinct from a Title X project, physical separation of

16 facilities, staff, and non-Title X activities is not required. The Current

17 Regulations are consistent with the fact that a Title X “project” is not a grantee,

18 a subrecipient, or a physical location, but rather “a plan or sequence of activities”

19 to provide family planning services “that satisfy the requirements of the grant

20 within a service area.” Final Rule § 59.2. A grantee or subrecipient of Title X

21 funds must remain free to provide services that are not covered by Title X, as

22 long as its Title X project complies with federal requirements.

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ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1

93. Many Title X grantees and subrecipients, including the State of

2 Washington, have extensive experience and a demonstrated ability to comply

3 with section 1008 of Title X, and there is no evidence of compliance problems

4 that warrant a change in the regulations.

5

94. The separation requirements do not apply only to abortion

6 care—they also apply to newly prohibited activities such as referrals for abortion,

7 as well as a grantee’s expressive and associational activities that are independent

8 of Title X funding. See Final Rule § 59.15 (requiring separation for “activities

9 which are prohibited under section 1008 of the Act and §§ 59.13, 5.14, and

10 59.16” of the Final Rule (emphasis added)). For example, even Title X providers

11 that do not provide abortion care, but that do offer pregnant patients referrals for

12 abortion or other specialized reproductive health care, must comply with the

13 separation requirements to qualify for Title X funding. Like the coercive

14 counseling and related provisions, the separation requirements present such

15 clinics with a Hobson’s choice: breach their ethical and legal duties to their

16 patients in exchange for federal funding, or attempt to separate their facilities and

17 operations at enormous cost. Both options prevent clinics from providing the

18 same care to their Title X patients that is available to patients with more financial

19 resources.

20

95. Despite the Final Rule’s statement that Title X projects must have

21 “an objective integrity and independence” that goes beyond financial separation,

22 the new separation requirements do not establish clear, objective criteria. They

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ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1 introduce significant uncertainty as to what degree of separation is sufficient for

2 compliance, and vest the Secretary with broad discretion to balance the various

3 “factors” and decide when the “extent” of separation is not sufficient.

4

96. The lack of clear standards is particularly problematic in light of the

5 Final Rule’s new requirement that applications for Title X funds will not even be

6 considered in the competitive review process unless they “clearly address how

7 the proposal will satisfy” the separation and other requirements. Final Rule

8 § 59.7(b). If an application does not describe the project’s “plans for affirmative

9 compliance with each provision,” the application “shall be deemed ineligible for

10 funding” at the outset. Id. The State of Washington, with its broad network of

11 clinics operated by numerous subrecipients, cannot determine based on the Final

12 Rule what degree of separation to require for all subrecipient clinic sites to ensure

13 compliance. Nor can it determine what degree of separation DOH itself must

14 maintain between its administration of Washington’s Title X program and its

15 abortion-related activities having nothing to do with Title X. Because no similar

16 requirements have ever been fully implemented in the nearly 50 years in which

17 Title X has been in effect, there is no precedent indicating how the “factors” test

18 is likely to be applied. There is no guarantee that HHS would apply it in a fair

19 and objective manner.

20

97. The physical separation requirements at a minimum would require

21 substantial investment in needless facility changes. For all or almost all current

22 subrecipients that provide abortion care or referral in addition to Title X services,

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ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1 this would be cost-prohibitive. Creating physically separate “treatment,

2 consultation, examination and waiting rooms,” as well as separate “office

3 entrances and exits,” would require clinics to incur significant construction costs.

4 Where construction on existing facilities is not possible, clinics would have to

5 locate, rent or purchase, and renovate or build on new property to create

6 physically separate facilities. The “separate personnel” factor would require

7 clinics to hire separate staff to perform the same functions in parallel. Grantees

8 and subrecipients would have to separate their operations to such an extent that

9 they could not even discuss their services on the same website, and must establish

10 separate phone numbers and email addresses related to different services.

11

98. The true costs of complete physical separation would well exceed

12 HHS’s unsupported estimate of $30,000 per affected clinic on average, or

13 $36 million in total nationwide. See Supplementary Information, 84 Fed. Reg.

14 7718, 7782. Planned Parenthood, whose clinics comprise the majority of

15 Washington’s Title X network, estimates an average cost of nearly $625,000 per

16 service site, as reflected in its public comments on the proposed rule. For the

17 Washington Title X clinics that currently offer abortion care, this amounts to over

18 $21.8 million in Washington alone. For those properties where a renovation of

19 an existing facility is not possible and an entirely new location would be needed,

20 Planned Parenthood estimates the cost to be between $1.3 and $1.5 million per

21 site. Planned Parenthood estimates that for its clinics, building and renovation

22 costs alone would total $1.2 billion in the first year after the Final Rule goes into

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ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1 effect—over 33 times HHS’s estimate. Architecture professor Lori Brown

2 commented that, even aside from renovation and acquisition costs (the largest

3 parts of the costs of separation), a single clinic’s site selection, architectural, and

4 interior design costs alone would be a minimum of $65,000—over twice HHS’s

5 estimate for the total cost of separation. The National Family Planning and

6 Reproductive Health Association (NFPRHA) commented that the costs

7 associated with electronic health record separation alone could easily reach

8 $10,000 to $30,000 per entity.

9

99. In Washington, the clinics that receive Title X funds and provide

10 abortion care independent of the Title X program have been designed to maximize

11 efficiency to serve the most patients with available staff resources, while providing

12 the full spectrum of reproductive health care that patients need. These clinics

13 currently have one reception area and one check-in station each, meaning that they

14 would not satisfy the Final Rule’s separation requirements. They would have to

15 undergo massive remodeling to comply with the new requirements, but that is not

16 financially or logistically feasible. Construction costs for health care facilities are

17 very high, and it is difficult to find available contractors due to current demand for

18 construction workers. At a minimum, meeting the physical separation requirements

19 would take significant resources and time, including time when the clinics would

20 have to be closed. Clinic closure further reduces access to care, exacerbating poor

21 public health outcomes.

22

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ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1

100. HHS downplays the costs of separation by ignoring the steps clinics

2 would have to take in reality to achieve compliance. For example, HHS suggests

3 that clinics could simply “shift their abortion services, and potentially other

4 services not financed by Title X, to distinct facilities, a change which likely

5 entails only minor costs.” Supplementary Information, 84 Fed. Reg. 7781. This

6 suggestion assumes, with no support, that there are adequate “distinct facilities”

7 already available and waiting to be utilized.

8

101. In addition to being costly—often prohibitively so—the separation

9 requirements will take significant time to implement. Many clinics could not

10 achieve the required separation within the one-year timeframe established by the

11 Final Rule. HHS rejects the numerous comments discussing the difficulty (if not

12 impossibility) for many clinics of meeting the compliance deadline, stating that it

13 “believes one year is an ample and generous amount of time for an entity to

14 rearrange locations, find new locations, comply with related State requirements, or

15 even make changes to a facility to physically separate Title X services from

16 abortion services.” Id. at 7774. HHS ignores the practical realities of “mak[ing]

17 changes to a facility” or locating, renting or purchasing, and renovating or

18 building on separate property.

19

102. HHS states that the separation requirements are necessary to avoid

20 (1) “potential” use of Title X funds for impermissible purposes or commingling

21 of funds, and (2) a “risk for public confusion” over whether Title X funds are

22 used for “abortion-related purposes.” Id. at 7715. HHS fails to provide any

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Seattle, WA 98104-3188

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1 evidence that impermissible use of funds or public confusion are actual as

2 opposed to speculative or manufactured problems, irrationally rejects less

3 restrictive means of addressing such problems if they exist, and fails to

4 acknowledge or address the compliance mechanisms that are already in

5 place—including the extensive oversight already exercised by HHS’s Office of

6 Population Affairs. And HHS does not explain why concerns about potential

7 misuse of funds and public confusion apply only to abortion care and referral, but

8 not to other types of out-of-program care that may be provided by Title X

9 grantees and subrecipients, such as prenatal care.

10

103. Like other experienced Title X grantees, Washington has always

11 ensured that each subrecipient in its Title X program complies with section 1008.

12 DOH manages the program and monitors compliance with all statutory

13 requirements, including section 1008, as detailed in its funding applications. Each

14 Washington subrecipient is required to sign a contract affirming their

15 compliance, and each must have a written policy clearly indicating that no Title X

16 funds will be used in programs where abortion is a method of family planning.

17 DOH regularly monitors compliance through several levels of review, including

18 reviewing subrecipient policies and medical records; interviewing clinic staff and

19 medical care providers; and ensuring that any subrecipients that offer abortion

20 care maintain clear funding separation. DOH’s monitoring also includes on-site

21 reviews and desk reviews of clinics, which involve examining their financial

22 systems and their Title X revenue and expenditure reports. Review teams include

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ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1 a financial consultant from DOH’s fiscal monitoring section and may also include

2 outside review experts such as certified public accountants.

3

104. There is no medical reason to enforce physical separation between

4 Title X and non-Title X services. In fact, the separation requirements inhibit

5 continuity of care, jeopardizing patients’ health and safety. For example, the Final

6 Rule’s requirement that grantees maintain separate sets of medical records for

7 Title X services and non-Title X services provided to the same patient introduces

8 a likelihood of errors in patient care, since two separate sets of records would

9 need to be consulted to obtain a complete medical history. HHS disregards

10 federal standards that emphasize the importance of integrated health records to

11 reduce health care costs resulting from “inefficiency, medical errors,

12 inappropriate care, duplicative care, and incomplete information” and to facilitate

13 informed medical decision-making and coordination of care. 42 U.S.C.

14 § 300jj-11. This aspect of “separation” would force some clinics to dismantle

15 their fully integrated medical records systems, undoing financially costly efforts

16 to integrate their medical records which they undertook precisely to enable all

17 providers to understand the full scope of a patient’s health challenges and

18 treatment plans, promote cost-efficient treatment, and protect patient health and

19 safety.

20

105. The separation requirements restrict Title X providers from

21 truthfully disclosing the terms under which health care services are provided,

22 including by restricting their ability to post signs and material “referencing”

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ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1 abortion. For example, a Title X clinic could not post a sign truthfully stating that

2 the clinic does not provide referrals for abortion care.

3

106. The separation requirements apply not only to abortion care and

4 referral, but also to expressive and associational activities that “encourage,

5 promote, or advocate abortion as a method of family planning” as provided in

6 section 59.16. See Final Rule §§ 59.15, 59.16. This means that even if a grantee

7 or subrecipient engages in protected activities without using Title X funding, it

8 must incur the costs of physically separating those activities from any Title X

9 activities.

10

107. The separation requirements unduly burden Washington’s

11 out-of-program expressive and associational activities, and substantially interfere

12 with its ability to administer a Title X program at all. DOH administers the State’s

13 Title X program primarily from its headquarters at a government building in

14 Olympia, Washington. DOH also administers a host of other programs and

15 exercises its other state governmental functions from the same location, some of

16 which may relate to abortion. Some DOH personnel, particularly those at higher

17 levels, are involved in the administration of both the Title X program and other

18 programs and activities. DOH’s activities can include legislative efforts and

19 litigation related to reproductive rights and health policy, supporting reproductive

20 health education and outreach, associating with organizations that provide public

21 health support, and other activities consistent with Washington’s public policy

22 and commitment to protecting the health and welfare of its residents. By requiring

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1 that these activities having nothing to do with Title X be physically separated

2 from the Title X program itself, even at the highest administrative level, the Final

3 Rule vastly exceeds HHS’s authority, interferes with Washington’s expressive

4 and associational rights, and places enormous burdens on the State.

5

108. The Final Rule’s new separation requirements are contrary to law,

6 unjustified, and vastly disproportionate to address the concerns HHS identifies.

7 HHS downplays and does not meaningfully address the true financial costs of the

8 separation requirements or their negative impacts on patient health and safety,

9 continuity of care, or medical ethics. HHS’s assertion that it “does not believe

10 that the rule will limit the availability of individuals to access affordable health

11 care,” Supplementary Information, 84 Fed. Reg. 7725, is unsupported and

12 contradicts the evidence before the agency.

13

3. Removal of the “Medically Approved” Requirement

14

109. The Final Rule eliminates the Current Regulations’ requirement that

15 family planning methods must be “medically approved.” Compare Final Rule

16 § 59.5(a)(1) with Current Regulations § 59.5(a)(1). This reversal undermines

17 Title X’s purpose and conflicts with HHS’s Program Requirements and the QFP.

18

110. Medically approved family planning methods and services are

19 evidence-based and demonstrably “effective,” as required by Title X. 42 U.S.C.

20 § 300(a). For example, the QFP provides that family planning providers should

21 offer “a full range of Food and Drug Administration (FDA)-approved

22 contraceptive methods,” which include a variety of methods from the most

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ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1 effective (e.g., IUDs and implants) to the least effective (e.g., fertility-awareness

2 based methods, condoms, and withdrawal).33

3

111. HHS states that it removed the “medically approved” requirement

4 from the Title X regulations because the term “risked creating confusion about

5 what kind of approval is required for a method to be deemed ‘medically

6 approved.’ ” Supplementary Information, 84 Fed. Reg. 7741. HHS fails to

7 explain why the asserted risk of “confusion” justifies removing this longstanding

8 requirement entirely. HHS provides no reason why Title X projects should offer

9 methods that are not “medically approved,” and fails to identify any family

10 planning method or service that it contends should be offered by Title X projects

11 that is not already included in the QFP.

12

112. While eliminating the “medically approved” requirement, the Final

13 Rule places new emphasis on “diverse” Title X providers (without defining this

14 term). Final Rule § 59.7(c)(2). “Diverse” providers (presumably, providers that

15 are not currently part of the Title X program and that offer differing varieties of

16 care and services as opposed to the “broad range of acceptable and effective

17 family planning methods and services” required by the statute) are less likely to

18 have experience with providing Title X services; are less likely to be equipped to

19 handle high volumes of patients; are less likely to offer the broadest possible

20 range of effective contraceptive methods; and are more likely to offer methods

21

22

33 QFP, supra n.7, pp. 2, 10 (Fig. 3).

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Seattle, WA 98104-3188

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1 and services that are not “medically approved,” as newly permitted by the Final

2 Rule. Such providers may offer services that have minimal or no demonstrable

3 effect on fertility.

4

113. These new provisions will shift Title X funds away from effective,

5 evidence-based, FDA-approved family planning methods offered by qualified

6 providers and towards funding programs that emphasize the least effective

7 methods for preventing unintended pregnancies, such as abstinence-only

8 counseling. The Final Rule does not require that family planning services have

9 any medical basis, so “diverse” Title X providers may include those whose staff

10 have no medical training or qualifications. Some “diverse” clinics may

11 emphasize or exclusively offer a more limited range of less effective family

12 planning services, contrary to Title X’s intent to equalize access to the most

13 effective forms of contraception.

14

4. Extra-Statutory Primary Health Services Requirement

15

114. The Final Rule adds a new provision that Title X providers “should”

16 either offer “comprehensive primary health services onsite” or “have a robust

17 referral linkage with primary health providers who are in close physical

18 proximity to the Title X site[.]” Final Rule § 59.5(a)(12).

19

115. Many, but not necessarily all, Title X providers already have referral

20 relationships with primary health care providers. It is unclear whether or to what

21 extent the “should” language renders this new provision mandatory.

22

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ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1

116. Requiring Title X clinics to offer “comprehensive primary health

2 services” is beyond the scope of Title X, which specifically and exclusively

3 concerns “family planning” services. The disconnect between the “primary

4 health services” requirement and the statute is underscored by HHS’s assertion

5 in the Supplementary Information accompanying the Final Rule that Title X

6 clinics should use funds from other sources—not Title X funds—to offer primary

7 health services. Supplementary Information, 84 Fed. Reg. 7750. HHS offers no

8 indication of where such funding would come from, nor any analysis of the

9 financial burdens the new provision would impose on grantees and subrecipients.

10

117. Further, the Final Rule does not define “comprehensive primary

11 health services,” “robust,” or “close physical proximity.” Clinics without an

12 on-site comprehensive primary health services provider will not know based on

13 the Final Rule whether their current referral sources are physically close or

14 “robust” enough to be compliant.

15

118. HHS fails to explain or resolve the contradiction in requiring

16 “comprehensive” primary health services while limiting Title X providers’ ability

17 to refer patients for medically appropriate care. A core function of primary care

18 is to serve as a first point of contact with the health care system, assess a patient’s

19 condition and treat it if possible, and provide any appropriate referrals for more

20 specialized care. A provider who cannot perform these functions is not providing

21 “comprehensive” primary care.

22

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ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

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(206) 464-7744

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1

119. HHS failed to meaningfully consider the financial costs of the

2 requirement that Title X clinics either provide “comprehensive primary health

3 services onsite” or refer patients to providers within “close proximity” for such

4 services. The new requirement will disqualify many clinics that are not already

5 in compliance—particularly those in rural areas—since they would have to either

6 move their physical location or hire primary care providers and acquire the

7 infrastructure and other resources they would need to care for patients, either of

8 which may be cost-prohibitive or at least unduly burdensome.

9

120. HHS also failed to consider the impact of de-funding Title X clinics

10 that are not in “close proximity” to a comprehensive primary health services

11 provider, which could deprive patients in that area of all options for basic medical

12 care. Even for clinics that are currently in “close proximity” to a primary care

13 provider to which they could refer patients, the clinic would have to ensure that

14 that provider does not perform abortions; otherwise, the clinic would be in

15 violation of the Final Rule’s referral prohibition.

16

5. Changes Subjecting Adolescents to More Coercive Practices

17

121. Approximately 9% of the patients served by Washington Title X

18 programs in 2017 were under the age of 18. Title X specifically requires that

19 programs offer family planning services to adolescents, without any suggestion

20 that adolescents are not entitled to the same confidential, individualized,

21 noncoercive, dignified care as adults.

22

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ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

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1

122. The Final Rule redefines “low income” so as to subject

2 unemancipated minors seeking no-cost care based on their own individual

3 resources to a different standard than minors with the ability to self-pay. If a

4 minor wishes to be considered on the basis of her or his own resources, the

5 provider must “document[] in the minor’s medical records the specific actions

6 taken by the provider to involve her/his family (including her/his parents or

7 guardian) in her/his decision to seek family planning services[.]” Final Rule §

8 59.2. The only exception is if the provider suspects that the minor is “the victim

9 of child abuse or incest” and has made and documented a report to state or local

10 authorities. Id.

11

123. While HHS acknowledges that Title X only requires the

12 encouragement of family participation “[t]o the extent practicable,” HHS fails to

13 explain or justify its determination that encouragement is required in every

14 circumstance unless there is reportable “child abuse or incest,” or its infringement

15 on providers’ ability to assess patients’ needs on an individualized basis.

16 See Supplementary Information, 84 Fed. Reg. 7752. HHS also fails to offer any

17 coherent rationale for subjecting low-income minors to a different standard than

18 minors with the ability to self-pay.

19

124. The Final Rule requires providers to document in every adolescent

20 patient’s private medical record the “specific actions taken” to “encourage family

21 participation” in the patient’s medical care “(or the specific reason why such

22 family participation was not encouraged),” so that HHS can monitor compliance

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1 with the Final Rule by reviewing these sensitive and personal records. Final Rule

2 § 59.5(a)(14).

3

125. HHS fails to meaningfully address multiple comments to the effect

4 that removing providers’ ability to exercise their judgment in deciding when and

5 how to encourage family participation in minors’ family planning decisions, and

6 requiring “specific” documentation in medical records of their conversations,

7 will compromise patients’ confidentiality and may jeopardize their safety, will

8 discourage minors from seeking services, and violates the principles of dignified,

9 patient-centered care.

10

6. New Grant Eligibility Hurdles

11

126. The Final Rule imposes extensive new requirements for grant

12 applications that incorporate substantive requirements found nowhere else in the

13 regulations, and that create new hurdles for applicants to even qualify for

14 consideration as Title X grantees.

15

127. The Final Rule provides for an initial application review phase in

16 which grant applications are disqualified from being considered unless they

17 “clearly address” how the Title X project proposal will “satisfy the requirements

18 of this regulation”; if an application fails to do so, the project “shall be deemed

19 ineligible for funding” at the outset. Final Rule § 59.7(b).

20

128. Many of the Final Rule’s “requirements” are undefined, vague,

21 and/or based on the “extent to which” various “factors” are met, making it

22 difficult for applicants to know whether they are eligible for consideration or not.

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1 This vagueness leaves considerable room for HHS to exclude applicants at its

2 discretion and based on impermissible and arbitrary factors, rather than

3 evaluating them based on objective standards. HHS dismisses these concerns

4 without meaningfully responding to them.

5

129. The initial hurdle to be eligible for consideration interferes with the

6 right to apply guaranteed by Title X: “Local and regional entities shall be assured

7 the right to apply for direct grants and contracts under this section, and the

8 Secretary shall by regulation fully provide for and protect such right.” 42 U.S.C.

9 § 300(b). An applicant that fails to clear the initial hurdle for reasons that may be

10 unclear has no recourse.

11

130. If a proposal clears the initial hurdle to be eligible for consideration,

12 applicants will be evaluated based on the “degree to which” their Title X project

13 (1) “adheres to the Title X statutory purpose and goals”; (2) is in need of federal

14 funds and “shows capacity” to make “rapid and effective” use of grant funds,

15 “including its ability to procure a broad range of diverse subrecipients”;

16 (3) accounts for the number of patients to be served and targets areas where

17 adequate services are not available; and (4) proposes “innovative” ways to

18 provide services to unserved or underserved communities. Final Rule §§ 59.7,

19 59.10.

20

131. These four new criteria replace the seven application review criteria

21 reflected in the Current Regulations, which have been in place since the 1970s

22 and are clear, capable of objective evaluation, and connected to Title X’s text and

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1 purpose. HHS has not provided any reasoned explanation for replacing the seven

2 longstanding criteria with the four new ones.

3

132. The second and fourth criteria incorporate new requirements related

4 to “diverse” subrecipients and “innovative” methods, but HHS does not define

5 these terms or otherwise provide meaningful guidance to applicants or

6 explanation for their inclusion. These undefined terms suggest an emphasis on

7 providers and clinics that do not have a demonstrated ability to efficiently and

8 effectively provide core Title X services, including a broad range of effective and

9 medically approved contraception, to a large number of patients. Further, the

10 second and fourth criteria are not found among the Final Rule’s substantive

11 “requirements,” see Final Rule § 59.5, but are only incorporated into the grant

12 eligibility criteria, making their meaning and applicability even more unclear.

13

7. New Limitations on Use of Federal Funds

14

133. Title X provides that federal grants are to be used “to assist in the

15 establishment and operation of” family planning projects. 42 U.S.C. § 300.

16

134. The Final Rule requires that Title X grantees “must use the majority

17 of grant funds to provide direct services to clients[.]” Final Rule § 59.18(a). HHS

18 does not define “direct services,” and this provision introduces uncertainty about

19 what family planning services or support the funds may or may not be used for.

20 For example, in the Supplementary Information accompanying the Final Rule,

21 HHS suggests that Title X funds should not be used for community outreach or

22 other efforts to inform individuals of the availability of Title X resources. See

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1 Supplementary Information, 84 Fed. Reg. 7774. Education about the availability

2 of Title X resources is critical to improving health outcomes and is an integral

3 part of the delivery of family planning services to those in need. Indeed, an entire

4 subsection of the Title X statute is dedicated to funding the development and

5 dissemination of “Informational and Educational Materials.” 42 U.S.C. § 300a-3.

6 HHS fails to reconcile the new restrictions with the statute itself or otherwise

7 provide an adequate rationale for them.

8

8. The Final Rule’s Unlawful Purpose and Effect

9

135. All of the above provisions of the Final Rule further its true and

10 unlawful purpose and effect: to expel Planned Parenthood and other

11 comprehensive reproductive health care providers from the Title X program, and

12 divert Title X funds toward directive programs that do not support patients’

13 access to complete and unbiased medical information about their reproductive

14 health care options.

15

136. As Donald Trump stated during his campaign for the presidency,

16 “We’re not going to allow, and we’re not going to fund, as long as you have the

17 abortion going on at Planned Parenthood.”34 On the day the proposed rule leading

18 up to the Final Rule was unveiled, President Trump inaccurately stated in a

19
34 Danielle Paquette, “Donald Trump’s Incredibly Bizarre Relationship with Planned
20
Parenthood,” Washington Post (Mar. 2, 2016), https://www.washingtonpost.com/news/wonk/

21

wp/2016/03/02/donald-trumps-incredibly-bizarre-relationship-with-planned-parenthood/?utm

22 _term=.db131f627e96 (last accessed July 13, 2018).

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1 speech to an anti-abortion group: “For decades American taxpayers have been

2 wrongfully forced to subsidize the abortion industry through Title X federal

3 funding so today, we have kept another promise. My administration has proposed

4 a new rule to prohibit Title X funding from going to any clinic that performs

5 abortions.”35

6

137. In fact, there is no evidence that Title X funds have been used for

7 abortions, and Title X-funded family planning services have prevented millions

8 of abortions since the statute went into effect.36

9

138. Organizations that provide abortion care independent of their Title

10 X projects have received Title X funding since the program’s inception, and are

11 an integral part of Washington’s existing Title X network. Their exclusion is

12 contrary to law, arbitrary and capricious, and unconstitutional, and will cause

13 significant harm to Washington and its residents.

14

15

16

35 https://www.whitehouse.gov/briefings-statements/remarks-president-trump-susan-

17 b-anthony-list-11th-annual-campaign-life-gala/ (last accessed March 4, 2019).

18

36 In 2015 alone, contraceptive care delivered by Title X-funded providers helped

women avoid 822,000 unintended pregnancies, which would have resulted in 387,000
19
unplanned births and 278,000 abortions. Frost J.J., et al., Publicly Funded Contraceptive
20
Services at U.S. Clinics, 2015, New York: Guttmacher Institute, 2017,

21

https://www.guttmacher.org/report/publicly-funded-contraceptive-services-us-clinics-2015

22 (last accessed March 4, 2019).

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1 D. Injuries to the State of Washington and Its Residents

2

139. The Final Rule frustrates and contradicts the purposes of Title X by

3 disqualifying the vast majority of Title X clinics in Washington from receiving

4 federal funds, destroying Washington’s integrated family planning services

5 network, and preventing DOH from continuing to administer a statewide Title X

6 program. This will leave many patients in need with diminished or no access to

7 family planning services, exacerbating the negative health and economic

8 outcomes that Title X was meant to address. The dire consequences for

9 Washingtonians and the State itself can never be fully remedied if the Final Rule

10 goes into effect.

11

140. The Final Rule will leave many counties in Washington without any

12 Title X provider at all. Because the Final Rule will undermine the quality of

13 health care provided through Title X programs, prevent providers from fulfilling

14 their duties to patients and acting in patients’ best interests, and impose extremely

15 burdensome and counterproductive separation and reporting requirements, many

16 providers in Washington will be unable to comply. The Final Rule’s negative

17 effects will fall particularly hard on uninsured patients and those in rural areas,

18 who in some cases will have no other feasible option for obtaining family

19 planning services. As a result of the Final Rule, thousands of people who rely on

20 Title X providers for contraception and other family planning services will lose

21 access to those services.

22

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1

141. Title X providers and clinics in the State of Washington have built

2 their practices and business models in accordance with the understanding that

3 federal funding would not be conditioned on violating ethical and legal

4 requirements or medical standards of care. The State of Washington itself has

5 relied on being able to operate an integrated program in which state and federal

6 funds are used to provide voluntary family planning services consistent with such

7 requirements to all Washingtonians who want and need them. This program will

8 be upended if the Final Rule goes into effect and destroys the statewide network.

9

142. Under any possible scenario, the Final Rule will injure the State of

10 Washington and its residents by dismantling the State’s current system for

11 delivering family planning services and significantly impeding patients’ access

12 to services.

13

1. The Final Rule will expel providers representing 89% of

Washington’s Title X network 14

143. As Washington explained in its public comments, the Final Rule

15

will dismantle the vast majority of the State’s current family planning services

16

network. Five subrecipients of Title X grant funds in Washington have informed

17

DOH that they will be unable to continue participating in the Title X program

18

because they cannot meet the Final Rule’s new requirements. As soon as the Final

19

Rule goes into effect, this will immediately remove 35 clinics from the statewide

20

Title X network. In 2017, these clinics provided family planning services to

21

approximately 89% of all Title X patients served in Washington.

22

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1

144. In 16 of Washington’s 39 counties, the only Title X provider is a

2 clinic operated by one of these five subrecipients. If the Final Rule goes into

3 effect, over half of the counties in Washington will have no Title X provider.

4 Seven counties in Eastern Washington will lose their Title X providers, leaving

5 11 counties with no Title X provider at all. Nine counties in Western Washington

6 will lose their Title X providers, leaving 10 counties with no Title X provider at

7 all—including six of the 10 most populous counties in the state.

8

145. If the Final Rule goes into effect, Title X patients in these counties

9 would either need to travel hundreds of miles to Title X clinics in distant counties

10 or forego the benefits of the Title X program altogether. In some counties, even

11 where a Title X provider remains, the loss of one of the 35 clinics discussed above

12 will overburden any remaining providers in that county.

13

146. The Final Rule will not just force out subrecipients that offer

14 abortion services independent of the Title X Project. The coercive counseling

15 provisions and other costly requirements will force other providers from the Title

16 X program as well, or at least prevent them from providing services at current

17 levels. For example, the Public Health Service of King County—a subrecipient

18 that does not provide abortion services but does provide referrals for

19 abortion—has expressed that if the Final Rule were to take effect, it would not

20 be able to maintain its current level of family planning service. In 2017, King

21 County served 5,489 Title X clients.

22

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1

147. The harmful consequences of the Final Rule will especially impact

2 rural and uninsured patients. In four largely rural Washington counties, one

3 quarter or more of Title X patients are uninsured, and the only Title X clinics in

4 those counties have indicated that the Final Rule would preclude them from

5 continuing in the Title X Project. These counties are San Juan (30% of Title X

6 patients were uninsured in 2017), Skagit (29%), Douglas (28%), and Whitman

7 (27%). These counties would lose their Title X providers entirely, and do not

8 have local health jurisdictions providing family planning services that could help

9 to fill the gap.

10

148. In five other counties in rural Washington, patients are served by

11 small Title X clinics that have indicated they cannot comply with the Final Rule.

12 These clinics are in Ellensburg (in Kittitas County), Walla Walla (in Walla Walla

13 County), Wenatchee (in Chelan County), Pullman (in Whitman County), and

14 Moses Lake (in Grant County). Some of these clinics may not survive the loss of

15 federal funds and would have to close their doors. Even if some current Title X

16 providers in other counties remain in the program, the distance patients would

17 have to travel to reach them is impracticable.

18

149. Absent Title X funding, the clinics most at risk of closing are those in

19 rural communities that are already underserved, as it is more difficult to create,

20 fund, and staff medical clinics in rural areas. Given that, and the lack of alternative

21 resources, these areas are likely to have some of the worst public health outcomes

22 due to lack of access to family planning services. In particular, the clinics most at

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1 risk of closing are located in the cities of Sunnyside, Pasco, Moses Lake, and

2 Wenatchee. There are already provider shortages in those areas, and clinic closure

3 or service reduction will leave more patients without needed care, exacerbating

4 poor public health outcomes in those communities.

5

150. Students will also be especially hurt by the Final Rule. Many

6 students lack adequate insurance, and many do not have a steady source of income

7 that would enable them to self-pay for family planning services. Title X health

8 centers in Ellensburg, Pullman, Walla Walla, and Spokane, in particular, serve

9 student populations that rely on the departing subrecipients’ participation in the

10 Title X program to obtain family planning services. As a result of the loss of the

11 five subrecipients from Washington’s Title X network, there will no longer be

12 any Title X providers near Central Washington University, Eastern Washington

13 University, Western Washington University, Washington State University,

14 Yakima Valley Community College, Columbia Basin College, and Big Bend

15 Community College. In Spokane, Gonzaga University does not offer any

16 reproductive health services to its students, making the Title X-funded Spokane

17 health center near the Gonzaga campus a critical resource for students. This clinic

18 has announced that it will be forced by the Final Rule to depart the Title X program.

19 These losses will jeopardize the ability of the students served at these clinics to

20 remain healthy and complete their education.

21

151. Further, the remaining subrecipients representing 11% of

22 Washington’s Title X network cannot fill the gap created by the loss of the five

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1 subrecipients, even in the unlikely event they all remain in the program (and are

2 able to maintain the same number of clinicians on their staff) despite the

3 Hobson’s choice posed by the Final Rule. For example, Federally Qualified

4 Health Centers (FQHCs) in Washington do not have the infrastructure nor the

5 financial means to provide services to the 81,000 patients currently served by the

6 five subrecipients. For FQHCs to adequately serve the patients who otherwise

7 would have received care from one of the five subrecipients’ clinics, they would

8 need several years and significant additional funding to prepare—neither of

9 which has been provided. FQHCs and other safety-net providers in underserved

10 areas will be disproportionately impacted because the Final Rule is more likely

11 to force existing Title X clinics in those areas to close down, forcing their patients

12 to seek care from other parts of the safety net.

13

152. HHS provides no evidentiary basis for its assertion that it

14 “anticipates other, new entities will apply for funds, or seek to participate as

15 subrecipients, as a result of the final rule,” or that it “anticipates that the net

16 impact on those seeking services from current grantees will be zero[.]”

17 Supplementary Information, 84 Fed. Reg. 7782.

18

153. If Washington were to lose the Title X subrecipients that served 89%

19 of individual clients in 2017, HHS in all likelihood would not fund the remaining

20 skeletal network at anywhere near the existing level. Washington currently

21 receives several million dollars in federal funds to support a statewide network

22 serving nearly a hundred thousand patients. But with a network that omits the

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1 number of counties—particularly rural, underserved counties—described above,

2 and is capable of serving far fewer patients statewide, Washington’s Title X grant

3 would probably be significantly reduced. Due to network shrinkage, HHS may

4 reduce the current grant, decline to disperse the remainder of the grant, or even

5 cancel the grant entirely in the middle of the cycle, compounding the chaos

6 caused by the Final Rule. Moreover, with a crippled network, Washington’s

7 Title X program would be far less competitive in future grant cycles.

8

2. A DOH program that complied with the restrictions of the Final

Rule would be contrary to Washington law 9
154. DOH cannot comply with the Final Rule without violating

10 Washington’s Reproductive Privacy Act and Article I, section 5 of the

11 Washington Constitution.
12 155. Washington’s Reproductive Privacy Act, approved by Washington
13 voters in 1991, provides that “it is the public policy of the state of Washington”

14 that:

15

i. Every individual has the fundamental right to choose or refuse birth

16

control;

17

ii. Every woman has the fundamental right to choose or refuse to have

an abortion [except as limited by the act]; 18

iii. Except as [permitted by the act], the state shall not deny or interfere

19

with a woman’s fundamental right to choose or refuse to have an

abortion; and

20

iv. The state shall not discriminate against the exercise of these rights

21

in the regulation or provision of benefits, facilities, services, or

information. 22

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1 Reproductive Privacy Act, RCW 9.02.100. Under this statute, the State may not

2 “interfere with a woman's right to choose to have an abortion prior to viability of

3 the fetus.” RCW 9.02.110. Further, if the State provides “maternity care benefits,

4 services, or information to women” through any state-funded or

5 state-administered program, the State “shall also provide women otherwise

6 eligible for any such program with substantially equivalent benefits, services, or

7 information to permit them to voluntarily terminate their pregnancies.”

8 RCW 9.02.160.

9

156. Article I, section 5 of the Washington Constitution provides more

10 expansive protections than the First Amendment, and protects freedom of speech

11 within the medical provider–patient relationship.

12

157. For these reasons and more, the State would be unable to lawfully

13 participate in a Title X program subject to the Final Rule’s new requirements.

14 The Final Rule interferes with speech in the provider–patient relationship,

15 discriminates against women who are interested in terminating their pregnancies,

16 erects barriers to access to care, and would inhibit the State’s ability to provide

17 substantially equivalent benefits, services, or information to all pregnant women

18 who participate in the program.

19

158. Even if the State could somehow continue its participation in a

20 Title X program subject to the Final Rule without violating Washington law, that

21 program would offer substandard care that would jeopardize patients’ health,

22 safety, and well-being and increase health care costs in Washington. Despite

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1 HHS’s assertion that the referral prohibition and directive counseling provisions

2 would entail “no costs,” Supplementary Information, 84 Fed. Reg. 7719, the

3 reality is that these provisions will impede patients’ access to medical care,

4 resulting in more unintended pregnancies and other issues, and the enormous

5 health consequences and economic costs associated with them.

6

3. The loss of Title X funds Would Irreparably Harm Washington

and Its Most Vulnerable Residents 7

a. Reducing the effectiveness of Washington’s family

8

planning program

9

159. If federal Title X funds disappeared, Washington’s Family Planning

10 Program would lose approximately one third of its funding. DOH would have

11 less funding to allocate to grant recipients, which would result in fewer patients

12 receiving services, causing negative health consequences for patients and

13 increasing costs to the State. If services are reduced, the incidence of unintended

14 pregnancies and reproductive health-related illnesses and disease within

15 Washington is likely to increase, leading to worse long-term health and economic

16 outcomes, as well as more abortions.

17

160. Currently, approximately one third of Washington’s Title X

18 program is funded with federal dollars. DOH projects that, if it lost this federal

19 funding, at the very least it would not have the funds to continue to serve patients

20 whose incomes are anywhere above the federal poverty level; it would not be

21 able to continue to serve underinsured (as opposed to entirely uninsured) patients;

22

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1 and it may otherwise have to restrict the population of patients eligible for

2 subsidized family planning services.

3

161. In 2017, Washington’s Title X program served 40,041 people with

4 incomes above 100% of the federal poverty level, and 72,989 people with some

5 public or private insurance. If these individuals could not afford to pay on their

6 own—or could not travel to a clinic that offers these services at a level that is

7 affordable—they would lose access to family planning services entirely.

8

162. Counties with high numbers of low-income, underinsured people

9 who want and need family planning services would be the most adversely

10 impacted by the disappearance of federal funds.

11

163. Some college and university students who currently receive family

12 planning services would lose access to them.

13

164. DOH would be unable to provide continuing education for clinicians

14 and staff at current levels. DOH would also likely have to limit educational and

15 outreach activities, decreasing awareness that subsidized family planning

16 services are available and exacerbating poor health outcomes associated with

17 lack of access. Other services like STI testing and treatment would likely be

18 eliminated.

19

20

21

22

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1

165. Analyses show that nationally, every $1 spent on family planning

2 services results in over $7 of cost savings.37 HHS asserts that the Office of

3 Management and Budget determined that the Final Rule is not “economically

4 significant,” Supplementary Information, 84 Fed. Reg. 7776, but this disregards

5 the Final Rule’s true financial impact. In fact, the economic impacts will be

6 highly significant: a study of data from 2010 shows that Title X family planning

7 services resulted in net savings of almost $7 billion nationwide. The Final Rule

8 will slash these savings when it slashes the services.

9

166. In Washington alone, Title X services saved multiple millions of

10 dollars in 2017 that otherwise would have been spent on addressing health issues

11 that could have been prevented. The costs imposed by the Final Rule on the State

12 of Washington would be well over $100 million. In the first year after the Final

13 Rule goes into effect, if not enjoined, Washington will lose more than $28 million

14 in savings due to the loss of federal dollars.

15

167. The Final Rule puts the health of Washington’s most vulnerable

16 populations at even greater risk, and jeopardizes public health as a whole. If

17 Washington’s network is destroyed, many patients will lose access to

18
37 See Jennifer J. Frost, Return on Investment: A fuller Assessment of a Benefits and
19
Cost Savings of the US Publicly Funded Family Planning Program, Milbank Quarterly,
20
Vo. 92, No. 4, p. 668 (2014), available at

21

https://www.guttmacher.org/sites/default/files/article_files/frost_et_al-2014-

22 milbank_quarterly.pdf (last accessed March 4, 2019).

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1 contraceptive care, including access to the most effective forms of contraception,

2 as well as other essential preventative services like STI testing and cancer

3 screening. This disruption will have profound short- and long-term consequences

4 for patients, their families, and the public in general, including a rise in

5 unintended pregnancies.

6

168. Women who experience an unintended pregnancy are more likely to

7 receive inadequate or delayed prenatal care, resulting in poor health outcomes

8 such as preterm births, low-birth-weight babies, and still births. Unintended

9 pregnancies are associated with increases in maternal and child morbidity.

10 An increase in the number of pregnancies also means that more women will die.38

11 Unwanted childbearing also tends to result in negative psychological outcomes

12 for both women and children. And an increase in the number of unintended

13 pregnancies will increase the number of abortions, contrary to the Final Rule’s

14 stated goal. See Final Rule § 59.2. In addition, undiagnosed and untreated STIs

15 would create poor health and reproductive outcomes, and cancers that go

16 undetected at a stage when they are treatable will exacerbate healthcare costs and

17 cause deaths that could have been prevented.

18

b. Financial harm to State Medicaid and related programs

19

169. The Final Rule will cause financial harm to the Washington Health

20 Care Authority, which administers state public health care programs including

21

22

38 See supra n.27 (noting rising maternal mortality in the United States).

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1 Washington’s Medicaid program, called Apple Health. It also will undermine the

2 health benefits the Health Care Authority achieves in administering its public

3 health programs for Washingtonians, which will increase health care costs in the

4 long term.

5

170. The Health Care Authority relies on the high-quality services

6 provided at Title X-funded clinics to achieve performance measures related to

7 reductions in unintended pregnancies, improved pregnancy outcomes, cancer and

8 STI screenings, and treatment of various conditions to maintain healthy

9 reproductive functioning. These benefits will be compromised by the Final Rule,

10 which will force many qualified Title X providers out of the program and reduce

11 access to family planning services.

12

171. Some individuals who lose access to contraception through

13 Title X-funded programs as a result of the Final Rule will no longer be able to

14 afford their current form of contraception or will not be able to access effective

15 contraception at all. The result will be an increase in the number of unintended

16 pregnancies.

17

172. The costs of these unintended pregnancies will be borne by the

18 Health Care Authority. The Health Care Authority currently funds nearly 50% of

19 all births in Washington State, a figure that is likely to increase if the number of

20 unintended pregnancies among low-income patients increases. Further, 81% of

21 Washington’s Title X clients have incomes below 200% of the federal poverty

22 level. These Title X clients either already have Apple Health or will become

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1 eligible for Apple Health because of the higher eligibility income criteria during

2 pregnancy. If these clients lose access to Title X services and experience an

3 unintended pregnancy as a result, Apple Health will pay for their care.

4

173. Some Title X clients will be forced to stop working or reduce their

5 hours if they lose access to Title X services and experience an unintended

6 pregnancy. This will change some families’ income, causing these families to

7 become eligible for Apple Health. The change in family size due to the birth of a

8 child also could cause these families to become eligible for Apple Health. This

9 will result in an increase in state expenditures related to pregnancy, delivery,

10 newborn, and child health services. Other support services will be impacted as

11 well, as an increase in the number of families eligible for Apple Health will

12 increase costs to the State for transportation, home visiting, and case

13 management.

14

174. Currently, Title X clinics in Washington serve some patients who

15 pay on a sliding scale, because they are not eligible for Apple Health, free Title

16 X care, or other programs offering free services. Title X permits patients who do

17 not qualify for free family planning services to pay on a sliding scale to

18 accommodate their financial limitations. The 16,082 current Title X clients who

19 pay on a sliding scale will suffer financial hardship to maintain their

20 contraception if they lose access to a Title X clinic. Some will not be able to find

21 a different nearby clinic that offers sliding scale pricing. The Health Care

22 Authority will not be able to absorb these clients if they do not qualify for Apple

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1 Health or other state programs. As a result, these clients would not receive

2 adequate services, and the Health Care Authority will see increased costs due to

3 more unintended pregnancies.

4

175. The shift of Title X clients from a departing Title X subrecipient to

5 an FQHC also will increase costs for the Health Care Authority. This is because

6 the Health Care Authority pays FQHCs for services they provide to covered

7 clients, and FQHCs are typically entitled to a higher reimbursement per visit than

8 non-FQHCs.

9

176. Overall, the Final Rule is not designed to further the purposes of

10 Title X. Rather, it is designed to punish health care providers who provide

11 abortion care and referral—and by extension, impede their patients’ access to

12 abortion—even when Title X funds are not used to provide abortion care. The

13 Final Rule also appears to be designed to limit patients’ access to modern,

14 effective, medically approved contraception, and to introduce providers who

15 emphasize the least effective family planning methods and services into the

16 federally funded program. HHS fundamentally fails to grapple with the

17 real-world consequences of the Final Rule’s drastic and politically motivated

18 changes.

19

20

21

22

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1

V. CLAIMS FOR RELIEF

2

Count I Violation of the Administrative Procedure Act

3

Agency Action Not in Accordance with Law—Nondirective Mandate

4

177. The State realleges and reincorporates by reference the allegations

5 set forth in each of the preceding paragraphs.

6

178. The APA requires that agency action that is “not in accordance with

7 law” be held unlawful and set aside. 5 U.S.C. § 706(2).

8

179. The Final Rule violates the Nondirective Mandate established by the

9 Department of Health and Human Services Appropriations Act, 2019, and every

10 annual appropriations act since 1996, by eliminating the Current Regulations’

11 nondirective pregnancy counseling requirement, permitting providers to offer

12 only biased, one-sided information about “maintaining the health of the mother

13 and unborn child during pregnancy,” and affirmatively requiring directive

14 referral for one option (carrying the pregnancy to term) while broadly prohibiting

15 referral for another option (abortion).

16

180. Absent injunctive and declaratory relief vacating the Final Rule and

17 prohibiting it from going into effect, Washington and its residents will be

18 immediately, continuously, and irreparably harmed by Defendants’ illegal

19 actions.

20

21

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

78

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.82 Page 82 of 90

1

Count II

2

Violation of the Administrative Procedure Act Agency Action Not in Accordance with Law—ACA Section 1554

3

181. The State realleges and reincorporates by reference the allegations

4 set forth in each of the preceding paragraphs.

5

182. The APA requires that agency action that is “not in accordance with

6 law” be held unlawful and set aside. 5 U.S.C. § 706(2).

7

183. Section 1554 of the ACA provides that the HHS Secretary “shall not

8 promulgate any regulation” that “creates any unreasonable barriers to the ability

9 of individuals to obtain appropriate medical care”; “impedes timely access to

10 health care services”; “interferes with communications regarding a full range of

11 treatment options between the patient and the provider”; “restricts the ability of

12 health care providers to provide full disclosure of all relevant information to

13 patients making health care decisions”; or “violates the principles of informed

14 consent and the ethical standards of health care professionals.” 42 U.S.C.

15 § 18114.

16

184. The Final Rule violates section 1554 in numerous ways, including

17 the following:

18

a. The Final Rule “creates . . . unreasonable barriers to the

19

ability of individuals to obtain appropriate medical care” in a number of

20

ways, including by preventing Title X patients from receiving referrals for

21

choice-based, medically indicated, and medically necessary abortions, and

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

79

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.83 Page 83 of 90

1

imposing wasteful, excessive, and unnecessary physical and financial

2

separation and other requirements that will disqualify the vast majority of

3

current Title X providers in Washington, reduce patients’ access to

4

reproductive health care, inhibit continuity of care, artificially separate the

5

provision of related health services, and require clinics to divert resources

6

from caring for patients.

7

b. The Final Rule “impedes timely access to health care

8

services,” including by broadly prohibiting Title X patients from receiving

9

referrals for choice-based, medically indicated, and medically necessary

10

abortions (subject to an illusory exception that is meaningless in

11

Washington), leaving most patients to attempt to find a provider of the

12

desired care on their own. Timely access is important in this context

13

because abortion is safest when performed early in a pregnancy. The

14

coercive counseling provisions and the wasteful, excessive, and

15

unnecessary physical and financial separation requirements also impede

16

timely access to care because they will disqualify the providers that

17

constitute the vast majority of Washington’s Title X network, forcing

18

many patients to travel long distances for Title X care, and will prevent

19

patients from receiving comprehensive reproductive health care at a single

20

location.

21

c. The Final Rule “interferes with communications regarding a

22

full range of treatment options between the patient and the provider,”

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

80

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.84 Page 84 of 90

1

including by imposing a gag rule that broadly prohibits Title X providers

2

from referring patients for choice-based, medically indicated, and

3

medically necessary abortions, while affirmatively requiring Title X

4

providers to direct their patients to the government’s preferred option,

5

regardless of the patient’s wishes and the provider’s medical judgment.

6

d. The Final Rule “restricts the ability of health care providers

7

to provide full disclosure of all relevant information to patients making

8

health care decisions,” including by imposing a gag rule that broadly

9

prohibits Title X providers from referring patients for choice-based,

10

medically indicated, and medically necessary abortions, while

11

affirmatively requiring Title X providers to direct their patients to the

12

government’s preferred option, regardless of the patient’s wishes and the

13

provider’s medical judgment.

14

e. The Final Rule “violates the principles of informed consent

15

and the ethical standards of health care professionals,” including by

16

preventing Title X patients from receiving referrals for choice-based,

17

medically indicated, and medically necessary abortions, and by requiring

18

Title X providers to direct their patients to the government’s preferred

19

medical treatment, regardless of the patient’s wishes and the provider’s

20

medical judgment. In addition, the Final Rule imposes medically

21

unnecessary physical separation requirements that interfere with

22

continuity of care and needlessly jeopardize patients’ health and safety.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

81

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.85 Page 85 of 90

1

These provisions require medical professionals in Title X programs to

2

withhold medically relevant information and violate medical ethical

3

standards and other duties to their patients recognized by leading medical

4

authorities.

5

185. Absent injunctive and declaratory relief vacating the Final Rule and

6 prohibiting it from going into effect, Washington and its residents will be

7 immediately, continuously, and irreparably harmed by Defendants’ illegal

8 actions.

9

Count III

Violation of the Administrative Procedure Act

10

Agency Action in Violation of Law and Excess of Statutory Authority

11

186. The State realleges and reincorporates by reference the allegations

12 set forth in each of the preceding paragraphs.

13

187. The APA requires that agency action that is “not in accordance with

14 law” or “in excess of statutory jurisdiction, authority, or limitations, or short of

15 statutory right” be held unlawful and set aside. 5 U.S.C. § 706(2).

16

188. The Final Rule violates various provisions of Title X—including

17 that Title X services must be “voluntary,” among others—and exceeds HHS’s

18 delegated rulemaking authority in multiple respects, as detailed above. It is also

19 fundamentally inconsistent with Title X’s purpose of expanding and equalizing

20 access to a broad range of acceptable and effective family planning methods and

21 services regardless of income, because it imposes unjustified requirements that

22 will have the effect of reducing such access.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

82

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.86 Page 86 of 90

1

189. Absent injunctive and declaratory relief vacating the Final Rule and

2 prohibiting it from going into effect, Washington and its residents will be

3 immediately, continuously, and irreparably harmed by Defendants’ illegal

4 actions. 5 6

Count IV Violation of the Administrative Procedure Act
Arbitrary and Capricious Agency Action

7

190. The State realleges and reincorporates by reference the allegations

8 set forth in each of the preceding paragraphs.

9

191. The Final Rule is arbitrary and capricious in numerous respects. It

10 reverses the Department’s longstanding policies and interpretations of Title X

11 with no evidentiary basis or cogent rationale, requires deviation from

12 evidence-backed standards of care and medical ethical and fiduciary obligations,

13 needlessly jeopardizes patients’ lives, health, and well-being, disregards and/or

14 is contrary to evidence before the agency, ignores many important aspects of the

15 problem and the significant new problems it will create, relies on factors

16 Congress did not intend the agency to consider, and is illogical and

17 counterproductive. HHS also adds a new, unsupported and illogical rationale for

18 the Final Rule’s mandatory prenatal care referral requirement without having

19 given the public notice or an opportunity to comment on this new rationale.

20

192. One or more of these problems affects virtually every new provision

21 of the Final Rule, rendering the Final Rule arbitrary and capricious in its entirety.

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

83

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.87 Page 87 of 90

1

193. Absent injunctive and declaratory relief vacating the Final Rule and

2 prohibiting it from going into effect, Washington and its residents will be

3 immediately, continuously, and irreparably harmed by Defendants’ illegal

4 actions.

5

Count V

First Amendment—Unconstitutional Conditions

6

194. The State realleges and reincorporates by reference the allegations

7 set forth in each of the preceding paragraphs.

8

195. The APA requires that agency action that is “contrary to

9 constitutional right” be held unlawful and set aside. 5 U.S.C. § 706(2).

10 196. The Final Rule imposes unconstitutional conditions on the receipt

11 of federal funding pursuant to Title X in violation of the First Amendment.

12 197. The Final Rule conditions eligibility for federal funding on the

13 relinquishment of rights to free speech within the medical provider–patient

14 relationship based on the content and viewpoint of such speech. The infringement

15 of free speech imposed by the Final Rule jeopardizes Washington patients’ lives,

16 health, and well-being because it requires the withholding of relevant medical

17 information and compels providers to engage in speech with which they may

18 disagree professionally.

19 198. The Final Rule conditions eligibility for federal funding on the

20 relinquishment of rights to speak and associate freely. By requiring costly

21 “physical” separation between a Title X project and expressive and associational

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

84

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.88 Page 88 of 90

1 activities related to reproductive rights and public health—including separate

2 physical facilities, separate personnel, separate contact information, and separate

3 websites—the Final Rule places substantial burdens on the State of Washington’s

4 expressive and associational rights to “encourage, promote, or advocate for”

5 access to legal abortion.

6

199. Absent injunctive and declaratory relief vacating the Final Rule and

7 prohibiting it from going into effect, Washington and its residents will be

8 immediately, continuously, and irreparably harmed by Defendants’ illegal

9 actions.

10

Count VI

Fifth Amendment—Unconstitutional Vagueness

11 200. The State realleges and reincorporates by reference the allegations

12 set forth in each of the preceding paragraphs.

13

201. The APA requires that agency action that is “contrary to

14 constitutional right” be held unlawful and set aside. 5 U.S.C. § 706(2).

15

202. The Final Rule violates the Due Process Clause of the Fifth

16 Amendment because it is unconstitutionally vague in numerous respects and

17 vests the Secretary with discretion to make grant awards in an arbitrary,

18 inconsistent, and/or biased manner. It fails to provide adequate guidance as to

19 how the State can satisfy various unclear, undefined, vague, and subjective new

20 provisions of the Rule in order to qualify for a Title X grant. The lack of clear

21 standards permits the Secretary to unfairly and arbitrarily decide whether the

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

85

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.89 Page 89 of 90

1 State’s application even qualifies for consideration, and if so, whether and how

2 much Title X funding should be granted to the State. There is no compelling

3 government interest in imposing these vague requirements, and the Final Rule is

4 not appropriately tailored to achieve any such interest.

5

203. Absent injunctive and declaratory relief vacating the Final Rule and

6 prohibiting it from going into effect, Washington and its residents will be

7 immediately, continuously, and irreparably harmed by Defendants’ illegal

8 actions.

9

VI. PRAYER FOR RELIEF

10

Wherefore, the State of Washington prays that the Court:

11

a. Declare that the Final Rule is unauthorized by and contrary to the

12 Constitution and laws of the United States;

13

b. Declare that the Final Rule is invalid and without force of law and

14 vacate the Final Rule in full;

15

c. Issue preliminary and permanent injunctions prohibiting Defendants

16 from implementing or enforcing the Final Rule;

17

d. Award the State of Washington its costs and reasonable attorneys’

18 fees; and

19

e. Award such other and further relief as the interests of justice may

20 require.

21

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

86

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 1:19-cv-03040-SAB ECF No. 1 filed 03/05/19 PageID.90 Page 90 of 90

1

Respectfully submitted this 5th day of March, 2019.

2

ROBERT W. FERGUSON

Attorney General 3

4

5

JEFF

G, WSBA #23607

KRIS

WSBA #45478

6

PAUL M. irli, WSBA #40681

Assistant Attorneys General

7

Office of the Attorney General

800 Fifth Avenue, Suite 2000

8

Seattle, WA 98104

(206) 464-7744

9

JeffS2@atg.wa.gov

KristinB 1 @atg.wa.gov

10

PaulCI@atg.wa.gov

Attorneys for Plaintiff State of Washington

11

12

13

14

15

16

17

18

19

20

21

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

g7

ATTORNEY GENERAL OF WAHSINGTON 800 Fifth Avenue. Suite 2000

Seattle, WA 98104-3188

(206)464-7744

 
 Case 1:19-cv-03040-SAB ECF No. 8 filed 03/18/19 PageID.214 Page 1 of 3

1

FILED IN THE

2

U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

3

Mar 18, 2019

4

UNITED STATES DISTRICT COURT SEAN F. MCAVOY, CLERK

5

EASTERN DISTRICT OF WASHINGTON

6

7 STATE OF WASHINGTON,

No. 1:19-cv-03040-SAB

8

Plaintiff,

No. 1:19-cv-03045-SAB

9

v.

10 ALEX M. AZAR II, in his official

ORDER GRANTING MOTION

11 capacity as Secretary of the United States TO CONSOLIDATE; MOTION

12 Department of Health and Human

TO EXPEDITE; AND SETTING

13 Services; and UNITED STATES

BRIEFING SCHEDULE

14 DEPARTMENT OF HEALTH AND

15 HUMAN SERVICES,

16

Defendants.

17

18 NATIONAL FAMILY PLANNING &

19 REPRODUCTIVE HEALTH

20 ASSOCIATION, FEMINIST WOMEN’S

21 HEALTH CENTER, DEBORAH OYER,

22 M.D. and TERESA GALL, F.N.P.,

23

Plaintiffs,

24

v.

25 ALEX M. AZAR II, in his official capacity

26 as Secretary of the United States

27 Department of Health and Human

28 Services; and UNITED STATES

ORDER GRANTING MOTION TO CONSOLIDATE; MOTION TO EXPEDITE; AND SETTING BRIEFING SCHEDULE ~ 1

Case 1:19-cv-03040-SAB ECF No. 8 filed 03/18/19 PageID.215 Page 2 of 3

1 DEPARTMENT OF HEALTH AND

2 HUMAN SERVICES, DIANE FOLEY,

3 M.D., in her official capacity as Deputy

4 Assistance Secretary for Population

5 Affairs, and OFFICE OF POPULATION

6 AFFAIRS,

7

Defendants.

8

9

Before the Court are the State of Washington’s Unopposed Motion to

10 Consolidate for Pretrial Proceedings, ECF No. 7, and the parties’ Joint Motion to

11 Expedite and Set Briefing Schedule on Motions for Preliminary Injunction, ECF

12 No. 6. The State asks that two related cases be consolidated for scheduling and

13 other pretrial purposes, State of Washington v. Azar, et al., No. 1:19-cv-3040-

14 SAB, and National Family Planning & Reproductive Health Ass’n, et al. v. Azar,

15 et al., No. 1:19-cv-03045-SAB. It indicates that no party opposes consolidation.

16 The Court finds that the interest of judicial convenience outweighs any potential

17 for delay, confusion and prejudice. As such, good cause exists to grant the motion

18 and to set a briefing schedule for the anticipate Motions for Preliminary

19 Injunction.

20

Accordingly, IT IS HEREBY ORDERED:

21

1. The State of Washington’s Unopposed Motion to Consolidate for

22 Pretrial Proceedings, ECF No. 7, is GRANTED.

23

2. All future pleadings shall be filed under Case No. 1:19-cv-03040-

24 SAB, unless the Court directs otherwise. Case No. 1:19-cv-03045-SAB shall be

25 administratively closed.

26

3. The parties’ Joint Motion to Expedite and Set Briefing Schedule on

27 Motions for Preliminary Injunction, [1:19-cv-03040-SAB, ECF No. 6], [1:19-cv-

28 3045-SAB, ECF No. 17] is GRANTED.

ORDER GRANTING MOTION TO CONSOLIDATE; MOTION TO EXPEDITE; AND SETTING BRIEFING SCHEDULE ~ 2

Case 1:19-cv-03040-SAB ECF No. 8 filed 03/18/19 PageID.216 Page 3 of 3

1

4. The Court imposes the following briefing schedule and page

2 limitation:

3

a. March 22, 2019: Plaintiffs in both cases will file their respective

4

motions for preliminary injunction of no more than 45 pages each.

5

b. April 12, 2019: Defendants will file their opposition to the

6

motions in the form of a consolidated response of no more than 75

7

pages.

8

c. April 19, 2019: Plaintiffs will each file a reply brief of no more

9

than 30 pages each.

10

5. The hearing on Plaintiffs’ Motions for Preliminary Injunction is set

11 for April 25, 2019, at 10:00 a.m., in Yakima, Washington.

12

IT IS SO ORDERED. The Clerk of Court is directed to enter this Order

13 and forward copies to counsel.

14

DATED this 18th day of March 2019.

15

16

17

18

19

20

21

22

Stanley A. Bastian

23

United States District Judge

24

25

26

27

28

ORDER GRANTING MOTION TO CONSOLIDATE; MOTION TO EXPEDITE; AND SETTING BRIEFING SCHEDULE ~ 3

 
 Case 1:19-cv-03040-SAB ECF No. 54 filed 04/25/19 PageID.1829 Page 1 of 19

FILED IN THE

1

U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

2

Apr 25, 2019

3

SEAN F. MCAVOY, CLERK

4

5

6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF WASHINGTON

8

9 STATE OF WASHINGTON,

No. 1:19-cv-03040-SAB

10

Plaintiff,

11

v.

12 ALEX M. AZAR II, in his official

13 capacity as Secretary of the United States

14 Department of Health and Human

15 Services; and UNITED STATES

ORDER GRANTING

16 DEPARTMENT OF HEALTH AND

PLAINTIFFS’ MOTIONS FOR

17 HUMAN SERVICES,

PRELIMINARY INJUNCTION

18

Defendants.

19

20 NATIONAL FAMILY PLANNING &

21 REPRODUCTIVE HEALTH

22 ASSOCIATION, FEMINIST WOMEN’S

23 HEALTH CENTER, DEBORAH OYER,

24 M.D. and TERESA GALL, F.N.P.,

25

Plaintiffs,

26

v.

27 ALEX M. AZAR II, in his official capacity

28 as Secretary of the United States

ORDER GRANTING PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTION ~ 1

Case 1:19-cv-03040-SAB ECF No. 54 filed 04/25/19 PageID.1830 Page 2 of 19

1 Department of Health and Human 2 Services; and UNITED STATES 3 DEPARTMENT OF HEALTH AND 4
HUMAN SERVICES, DIANE FOLEY, 5 M.D., in her official capacity as Deputy 6 Assistance Secretary for Population 7 Affairs, and OFFICE OF POPULATION 8 AFFAIRS, 9
Defendants. 10

11

Before the Court are Plaintiffs’ Motions for Preliminary Injunction, ECF

12 Nos. 9 and 18. A hearing on the motions was held on April 25, 2019. The State of

13 Washington was represented by Jeffrey Sprung, Kristin Beneski and Paul Crisalli.

14 Plaintiffs National Family Planning and Reproductive Health Association, et al.,

15 (NFPRHA) were represented by Ruth Harlow, Fiona Kaye, Brigitte Amiri,

16 Elizabeth Deutsch, and Joseph Shaeffer. Defendants were represented by Bradley

17 Humphreys. The Court also received amicus briefs from American Academy of

18 Pediatrics, et al.; Institute of Policy Integrity; State of Ohio, et al., and Susan B.

19 Anthony List. This Order memorializes the Court’s oral ruling.

20

Introduction

21

Plaintiffs seek to set aside the Office of Population Affairs (OPA),

22 Department of Health and Human Services (“Department”) March 4, 2019 Final

23 Rule that revises the regulations that govern Title X family planning programs. 84

24 Fed. Reg. 77141-01, 2019 WL 1002719 (Mar. 4, 2019). The new regulations were

25 proposed to “clarify grantee responsibilities under Title X, to remove the

26 requirement for nondirective abortion counseling and referral, to prohibit referral

27 for abortion, and to clarify compliance obligations under state and local laws . . .

28 to clarify access to family planning services where an employer exercises a

ORDER GRANTING PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTION ~ 2

Case 1:19-cv-03040-SAB ECF No. 54 filed 04/25/19 PageID.1831 Page 3 of 19

1 religious and moral objection . . . and to require physical and financial separation

2 to ensure clarity regarding the purpose of Title X and compliance with the

3 statutory program integrity provisions, and to encourage family participation in

4 family planning decisions, as required by Federal law.” Id.

5

Plaintiffs contend the Final Rule is in excess of the agency’s statutory

6 authority, is arbitrary and capricious, violates the Administrative Procedures Act,

7 violates Title X requirements, violates congressional Non-directive Mandates,

8 violates Section 1554 of the Patient Protection and Affordable Care Act (“ACA”),

9 and is otherwise unconstitutional.

10

Plaintiffs assert the Final Rule is not designed to further the purposes of

11 Title X, which is to equalize access to comprehensive, evidence-based, voluntary

12 family planning. Rather it is designed to exclude and eliminate health care

13 providers who provide abortion care and referral—which by extension will impede

14 patients’ access to abortion—even when Title X funds are not used to provide

15 abortion care, counseling or referral.

16

Plaintiffs also believe the Final Rule appears to be designed to limit

17 patients’ access to modern, effective, medically approved contraception and family

18 planning health care. Plaintiffs argue the Final Rule was designed by the

19 Department to direct Title X funds to providers who emphasize ineffective and

20 inefficient family planning.

21

Finally, Plaintiffs believe the Final Rule is politically motivated and not

22 based on facts. Instead, it intentionally ignores comprehensive, ethical, and

23 evidence-based health care, and impermissibly interferes with the patient-doctor

24 relationship.

25

Defendants assert the Final Rule adopted by the Secretary is consistent with

26 the Administrative Procedures Act, consistent with Title X, the Non-directive

27

28

ORDER GRANTING PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTION ~ 3

Case 1:19-cv-03040-SAB ECF No. 54 filed 04/25/19 PageID.1832 Page 4 of 19

1 Mandates, and Section 1554 of the ACA1, and is otherwise constitutional.

2

Defendants believe the Final Rule is indistinguishable from regulations

3 adopted over 30 years ago, which were held to be valid by the United States

4 Supreme Court in Rust v. Sullivan, 500 U.S. 173 (1991). Finally, Defendants argue

5 Plaintiffs have not shown, at this early stage in the litigation, that the Final Rule

6 violates Section 1008 of Title X—in fact, Plaintiffs cannot make that showing—

7 primarily because of Rust.

8

At issue in this hearing are Plaintiffs’ Motions for Preliminary Injunction.

9 The Final Rule is scheduled to take effect on May 3, 2019. Plaintiffs seek to

10 preserve the status quo pending a final determination on the merits.

11

Motion Standard

12

“A preliminary injunction is a matter of equitable discretion and is ‘an

13 extraordinary remedy that may only be awarded upon a clear showing that a

14 plaintiff is entitled to such relief.’” California v. Azar, 911 F.3d 558, 575 (9th Cir.

15 2018) (quoting Winter v. NRDC, 555 U.S. 7, 22 (2008)). “A party can obtain a

16 preliminary injunction by showing that (1) it is ‘likely to succeed on the merits,’

17 (2) it is ‘likely to suffer irreparable harm in the absence of preliminary relief,’ (3)

18 ‘the balance of equities tips in [its] favor,’ and (4) ‘an injunction is in the public

19 interest.’” Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017)

20 (alteration in original) (quoting Winter, 555 U.S. at 20). The Ninth Circuit uses a

21 “sliding scale” approach in which the elements are “balanced so that a stronger

22

23 1 Defendants also argue Plaintiffs have waived their argument that the Final Rule 24 violates Section 1554 of the ACA by failing to refer to Section 1554 in their 25 comments prior to the Final Rule being published. It is doubtful that an APA claim 26 asserting that an agency exceeded the scope of its authority to act can be waived. 27 Moreover, it appears that during the rule making process the agency was apprised 28 of the substance of the violation.

ORDER GRANTING PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTION ~ 4

Case 1:19-cv-03040-SAB ECF No. 54 filed 04/25/19 PageID.1833 Page 5 of 19

1 showing of one element may offset a weaker showing of another.” Hernandez v.

2 Sessions, 872 F.3d 976, 990 (9th Cir. 2017) (quotation omitted). When the

3 government is a party, the last two factors merge. Drakes Bay Oyster Co. v. Jewell,

4 747 F.3d 1073, 1092 (9th Cir. 2014). This means that when the government is a

5 party, the court considers the balance of equities and the public interest together.

6 Azar, 911 F.3d at 575. “[B]alancing the equities is not an exact science.” Id.

7 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609 (1952)

8 (Frankfurter, J., concurring) (“Balancing the equities . . . is lawyers’ jargon for

9 choosing between conflicting public interests”)).

10

Likelihood of success on the merits is the most important factor; if a movant

11 fails to meet this threshold inquiry, the court need not consider the other factors.

12 Disney, 869 F.3d at 856 (citation omitted). A plaintiff seeking preliminary relief

13 must “demonstrate that irreparable injury is likely in the absence of an injunction.”

14 Winter, 555 U.S. at 22. The analysis focuses on irreparability, “irrespective of the

15 magnitude of the injury.” Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 725 (9th Cir.

16 1999). Economic harm is not normally considered irreparable. L.A. Mem’l

17 Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1202 (9th Cir. 1980).

18

“‘[I]njunctive relief should be no more burdensome to the defendant than

19 necessary to provide complete relief to the plaintiffs’ before the Court.” L.A.

20 Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011) (quoting

21 Califano v. Yamasaki, 442 U.S. 682, 702 (1979). This is particularly true where

22 there is no class certification. See Easyriders Freedom F.I.G.H.T. v. Hannigan, 92

23 F.3d 1486, 1501 (9th Cir. 1996) (“[I]njunctive relief generally should be limited to

24 apply only to named plaintiffs where there is no class certification.”); Meinhold v.

25 U.S. Dep’t of Defense, 34 F.3d 1469, 1480 (9th Cir.1994) (district court erred in

26 enjoining the defendant from improperly applying a regulation to all military

27 personnel (citing Califano, 442 U.S. at 702)).

28

ORDER GRANTING PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTION ~ 5

Case 1:19-cv-03040-SAB ECF No. 54 filed 04/25/19 PageID.1834 Page 6 of 19

1

That being said, there is no bar against nationwide relief in the district

2 courts or courts of appeal, even if the case was not certified as a class action, if

3 such broad relief is necessary to give prevailing parties the relief to which they are

4 entitled. Bresgal v. Brock, 843 F.2d 1163, 1170–71 (9th Cir. 1987).

5

Federal Administrative Agency Rule-Making

6

Federal administrative agencies are required to engage in “reasoned

7 decisionmarking.” Michigan v. E.P.A., __ U.S. __, 135 S.Ct. 2699 (2015). “Not

8 only must an agency’s decreed result be within the scope of its lawful authority,

9 but the process by which it reaches that result must be logical and rational.” Id.

10 (quoting Allentown Mack Sales & Service, Inc. v. NLRB, 522 U.S. 359, 374

11 (1998)).

12

Administrative Procedures Act

13

The Administrative Procedure Act “sets forth the full extent of judicial

14 authority to review executive agency action for procedural correctness.” FCC v.

15 Fox Television Stations, Inc., 556 U.S. 502, 513 (2009). Under the arbitrary and

16 capricious standard contained in the APA, a reviewing court may not set aside an

17 agency rule that is rational, based on consideration of the relevant factors and

18 within the scope of the authority delegated to the agency by the statute. Motor

19 Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42

20 (1983). “The scope of review under the ‘arbitrary and capricious’ standard is

21 narrow and a court is not to substitute its judgment for that of the agency.

22 Nevertheless, the agency must examine the relevant data and articulate a

23 satisfactory explanation for its action including a rational connection between the

24 facts found and the choice made.” Id. at 43. (quotation omitted). An agency rule is

25 arbitrary and capricious “if the agency has relied on factors which Congress has

26 not intended it to consider, entirely failed to consider an important aspect of the

27 problem, offered an explanation for its decision that runs counter to the evidence

28 before the agency, or is so implausible that it could not be ascribed to a difference

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1 in view or the product of agency expertise.” Id.

2

An agency must consider and respond to significant comments received

3 during the period for public comment. Perez v. Mortgage Bankers Ass’n, __

4 U.S.__, 135 S.Ct. 1199, 1203 (2015). The public interest is served by compliance

5 with the APA. Azar, 911 F.3d at 581. “The APA creates a statutory scheme for

6 informal or notice-and-comment rulemaking reflecting a judgment by Congress

7 that the public interest is served by a careful and open review of proposed

8 administrative rules and regulations.” Alcaraz v. Block, 746 F.2d 593, 610 (9th

9 Cir. 1984) (internal quotation marks and citation omitted). “It does not matter that

10 notice and comment could have changed the substantive result; the public interest

11 is served from proper process itself.” Azar, 911 F.3d at 581.

12

History of Title X

13 “No American woman should be denied access to family planning assistance

14

because of her economic condition.”2

15

In 1970, Congress created the Title X program3 to address low-income

16 individuals’ lack of equal access to the same family planning services, including

17 modern, effective medical contraceptive methods such as “the Pill,” available to

18 those with greater economic resources. NFPRHA, et al. Complaint, 1:19-cv-3045-

19 SAB, ECF No. 1, ¶4. Title X monetary grants support family planning projects

20 that offer a broad range of acceptable and effective family planning methods and

21 services to patients on a voluntary basis, 42 U.S.C. § 300(a), creating a nationwide

22 of Title X health care providers. Id. at ¶5. Title X gives those with incomes below

23 or near the federal poverty level free or low-cost access to clinical professional,

24

25 2 President Nixon, Special Message to the Congress on Problems of Population 26 Growth (July 18, 1969). 27 3 Title X became law as part of the “Family Planning Services and Population 28 Research Act of 1970.” Pub. L. No. 91-572, 84 Stat. 1504 (1970).

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1 contraceptive methods and devices, and testing and counseling services related to

2 reproductive health, including pregnancy testing and counseling. Id. Over almost

3 five decades, Title X funding has built and sustained a national network of family

4 planning health centers that delivers high-quality care. Id. at ¶41. It has enabled

5 millions of low-income patients to prevent unintended pregnancies and protect

6 their reproductive health. Id. Approximately 90 federal grants, totaling

7 approximately $260 million, for Title X projects now fund more than 1000

8 provider organizations across all the states and in the U.S. territories, with more

9 than 3800 health centers offering Title X care. Id. at ¶6, ¶52. In 2017, the Title X

10 program served more than four million patients. Id.

11

Washington’s Department of Health (“DOH”) Family Planning Program is

12 the sole grantee of Title X funds in Washington State. Decl. of Cynthia Harris,

13 ECF No. 11 at ¶14. It provides leadership and oversight to its Family Planning

14 Network of 16 subrecipients offering Title X services at 85 service sites. Id. at ¶4.

15 The Family Planning Program collaborates with other programs in the DOH, other

16 state agencies, subrecipient network organizations, and other family planning,

17 primary health care, and social service organizations to ensure that Title X

18 services are available statewide on issues related to women’s health, adolescent

19 health, family planning, sexually transmitted infection (STI) and Human

20 Immunodeficiency Virus (HIV) prevention and treatment, intimate partner

21 violence, and unintended pregnancy. Id.

22

NFPRHA represents more than 850 health care organizations in all 50

23 states, the District of Columbia and the U.S. territories, as well as individual

24 professional members with ties to family planning care. ECF No. 19 at ¶5.

25 NFPRHA currently has more than 65 Title X grantee members and almost 700

26 Title X subrecipient members. These NFPRHA member organizations operate or

27 fund a network of more than 3,500 health centers that provide family planning

28 services to more than 3.7 million Title X patients each year. Id. at ¶7.

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1

The scope of the care provided by Title X programs is summarized in

2 OPA’s current Program Requirements:

3

All Title X-funded projects are required to offer a broad range of

acceptable and effective medically (U.S. Food and Drug

4

Administration (FDA)) approved contraceptive methods and related

5

services on a voluntary and confidential basis. Title X services

include the delivery of related preventive health services, including

6

patient education and counseling; cervical and breast cancer

7

screening; sexually transmitted disease (STD) and human

immunodeficiency virus (HIV) prevention education, testing and

8

referral; and pregnancy diagnosis and counseling.

9 POA, Program Requirements for Title X Funded Family Planning Projects,

10 at 5 (Apr. 2014), https://www.hhs.gov/opa.sites/default/files/Title-X-2014-

11 Program Requirements.pdf (“Program Requirements”). Title X projects also

12 provide basis infertility services, such as testing and counseling. 1:19-cv-

13 3045-SAB, ECF No. 1, at ¶43.

14

The Title X statute has always provided that “[n]one of the funds

15 appropriated under this subchapter shall be used in programs where abortion

16 is a method of family planning.” 42 U.S.C. § 300a-6 (“Section 1008”). The

17 statute authorizes the Secretary to promulgate regulations governing the

18 program. 42 U.S.C. § 300a-4.

19

The Secretary adopted regulations in 1971 and they remained in

20 effect until 1988 when the Secretary adopted final regulations that

21 drastically altered the landscape in which Title X grantees operated. To

22 summarize, the 1988 regulations:

23

• Prohibited Title X projects from counseling or referring clients

24

for abortion as a method of family planning;

25

• Required grantees to separate their Title X project—physically

26

and financially—from prohibited abortion-related activities

27

• Established compliance standards for family planning projects

28

• Prohibited certain actions that promote, encourage, or advocate

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1

abortion as method of family planning, such as using project funds for

2

lobbying for abortion, developing and disseminating materials

3

advocating abortion, or taking legal action to make abortion available

4

as a method of family planning.

5

Those regulations were challenged in federal courts and ultimately upheld

6 by the United States Supreme Court. See Rust v. Sullivan, 500 U.S. 173 (1991)4.

7 The 1988 rules were never fully implemented due to ongoing litigation and

8 bipartisan concern over its invasion of the medical provider-patient relation. State

9 of Washington, Complaint, ECF No. 1 at ¶30.

10

In 1993, President Clinton suspended the 1988 Regulations by way of

11 a Presidential memorandum to the Department:

12

Title X of the Public Health Services Act [this subchapter] provides

13

Federal funding for family planning clinics to provide services for

low-income patients. The Act specifies that Title X funds may not be

14

used for the performance of abortions, but places no restrictions on

15

the ability of clinics that receive Title X funds to provide abortion

16

counseling and referrals or to perform abortions using non-Title X funds. During the first 18 years of the program, medical professionals

17

at Title X clinics provided complete, uncensored information,

18

including nondirective abortion counseling. In February 1988, the

Department of Health and Human Services adopted regulations,

19

which have become known as the “Gag Rule,” prohibiting Title X

20

recipients from providing their patients with information, counseling

21 4 In Rust, the United States Supreme Court held that (1) the regulations were based 22 on permissible construction of the statute prohibiting the use of Title X funds in 23 programs in which abortion is a method of family planning; (2) the regulations do 24 not violate First Amendment free speech rights of Title X fund recipients, their 25 staffs or their patients by impermissibly imposing viewpoint-discriminatory 26 conditions on government subsidies; and (3) regulations do not violate a woman’s 27 Fifth Amendment right to choose whether to terminate a pregnancy and do not 28 impermissibly infringe on doctor-patient relationship. 500 U.S. at 184-203.

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1

or referrals concerning abortion. Subsequent attempts by the Bush

2

Administration to modify the Gag Rule and ensuing litigation have

created confusion and uncertainty about the current legal status of the

3

regulations.

4

The Gag Rule endangers women’s lives and health by preventing

5

them from receiving complete and accurate medical information and

6

interferes with the doctor-patient relationship by prohibiting

information that medical professionals are otherwise ethically and

7

legally required to provide to their patients. Furthermore, the Gag

8

Rule contravenes the clear intent of a majority of the members of both

9

the United States Senate and House of Representatives, which twice passed legislation to block the Gag Rule's enforcement but failed to

10

override Presidential vetoes.

11 For these reasons, you have informed me that you will suspend the

12

Gag Rule pending the promulgation of new regulations in accordance

13

with the “notice and comment” procedures of the Administrative

Procedure Act [5 U.S.C.A. §§ 551 et seq., 701 et seq.].

14 “The Title X Gag Rule,” Memorandum for the Secretary of Health and

15 Human Services, 1993 WL 366490 (Jan. 22, 1993).

16

New regulations were finalized in 2000, 65 Fed. Reg. 41270 (Jul. 3,

17 2000), codified at 42 C.F.R. Pt. 59, and these regulations remain in effect

18 unless and until the new Final Rule is implemented.

19

Congressional Intent / The Department’s Program Requirements

20

Plaintiffs argue that laws passed by Congress since Rust limit the

21 Department’s discretion in implementing Title X regulations. These laws include

22 Section 1554 of the ACA and congressional Non-directive Mandates contained in

23 appropriation bills. They also rely on the Department’s own program requirements

24 to support their arguments.

25

1. § 1554 of the ACA

26

Section 1554 of the ACA states:

27

Notwithstanding any other provision of this Act, the Secretary of Health and

28

Human Services shall not promulgate any regulation that--

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1

(1) creates any unreasonable barriers to the ability of individuals to obtain

2

appropriate medical care;

(2) impedes timely access to health care services;

3

(3) interferes with communications regarding a full range of treatment

4

options between the patient and the provider;

(4) restricts the ability of health care providers to provide full disclosure of

5

all relevant information to patients making health care decisions;

6

(5) violates the principles of informed consent and the ethical standards of

health care professionals; or

7

(6) limits the availability of health care treatment for the full duration of a

8

patient’s medical needs.

9 42 U.S.C. § 18114.

10

2. Appropriations Mandate

11

With the Non-directive Mandate, Congress has explicitly required every

12 year since 1996 that “all pregnancy counseling [in Title X projects] shall be

13 nondirective.” NFPRHA, et al. Complaint, 1:19-cv-3045-SAB, ECF No. 1, at ¶78.

14 Non-directive counseling provides the patient with all options relating to her

15 pregnancy, including abortion. Id. at ¶76. Congress has been providing Non-

16 directive Mandates in its appropriations bills for the past 24 years.

17

3. Department of Health and Human Services Program

18 Requirements / Quality Family Planning

19

Title X grantees are required to follow the Quality Family Planning (QFP)

20 guidelines, issued by the Centers for Disease Control and Prevention and OPA.

21 State of Washington, Complaint, ECF No. 1, at ¶45. This document reflects

22 evidence-based best practices for providing quality family planning services in the

23 United States.5 It requires that options counseling should be provided to pregnant

24

25 5 “Providing Quality Family Planning Services: Recommendations of CDC and the 26 U.S. Office of Population Affairs,” Morbidity and Mortality Weekly Report Vol. 27 62, No. 4 (April 25, 2014), available at https:www.cdc.gov/mmwr/pdf/rr/rr6304.pdf (last 28 accessed April 24, 2019) (the QFP).

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1 patients as recommended by the American College of Obstetricians and

2 Gynecologists and others, including that patients with unwanted pregnancy should

3 be “fully informed in a balanced manner about all options, including raising the

4 child herself, placing the child for adoption, and abortion.” Id. at ¶46.

5

The Department’s Program Requirements require Title X projects to provide

6 nondirective pregnancy counseling. Id. at ¶44.

7

Federal Conscience Laws

8

In the Executive Summary of the Final Rule, the Department indicates that

9 one of the purposes of revising the Title X regulations was to eliminate provisions

10 which are inconsistent with the health care conscience statutory provisions. 84

11 Fed. Reg. 7714, 7716. These provisions include the Church Amendment, the

12 Coats-Snowe Amendment and the Weldon Amendment. Id.

13

1. The Church Amendment

14

“The Church Amendments, among other things, prohibit certain HHS

15 grantees from discriminating in the employment of, or the extension of staff

16 privileges to, any health care professional because they refused, because of their

17 religious beliefs or moral convictions, to perform or assist in the performance of

18 any lawful sterilization or abortion procedures. The Church Amendments also

19 prohibit individuals from being required to perform or assist in the performance of

20 any health service program or research activity funded in whole or in part under a

21 program administered by the Secretary contrary to their religious beliefs or moral

22 convictions. See 42 U.S.C. 300a-7.” 84 Fed. Reg. at 7716, n.7.

23

2. 1996 Coats-Snowe Amendment

24

“The Coats-Snowe Amendment bars the federal government and any State

25 or local government that receives federal financial assistance from discriminating

26 against a health care entity, as that term is defined in the Amendment, who refuses,

27 among other things, to provide referrals for induced abortions. See 42 U.S.C.

28 238n(a).” 84 Fed. Reg. at 7716, n.8.

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1

3. 2005 Weldon Amendment

2

“The Weldon Amendment was added to the annual 2005 health spending

3 bill and has been included in subsequent appropriations bills.” 84 Fed. Reg. at

4 7716, n. 9. “The Weldon Amendment bars the use of appropriated funds on a

5 federal agency or programs, or to a State or local government, if such agency,

6 program, or government subjects any institutional or individual health care entity

7 to discrimination on the basis that the health care entity does not, among other

8 things, refer for abortions.” Id.

9

Analysis

10

As set forth above, the Ninth Circuit uses a sliding scale approach in

11 determining whether it is appropriate to grant a preliminary injunction. Although

12 Plaintiffs have met their burden of showing that all four factors tip in their favor,

13 the irreparable harm and balance of equities factors tip so strongly in Plaintiffs’

14 favor that a strong showing of likelihood on the merits was not necessary.

15

1. Likelihood of Success on the Merits

16

Plaintiffs have presented reasonable arguments that indicate they are likely

17 to succeed on the merits, thus meeting the threshold inquiry. In so finding, the

18 Court has not concluded that Plaintiffs will definitely prevail on the merits, nor

19 has it concluded that they are more likely going to prevail. The preliminary

20 injunction standard requires neither of these conclusions. See Azar, 911 F.3d at

21 582 (“The purpose of such interim equitable relief is not to conclusively determine

22 the rights of the parties but to balance the equities as the litigation moves

23 forward.”) (quoting Trump v. Int’l Refugee Assistance Proj., __ U.S. __, 137 S.Ct.

24 2080, 2087 (2017)). Rather, it requires a determination that Plaintiff has made a

25 colorable claim—a claim that has merit and a likely chance of success.

26

First, Plaintiffs have presented initial facts and argument that the separation

27 requirement in the Final Rule forces clinics that provide abortion services to

28 maintain separate facilities and finances for Title X programs will more likely than

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1 not increase their expenses unnecessarily and unreasonably.

2

Second, Plaintiffs have presented initial facts and argument that the Final

3 Rule gag requirement would be inconsistent with ethical, comprehensive, and

4 evidence-based health care.

5

Third, Plaintiffs have presented initial facts and argument that the Final

6 Rule violates Title X regulations, the Non-directive Mandates and Section 1554 of

7 the Affordable Care Act and is also arbitrary and capricious.

8

Specifically, Plaintiffs have demonstrated the Final Rule likely violates the

9 central purpose of Title X, which is to equalize access to comprehensive,

10 evidence-based, and voluntary family planning. They have presented facts and

11 argument that the Final Rule violates the Non-directive Mandate because it

12 requires all pregnant patients to receive referrals for pre-natal care, regardless of

13 whether the patient wants to continue the pregnancy, and regardless of the best

14 medical advice and treatment that might be recommended for that patient.

15

They have also presented facts and argument that the Final Rule likely

16 violates Section 1554 of the ACA because the Final Rule creates unreasonable

17 barriers for patients to obtain appropriate medical care; impedes timely access to

18 health care services; interferes with communications regarding a full range of

19 treatment options between the patient and the heath care provider, restricts the

20 ability of health care providers to provide full disclosure of all relevant

21 information to patients making health care decisions, and violates the principles of

22 informed consent and the ethical standards of health care professions.

23

Fourth, Plaintiffs, with the help from Amicus parties, have presented facts

24 and argument that the Final Rule is arbitrary and capricious because it reverses

25 long-standing positions of the Department without proper consideration of sound

26 medical opinions and the economic and non-economic consequences.

27

Finally, Plaintiffs have presented facts and argument that the Department

28 failed to consider important factors, acted counter to and in disregard of the

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1 evidence in the administrative record and offered no reasoned analysis based on

2 the record. Rather, it seems the Department has relied on the record made 30 years

3 ago, but not the record made in 2018-19.

4

2. Irreparable Harm

5

Plaintiffs have demonstrated they are likely to suffer irreparable harm in the

6 absence of a preliminary injunction by presenting facts and argument that the Final

7 Rule may or likely will: (1) seriously disrupt or destroy the existing network of

8 Title X providers in both the State of Washington and throughout the entire

9 nation—this network has been carefully knit together over the past 45 years and

10 there is no evidence presented by the Department that Title X is being violated or

11 ignored by this network of providers; (2) impose additional and unnecessary costs

12 on the State of Washington and other states; (3) harm the health of the patients

13 who rely on the existing Title X providers; and (4) drive many Title X providers

14 from the system either because of the increased costs imposed by the new

15 separation requirements or because they cannot or will not comply with the

16 allegedly unprofessional gag rule requirements.

17

Washington State has shown that it is not legally or logistically feasible for

18 Washington to continue accepting any Title X funding subject to the Final Rule.

19 At the minimum, Washington stands to lose more than $28 million in savings from

20 the loss of federal dollars. It has demonstrated the harmful consequences of the

21 Final Rule will uniquely impact rural and uninsured patients. If the Final Rule is

22 implemented, over half of Washington counties would be unserved by a Title X-

23 funded family planning provider. Students at Washington colleges and universities

24 will be especially hurt by the Final Rule. DOH reports it does not have the funding

25 that would be required to comply with the Final Rule, nor would it be able to

26 comply with the May 3, 2019 deadline.

27

NFPRHA currently has more than 65 Title X grantee members and almost

28 700 Title X sub-recipient members. These NFPRHA member organizations

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1 operate or fund a network of more than 3,500 health centers that provide family

2 planning services to more than 3.7 million Title X patients each year. NFPRHA

3 has shown that upon its effective date, the Final Rule will cause all current

4 NFPRHA members grantees, sub-recipients, and their individual Title X clinicians

5 to face a Hobson’s Choice that harms patients as well as the providers. Faced with

6 this difficult choice, many NFPRHA members will leave the network once the

7 Final Rule becomes effective, thereby leaving low-income individuals without

8 Title X providers.

9

It is worth noting that Plaintiffs have submitted substantial evidence of

10 harm, including declarations from Karl Eastlund, President and CEO of Planned

11 Parenthood of Greater Washington and North Idaho, ECF No. 10; Cynthia Harris,

12 program manager for the Family Planning Program, Washington DOH, ECF No.

13 11; Anuj Khattar, M.D., primary care physician and reproductive health provider,

14 ECF No. 12; Dr. Judy Kimelman, practitioner at Seattle Obstetrics & Gynecology

15 Group, ECF No. 13; Bob Marsalli, CEO of the Washington Association for

16 Community Health, ECF No. 14; David Schumacher, Director of the Office of

17 Financial Management, State of Washington, ECF No. 15; Dr. Judy Zerzan-Thul,

18 Chief Medical Officer for the Washington State Health Care Authority, ECF No.

19 16; Clare M. Coleman, President and CEO of the National Family Planning &

20 Reproductive Health Association, ECF No. 19; Dr. Kathryn Kost, Acting Vice

21 President of Domestic Research at the Guttmacher Institute, ECF No. 20; Connie

22 Cantrell, Executive Director of the Feminist Women’s Health Center, ECF No. 21;

23 Kristin A. Adams, Ph.D, President and CEO of the Indiana Family Health Council,

24 ECF No. 22; J. Elisabeth Kruse, M.S., C.N.M., A.R.N.P, Lead Clinician for Sexual

25 and Reproductive Health and Family Planning at the Public Health Department for

26 Seattle and King County, Washington, ECF No. 23; Tessa Madden, M.D., M.P.H.,

27 Director of the Family Planning Division, Department of Obstetrics and

28 Gynecology, Washington University School of Medicine, ECF No. 24; Heather

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1 Maisen, Manager of the Family Planning Program in the Public Health

2 Department for Seattle and King County, Washington, ECF No. 25; and Sarah

3 Prager, M.D., Title X Director of the Feminist Women’s Health Center, ECF No.

4 26.

5

Yet, the Government’s response in this case is dismissive, speculative, and

6 not based on any evidence presented in the record before this Court.

7

3. Balance of Equities/Public Interest

8

The balance of equities and the public interest strongly favors a preliminary

9 injunction, which tips the scale sharply in favor of Plaintiffs.

10

There is no public interest in the perpetration of unlawful agency action.

11 Preserving the status quo will not harm the Government and delaying the effective

12 date of the Final Rule will cost it nothing. There is no hurry for the Final Rule to

13 become effective and the effective date of May 3, 2019 is arbitrary and

14 unnecessary.

15

On the other hand, there is substantial equity and public interest in

16 continuing the existing structure and network of health care providers, which

17 carefully balances the Title X, the congressional Non-directive Mandates, and

18 Section 1554 of the Affordable Care Act, while the legality of the new Final Rule

19 is reviewed and decided by the Court.

20

Accordingly, IT IS HEREBY ORDERED:

21

1. The State of Washington’s Motion for Preliminary Injunction, ECF

22 No. 9, is GRANTED.

23

2. National Family Planning & Reproductive Health Center, et al.’s

24 Motion for Preliminary Injunction, ECF No. 18, is GRANTED.

25

3. Defendants and their officers, agents, servants, employees, and

26 attorneys, and any person in active concert or participation with them, are

27 ENJOINED from implementing or enforcing the Final Rule entitled Compliance

28 with Statutory Program Integrity Requirements, 84 Fed. Reg. 7714-01 (March 4,

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1 2019), in any manner or in any respect, and shall preserve the status quo pursuant

2 to regulations under 42 C.F.R., Pt. 59 in effect as of the date of April 24, 2019,

3 until further order of the Court.

4

4. No bond shall be required pursuant to Fed. R. Civ. P. 65(c).

5

IT IS SO ORDERED. The Clerk of Court is directed to enter this Order

6 and forward copies to counsel.

7

DATED this 25th day of April 2019.

8

9

10

11

12

13

14

15

Stanley A. Bastian

16

United States District Judge

17

18

19

20

21

22

23

24

25

26

27

28

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 Case 1:19-cv-03040-SAB ECF No. 82 filed 06/03/19 PageID.2594 Page 1 of 4

1

2

FILED IN THE

3

U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

4

Jun 03, 2019

5

SEAN F. MCAVOY, CLERK

6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF WASHINGTON

8

9 STATE OF WASHINGTON,

No. 1:19-cv-03040-SAB

10

Plaintiff,

11

v.

12 ALEX M. AZAR II, in his official

13 capacity as Secretary of the United States

14 Department of Health and Human

15 Services; and UNITED STATES

ORDER DENYING

16 DEPARTMENT OF HEALTH AND

DEFENDANTS’ MOTION TO

17 HUMAN SERVICES,

STAY PRELIMINARY

18

Defendants.

INJUNCTION PENDING

19

APPEAL

20 NATIONAL FAMILY PLANNING &

21 REPRODUCTIVE HEALTH

22 ASSOCIATION, FEMINIST WOMEN’S

23 HEALTH CENTER, DEBORAH OYER,

24 M.D., and TERESA GALL, F.N.P.,

25

Plaintiffs,

26

v.

27 ALEX M. AZAR II, in his official capacity

28 as Secretary of the United States

ORDER DENYING DEFENDANTS’ MOTION TO STAY PRELIMINARY INJUNCTION PENDING APPEAL ~ 1

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1 Department of Health and Human 2 Services; UNITED STATES 3 DEPARTMENT OF HEALTH AND 4
HUMAN SERVICES, DIANE FOLEY, 5 M.D., in her official capacity as Deputy 6 Assistant Secretary for Population Affairs, 7 and OFFICE OF POPULATION 8 AFFAIRS, 9
Defendants. 10

11 Before the Court is Defendant’s Motion to Stay Preliminary Injunction

12 Pending Appeal, ECF No. 58. The motion was heard without oral argument.

13 Defendants ask the Court to stay the Court’s Order granting Plaintiffs’

14 Motions for Preliminary Injunction, ECF No. 54, entered on April 25, 2019. The

15 Order enjoins Defendants from implementing or enforcing in any way the Final

16 Rule published on March 2019 on a nationwide basis. In essence, Defendants are

17 asking the Court to reconsider its earlier ruling and permit the Final Rule to go

18 into effect. See Nken v. Holder, 556 U.S. 418, 428 (2009) (“…a stay operates upon

19 the judicial proceeding itself. It does so either by halting or postponing some

20 portion of the proceeding, or by temporarily divesting an order of

21 enforceability.”).

22 Recently, the Ninth Circuit was facing this same issue when a district court

23 issued a TRO and the United States asked it to say the TRO pending appeal. See

24 East Bay Sanctuary Covenant v. Trump, 909 F.3d 1219 (9th Cir. 2018). There, the

25 Circuit set forth the approach courts should use in determining whether to grant a

26 stay pending appeal:

27

A stay is an ‘intrusion into the ordinary processes of administration

28

and judicial review,’ and accordingly ‘is not a matter of right, even if

ORDER DENYING DEFENDANTS’ MOTION TO STAY PRELIMINARY INJUNCTION PENDING APPEAL ~ 2

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1

irreparable injury might otherwise result to the appellant.’” Nken,

2

556 U.S. at 427 (2009) (citations omitted). “It is instead ‘an exercise

of judicial discretion,’ and ‘the propriety of its issue is dependent

3

upon the circumstances of the particular case.’” Id. at 433 (internal

4

alteration omitted) (quoting Virginian Ry. Co. v. United States, 272

U.S. 658, 672–73 (1926)). “The party requesting a stay bears the

5

burden of showing that the circumstances justify an exercise of that

6

discretion,” and our analysis is guided by four factors:

(1) whether the stay applicant has made a strong

7

showing that he is likely to succeed on the merits; (2)

8

whether the applicant will be irreparably injured absent

9

a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the

10

proceeding; and (4) where the public interest lies.

11

Id. at 433–34 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). “The first two factors . . . are the most critical,” and the

12

“mere possibility” of success or irreparable injury is insufficient to

13

satisfy them. Id. at 434 (internal quotation marks omitted).

Id. at 1245-46.

14 The Court considers the final two factors after it concludes an

15 applicant satisfies the first two. Id. at 1236.

16

Given that the Court has already considered these factors when it granted

17 Plaintiffs’ Motions for Preliminary Injunction and concluded it is Plaintiffs, not

18 Defendants, that have a likelihood of success on the merits, and Plaintiffs, not

19 Defendants, that would suffer irreparable harm if the preliminary injunction was

20 not granted, the Court finds that Defendants have not met their burden of showing

21 that a stay in this matter would be appropriate.

22 //

23 //

24 //

25 //

26 //

27 //

28

ORDER DENYING DEFENDANTS’ MOTION TO STAY PRELIMINARY INJUNCTION PENDING APPEAL ~ 3

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1

Accordingly, IT IS HEREBY ORDERED:

2

1. Defendant’s Motion to Stay Preliminary Injunction Pending Appeal,

3 ECF No. 58, is DENIED.

4

IT IS SO ORDERED. The Clerk of Court is directed to enter this Order

5 and forward copies to counsel.

6

DATED this 3rd day of June 2019.

7

8

9

10

11

12

13

Stanley A. Bastian

14

United States District Judge

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ORDER DENYING DEFENDANTS’ MOTION TO STAY PRELIMINARY INJUNCTION PENDING APPEAL ~ 4

 
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1

2

3

FILED IN THE U.S. DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

4
Jun 14, 2019

5

SEAN F. MCAVOY, CLERK

6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF WASHINGTON

8

9 STATE OF WASHINGTON,

No. 1:19-cv-03040-SAB

10

Plaintiff,

11

v.

12 ALEX M. AZAR II, in his official

13 capacity as Secretary of the United States

14 Department of Health and Human

15 Services; and UNITED STATES

ORDER DENYING

16 DEPARTMENT OF HEALTH AND

DEFENDANTS’ MOTION TO

17 HUMAN SERVICES,

STAY PROCEEDINGS

18

Defendants.

PENDING APPEAL

19

20 NATIONAL FAMILY PLANNING &

21 REPRODUCTIVE HEALTH

22 ASSOCIATION, FEMINIST WOMEN’S

23 HEALTH CENTER, DEBORAH OYER,

24 M.D., and TERESA GALL, F.N.P.,

25

Plaintiffs,

26

v.

27 ALEX M. AZAR II, in his official capacity

28 as Secretary of the United States

ORDER DENYING DEFENDANTS’ MOTION TO STAY PRELIMINARY INJUNCTION PENDING APPEAL ~ 1

Case 1:19-cv-03040-SAB ECF No. 86 filed 06/14/19 PageID.2634 Page 2 of 3

1 Department of Health and Human 2 Services; UNITED STATES 3 DEPARTMENT OF HEALTH AND 4
HUMAN SERVICES, DIANE FOLEY, 5 M.D., in her official capacity as Deputy 6 Assistant Secretary for Population Affairs, 7 and OFFICE OF POPULATION 8 AFFAIRS, 9
Defendants. 10

11

Before the Court is Defendant’s Motion to Stay Proceedings Pending

12 Appeal, ECF No. 79. The motion was heard without oral argument.

13

Defendants ask the Court to stay further proceedings in these consolidated

14 cases pending final resolution of Defendants’ appeal from this Court’s Order

15 granting Plaintiffs’ motions for preliminary injunction.

16

Motion Standard

17

This Court “has broad discretion to stay proceedings as an incident to its

18 power to control its own docket” in promoting judicial economy. Clinton v. Jones,

19 520 U.S. 681, 706 (1997). In the Ninth Circuit, district courts are instructed to not

20 grant stays that delay trial preparation while waiting an interim ruling on a

21 preliminary injunction. California v. Azar, 911 F.3d 558, 583 (9th Cir. 2018); see

22 also Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (approving how the

23 district court “expedited the case and moved with appropriate speed toward final

24 disposition”). The Circuit has long cautioned against staying a case while a motion

25 for preliminary injunction is being appealed, being “persuaded that in some cases,

26 parties appeal orders granting or denying motions for preliminary injunctions in

27 order to ascertain the view of the appellate court on the merits of the litigation.”

28 SportsForm, Inc. v. United press Int’l, Inc., 686 F.2d 750, 753 (9th Cir. 1982).

ORDER DENYING DEFENDANTS’ MOTION TO STAY PRELIMINARY INJUNCTION PENDING APPEAL ~ 2

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1

Analysis

2

The Court takes heed of the Ninth Circuit’s admonishments and declines to

3 stay the proceedings. Judicial economy and the interest of justice will be met by

4 the production and review of the Administrative Record as this case moves toward

5 resolution on the merits. Defendants have not shown how they will be harmed if

6 the stay was not imposed.

7

Accordingly, IT IS HEREBY ORDERED:

8

1. Defendants’ Motion to Stay Proceedings Pending Appeal, ECF No.

9 79, is DENIED.

10

2. Defendants’ Unopposed Motion for Extension of Time to Respond to

11 Complaints, ECF No. 80, is GRANTED. The deadline for responding to

12 Plaintiffs’ complaints will be set after the August 1 telephonic status conference.

13

IT IS SO ORDERED. The Clerk of Court is directed to enter this Order

14 and forward copies to counsel.

15

DATED this 14th day of June 2019.

16

17

18

19

20

21

22

Stanley A. Bastian

23

United States District Judge

24

25

26

27

28

ORDER DENYING DEFENDANTS’ MOTION TO STAY PRELIMINARY INJUNCTION PENDING APPEAL ~ 3

 
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

STATE OF CALIFORNIA, by and through Attorney General Xavier Becerra,
Plaintiff-Appellee,
v.
ALEX M. AZAR II, in his Official Capacity as Secretary of the U.S. Department of Health & Human Services; U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES,
Defendants-Appellants.

No. 19-15974
D.C. No. 3:19-cv-01184-EMC

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2

STATE OF CALIFORNIA V. AZAR

ESSENTIAL ACCESS HEALTH, INC.; MELISSA MARSHALL, M.D.,
Plaintiffs-Appellees,
v.
ALEX M. AZAR II, Secretary of U.S. Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Defendants-Appellants.

No. 19-15979
D.C. No. 3:19-cv-01195-EMC

STATE OF OREGON; STATE OF NEW YORK; STATE OF COLORADO; STATE OF CONNECTICUT; STATE OF DELAWARE; DISTRICT OF COLUMBIA; STATE OF HAWAII; STATE OF ILLINOIS; STATE OF MARYLAND; COMMONWEALTH OF MASSACHUSETTS; STATE OF MICHIGAN; STATE OF MINNESOTA; STATE OF NEVADA; STATE OF NEW JERSEY; STATE OF NEW MEXICO; STATE OF NORTH CAROLINA; COMMONWEALTH OF PENNSYLVANIA; STATE OF RHODE ISLAND; STATE OF

No. 19-35386
D.C. Nos. 6:19-cv-00317-MC 6:19-cv-00318-MC

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STATE OF CALIFORNIA V. AZAR

3

VERMONT; COMMONWEALTH OF VIRGINIA; STATE OF WISCONSIN; AMERICAN MEDICAL ASSOCIATION; OREGON MEDICAL ASSOCIATION; PLANNED PARENTHOOD FEDERATION OF AMERICA, INC.; PLANNED PARENTHOOD OF SOUTHWESTERN OREGON; PLANNED PARENTHOOD COLUMBIA WILLAMETTE; THOMAS N. EWING, M.D.; MICHELE P. MEGREGIAN, C.N.M.,
Plaintiffs-Appellees,
v.
ALEX M. AZAR II; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; DIANE FOLEY; OFFICE OF POPULATION AFFAIRS,
Defendants-Appellants.

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4

STATE OF CALIFORNIA V. AZAR

STATE OF WASHINGTON; NATIONAL FAMILY PLANNING AND REPRODUCTIVE HEALTH ASSOCIATION; FEMINIST WOMEN'S HEALTH CENTER; DEBORAH OYER, M.D.; TERESA GALL,
Plaintiffs-Appellees,
v.

No. 19-35394
D.C. Nos. 1:19-cv-03040-SAB 1:19-cv-03045-SAB
ORDER ON MOTIONS FOR STAY PENDING
APPEAL

ALEX M. AZAR II, in his official capacity as Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; DIANE FOLEY, MD, in her official capacity as Deputy Assistant Secretary for Population Affairs; OFFICE OF POPULATION AFFAIRS,
Defendants-Appellants.

Filed June 20, 2019
Before: Edward Leavy, Consuelo M. Callahan, and Carlos T. Bea, Circuit Judges.
Per Curiam Order

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STATE OF CALIFORNIA V. AZAR

5

SUMMARY*

Civil Rights
The panel granted the United States Department of Health and Human Services’ motion for a stay pending appeal of three preliminary injunction orders issued by district courts in three states which enjoined from going into effect the 2019 revised regulations to Title X of the Public Health Service Act, pertaining to pre-pregnancy family planning services.
In 1970, Congress enacted Title X to create a limited grant program for certain types of pre-pregnancy family planning services. Section 1008 of Title X provides that none on the funds appropriated under the subchapter shall be used in programs where abortion is a method of family planning. In 1988, the Department of Health and Human Service promulgated regulations forbidding Title X grantees from providing counseling or referrals for, or otherwise encouraging, promoting, or advocating abortion as a method of family planning. Several years later, the Department suspended the 1988 regulations and promulgated new Title X regulations, which re-interpreted § 1008 as requiring, among other things, that Title X grantees provide “nondirective” abortion counseling and abortion referrals upon request. In 2019, the Department once again revised its Title X regulations, promulgating regulatory language (the “Final Rule”) that substantially reverted back to the 1988 regulations. A group of state governments and existing
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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STATE OF CALIFORNIA V. AZAR

Title X grantees challenged the Final Rule in federal court in three states (California, Washington and Oregon), and sought preliminary injunctive relief. The district courts in all three states granted plaintiffs’ preliminary injunction motions on nearly identical grounds. The Department appealed and sought to stay the injunctions pending a decision of the merits of its appeals.

The panel first noted that the Final Rule was a reasonable interpretation of § 1008. The panel further stated that the Supreme Court’s decision in Rust v. Sullivan, 500 U.S. 173 (1991), largely foreclosed any attempt to argue that the Final Rule was not a reasonable interpretation of the text of § 1008. The panel rejected the district courts’ conclusions that two intervening laws, a Health and Human Services appropriations rider and an ancillary provision of the Affordable Care Act, Title I § 1554, rendered the Final Rule invalid. The panel concluded that neither law impliedly repealed or amended § 1008. The panel further held that Final Rule’s counseling and referral requirements was not in conflict with the appropriations rider’s nondirective pregnancy counseling mandate. Finally, the panel held that even if plaintiffs properly preserved their Affordable Care Act challenge, it was likely that § 1554 did not affect § 1008’s prohibition on funding programs where abortion was a method of family planning.

The panel held that, in light of the narrow permissible scope of the district court’s review of the Department’s reasoning under the arbitrary and capricious standard, the Department was likely to prevail on its argument that the district court erred in concluding that the Final Rule’s enactment violated the Administrative Procedure Act.

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STATE OF CALIFORNIA V. AZAR

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The panel held that the remaining factors also favored a stay pending appeal, noting that the Department and the public at large are likely to suffer irreparable harm in the absence of a stay, which were comparatively greater than the harms plaintiffs were likely to suffer.

COUNSEL
Jaynie Lilley, Katherine Allen, and Michael S. Raab, Appellate Staff; Brinton Lucas, Senior Counsel; Hashim M. Mooppan, Deputy Assistant Attorney General; Joseph H. Hunt, Assistant Attorney General; for DefendantsAppellants.
Anna Rich, Ketakee Kane, and Brenda Ayon Verduzco, Deputy Attorneys General; Kathleen Boergers, Supervising Deputy Attorney General; Michael L. Newman, Senior Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, Oakland, California; for Plaintiff-Appellee State of California.
Michelle Ybarra, Sarah Salomon, Sophie Hood, and Justine Sessions, Keker Van Nest & Peters LLP, San Francisco, California, for Plaintiffs-Appellees. Essential Access Health, Inc. and Melissa Marshall, M.D.
Judith N. Vale, Senior Assistant Solicitor General; Barbara D. Underwood, Solicitor General; Letitia James, Attorney General; Office of the Attorney General, Albany, New York; Benjamin Gutman, Solicitor General; Jona J. Maukonen, Senior Assistant Attorney General; Ellen F. Rosenblum, Attorney General; Office of the Attorney General, Salem, Oregon; Phil Weiser, Attorney General, State of Colorado; William Tong, Attorney General, State of Connecticut;

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STATE OF CALIFORNIA V. AZAR

Kathy Jennings, Attorney General, State of Delaware; Karl A. Racine, Attorney General, District of Columbia; Clare E. Connors, Attorney General, State of Hawaii; Kwame Raoul, Attorney General, State of Illinois; Brian E. Frosh, Attorney General, State of Maryland; Maura Healey, Attorney General, Commonwealth of Massachusetts; Dana Nessel, Attorney General, State of Michigan; Keith Ellison, Attorney General, State of Minnesota; Aaron Ford, Attorney General, State of Nevada; Gurbir Singh Grewal, Attorney General, State of New Jersey; Hector Balderas, Attorney General, State of New Mexico; Josh Stein, Attorney General, State of North Carolina; Josh Shapiro, Attorney General, Commonwealth of Pennsylvania; Peter F. Neronha, Attorney General, State of Rhode Island; T.J. Donovan, Attorney General, State of Vermont; Mark R. Herring, Attorney General, Commonwealth of Virginia; Josh Kaul, Attorney General, State of Wisconsin; for PlaintiffsAppellees State of Oregon, State of New York, State of Colorado, State of Connecticut, State of Delaware, District of Columbia, State of Hawaii, State of Illinois, State of Maryland, Commonwealth of Massachusetts, State of Michigan, State of Minnesota, State of Nevada, State of New Jersey, State of New Mexico, State of North Carolina, Commonwealth of Pennsylvania, State of Rhode Island, State of Vermont, Commonwealth of Virginia, and State of Wisconsin.

Alan E. Schoenfeld, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York; Joshua M. Koppel, Albinas J. Prizgintas, Kimberly A. Parker, and Paul R.Q. Wolfson, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; Kennon Scott, Per A. Ramfjord, and Jeremy D. Sacks, Stoel Rives LLP, Portland, Oregon; Erin G. Sutton, Leonard A. Nelson, and Brian D. Vandenberg, Office of General Counsel, American Medical Association, Chicago, Illinois;

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STATE OF CALIFORNIA V. AZAR

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Mark Bonnano, General Counsel, Oregon Medical Association, Portland, Oregon; Carri Y. Flaxman and Helene T. Krasnoff, Planned Parenthood Federation of America Inc., Washington, D.C.; for Plaintiffs-Appellees American Medical Association; Oregon Medical Association; Planned Parenthood Federation of America, Inc.; Planned Parenthood of Southwestern Oregon; Planned Parenthood Columbia Willamette; Thomas N. Ewing, M.D.; Michele P. Megregian, C.N.M.

Kristin Beneski, Paul M. Crisalli, and Jeffrey T. Sprung, Assistant Attorneys General; Norah G. Purcell, Solicitor General; Robert Ferguson, Attorney General; Office of the Attorney General, Seattle, Washington; for PlaintiffAppellee State of Washington

Fiona Kaye, Brigitte Amiri, Elizabeth Deutsch, Anjali Dalal, and Ruth E. Harlow, American Civil Liberties Union Foundation; Emily Chiang, American Civil Liberties Union Foundation of Washington; Joe Shaeffer, MacDonald Hoague & Bayless, Seattle, Washington; Brandon D. Harper, Jennifer B. Sokoler, and Nicole M. Argentieri, O’Melveny & Myers LLP, New York, New York; Sara Zdeb, O’Melveny & Myers LLP, Washington, D.C.; for Plaintiffs-Appellees National Family Planning and Reproductive Health Association, Feminist Women's Health Center. Deborah Oyer M.D., and Teresa Gall.

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STATE OF CALIFORNIA V. AZAR

PER CURIAM:

ORDER

BACKGROUND
In 1970, Congress enacted Title X of the Public Health Service Act (“Title X”) to create a limited grant program for certain types of pre-pregnancy family planning services. See Pub. L. No. 91-572, 84 Stat. 1504 (1970). Section 1008 of Title X, which has remained unchanged since its enactment, is titled “Prohibition of Abortion,” and provides:
None of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning.

42 U.S.C. § 300a-6.
In 1988, the Department of Health and Human Services (“HHS”) explained that it “interpreted [§] 1008 . . . as prohibiting Title X projects from in any way promoting or encouraging abortion as a method of family planning,” and “as requiring that the Title X program be ‘separate and distinct’ from any abortion activities of a grantee.” 53 Fed. Reg. at 2923. Accordingly, HHS promulgated regulations forbidding Title X grantees from providing counseling or referrals for, or otherwise encouraging, promoting, or advocating abortion as a method of family planning. Id. at 2945. To prevent grantees from evading these restrictions, the regulations placed limitations on the list of medical providers that a program must offer patients as part of a required referral for prenatal care. See id. Such a list was required to exclude providers whose principal business is the provision of abortions, had to include providers who do not provide abortions, and could not weigh in favor of

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STATE OF CALIFORNIA V. AZAR

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providers who perform abortions. Id. at 2945. The regulations also required grantees to keep their Title X funded projects “physically and financially separate” from all abortion-related services that the grantee might also provide (the “physical-separation” requirement). Id.
In 1991, the Supreme Court upheld the 1988 regulations against a challenge in Rust v. Sullivan, 500 U.S. 173 (1991). Rust held that § 1008 of Title X was ambiguous as to whether grantees could counsel abortion as a family planning option and make referrals to abortion providers. Id. at 184. Applying deference under Chevron, USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–43 (1984), the Supreme Court found that the 1988 regulations were a permissible interpretation of § 1008. Id. at 184–85. The Supreme Court also held that the 1988 regulations were not arbitrary or capricious because the regulations were justified by “reasoned analysis,” that the regulations were consistent with the plain language of Title X, and that they did not violate the First or Fifth Amendments. Id. at 198–201.
Several years later (and under a new presidential administration), HHS suspended the 1988 regulations. 58 Fed. Reg. 7455 (1993). HHS finally promulgated new Title X regulations in 2000, which re-interpreted § 1008 as requiring Title X grantees to provide “nondirective”1 abortion counseling and abortion referrals upon request. 65 Fed. Reg. 41270–79. The 2000 regulations also

1 Under the 2000 regulations, “nondirective” counseling meant the provision of “factual, neutral information about any option, including abortion, as [medical providers] consider warranted by the circumstances, . . . [without] steer[ing] or direct[ing] clients toward selecting any option.” 65 Fed. Reg. 41270–01.

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STATE OF CALIFORNIA V. AZAR

eliminated the 1988 regulations’ physical-separation requirement. Id.
In 2019, HHS once again revised its Title X regulations, promulgating regulatory language (the “Final Rule”) that substantially reverts back to the 1988 regulations. 84 Fed. Reg. 7714. Under the Final Rule, Title X grantees are prohibited from providing referrals for, and from engaging in activities that otherwise encourage or promote, abortion as a method of family planning. Id. at 7788–90. Providers are required to refer pregnant women to a non-abortion prenatal care provider, and may also provide women with a list of other providers (which may not be composed of more abortion providers than non-abortion providers). See id. at 7789. Notably, however, the Final Rule is less restrictive than the 1988 regulations: it allows (but does not require) the neutral presentation of abortion information during nondirective pregnancy counseling in Title X programs. Id. The Final Rule also revives the 1988 regulations’ physicalseparation requirement, imposes limits on which medical professionals can provide pregnancy counseling, clarifies the previous requirement that family planning methods be “medically approved,” and creates a requirement that providers encourage family participation in decisions. Id. at 7789.
The Final Rule was scheduled to take effect on May 3, 2019, although grantees would have until March 4, 2020, to comply with the physical-separation requirement. Id. at 7714. But a group of state governments and existing Title X grantees (“Plaintiffs”) challenged the Final Rule in federal court in three states (California, Washington, and Oregon), and sought preliminary injunctive relief. The district courts in all three states granted Plaintiffs’ preliminary injunction motions on nearly identical grounds. See Washington v.

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STATE OF CALIFORNIA V. AZAR

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Azar, 19-cv-3040, 2019 WL 1868632 (E.D. Wash. Apr. 25, 2019); Oregon v. Azar, 19-cv-317, 2019 WL 1897475 (D. Oregon Apr. 29, 2019); California v. Azar, 19-cv-1184, 19cv-1195, 2019 WL 1877392 (N.D. Cal. Apr. 26, 2019). As a result of the three preliminary injunctions, the Final Rule has not gone into effect.
HHS appealed all three preliminary injunction orders to this court, and filed motions to stay the injunctions pending a decision on the merits of its appeals. Because the three motions for a stay pending appeal present nearly identical issues, we consider all three motions jointly.
ANALYSIS
In ruling on a stay motion, we are guided by four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009) (internal quotation marks omitted). Although review of a district court’s grant of a preliminary injunction is for abuse of discretion, Southwest Voter Registration Education Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003), “[a] district court by definition abuses its discretion when it makes an error of law,” Koon v. United States, 518 U.S. 81, 100 (1996).
I.
We conclude that the Government is likely to prevail on its challenge to the district courts’ preliminary injunctions based on their findings that the Final Rule is likely invalid as

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STATE OF CALIFORNIA V. AZAR

both contrary to law and arbitrary and capricious under 5 U.S.C. § 706(2)(A).
As a threshold matter, we note that the Final Rule is a reasonable interpretation of § 1008. Congress enacted § 1008 to ensure that “[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning.” 42 U.S.C. § 300a-6. If a program promotes, encourages, or advocates abortion as a method of family planning, or if the program refers patients to abortion providers for family planning purposes, then that program is logically one “where abortion is a method of family planning.” Accordingly, the Final Rule’s prohibitions on advocating, encouraging, or promoting abortion, as well as on referring patients for abortions, are reasonable and in accord with § 1008. Indeed, the Supreme Court has held that § 1008 “plainly allows” such a construction of the statute. Rust, 500 U.S. at 184 (upholding as a reasonable interpretation of § 1008 regulations that (1) prohibited abortion referrals and counseling, (2) required referrals for prenatal care, (3) placed restrictions on referral lists, (4) prohibited promoting, encouraging, or advocating abortion, and (5) mandated financial and physical separation of Title X projects from abortion-related activities). The text of § 1008 has not changed.
II.
Because Rust largely forecloses any attempt to argue that the Final Rule is not a reasonable interpretation of the text of § 1008, the district courts instead relied on two purportedly intervening laws that they say likely render the Final Rule “not in accordance with law.” 5 U.S.C. § 706(2)(A). The first is an “appropriations rider” that Congress has included in every HHS appropriations act since 1996. The 2018 version states:

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15

For carrying out the program under [T]itle X of the PHS Act to provide for voluntary family planning projects, $286,479,000: Provided, [t]hat amounts provided to said projects under such title shall not be expended for abortions, that all pregnancy counseling shall be nondirective, and that such amounts shall not be expended for any activity (including the publication or distribution of literature) that in any way tends to promote public support or opposition to any legislative proposal or candidate for public office.

132 Stat 2981, 3070–71 (2018) (emphasis added). The second is an ancillary provision of the Affordable Care Act (ACA), located within a subchapter of the law entitled “Miscellaneous Provisions,” which reads:
Notwithstanding any other provision of this Act, the Secretary of Health and Human Services shall not promulgate any regulation that—

(1) creates any unreasonable barriers to the ability of individuals to obtain appropriate medical care;

(2) impedes timely access to health care services;

(3) interferes with communications regarding a full range of treatment options between the patient and the provider;

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(4) restricts the ability of health care providers to provide full disclosure of all relevant information to patients making health care decisions;

(5) violates the principles of informed consent and the ethical standards of health care professionals; or

(6) limits the availability of health care treatment for the full duration of a patient’s medical needs.

Pub. L. No. 111-148, title I, § 1554 (42 U.S.C. § 18114) (“§ 1554”).
These two provisions could render the Final Rule “not in accordance with law” only by impliedly repealing or amending § 1008, or by directly contravening the Final Rule’s regulatory provisions.
First, we conclude that neither law impliedly repealed or amended § 1008. See Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 663 (2007) (“[E]very amendment of a statute effects a partial repeal to the extent that the new statutory command displaces earlier, inconsistent commands.”). “[R]epeals by implication are not favored and will not be presumed unless the intention of the legislature to repeal is clear and manifest.” Id. at 662 (internal quotation marks and alterations omitted); United States v. Madigan, 300 U.S. 500, 506 (1937) (“[T]he modification by implication of the settled construction of an earlier and different section is not favored.”). Indeed, “[w]e will not infer a statutory repeal unless the later statute expressly contradict[s] the original act or unless such a construction is

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17

absolutely necessary . . . in order that [the] words [of the later statute] shall have any meaning at all.” Nat’l Ass’n of Home Builders, 551 U.S. at 662.
Plaintiffs admit that there is no irreconcilable conflict between § 1008 and either the appropriations rider or § 1554 of the ACA. E.g., California State Opposition to Motion for Stay at p. 14; Essential Access Opposition to Motion for Stay at p.14. And we discern no “clear and manifest” intent by Congress to amend or repeal § 1008 via either of these laws—indeed, neither law even refers to § 1008. The appropriations rider mentions abortion only to prohibit appropriated funds from being expended for abortions; and § 1554 of the ACA does not even mention abortion.
As neither statute impliedly amended or repealed § 1008, the question is therefore whether the Final Rule is nonetheless “not in accordance with law” because its provisions are incompatible with the appropriations rider or § 1554 of the ACA. 5 U.S.C. § 706(2)(A). We think that HHS is likely to succeed on its challenge to the district courts’ preliminary injunctions because the Final Rule is not contrary to either provision.
The appropriations rider conditions HHS funding on a requirement that no Title X funds be expended on abortion, and that “all pregnancy counseling shall be nondirective.” Pub. L. No. 115-245, div. B, tit. II, 132 Stat 2981, 3070–71 (2018). (The plain text of the rider actually seems to reinforce § 1008’s restrictions on funding abortion-related activities.)
The district courts held that the Final Rule’s counseling and referral requirements directly conflicted with the appropriations rider’s “nondirective” mandate. But its mandate is not that nondirective counseling be given in

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every case. It is that such counseling as is given shall be nondirective. The Final Rule similarly does not require that any pregnancy counseling be given, only that if given, such counseling shall be nondirective (and may include neutrallypresented information about abortion). 84 Fed. Reg. 7716 (“Under the [F]inal [R]ule, the Title X regulations no longer require pregnancy counseling, but permits the use of Title X funds in programs that provide pregnancy counseling, so long as it is nondirective.”). The Final Rule is therefore not in conflict with the appropriations rider’s nondirective pregnancy counseling mandate.
Although the Final Rule does require the provision of referrals to non-abortion providers, id. at 7788–90, such referrals do not constitute “pregnancy counseling.” First, providing a referral is not “counseling.” HHS has defined “nondirective counseling” as “the meaningful presentation of options where the [medical professional] is not suggesting or advising one option over another,” 84 Fed. Reg. at 7716, whereas a “referral” involves linking a patient to another provider who can give further counseling or treatment, id. at 7748. The Final Rule treats referral and counseling as distinct terms, as has Congress and HHS under previous administrations. See, e.g., 42 U.S.C. § 300z-10; 53 Fed. Reg. at 2923; 2928–38 (1988); 65 Fed. Reg. 41272–75 (2000). We therefore conclude that the Final Rule’s referral requirement is not contrary to the appropriations rider’s nondirective pregnancy counseling mandate.2

2 But to the extent there is any ambiguity, “when reviewing an agency’s statutory interpretation under the APA’s ‘not in accordance with law’ standard, . . . [we] adhere to the familiar two-step test of Chevron.” Nw. Envtl. Advocates v. U.S. E.P.A., 537 F.3d 1006, 1014 (9th Cir. 2008). Applying Chevron deference, we would conclude that

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But even if referrals are included under the rubric of “pregnancy counseling,” it is not clear that referring a patient to a non-abortion doctor is necessarily “directive.” Nondirective counseling does not require equal treatment of all pregnancy options—rather, it just requires that a provider not affirmatively endorse one option over another. 84 Fed. Reg. at 7716. When Congress wants specific pregnancy options to be given equal treatment, it knows how to say so explicitly. For example, Congress has mandated that “adoption information and referrals” shall be provided “on an equal basis with all other courses of action included in nondirective counseling.” 42 U.S.C. § 254c-6(a)(1) (emphasis added). If “nondirective” already meant that all pregnancy options (including adoption) shall be given equal treatment, it would render meaningless Congress’s explicit instruction that adoption be treated on an equal basis with other pregnancy options. “[C]ourts avoid a reading that renders some words altogether redundant.” Scalia, Antonin, and Garner, Bryan A., Reading Law: The Interpretation of Legal Texts (2012) 176. Congress has enacted no such statutory provision explicitly requiring the equal treatment of abortion in pregnancy counseling and referrals.3
We next consider § 1554 of the ACA. As a threshold matter, it seems likely that any challenge to the Final Rule

HHS’s treatment of counseling and referral as distinct concepts is a reasonable interpretation of the applicable statutes.
3 But as discussed above, to the extent there is any ambiguity as to whether the appropriation rider’s nondirective mandate means that Title X grantees must be allowed to provide referrals to abortion providers on an equal basis with non-abortion providers, we would defer to HHS’s reasonable interpretation under Chevron that referral to non-abortion providers is consistent with the provision of nondirective pregnancy counseling.

Case 1:C19a-scev:-01390-14509-S74A,B06/2E0C/2F0N1o9., 8ID7: 11fi3le3d80567/02,0D/1k9tEntPrya:g2e5ID, P.2a6g5e520Poafg2e520 of 25

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relying on § 1554 is waived because Plaintiffs concede that HHS was not put on notice of this specific challenge during the public comment period, such that HHS did not have an “opportunity to consider the issue.” Portland Gen. Elec. Co. v. Bonneville Power Admin., 501 F.3d 1009, 1024 (9th Cir. 2007) (“The waiver rule protects the agency’s prerogative to apply its expertise, to correct its own errors, and to create a record for our review.”). Although some commenters stated that the proposed Final Rule was contrary to the ACA generally, and still others used generic language similar to that contained in § 1554, preservation of a challenge requires that the “specific argument” must “be raised before the agency, not merely the same general legal issue.” Koretoff v. Vilsack, 707 F.3d 394, 398 (D.C. Cir. 2013) (per curiam). Although “agencies are required to ensure that they have authority to issue a particular regulation,” they “have no obligation to anticipate every conceivable argument about why they might lack such statutory authority.” Id. at 398.
But even if this challenge were preserved, it seems likely that § 1554 does not affect § 1008’s prohibition on funding programs where abortion is a method of family planning. Section 1554 prohibits “creat[ing] any unreasonable barriers to the ability of individuals to obtain appropriate medical care,” “imped[ing] timely access to health care services,” “interfer[ing] with communications regarding a full range of treatment options between the patient and the provider,” “restrict[ing] the ability of health care providers to provide full disclosure of all relevant information to patients making health care decisions,” “violat[ing] the principles of informed consent and the ethical standards of health care professionals,” and “limit[ing] the availability of health care treatment for the full duration of a patient’s medical needs.” 42 U.S.C. § 18114. But as the Supreme Court noted in Rust, there is a clear distinction between affirmatively impeding

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or interfering with something, and refusing to subsidize it. Rust, 500 U.S. at 200–01. In holding that the 1988 regulations did not violate the Fifth Amendment, the Supreme Court reasoned that “[t]he Government has no constitutional duty to subsidize an activity merely because the activity is constitutionally protected,” and that the Government “may validly choose to fund childbirth over abortion and implement that judgment by the allocation of public funds for medical services relating to childbirth but not to those relating to abortion.” Id. at 201. The Government’s “decision to fund childbirth but not abortion places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy, but rather, by means of unequal subsidization of abortion and other medical services, encourages alternative activity deemed in the public interest.” Id. (internal quotations and citations omitted). Indeed, the Supreme Court has recognized that “[t]he difficulty that a woman encounters when a Title X project does not provide abortion counseling or referral leaves her in no different position than she would have been if the Government had not enacted Title X.” Id. at 202. Rust’s reasoning is equally applicable to counter the district courts’ conclusions that the Final Rule is invalidated by § 1554. Title X is a limited grant program focused on providing pre-pregnancy family planning services—it does not fund medical care for pregnant women. The Final Rule can reasonably be viewed as a choice to subsidize certain medical services and not others.4

4 The preamble to § 1554 also suggests that this section was not intended to restrict HHS interpretations of provisions outside the ACA. If Congress intended § 1554 to have sweeping effects on all HHS regulations, even those unrelated to the ACA, it would have stated that § 1554 applies “notwithstanding any other provision of law,” rather than

Case 1:C19a-scev:-01390-14509-S74A,B06/2E0C/2F0N1o9., 8ID7: 11fi3le3d80567/02,0D/1k9tEntPrya:g2e5ID, P.2a6g5e722Poafg2e522 of 25

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III.
The district courts also held that the Final Rule likely violates the Administrative Procedure Act (APA)’s prohibition on “arbitrary and capricious” regulations. 5 U.S.C. § 706(2)(A). “‘Arbitrary and capricious’ review under the APA focuses on the reasonableness of an agency’s decision-making process.” CHW W. Bay v. Thompson, 246 F. 3d 1218, 1223 (9th Cir. 2001) (emphasis in original). But “[t]he scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency.” Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). We think that is precisely what the district courts did.
To find that the Final Rule’s enactment was arbitrary and capricious, the district courts generally ignored HHS’s explanations, reasoning, and predictions whenever they disagreed with the policy conclusions that flowed therefrom.
For example, with respect to the physical separation requirement, the district courts ignored HHS’s reasoning for its re-imposition of that requirement (which was approved by Rust): that physical separation would ensure that Title X funds are not used to subsidize abortions via co-location of Title X programs in abortion clinics. See 84 Fed. Reg. at 7763–68. HHS’s reasoning included citation to data suggesting “that abortions are increasingly performed at sites that focus primarily on contraceptive and family

“[n]otwithstanding any other provision of this Act.” See, e.g., Andreiu v. Ashcroft, 253 F.3d 477, 482 (9th Cir. 2001) (holding that the phrase “notwithstanding any other provision of law” in 8 U.S.C. § 1252(f)(2) meant that the provision “trumps any contrary provision elsewhere in the law”).

Case 1:C19a-scev:-01390-14509-S74A,B06/2E0C/2F0N1o9., 8ID7: 11fi3le3d80567/02,0D/1k9tEntPrya:g2e5ID, P.2a6g5e823Poafg2e523 of 25

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planning services—sites that could be recipients of Title X funds.” Id. at 7765. Similarly, the district courts ignored HHS’s primary reasoning for prohibiting abortion counseling and referrals: that such restrictions are required by HHS’s reasonable reading of § 1008 (again, approved by Rust). Id. at 7746–47. Further, the district courts ignored HHS’s consideration of the effects that the Final Rule would likely have on the number of Title X providers, and credited Plaintiffs’ speculation that the Final Rule would “decimate” the Title X provider network, rather than HHS’s prediction—based on evidence cited in the administrative record—“that honoring statutory protections of conscience in Title X may increase the number of providers in the program,” by attracting new providers who were previously deterred from participating in the program by the former requirement to provide abortion referrals. See id. at 7780. Such predictive judgments “are entitled to particularly deferential review.” Trout Unlimited v. Lohn, 559 F.3d 946, 959 (9th Cir. 2009). With respect to the Final Rule’s definition of “advanced practice provider,” and its provision on whether family planning methods must be “medically approved,” HHS reasoned that these provisions would clarify subjects that had caused confusion in the past. 84 Fed. Reg. at 7727–28, 32. Although the district courts insist that HHS failed to consider that the Final Rule requires providers to violate medical ethics, HHS did consider and respond to comments arguing just that. See id. at 7724, 7748. HHS similarly considered the costs of compliance with the Final Rule. Id. at 7780.
In light of the narrow permissible scope of the district court’s review of HHS’s reasoning under the arbitrary and capricious standard, we conclude that HHS is likely to prevail on its argument that the district court erred in

Case 1:C19a-scev:-01390-14509-S74A,B06/2E0C/2F0N1o9., 8ID7: 11fi3le3d80567/02,0D/1k9tEntPrya:g2e5ID, P.2a6g5e924Poafg2e524 of 25

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concluding that the Final Rule’s enactment violated the APA.5
IV.
The remaining factors also favor a stay pending appeal. HHS and the public at large are likely to suffer irreparable harm in the absence of a stay, which are comparatively greater than the harms Plaintiffs are likely to suffer.
Absent a stay, HHS will be forced to allow taxpayer dollars to be spent in a manner that it has concluded violates the law, as well as the Government’s important policy interest (recognized by Congress in § 1008) in ensuring that taxpayer dollars do not go to fund or subsidize abortions. As the Supreme Court held in Rust, “the government may ‘make a value judgment favoring childbirth over abortion, and . . . implement that judgment by the allocation of public funds,” and by “declining to ‘promote or encourage abortion.’” Rust, 500 U.S. at 193. Additionally, forcing HHS to wait until the conclusion of a potentially lengthy appeals process to implement the Final Rule will necessarily result in predictable administrative costs, and will beget significant uncertainty in the Title X program.
The harms that Plaintiffs would likely suffer if a stay is granted are comparatively minor. The main potential harms that Plaintiffs identify are based on their prediction that implementation of the Final Rule will cause an immediate

5 The district court in Washington also briefly stated that the Final Rule was likely invalid because it “violates the central purpose of Title X, which is to equalize access to comprehensive, evidence-based, and voluntary family planning.” Washington Preliminary Injunction Order at 15. But this conclusion is foreclosed by the existence of § 1008, and by the Supreme Court’s contrary finding in Rust.

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and steep decline in the number of Title X providers. But these potential harms obviously rely on crediting Plaintiffs’ predictions about the effect of implementing the Final Rule, over HHS’s predictions that implementation of the final rule will have the opposite effect. As described above, we think that HHS’s predictions—supported by reasoning and evidence in the record (84 Fed. Reg. at 7780)—is entitled to more deference than Plaintiffs’ contrary predictions. While some Title X grantees will certainly incur financial costs associated with complying with the Final Rule if the preliminary injunctions are stayed, we think that harm is minor relative to the harms to the Government described above.
V.
Because HHS and the public interest would be irreparably harmed absent a stay, harms to Plaintiffs from a stay will be comparatively minor, and HHS is likely to prevail in its challenge of the preliminary injunction orders before a merits panel of this court (which is set to hear the cases on an expedited basis), we conclude that a stay of the district courts’ preliminary injunction orders pending appeal is proper.
The motion for a stay pending appeal is GRANTED.

 
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FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JUN 25 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

STATE OF CALIFORNIA, by and through Attorney General Xavier Becerra,
Plaintiff-Appellee,
v.
ALEX M. AZAR II, in his Official Capacity as Secretary of the U.S. Department of Health & Human Services; U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES,
Defendants-Appellants.

Nos. 19-15974
D.C. No. 3:19-cv-01184-EMC Northern District of California, San Francisco
ORDER

ESSENTIAL ACCESS HEALTH, INC.; MELISSA MARSHALL, M.D.,
Plaintiffs-Appellees,
v.
ALEX M. AZAR II, Secretary of U.S. Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Defendants-Appellants.

Nos. 19-15979
D.C. No. 3:19-cv-01195-EMC Northern District of California, San Francisco

Case 1:C19a-scev:-01390-14509-S74A,B06/2E5C/2F0N1o9., 9ID0: 11fi3le4d30664/92,5D/1k9tEntPrya:g2e7ID, P.2a6g6e82 Pofa3ge 2 of 3

STATE OF OREGON; et al., Plaintiffs-Appellees,
v. ALEX M. AZAR II; et al.,
Defendants-Appellants.

No. 19-35386
D.C. Nos. 6:19-cv-00317-MC 6:19-cv-00318-MC
District of Oregon, Eugene

STATE OF WASHINGTON; et al.,

Nos. 19-35394

Plaintiffs-Appellees,
v.
ALEX M. AZAR II, in his official capacity as Secretary of the United States Department of Health and Human Services; et al.,

D.C. Nos. 1:19-cv-03040-SAB 1:19-cv-03045-SAB
Eastern District of Washington, Yakima

Defendants-Appellants.

Before: THOMAS, Chief Judge and En Banc Coordinator. The order filed at Docket Entry No. 26 in No. 19-15974 is amended as
follows: The Court is in receipt of Emergency Motions for Reconsideration En Banc
filed by the Plaintiffs-Appellees in State of Oregon, et. al. v. Azar; No. 19-35386, and State of Washington, et. al. v. Azar; No. 19-35394. Defendants-Appellants are
2

Case 1:C19a-scev:-01390-14509-S74A,B06/2E5C/2F0N1o9., 9ID0: 11fi3le4d30664/92,5D/1k9tEntPrya:g2e7ID, P.2a6g6e93 Pofa3ge 3 of 3
granted leave to file a response to the Emergency Motions for Reconsideration En Banc on or before 5:00 p.m., Pacific time, Thursday, June 27, 2019. If Appellants elect to file a response, it shall not exceed 4,200 words. Ninth Circuit Rule 40-1.
3

 
 Case 1:C19a-scev:-01390-14509-S74A,B07/0E3C/2F0N1o9., 9ID2: 11fi3le5d30875/00,3D/1k9tEntPrya:g4e9ID, P.2a6g7e21 Pofa3ge 1 of 3

FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FILED
JUL 3 2019
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

STATE OF CALIFORNIA, by and through Attorney General Xavier Becerra,
Plaintiff-Appellee,
v.
ALEX M. AZAR II, in his Official Capacity as Secretary of the U.S. Department of Health & Human Services; U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES,

No. 19-15974
D.C. No. 3:19-cv-01184-EMC Northern District of California, San Francisco
ORDER

Defendants-Appellants.

ESSENTIAL ACCESS HEALTH, INC.; MELISSA MARSHALL, M.D.,

No. 19-15979

Plaintiffs-Appellees,

D.C. No. 3:19-cv-01195-EMC

v.

ALEX M. AZAR II, Secretary of U.S. Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Defendants-Appellants.

Case 1:C19a-scev:-01390-14509-S74A,B07/0E3C/2F0N1o9., 9ID2: 11fi3le5d30875/00,3D/1k9tEntPrya:g4e9ID, P.2a6g7e32 Pofa3ge 2 of 3

STATE OF OREGON; STATE OF NEW YORK; STATE OF COLORADO; STATE OF CONNECTICUT; STATE OF DELAWARE; DISTRICT OF COLUMBIA; STATE OF HAWAII; STATE OF ILLINOIS; STATE OF MARYLAND; COMMONWEALTH OF MASSACHUSETTS; STATE OF MICHIGAN; STATE OF MINNESOTA; STATE OF NEVADA; STATE OF NEW JERSEY; STATE OF NEW MEXICO; STATE OF NORTH CAROLINA; COMMONWEALTH OF PENNSYLVANIA; STATE OF RHODE ISLAND; STATE OF VERMONT; COMMONWEALTH OF VIRGINIA; STATE OF WISCONSIN; AMERICAN MEDICAL ASSOCIATION; OREGON MEDICAL ASSOCIATION; PLANNED PARENTHOOD FEDERATION OF AMERICA, INC.; PLANNED PARENTHOOD OF SOUTHWESTERN OREGON; PLANNED PARENTHOOD COLUMBIA WILLAMETTE; THOMAS N. EWING, M.D.; MICHELE P. MEGREGIAN, C.N.M.,

No. 19-35386
D.C. Nos. 6:19-cv-00317-MC 6:19-cv-00318-MC

Plaintiffs-Appellees,

v.

ALEX M. AZAR II; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; DIANE FOLEY; OFFICE OF POPULATION AFFAIRS,

Defendants-Appellants.

2

Case 1:C19a-scev:-01390-14509-S74A,B07/0E3C/2F0N1o9., 9ID2: 11fi3le5d30875/00,3D/1k9tEntPrya:g4e9ID, P.2a6g7e43 Pofa3ge 3 of 3

STATE OF WASHINGTON; NATIONAL FAMILY PLANNING AND REPRODUCTIVE HEALTH ASSOCIATION; FEMINIST WOMEN'S HEALTH CENTER; DEBORAH OYER, M.D.; TERESA GALL,

No. 19-35394
D.C. Nos. 1:19-cv-03040-SAB 1:19-cv-03045-SAB

Plaintiffs-Appellees,

v.

ALEX M. AZAR II, in his official capacity as Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; DIANE FOLEY, MD, in her official capacity as Deputy Assistant Secretary for Population Affairs; OFFICE OF POPULATION AFFAIRS,

Defendants-Appellants.

THOMAS, Chief Judge: Upon the vote of a majority of nonrecused active judges, it is ordered that
these cases be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel Order on Motions for Stay Pending Appeal in these cases shall not be cited as precedent by or to any court of the Ninth Circuit.
Judges Graber, Christen, and Owens did not participate in the deliberations or vote in these cases.

3

 
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FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FILED
JUL 11 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

STATE OF CALIFORNIA, by and through Attorney General Xavier Becerra,
Plaintiff-Appellee,
v.
ALEX M. AZAR II, in his Official Capacity as Secretary of the U.S. Department of Health & Human Services; U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES,
Defendants-Appellants.

Nos. 19-15974
D.C. No. 3:19-cv-01184-EMC Northern District of California, San Francisco
ORDER

ESSENTIAL ACCESS HEALTH, INC.; MELISSA MARSHALL, M.D.,
Plaintiffs-Appellees,
v.
ALEX M. AZAR II, Secretary of U.S. Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Defendants-Appellants.

Nos. 19-15979
D.C. No. 3:19-cv-01195-EMC Northern District of California, San Francisco

Case 1:C19a-scev:-01390-14509-S74A,B07/1E1C/2F0N1o9., 9ID3: 11fi3le6d00174/11,1D/1k9tEntPrya:g8e6ID, P.2a6g7e62 Pofa3ge 2 of 3

STATE OF OREGON; et al., Plaintiffs-Appellees,
v. ALEX M. AZAR II; et al.,
Defendants-Appellants.

No. 19-35386
D.C. Nos. 6:19-cv-00317-MC 6:19-cv-00318-MC
District of Oregon, Eugene

STATE OF WASHINGTON; et al.,

Nos. 19-35394

Plaintiffs-Appellees,
v.
ALEX M. AZAR II, in his official capacity as Secretary of the United States Department of Health and Human Services; et al.,

D.C. Nos. 1:19-cv-03040-SAB 1:19-cv-03045-SAB
Eastern District of Washington, Yakima

Defendants-Appellants.

Before: THOMAS, Chief Judge, and LEAVY, WARDLAW, W. FLETCHER, PAEZ, BYBEE, CALLAHAN, M. SMITH, JR., IKUTA, MILLER, AND LEE, Circuit Judges.
Pending before the en banc court are several emergency motions for an
administrative stay of the three-judge panel order staying the district courts’

2

Case 1:C19a-scev:-01390-14509-S74A,B07/1E1C/2F0N1o9., 9ID3: 11fi3le6d00174/11,1D/1k9tEntPrya:g8e6ID, P.2a6g7e73 Pofa3ge 3 of 3
preliminary injunction orders. See Oregon, et. al. v. Azar, No. 19-35386 (Dkt. nos. 59 and 66); Washington, et. al. v. Azar, No. 19-35394 (Dkt. nos. 35, 37, and 40).
Pursuant to prior order of the Court upon granting reconsideration en banc, the three-judge panel Order on Motions for Stay Pending Appeal in these cases was ordered not be cited as precedent by or to any court of the Ninth Circuit. However, the order granting reconsideration en banc did not vacate the stay order itself, so it remains in effect. Thus, the motions for administrative stay remain pending and were not mooted by the grant of reconsideration en banc.
After due consideration of the emergency motions, the motions for administrative stay of the three-judge panel order are DENIED. The en banc court will proceed expeditiously to rehear and reconsider the merits of the Appellants’ motions for stay of the district courts’ preliminary injunction orders pending consideration of the appeals on the merits. Until further order of the Court, no further briefing is required of the parties for the en banc court’s reconsideration of the three-judge panel order. The briefing schedule established for the merits appeal shall remain as originally ordered.
Chief Judge Thomas and Judges Wardlaw, W. Fletcher, and Paez would grant the motions for administrative stay and therefore respectfully dissent from this order.
3

 
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

STATE OF CALIFORNIA, by and through Attorney General Xavier Becerra,
Plaintiff-Appellee,

No. 19-15974
D.C. No. 3:19-cv-01184-EMC

v.

ALEX M. AZAR II, in his Official Capacity as Secretary of the U.S. Department of Health & Human Services; U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES,
Defendants-Appellants.

ESSENTIAL ACCESS HEALTH, INC.; MELISSA MARSHALL, M.D.,
Plaintiffs-Appellees,
v.

No. 19-15979
D.C. No. 3:19-cv-01195-EMC

ALEX M. AZAR II, Secretary of U.S. Department of Health and Human Services; U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES,
Defendants-Appellants.

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STATE OF CALIFORNIA V. AZAR

Appeal from the United States District Court for the Northern District of California
Edward M. Chen, District Judge, Presiding

STATE OF OREGON; STATE OF NEW YORK; STATE OF COLORADO; STATE OF CONNECTICUT; STATE OF DELAWARE; DISTRICT OF COLUMBIA; STATE OF HAWAII; STATE OF ILLINOIS; STATE OF MARYLAND; COMMONWEALTH OF MASSACHUSETTS; STATE OF MICHIGAN; STATE OF MINNESOTA; STATE OF NEVADA; STATE OF NEW JERSEY; STATE OF NEW MEXICO; STATE OF NORTH CAROLINA; COMMONWEALTH OF PENNSYLVANIA; STATE OF RHODE ISLAND; STATE OF VERMONT; COMMONWEALTH OF VIRGINIA; STATE OF WISCONSIN; AMERICAN MEDICAL ASSOCIATION; OREGON MEDICAL ASSOCIATION; PLANNED PARENTHOOD FEDERATION OF AMERICA, INC.; PLANNED PARENTHOOD OF SOUTHWESTERN OREGON; PLANNED PARENTHOOD COLUMBIA WILLAMETTE; THOMAS N. EWING, M.D.; MICHELE P. MEGREGIAN,

No. 19-35386
D.C. Nos. 6:19-cv-00317-MC 6:19-cv-00318-MC

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3

C.N.M., Plaintiffs-Appellees,
v.
ALEX M. AZAR II; U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES; DIANE FOLEY; OFFICE OF POPULATION AFFAIRS,
Defendants-Appellants.

Appeal from the United States District Court for the District of Oregon
Michael J. McShane, District Judge, Presiding

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STATE OF WASHINGTON; NATIONAL FAMILY PLANNING AND REPRODUCTIVE HEALTH ASSOCIATION; FEMINIST WOMEN’S HEALTH CENTER; DEBORAH OYER, M.D.; TERESA GALL,
Plaintiffs-Appellees,

No. 19-35394 D.C. Nos.
1:19-cv-03040-SAB 1:19-cv-03045-SAB
OPINION

v.

ALEX M. AZAR II, in his official capacity as Secretary of the United States Department of Health and Human Services; U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES; DIANE FOLEY, M.D., in her official capacity as Deputy Assistant Secretary for Population Affairs; OFFICE OF POPULATION AFFAIRS,
Defendants-Appellants.

Appeal from the United States District Court for the Eastern District of Washington
Stanley Allen Bastian, District Judge, Presiding
Argued and Submitted En Banc September 23, 2019 San Francisco, California
Filed February 24, 2020

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5

Before: Sidney R. Thomas, Chief Judge, and Edward Leavy, Kim McLane Wardlaw, William A. Fletcher, Richard A. Paez, Jay S. Bybee, Consuelo M. Callahan, Milan D. Smith, Jr., Sandra S. Ikuta, Eric D. Miller
and Kenneth K. Lee, Circuit Judges.

Opinion by Judge Ikuta; Dissent by Judge Paez

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SUMMARY*

Title X of the Public Health Service Act
The en banc court vacated preliminary injunctions entered by three district courts in three states against the U.S. Department of Health and Human Services’s (“HHS”) enforcement of a 2019 rule, promulgated by HHS under Title X of the Public Health Service Act, concerning grants to support voluntary family projects, and prohibition of funds being used in programs where abortion is a method of family planning.
Section 1008 of Title X prohibits grant funds from “be[ing] used in programs where abortion is a method of family planning.” Regulations issued in 1988, and upheld by the Supreme Court in 1991, completely prohibited the use of Title X funds in projects where clients received counseling or referrals for abortion as a method of family planning. Rust v. Sullivan, 500 U.S. 173, 177-79 (1991). Regulations issued in 2000 were more permissive. In March 2019, HHS promulgated the 2019 rule, which was similar to the regulations adopted in 1988 and upheld by Rust. Plaintiffs, including several states and private Title X grantees, brought various suits challenging the 2019 Final Rule.
The en banc court first considered plaintiffs’ argument that the 2019 Final Rule was facially invalid because two intervening congressional enactments altered the legal landscape so that Rust’s holdings were no longer valid. The
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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court held that plaintiffs failed to provide evidence that Congress intended to alter Rust’s conclusion that the 1988 Rule was a permissible interpretation of Title X and § 1008.

The en banc court held that the 2019 Final Rule was not contrary to the 1996 appropriations rider, which was enacted to ensure no federal funds were used to support abortion services. Specifically, the panel held that because HHS can reasonably interpret “nondirective pregnancy counseling” as not including referrals, plaintiffs failed at the first step of their arguments, that “pregnancy counseling” must be deemed to include referrals. Plaintiffs also failed at the second step of their argument that the term “nondirective” meant the presentation of all options on an equal basis. The court held that HHS reasonably interpreted “nondirective” to refer to the neutral manner in which counseling was provided rather than to the scope of topics that must be covered in counseling. The court rejected plaintiffs’ and the dissent’s argument that the Final Rule was directive because it required referrals for medically necessary prenatal health care. The court also held that requiring referrals for medically necessary prenatal health care but not for nontherapeutic abortions did not make pregnancy counseling directive. Nor was the Final Rule directive because it allowed referrals for adoption. Finally, the court held that the Final Rule’s restrictions on referral lists did not render pregnancy counseling directive because a referral list did not present information in a way that encouraged or promoted a specific option.

The en banc court held that the 2019 Final Rule was consistent with § 1554 of the Affordable Care Act (“ACA”). The court held that the ACA did not address the implementation of Congress’s choice not to subsidize certain activities. The Final Rule placed no substantive barrier on

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individuals’ ability to obtain appropriate medical care or on doctors’ ability to communicate with clients or engage in activity when not acting within a Title X project, and therefore the Final Rule did not implicate § 1554.

The en banc court concluded that the Final Rule was not contrary to the appropriations rider, § 1554 of the ACA, or Title X. The court held that plaintiffs’ claims based on these provisions would not succeed, and plaintiffs, accordingly, did not demonstrate a likelihood of success on the merits based on these grounds.

The en banc court next turned to plaintiffs’ arguments that the 2019 Final Rule was arbitrary and capricious under the Administrative Procedure Act. First, plaintiffs argued that HHS’s promulgation of the physical and financial separation requirement in 42 C.F.R. § 59.15 was arbitrary and capricious. The court held that HHS examined the relevant considerations and provided a reasoned analysis for adopting this provision. In light of HHS’s reasoned explanation of its decisions and its consideration of the comments raised, the court rejected plaintiffs’ arguments that HHS failed to base its decision on evidence, failed to consider potential harms in its cost-benefit analysis, failed to explain its reasons for departing from the 2000 Rule’s provisions, and failed to consider the reliance interest of providers who have incurred costs relying on HHS’s previous regulation. Second, plaintiffs argued that HHS’s cost-benefit analysis of the 2019 Final Rule was arbitrary and capricious. The court held that HHS reasonably concluded that the harms flowing from a gap in care would not develop, and on this record, the court would not second-guess HHS’s consideration of the risks and benefits of its action. Third, plaintiffs asserted that the referral restrictions were arbitrary and capricious. Because

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HHS’s decisionmaking path could reasonably be determined, the court rejected plaintiffs’ claims that the counseling and referral restrictions were arbitrary and capricious. Fourth, the court rejected plaintiffs’ arguments that HHS’s technical determination of which medical professionals could provide pregnancy counseling was arbitrary and capricious. Finally, the court rejected plaintiffs’ argument that HHS was arbitrary and capricious in reestablishing the language of the 1988 Rule’s requirement that all family planning methods and services be “acceptable and effective,” instead of retaining the 2000 Rule’s revision requiring that such methods and services also be “medically approved.” The court held that HHS adequately explained its reasons for reestablishing the 1988 Rule, and sufficiently addressed comments that its decision to omit the phrase “medically approved” would promote political ideology over science, lead to negative health consequences for clients, and undermined recommendations from other agencies.

The en banc court held that plaintiffs would not prevail on the merits of their legal claims, and they were not entitled to the extraordinary remedy of a preliminary injunction. Accordingly, the court vacated the district courts’ preliminary injunction orders, and remanded for further proceedings. The government’s motion for a stay pending appeal was denied as moot.

Judge Paez, joined by Chief Judge Thomas, and Judges Wardlaw and W. Fletcher, dissented. Judge Paez would hold that the 2019 Final Rule breached Congress’ limitations on the scope of HHS’s authority, and he would uphold the district courts’ preliminary injunctions enjoining enforcement of the Rule. Among other things, the Final Rule gags health care providers from fully counseling women about their

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options while pregnant and requires them to steer women toward childbirth, and requires providers to physically and financially separate any abortion services they provide from all other health care services they deliver. Judge Paez concluded that the majority sanctions the agency’s gross overreach and puts its own policy preferences before the law.

COUNSEL
Hashim M. Mooppan (argued), Deputy Assistant Attorney General; Britton Lucas (argued), Senior Counsel; Michael S. Raab, Katherine Allen, and Jaynie Lilley, Appellate Staff; Joseph H. Hunt, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants Alex M. Azar II, U.S. Department of Health & Human Services, Diane Foley, and Office of Population Affairs.
Benjamin N. Gutman (argued), Solicitor General; Jona J. Maukonen, Senior Assistant Attorney General; Ellen F. Rosenblum, Attorney General; Office of the Attorney General, Salem, Oregon; Letitia James, Attorney General; Barbara D. Underwood, Solicitor General; Anisha S. Dasgupta, Deputy Solicitor General; Judith N. Vale, Senior Assistant Solicitor General; Office of the Attorney General, New York, New York; for Plaintiffs-Appellees Oregon, New York, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Pennsylvania, Rhode Island, Vermont, Virginia, and Wisconsin.

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Ruth E. Harlow (argued), Fiona Kaye, Anjali Dalal, Elizabeth Deutsch, and Brigitte Amiri, American Civil Liberties Union Foundation, New York, New York; Emily Chiang, American Civil Liberties Union Foundation of Washington, Seattle, Washington; Joe Shaeffer, MacDonald Hoague & Bayless, Seattle, Washington; for Plaintiffs-Appellees National Family Planning and Reproductive Health Association; Feminist Women’s Health Center; Deborah Oyer, M.D.; and Teresa Gall.

Xavier Becerra, Attorney General; Edward C. DuMont, Solicitor General; Kathleen Boergers, Supervising Deputy Attorney General; Joshua Patashnik, Deputy Solicitor General; Anna Rich, Brenda Ayon Verduzco, and Ketakee Kane, Deputy Attorneys General; California Department of Justice, San Francisco, California; for Plaintiff-Appellee State of California.

Michelle S .Ybarra, Justina Sessions, Sophie Hood, and Sarah Salomon, Keker Van Nest & Peters LLP, San Francisco, California, for Plaintiffs-Appellees Essential Access Health, Inc., and Melissa Marshall, M.D.

Alan E. Schoenfeld, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York; Paul R.Q. Wolfson, Kimberly A. Parker, Albinas J. Prizgintas, and Joshua M. Koppel, Wilmer Cutler Pickering Hale and Dorr LLPP, Washington, D.C.; Jeremy D. Sacks, Per A. Ramfjord, and Kennon Scott, Stoel Rives LLP, Portland, Oregon; Brian D. Vandenberg, Leonard A. Nelson, and Erin G. Sutton, American Medical Association; Helene T. Krasnoff, and Carrie Y. Flaxman, Planned Parenthood of America Inc., Washington, D.C.; Mark Bonanno, General Counsel, Oregon Medical Association, Portland, Oregon; for Plaintiffs-Appellees

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American Medical Association; Oregon Medical Association; Planned Parenthood Federation of America, Inc.; Planned Parenthood of Southwestern Oregon; Planned Parenthood Columbia Willamette; Thomas N. Ewing, M.D.; and Michele P. Megregian, C.N.M.

Robert W. Ferguson, Attorney General; Noah G. Purcell, Solicitor General; Jeffrey T. Sprung, Kristin Beneski, and Paul M. Crisalli, Assistant Attorneys General; Office of the Attorney General, Seattle, Washington; for Plaintiff-Appellee State of Washington.

Dave Yost, Attorney General; Benjamin M. Flowers, State Solicitor; Stephen P. Carney and Jason D. Manion, Deputy Solicitors; Office of the Attorney General, Columbus, Ohio; Steve Marshall, Alabama Attorney General; Leslie Rutledge, Arkansas Attorney General; Curtis T. Hill, Jr., Indiana Attorney General; Jeff Landry, Louisiana Attorney General; Eric S. Schmitt, Missouri Attorney General; Doug Peterson, Nebraska Attorney General; Mike Hunter, Oklahoma Attorney General; Alan Wilson, South Carolina Attorney General; Jason Ravnsborg, South Dakota Attorney General; Herbert H. Slatery III, Tennessee Attorney General; Ken Paxton, Texas Attorney General; and Sean Reyes, Utah Attorney General; for Amici Curiae Ohio and 12 Other States.

Catherine Glenn Foster, Steven H. Aden, and Rachel N. Morrison, Washington, D.C., as and for Amicus Curiae Americans United for Life.

Jay Alan Sekulow and Stuart J. Roth, Washington, D.C., as and for Amicus Curiae American Center for Law & Justice.

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Sarah E. Pitlyk and Adam S. Hochschild, Thomas More Society, Chicago, Illinois, for Amicus Curiae Susan B. Anthony List.

James E. Hough, Morrison & Foerster LLP, New York, New York; Andre Fontana, Morrison & Foerster LLP, San Francisco, California; Shannon Minter, Julianna Gonen, Amy Whelan, and Julie Wilensky, National Center for Lesbian Rights, San Francisco, California; for Amici Curiae National Center for Lesbian Rights, Equality Federation, Family Equality Council, GLMA: Health Professionals Advancing LGBTQ Equality, The HIV Medicine Association, The National Center for Transgender Equality, The National LGBTQ Task Force, The Sexuality Information and Education Council of the United States (SIECUS), The LGBT Movement Advancement Project, Lambda Legal Defense and Education Fund, Inc., GLBTQ Legal Advocates & Defenders, The Human Rights Campaign, Transgender Law Center, and Bay Area Lawyers for Individual Freedom.

Martha Jane Perkins, National Health Law Program, Carrboro, North Carolina, for Amici Curiae The National Health Law Program, Advocates for Youth, American Medical Student Association, American Society for Reproductive Medicine, Community Catalyst, The Endocrine Society, Families USA, HIV Medicine Association, In Our Own Voice: National Black Women’s Reproductive Justice Agenda, Juvenile Law Center, The Leadership Conference on Civil and Human Rights, National Council of Jewish Women, NARAL Pro-Choice America, National Abortion Federation, National Immigration Law Center, National Institute for Reproductive Health, National Latina Institute for Reproductive Health, National Partnership for Women & Families, National Women’s Health Network, National

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Women’s Law Center, Northwest Health Law Advocates, Positive Women’s Network—USA, Power to Decide, Union for Reform Judaism, Central Conference of American Rabbis, Women of Reform Judaism, Men of Reform Judaism, Unite for Reproductive & Gender Equity, Whitman- Walker Health, WomenHeart, and YWCA USA.

Richard L. Revesz, Madison Condon, Bethany A. Davis Noll, and Jason Schwartz, New York, New York, as and for Amicus Curiae Institute for Policy Integrity at New York University School of Law.

Zachary W. Carter, Corporation Counsel; Richard Dearing, Claude S. Platton, Jamison Davies, Melanie C.T. Ash, and Kevin Osowski, Of Counsel; Law Department, New York, New York; Andre M. Davis, City Solicitor, Baltimore, Maryland; Zach Klein, City Attorney, Columbus, Ohio; Dennis J. Herrera, City Attorney, City Attorney’s Office, San Francisco, California; James R. Williams, County Counsel, County of Santa Clara, San Jose, California; Anthony P. Condotti, City Attorney, Santa Cruz, California; Mark A. Flessner, Corporation Counsel; Benna Ruth Solomon, Deputy Corporation Counsel; Department of Law, Chicago, Illinois; Michael N. Feuer, City Attorney, Los Angeles, California; Mary C. Wickham, County Counsel, Los Angeles, California; Philippa M. Guthrie, Corporation Counsel, Legal Department, Bloomington, Indiana; Barbara J. Parker, City Attorney, Oakland, California; Ronald C. Lewis, City Attorney; Judith L. Ramsey, Chief, General Litigation Section; Collyn Peddie, Senior Assistant City Attorney, Houston, Texas; Peter S. Holmes, City Attorney, Seattle, Washington; for Amici Curiae City of New York, New York City Health and Hospitals, and 12 Local Governments.

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Bina G. Patel and David D. Doak, Quinn Emanuel Urguhart & Sullivan LLP, San Francisco, California; Valerie Roddy, Quinn Emanuel Urguhart & Sullivan LLP, Los Angeles, California; for Amicus Curiae National Center for Youth Law.

Lisa H. Bebchick, Ropes & Gray LLP, New York, New York; Thomas N. Bulleit and Douglas Hallward-Griemeier, Ropes & Gray LLP, Washington, D.C.; Daniel W. Richards, Ropes & Gray LLP, East Palo Alto, California; Haley Eagon, Ropes & Gray LLP, Boston, Massachusetts; Nadia Dahab, Stoll Berne, Portland, Oregon; Taylor Washburn, Lane Powell PC, Seattle, Washington; for Amici Curiae American College of Obstetricians and Gynecologists, American Academy of Pediatrics, American Academy of Family Physicians, American College of Physicians, California Medical Association, Society for Adolescent Health and Medicine, and Society for Maternal-Fetal Medicine.

Theane Evangelis, Lauren M. Blas, and Virginia L. Smith, Gibson Dunn & Crutcher LLP, Los Angeles, California, for Amicus Curiae California Women’s Law Center.

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OPINION

IKUTA, Circuit Judge:

Title X of the Public Health Service Act gives the Department of Health and Human Services (HHS) authority to make grants to support “voluntary family planning projects” for the purpose of offering “a broad range of acceptable and effective family planning methods and services.” 42 U.S.C. § 300(a).1 Section 1008 of Title X prohibits grant funds from “be[ing] used in programs where abortion is a method of family planning.” Id. § 300a-6.

Since 1970, when Title X was first enacted, HHS has provided competing interpretations of this prohibition. Regulations issued in 1988, and upheld by the Supreme Court in 1991, completely prohibited the use of Title X funds in projects where clients received counseling or referrals for abortion as a method of family planning. Rust v. Sullivan, 500 U.S. 173, 177–79 (1991). Regulations issued in 2000 were more permissive.

In March 2019, HHS promulgated regulations that are similar to those adopted by HHS in 1988 and upheld by Rust. But the 2019 rule is less restrictive in at least one important respect: a counselor providing nondirective pregnancy counseling “may discuss abortion” so long as “the counselor neither refers for, nor encourages, abortion.” 42 C.F.R. § 59.14(e)(5). There is no “gag” on abortion counseling. See id.

1 Congress did not design the Title X grant program to provide healthcare services beyond “family planning methods and services.” 42 U.S.C. § 300(a); cf. Dissent at 81.

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Plaintiffs, including several states and private Title X grantees, brought various suits challenging the 2019 rule, and three district courts in three states entered preliminary injunctions against HHS’s enforcement of the rule. In light of Supreme Court approval of the 1988 regulations and our broad deference to agencies’ interpretations of the statutes they are charged with implementing, plaintiffs’ legal challenges to the 2019 rule fail. Accordingly, we vacate the injunctions entered by the district courts and remand for further proceedings consistent with this opinion.

I

In 1970, Congress enacted Title X of the Public Health Service Act to give HHS authority to make grants to Title X projects that provide specified family planning services.2 Family Planning Services and Population Research Act, Pub. L. No. 91-572, 84 Stat. 1504, 1508 (1970); 42 U.S.C. § 300a4(c). The Act gives HHS broad authority to promulgate regulations to administer the grant program, as well as to impose conditions on the grants that HHS “may determine to be appropriate to assure that such grants will be effectively utilized for the purposes for which made.” § 1006(a)–(b), 84 Stat. at 1507; 42 U.S.C. § 300a-4(a)–(b).

Congress placed only two limitations on HHS’s discretion. First, an individual’s acceptance of family planning services has to be “voluntary” and not “a prerequisite to eligibility for or receipt of any other service or assistance from, or to participation in, any other program of

2 Although Title X and its implementing regulations use both the terms “program” and “project,” for consistency we refer to a program using Title X funds to provide services to clients as a “Title X project.”

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the entity or individual that provided such service or information.” § 1007, 84 Stat. at 1508; 42 U.S.C. § 300a-5. Second, § 1008 of Title X provides:

None of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning.

§ 1008, 84 Stat. at 1508; 42 U.S.C. § 300a-6.

Section 1008, which has never been amended, “was intended to ensure that Title X funds would ‘be used only to support preventive family planning services, population research, infertility services, and other related medical, informational, and educational activities.’” Rust, 500 U.S. at 178–79 (quoting H.R. Conf. Rep. No. 91-1667, at 8 (1970)); see also New York v. Sullivan, 889 F.2d 401, 407 (2d Cir. 1989), aff’d sub nom. Rust v. Sullivan, 500 U.S. 173 (1991) (noting a legislator’s statement that “[w]ith the ‘prohibition of abortion’ amendment—title X, section 1008—the [House] committee members clearly intend that abortion is not to be encouraged or promoted in any way through this legislation”) (statement of Rep. Dingell). As Rust concluded, in enacting § 1008, Congress made a constitutionally permissible “value judgment favoring childbirth over abortion.” 500 U.S. at 192 (quoting Maher v. Roe, 432 U.S. 464, 474 (1977)).

Although the purpose of § 1008 is clear, the Supreme Court has determined that its language is ambiguous because it does not expressly articulate how its prohibition applies to abortion counseling, referral, and advocacy, or how to ensure that funds are not used “in programs where abortion is a method of family planning.” Id. at 184. As a result of this

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ambiguity, HHS has provided a range of alternative interpretations of § 1008 over the years. We provide an overview of this history as context to our analysis of the issues raised by the government’s appeals.

A

In 1971, HHS promulgated (without notice and comment) the first regulations designed to implement Title X. Project Grants for Family Planning Services, 36 Fed. Reg. 18,465, 18,465–66 (Sept. 15, 1971). The regulations did not address the scope of § 1008. Instead, HHS interpreted § 1008 through opinions from its Office of General Counsel. In the mid-1970s, HHS issued a legal opinion prohibiting directive counseling on abortion (“encouraging or promoting” abortion) in a Title X project, while permitting nondirective (“neutral”) counseling on abortion. Nat’l Family Planning & Reprod. Health Ass’n v. Sullivan, 979 F.2d 227, 229 (D.C. Cir. 1992). Subsequent General Counsel opinions interpreted § 1008 as “prohibiting any abortion referrals beyond ‘mere referral,’ that is, providing a list of names and addresses without in any further way assisting the woman in obtaining an abortion.” Statutory Prohibition on Use of Appropriated Funds Where Abortion is a Method of Family Planning, 53 Fed. Reg. 2922, 2923 (Feb. 2, 1988) (the 1988 Rule).

HHS revised its Title X regulations after notice and comment in 1980. See Grants for Family Planning Services, 45 Fed. Reg. 37,433 (June 3, 1980). But like the 1971 regulations, the 1980 regulations did not address the scope of § 1008. Nat’l Family Planning, 979 F.2d at 229 (citing 45 Fed. Reg. at 37,437). Instead, in 1981, HHS issued “Program Guidelines for Project Grants for Family Planning Services.” See U.S. Dep’t of Health & Human Servs.,

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Program Guidelines for Project Grants for Family Planning Services (1981). For the first time, these guidelines required Title X projects to give Title X clients nondirective counseling on and referrals for abortion upon request. Id. § 8.6. The 1981 “guidelines were premised on a view that ‘non-directive’ counseling and referral for abortion were not inconsistent with [§ 1008] and were justified as a matter of policy in that such activities did not have the effect of promoting or encouraging abortion.” 53 Fed. Reg. at 2923.

It was not until 1988 that HHS addressed the scope of § 1008 in notice-and-comment rulemaking. See 53 Fed. Reg. at 2922. The 1988 Rule recognized that “[f]ew issues facing our society today are more divisive than that of abortion.” Id. Because § 1008 was intended to create “a wall of separation between Title X programs and abortion as a method of family planning,” the 1988 Rule concluded that Congress intended Title X to circumscribe “family planning” to include “only activities related to facilitating or preventing pregnancy, not for terminating it.” Id. at 2922–23. The 1988 Rule accordingly defined the term “family planning” as including “a broad range of acceptable and effective methods and services to limit or enhance fertility.” Id. at 2944.

In light of these concerns, the 1988 Rule imposed specified limits on a Title X project. First, the project could not provide prenatal care. Id. at 2945. Therefore, “once a client served by a Title X project is diagnosed as pregnant, she must be referred for appropriate prenatal and/or social services by furnishing a list of available providers that promote the welfare of mother and unborn child.” Id.

Further, a Title X project could not “provide counseling concerning the use of abortion as a method of family

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planning.” Id. In the preamble to the 1988 Rule, HHS explained that counseling “which results in abortion as a method of family planning simply cannot be squared with the language of section 1008,” and the 1988 Rule therefore rejected the 1981 program guidelines’ requirement that Title X projects give nondirective counseling on abortion. Id. at 2923. In barring such nondirective counseling, HHS also relied on a General Accounting Office (GAO) report and Office of the Inspector General (OIG) audit of Title X projects indicating that some Title X projects were “promoting abortion” under the guise of providing nondirective counseling. Id. at 2924.3

Nor could a Title X project “provide referral for abortion as a method of family planning.” Id. at 2945. Therefore, the list of available providers given to a pregnant client could not include “providers whose principal business is the provision of abortions.” Id.

The 1988 Rule also required a Title X project to be organized “so that it is physically and financially separate” from activities prohibited by § 1008 and the regulations. Id. To meet this “program integrity” requirement, “a Title X project must have an objective integrity and independence from prohibited activities. Mere bookkeeping separation of Title X funds from other monies is not sufficient.” Id.

3 For example, the audit found that some Title X projects were providing clients with brochures prepared by abortion clinics, providing and witnessing the signing of consent forms required by abortion clinics, making appointments for clients at abortion clinics, and using Title X funds to pay the administrative costs for loans provided to clients to pay for abortions. 53 Fed. Reg. at 2924 n.7.

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HHS explained that its rules requiring physical and financial separation were supported by OIG-audit and GAOreport findings that Title X projects were arguably violating § 1008 and that the lack of separation led to confusion as to whether federal funds were being used for abortion services. Id. Both OIG and GAO “urged [HHS] to give more specific, formalized direction to programs about the extent of prohibition on abortion as a method of family planning.” Id. at 2923–24.

After HHS promulgated the 1988 Rule, Title X grantees challenged the facial validity of the regulations on the grounds that the regulations were not authorized by Title X, were arbitrary and capricious under the Administrative Procedure Act (APA), and violated the First and Fifth Amendment rights of Title X clients and the First Amendment rights of Title X health care providers. The Supreme Court addressed these challenges in Rust.

Rust first rejected the plaintiffs’ claim “that the regulations exceed [HHS]’s authority under Title X and are arbitrary and capricious.” Id. at 183. Because the language of § 1008 was “ambiguous” as to “the issues of counseling, referral, advocacy, or program integrity,” the Court gave “substantial deference” to HHS’s interpretation under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–43 (1984), and concluded that “[t]he broad language of Title X plainly allows [HHS]’s construction of the statute.” Rust, 500 U.S. at 184. “By its own terms, § 1008 prohibits the use of Title X funds ‘in programs where abortion is a method of family planning’” but “does not define the term ‘method of family planning,’ nor does it enumerate what types of medical and counseling services are entitled to Title X funding.” Id. In light of the

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“broad directives provided by Congress in Title X in general and § 1008 in particular,” Rust concluded that HHS’s “construction of the prohibition in § 1008 to require a ban on counseling, referral, and advocacy within the Title X project” was permissible. Id.

Rust likewise upheld the program integrity requirements, which mandated separate facilities, personnel, and records. The Court concluded that the requirements were “based on a permissible construction of the statute” and were “not inconsistent with congressional intent.” Id. at 188. Rust noted that “if one thing is clear from the legislative history, it is that Congress intended that Title X funds be kept separate and distinct from abortion-related activities.” Id. at 190. As such, Rust declined to upset HHS’s “reasoned determination that the program integrity requirements are necessary to implement the prohibition” in § 1008. Id.

Rust also rejected the plaintiffs’ argument that the regulations were arbitrary and capricious because “they ‘reverse a longstanding agency policy that permitted nondirective counseling and referral for abortion’” and constitute “a sharp break from [HHS]’s prior construction of the statute.” Id. at 186. According to the Court, HHS’s revised interpretation was entitled to deference because “the agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis.” Id. (quoting Chevron, 467 U.S. at 863–64). HHS gave a reasoned basis for its change of interpretation, including that the new regulations were “more in keeping with the original intent of the statute.” Id. at 187.

Rust then turned to the constitutional arguments. The Court rejected the argument that the restrictions violated the

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First Amendment speech rights of grantees, their staff, and clients, holding that the regulations permissibly implemented Congress’s decision to allocate public funds “to subsidize family planning services which will lead to conception and childbirth, and declin[e] to promote or encourage abortion.” Id. at 193 (internal quotation marks omitted). “Congress’ power to allocate funds for public purposes includes an ancillary power to ensure that those funds are properly applied to the prescribed use,” and “the regulations are narrowly tailored to fit Congress’ intent in Title X that federal funds not be used to ‘promote or advocate’ abortion as a ‘method of family planning.’” Id. at 195 n.4. Doctors were “always free to make clear that advice regarding abortion is simply beyond the scope of the [Title X] program.” Id. at 200. Rust also rejected arguments that the restrictions violated a woman’s Fifth Amendment right to choose whether to obtain an abortion because “[the] decision to fund childbirth but not abortion ‘places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy, but rather, by means of unequal subsidization of abortion and other medical services, encourages alternative activity deemed in the public interest.’” Id. at 201 (quoting Harris v. McRae, 448 U.S. 297, 315 (1980)). The regulations did not infringe the doctor-patient relationship, the Court held, because the doctor and patient remained free to discuss abortion and abortion-related services “outside the context of the Title X project.” Id. at 203. Accordingly, Rust upheld the 1988 Rule.

Within months after Rust was decided, legislators introduced the Family Planning Amendments Act of 1992, H.R. 3090, 102d Cong. (1991), which sought to undo the 1988 Rule and to codify the 1981 program guidelines, see S. Rep. No. 102-86 (1991). Under the proposed legislation,

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every applicant for a Title X grant had to agree to offer “nondirective counseling and referrals regarding—(i) prenatal care and delivery; (ii) infant care, foster care, and adoption; and (iii) termination of pregnancy.” H.R. 3090, 102d Cong. § 2 (1991); S. 323, 102d Cong. § 2 (1991); H.R. Rep. No. 102-767, at 2 (1992). The bill failed to obtain the necessary votes. See S. 323, 102d Cong., Roll No. 452 (Oct. 2, 1992).

After this legislative effort to overturn Rust failed, President Clinton issued a memorandum directing HHS to suspend the 1988 Rule. See The Title X “Gag Rule,” 58 Fed. Reg. 7455 (Jan. 22, 1993). Two weeks later (without notice or comment) HHS issued an interim rule suspending the 1988 Rule and announcing that the nonregulatory interpretations that existed prior to the 1988 Rule, including those in the 1981 program guidelines, would apply. See Standards of Compliance for Abortion-Related Services in Family Planning Service Projects, 58 Fed. Reg. 7462 (Feb. 5, 1993). Legislators introduced another bill, the Family Planning Amendments Act of 1995, H.R. 833, 104th Cong. (1995), which included the same language as the amendments proposed in 1991, and would have required nondirective counseling on and referral for the “termination of pregnancy.” H.R. 833, 104th Cong. § 2(b)(3) (1995). As before, these efforts were unsuccessful.

Around this same time, Congress was debating whether to appropriate funds for Title X projects. See 141 Cong. Rec. H8194-02, at 8249–62 (Aug. 2, 1995). In response to concerns that Title X clinics were pressing teenagers to obtain abortions, see id. at H8260 (Rep. Waldholtz), legislators proposed a compromise bill that would ensure no federal funds were used to support abortion services. As ultimately enacted, the 1996 appropriations rider provided (among other

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things) “[t]hat amounts provided to [Title X] projects . . . shall not be expended for abortions, [and] that all pregnancy counseling shall be nondirective.” Pub. L. No. 115-245, 132 Stat. 2981, 3070–71. A version of this rider has been reenacted each year since 1996.

In the wake of the defeat of the Family Planning Amendments Acts of 1992 and 1995, HHS issued a new regulation adopting the language of the failed legislation. See Standards of Compliance for Abortion-Related Services in Family Planning Service Projects, 65 Fed. Reg. 41,270 (July 3, 2000) (the 2000 Rule). The 2000 Rule provided that a Title X project was required to offer a pregnant woman “neutral, factual information and nondirective counseling” on “each of the following options: (A) Prenatal care and delivery; (B) Infant care, foster care, or adoption; and (C) Pregnancy termination.” Id. at 41,279. Each Title X project also had to provide referral for each option “upon request.” Id.

The 2000 Rule eliminated several of the 1988 Rule’s provisions. For instance, the 2000 Rule dropped the 1988 Rule’s definition of “family planning” but did not provide a replacement definition. See id. at 41,278. Instead, the 2000 Rule simply stated that a family planning project must “[p]rovide a broad range of acceptable and effective medically approved family planning methods (including natural family planning methods) and services (including infertility services and services for adolescents).” Id.

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at 41,278–79. The 2000 Rule also eliminated the physical and financial separation requirement. See id. at 41,276.4

While HHS’s oscillations in interpreting § 1008 were playing out, Congress enacted various laws (referred to as federal conscience laws) prohibiting discrimination against individuals and entities who objected to performing or promoting abortion on religious or moral grounds. Beginning in 1973, Congress enacted four statutes (collectively referred to as the Church Amendments) that prevent the government from conditioning grant funds on assistance with abortionrelated activities, 42 U.S.C. § 300a-7(b), and prohibit grant recipients from discriminating against individuals who refused to assist with abortion because of their “religious beliefs or moral convictions,” id. § 300a-7(c). In 1996, Congress enacted the Coats-Snowe Amendment to the Public Health Service Act, which prohibits the federal government from discriminating against any health care entity because it refuses to engage in certain abortion-related activities, including providing referrals for abortions. Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, tit. V, § 515, 110 Stat. 1321, 1321-245 (1996) (codified at 42 U.S.C. § 238n(a)). Finally, in 2004 Congress began including a rider in health care appropriations bills to prohibit discrimination by recipients of federal grants against health care entities that refused to make referrals for abortion, among other things. Consolidated Appropriations

4 In promulgating the 2000 Rule, HHS did not go as far as some commenters urged. In rejecting comments that it should read § 1008 narrowly as prohibiting only “the provision of, or payment for, abortions” and nothing else, HHS stated that this was not “the better reading of the statutory language.” 65 Fed. Reg. at 41,272. HHS also acknowledged that the 1988 Rule was “a permissible interpretation” of § 1008. Id. at 41,277.

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Act, 2005, Pub. L. No. 108-447, 118 Stat. 2890, 3163 (2004) (referred to as the Weldon Amendment).5

In 2008, HHS concluded that the 2000 Rule’s requirement that Title X projects must provide counseling and referrals for abortion upon request was inconsistent with these federal conscience laws. Therefore, HHS promulgated regulations to clarify it “would not enforce this Title X regulatory requirement on objecting grantees or applicants.” Ensuring that Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law, 73 Fed. Reg. 78,072, 78,087 (Dec. 19, 2008) (the 2008 nondiscrimination regulations). After a new administration took office, HHS decided these regulations were “unclear and potentially overbroad in scope” and rescinded them. Regulation for the Enforcement of Federal Health Care Provider Conscience Protection Laws, 76 Fed. Reg. 9968, 9969 (Feb. 23, 2011).

Thus, before the 2018 rulemaking, HHS’s interpretations of § 1008 had seesawed through multiple formulations: from permitting—then requiring—nondirective counseling on abortion as a method of family planning (in 1971 and 1981 guidance documents); to prohibiting counseling and referrals for abortion as a method of family planning (in the 1988 Rule, upheld by the Supreme Court in 1991); and then to once again requiring nondirective counseling and referrals for abortion on request (in the 2000 Rule). HHS also vacillated in its interpretation of the federal conscience laws. This

5 The Weldon Amendment has been continuously enacted since 2004. See, e.g., Department of Defense and Labor, Health and Human Services, and Education Appropriations Act, 2019, Pub. L. 115-245, 132 Stat. 2981, 3118.

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uncertain history was the backdrop for HHS’s reconsideration of this controversial area in 2018.

B

In 2018, HHS returned to the task of interpreting § 1008 and issued a notice of proposed rulemaking “to ensure compliance with, and enhance implementation of, the statutory requirement that none of the funds appropriated for Title X may be used in programs where abortion is a method of family planning.” Compliance with Statutory Program Integrity Requirements, 83 Fed. Reg. 25,502, 25,502 (June 1, 2018). After receiving over 500,000 comments reflecting a “sharp diversity of opinion,” HHS issued a final rule in March 2019. Compliance with Statutory Program Integrity Requirements, 84 Fed. Reg. 7714, 7723 (Mar. 9, 2019) (the Final Rule). The Final Rule largely represents a return to the 1988 Rule that the Supreme Court upheld in Rust.

The Final Rule’s definition of the statutory term “family planning” is substantially similar to the 1988 Rule’s definition. It “means the voluntary process of identifying goals and developing a plan for the number and spacing of children,” including by means of “a broad range of acceptable and effective family planning methods and services.” 84 Fed. Reg. at 7787; 42 C.F.R. § 59.2 (2019). Like the 1988 Rule, the Final Rule states that family planning services “include preconception counseling” but not “postconception care (including obstetric or prenatal care) or abortion as a method of family planning.” 84 Fed. Reg. at 7787; 42 C.F.R. § 59.2.

In the preamble to the Final Rule, HHS explained that it adopted this definition of “family planning” to “address in part its concern that the requirement for abortion referrals, as

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provided in the 2000 [Rule], violates or leads to violations of section 1008’s prohibition on funding Title X projects where abortion is a method of family planning.” 84 Fed. Reg. at 7729. HHS also explained it was reestablishing the 1988 Rule’s requirement that family planning methods and services be “acceptable and effective,” omitting the 2000 Rule’s requirement that they also be “medically approved,” because the term “medically approved” lacked clear meaning in this context and does not appear in the statute. Id. at 7740–41.

Repeating the language of Title X, see 42 U.S.C. § 300(a), the Final Rule provides that a family planning project must “[e]ncourage family participation in the decision to seek family planning services,” 42 C.F.R. § 59.5(a)(14). In the preamble, HHS noted that this language was required by the Title X statute itself and that Congress had enacted an appropriations rider that “specifically emphasizes that grantees encourage family participation ‘in the decision of minors to seek family planning services.’” 84 Fed. Reg. at 7718 (quoting Pub. L. No. 115-245, div. B, sec. 207, 132 Stat. 2981, 3070 (2018)).

The Final Rule also sets forth requirements and limitations for post-conception services. See 42 C.F.R. § 59.14. Under the Rule, once a client is verified as being pregnant, the client “shall be referred to a health care provider for medically necessary prenatal health care.” Id. § 59.14(b)(1). The regulations explain that “[p]rovision of a referral for prenatal health care is consistent with [Title X] because prenatal care is a medically necessary service.” Id. § 59.14(e)(1).

The Final Rule differs from the 1988 Rule with respect to pregnancy counseling. HHS noted that the 1996

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appropriations rider, as reenacted annually, required “that all pregnancy counseling shall be nondirective.”6 84 Fed. Reg. at 7725 n.36, 7729. Interpreting the rider’s language as permitting such counseling, id. at 7725, the Final Rule states that a Title X project can give a pregnant client nondirective pregnancy counseling “when provided by physicians or advanced practice providers.” 42 C.F.R. § 59.14(b)(1)(i).7

6 The appropriations rider for 2018 provides:
For carrying out the program under title X of the [Public Health Service] Act to provide for voluntary family planning projects, $286,479,000: Provided, That amounts provided to said projects under such title shall not be expended for abortions, that all pregnancy counseling shall be nondirective, and that such amounts shall not be expended for any activity (including the publication or distribution of literature) that in any way tends to promote public support or opposition to any legislative proposal or candidate for public office.
Pub. L. No. 115-245, div. B, tit. II, 132 Stat. 2981, 3070–71 (2018).
7 The Final Rule defines “Advanced Practice Provider” as:
[A] medical professional who receives at least a graduate level degree in the relevant medical field and maintains a license to diagnose, treat, and counsel patients. The term Advanced Practice Provider includes physician assistants and advanced practice registered nurses (APRN). Examples of APRNs that are an Advanced Practice Provider include certified nurse practitioner (CNP), clinical nurse specialist (CNS), certified registered nurse anesthetist (CRNA), and certified nurse-midwife (CNM).
42 C.F.R. § 59.2.

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Unlike the 1988 Rule, the Final Rule establishes that a counselor providing nondirective pregnancy counseling “may discuss abortion” so long as “the counselor neither refers for, nor encourages, abortion.” Id. § 59.14(e)(5). To ensure compliance with federal conscience laws, however, a Title X provider is not required to discuss abortion upon request. See 84 Fed. Reg. at 7716, 7746–47. In short, the Final Rule does not impose a “gag” on abortion counseling: a counselor “may discuss abortion” but is not required to do so. 42 C.F.R. § 59.14(e)(5).8

8 The dissent relies heavily on its mistaken view that the Final Rule is a “Gag Rule” that “gags health care providers from fully counseling women about their options while pregnant.” Dissent at 81. The dissent conjures up a “Kafkaesque” situation where counselors have to “walk on eggshells to avoid a potential transgression” of the Final Rule and in response to questions about terminating a pregnancy can merely say: “I can’t help you with that or discuss it. Here is a list of doctors who can assist you with your pre-natal care despite the fact that you are not seeking such care.” Dissent at 85–86 (citation omitted). But this “Kafkaesque” scenario is belied by the Final Rule itself, which expressly authorizes counseling on abortion while prohibiting referrals for abortion. Indeed, the Final Rule provides its own example of a straightforward conversation with a client who asks about abortion:
[When a] pregnant woman requests information on abortion and asks the Title X project to refer her for an abortion[, then] [t]he counselor tells her that the project does not consider abortion a method of family planning and, therefore, does not refer for abortion. The counselor offers her nondirective pregnancy counseling, which may discuss abortion, but the counselor neither refers for, nor encourages, abortion.
42 U.S.C. § 59.14(e)(5) (emphasis added). The dissent’s arguments that the Final Rule is a “Gag Rule” is merely a restatement of its disagreement with the Final Rule’s interpretation of § 1008 as precluding “referral for abortion as a method of family planning.” 84 Fed. Reg. at 7717.

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Although the Final Rule permits a Title X project to provide nondirective counseling that includes information about abortion, it expressly prohibits referrals for abortion as a method of family planning. HHS explained its understanding that “referral for abortion as a method of family planning, and such abortion procedure itself, are so linked that such a referral makes the Title X project or clinic a program one where abortion is a method of family planning.” 84 Fed. Reg. at 7717. Accordingly, “[a] Title X project may not perform, promote, refer for, or support abortion as a method of family planning, nor take any other affirmative action to assist a patient to secure such an abortion.” 42 C.F.R. § 59.14(a). Further, “[a] Title X project may not use the provision of any prenatal, social service, emergency medical, or other referral, of any counseling, or of any provider lists, as an indirect means of encouraging or promoting abortion as a method of family planning.” Id. § 59.14(c)(1).

While referrals for abortion as a method of family planning are not allowed, the Title X project may give a pregnant client a “list of licensed, qualified, comprehensive primary health care providers,” which may include “providers of prenatal care[], some, but not the majority, of which also provide abortion as part of their comprehensive health care services.” Id. § 59.14(c)(2). “Neither the list nor project staff may identify which providers on the list perform abortion.” Id. The Title X project may also provide referrals for abortion when such a procedure is medically necessary. 84 Fed. Reg. at 7748.

Finally, the Final Rule, like the 1988 Rule, requires that a Title X project be organized “so that it is physically and financially separate . . . from activities that are prohibited

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under section 1008 of the Public Health Service Act and §§ 59.13, 59.14, and 59.16 of these regulations.” 42 C.F.R. § 59.15. HHS explained that the physical and financial separation requirements were necessary to avoid the risk “of the intentional or unintentional use of Title X funds for impermissible purposes, the co-mingling of Title X funds, the appearance and perception that Title X funds being used in a given program may also be supporting that program’s abortion activities, and the use of Title X funds to develop infrastructure that is used for the abortion activities of Title X clinics.” 84 Fed. Reg. at 7764.

The effective date of the Final Rule was set for May 3, 2019, but the compliance deadline for the physical separation requirements is March 4, 2020. Id. at 7714.

C

Before the Final Rule’s effective date, several states and private Title X grantees (collectively, plaintiffs) filed lawsuits against HHS in three different district courts seeking preliminary injunctive relief. The lawsuits challenged the Final Rule under the APA as arbitrary and capricious, contrary to law, and in excess of statutory authority. 5 U.S.C. § 706(2)(A), (C).9 All three district courts granted plaintiffs’ preliminary injunction motions on similar grounds. See Washington v. Azar, 376 F. Supp. 3d 1119 (E.D. Wash.

9 Plaintiffs also brought various constitutional claims, but the district courts did not base their preliminary injunctions on these claims. Plaintiffs do not raise these claims as alternative grounds for affirming the district courts’ grants of injunctive relief, so any such argument was waived. See United States v. Gamboa-Cardenas, 508 F.3d 491, 502 (2007).

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2019); California v. Azar, 385 F. Supp. 3d 960 (N.D. Cal. 2019); Oregon v. Azar, 389 F. Supp. 3d 898 (D. Or. 2019). HHS timely appealed each of the preliminary injunction orders.10

We review a district court’s grant of a preliminary injunction “for an abuse of discretion.” Gorbach v. Reno, 219 F.3d 1087, 1091 (9th Cir. 2000) (en banc). But “legal issues underlying the injunction are reviewed de novo because a district court would necessarily abuse its discretion if it based its ruling on an erroneous view of law.” adidas Am., Inc. v. Skechers USA, Inc., 890 F.3d 747, 753 (9th Cir. 2018) (citation omitted).

II

“A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); accord Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015). The first factor—likelihood of success on the merits—“is the most important” factor. Id. If a movant fails

10 HHS also moved to stay the injunctions pending a decision on the merits of its appeals. We granted the stay motion in a published order. See California v. Azar, 927 F.3d 1068 (9th Cir. 2019) (per curiam). Upon the vote of a majority of nonrecused active judges, we ordered reconsideration en banc of the stay motion, California v. Azar, 927 F.3d 1045, 1046 (9th Cir. 2019) (mem.), but we did not vacate the stay order itself, so it remained in effect, California v. Azar, 928 F.3d 1153, 1155 (9th Cir. 2019) (mem.). The stay motion is now denied as moot.

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to establish likelihood of success on the merits, we need not consider the other factors. Id.

The Supreme Court has recognized that when an issue of law is key to resolving a motion for injunctive relief, the reviewing court has the power “to examine the merits of the case” and resolve the legal issue. Munaf v.Geren, 553 U.S. 674, 691 (2008) (internal quotation marks omitted) (quoting N.C. R. Co. v. Story, 268 U.S. 288, 292 (1925)). “Adjudication of the merits is most appropriate if the injunction rests on a question of law and it is plain that the plaintiff cannot prevail.” Id.; accord Blockbuster Videos, Inc. v. City of Tempe, 141 F.3d 1295, 1297 (9th Cir. 1998). The Supreme Court reaffirmed this conclusion in Winter, noting that it could “address the underlying merits of plaintiffs’ [legal] claims” in the preliminary injunction appeal and proceed to a decision. 555 U.S. at 31; see also Blockbuster Videos, 141 F.3d at 1297; Friends of the Earth v. U.S. Navy, 841 F.2d 927, 931 (9th Cir. 1988).

This approach applies in appropriate APA cases. See Beno v. Shalala, 30 F.3d 1057, 1063–64 (9th Cir. 1994). In Beno, we considered plaintiffs’ claim that an agency’s action was “‘arbitrary and capricious’ within the meaning of the APA.” Id. at 1063. The APA claim required only review of the administrative record and interpretation of relevant statutes; “additional fact-finding [was] not necessary to resolve th[e] claim.” Id. at 1064 n.11. Because “the district court’s denial of injunctive relief rested primarily on interpretations of law, not on the resolution of factual issues,” we reviewed de novo the district court’s legal conclusions and addressed plaintiffs’ claims on the merits. Id. at 1063–64 (internal quotation marks omitted). We held this was appropriate because “in APA cases, a district court decision

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is generally accorded no particular deference, and is reviewed de novo because the district court is in no better position than this court to review the administrative record.” Id. at 1063 n.9 (internal quotation marks and citations omitted). This approach is consistent with the Supreme Court’s ruling that district courts’ “factfinding capacity” is “typically unnecessary to judicial review of agency decisionmaking” because both the district court and the court of appeals “are to decide, on the basis of the record the agency provides, whether the action passes muster under the appropriate APA standard of review.” Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985).

Here, the only significant issues raised are legal. Plaintiffs argue that the Final Rule is invalid on its face because it conflicts with other statutes and the agency acted in an arbitrary and capricious manner in promulgating it. An agency’s action violates the APA when it is “in excess of statutory jurisdiction [or] authority,” 5 U.S.C. § 706(2)(C), or when it is “not in accordance with law,” id. § 706(2)(A), for instance, when it violates another statute, see FCC v. NextWave Pers. Commc’ns Inc., 537 U.S. 293, 300 (2003). The record before us is sufficient to resolve plaintiffs’ challenges, and no additional factual development is required.11 The district courts issued preliminary injunctions

11 Although the parties did not submit the full administrative record (which includes over 500,000 public comments) to the district courts, all public comments made during the rulemaking process are available online and were available to the parties in raising arguments to the district courts. See Compliance with Statutory Program Integrity Requirements, regulations.gov (last visited Oct. 29, 2019), https://www.regulations.go v/document?D=HHS-OS-2018-0008-0001; 84 Fed. Reg. at 7722 & n.26. Indeed, the parties used selected public comments to support their arguments in their briefs both to the district courts and to us. Despite this,

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based on their view that plaintiffs were likely to prevail on the merits of these legal claims, and thus the district courts were not in any better position to decide these issues than we are. See Beno, 30 F.3d at 1063 n.9.12 We have received extensive briefing and heard argument on the issues presented. Because we can decide, based on the record

the dissent asserts that “[d]eciding the merits of [p]laintiffs’ arbitrary and capricious claim is . . . premature” because “[w]e do not have the complete administrative record.” Dissent at 95–96. But neither plaintiffs nor the dissent identify additional arguments that could be made after submission of the full record, see Dissent at 95–96; at most, plaintiffs stated at oral argument (but not in their briefing) that they might delve deeper into the approximately 500,000 public comments to provide additional support for their existing arguments. Because HHS did not omit or withhold material information from the administrative record, the cases on which the dissent relies are inapposite. See Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788, 793 (D.C. Cir. 1984) (holding that review could not go forward on a partial record where doing so “would be fundamentally unfair” because agency had withheld significant information); Nat. Res. Def. Council, Inc. v. Train, 519 F.2d 287, 292 (D.C. Cir. 1975) (remanding to district court for further review where agency omitted a key document that “throws light on the factors and considerations relied upon” by the agency from the administrative record). Accordingly, we conclude that the record before us is sufficient to resolve plaintiffs’ arguments that aspects of the Final Rule are arbitrary and capricious. See McChesney v. FEC, 900 F.3d 578, 583 (8th Cir. 2018); 5 U.S.C. § 706 (“[T]he court shall review the whole record or those parts of it cited by a party.”).
12 In considering plaintiffs’ claims that HHS’s action was arbitrary and capricious, the district courts properly limited their review to the record before them. See California, 385 F. Supp. 3d at 1000–18; Washington, 376 F. Supp. 3d at 1131; Oregon, 389 F. Supp. 3d at 914–19. While the district courts made factual findings and predictions to support their conclusion that plaintiffs showed a likelihood of irreparable harm, see, e.g., California, 385 F. Supp. 3d at 978–85, see also Fed. R. Civ. P. 52(a), these findings are not relevant to the resolution of the arbitrary and capricious challenge, see Fla. Power & Light Co., 470 U.S. at 744.

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provided, “whether the action passes muster under the appropriate APA standard of review,” Fla. Power & Light Co., 470 U.S. at 744, we may resolve the legal issues on their merits, Beno, 30 F.3d at 1064.

III

We first consider plaintiffs’ argument that the Final Rule is facially invalid. Plaintiffs wisely do not press the argument that the Final Rule is an impermissible interpretation of the text of § 1008. Rust held that “[t]he broad language of Title X plainly allows [the 1988 Rule’s] construction of the statute,” 500 U.S. at 184, and the Final Rule is substantially the same as the 1988 Rule with respect to the provisions at issue here.

Rather, plaintiffs mainly argue that two intervening congressional enactments altered the legal landscape so that Rust’s holding is no longer valid. First, plaintiffs point to the 1996 appropriations rider enacted to ensure no federal funds were used to support abortion services. See Pub. L. No. 115245, div. B, tit. II, 132 Stat. 2981, 3070–71 (2018). Second, plaintiffs rely on a section of the Patient Protection and Affordable Care Act (ACA) that limits HHS’s ability to promulgate regulations. See Pub. L. No. 111-148, § 1554, 124 Stat. 119, 259 (2010) (codified at 42 U.S.C. § 18114).

In considering these arguments, we are mindful that the Supreme Court’s “interpretive decisions, in whatever way reasoned, effectively become part of the statutory scheme.” Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401, 2409 (2015). Therefore, Rust’s conclusion that § 1008 could be interpreted to bar abortion counseling, referral, and advocacy within a Title X project became a part of Title X’s scheme, and we

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may not lightly infer that Congress intended to overrule that holding in enacting the appropriations rider or § 1554 of the ACA. Because “[t]he modification by implication of [a] settled construction of an earlier and different section” by a later enactment “is not favored,” United States v. Madigan, 300 U.S. 500, 506 (1937), plaintiffs must provide evidence that Congress intended to alter Rust’s conclusion that the 1988 Rule was a permissible interpretation of Title X and § 1008. They fail to do so.

A

We first turn to plaintiffs’ argument that the Final Rule violates the 1996 appropriations rider. At the time HHS promulgated the Final Rule, the appropriations rider provided that “amounts provided to [the Title X project] shall not be expended for abortions, [and] that all pregnancy counseling shall be nondirective.” Pub. L. No. 115-245, div. B, tit. II, 132 Stat. 2981, 3070–71 (2018). HHS interpreted this appropriations rider as permitting Title X projects to provide counseling on abortion, and incorporated this interpretation in the Final Rule. See 84 Fed. Reg. at 7725; 42 C.F.R. § 59.14(e)(5).

Plaintiffs’ argument about the correct interpretation of this provision proceeds in three steps. First, according to plaintiffs, the term “pregnancy counseling” must be interpreted as including referrals. Second, plaintiffs contend that the term “nondirective” means the presentation of all options on an equal basis. Third, putting these two definitions together, plaintiffs argue that the term “nondirective pregnancy counseling” requires the provision of referrals for abortion on the same basis as referrals for prenatal care and adoption. Because the Final Rule requires

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referrals for medically necessary prenatal health care and permits referrals for adoption but precludes referrals for abortion, see 42 C.F.R. § 59.14, plaintiffs contend that the Final Rule does not provide nondirective pregnancy counseling, and thus violates the appropriations rider. We consider each of these steps in turn.

1

At the first step, plaintiffs and the dissent argue that the statutory term “pregnancy counseling” must be interpreted as including referrals.13 Congress has not provided a definition of the term “pregnancy counseling,” or otherwise “directly addressed the precise question at issue.” Chevron, 467 U.S. at 843. In the face of Congressional silence, we give “substantial deference” to the interpretations provided by HHS. Rust, 500 U.S. at 184.14

In the Final Rule, HHS provided its interpretation by treating the terms “counseling” and “referral” as referring to distinct legal concepts. See 84 Fed. Reg. at 7716–17. While a counselor may “provide nondirective pregnancy counseling to pregnant Title X clients on the patient’s pregnancy options, including abortion,” id. at 7724 (emphasis added), the Final Rule prohibits any “referral for abortion as a method of family planning,” id. at 7717.

13 As HHS recognized, the appropriations rider amended Title X by expressly requiring all pregnancy counseling to be nondirective. 84 Fed. Reg. at 7725, 7729. Congress “may amend substantive law in an appropriations statute, as long as it does so clearly.” Robertson v. Seattle Audubon Soc’y, 503 U.S. 429, 440 (1992).
14 HHS is the agency authorized to promulgate regulations to implement Title X, see 42 U.S.C. § 300a-4(a).

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In its brief on appeal, HHS made explicit the Final Rule’s implicit interpretation of “counseling.”15 According to HHS, under the Final Rule and as a matter of common usage, “counseling and referrals are distinct” because “‘[p]regnancy counseling’ involves providing information about medical options, which is different from referring a patient to a specific doctor for a specific form of medical care.”

HHS’s interpretation of the phrase “pregnancy counseling” as a concept that is distinct from the term “referrals” is reasonable and consistent with common usage. The dictionary indicates that counseling does not include referrals. The dictionary definition of the term “counseling” is “a practice or professional service designed to guide an individual to a better understanding of [her] problems and potentialities . . . .” Counseling, Webster’s Third New International Dictionary 518 (2002); see also Counseling, The American Medical Association Encyclopedia of Medicine

15 We may defer to an interpretation made in a legal brief so long as it is not a post hoc rationalization “advanced by an agency seeking to defend past agency action against attack.” Auer v. Robbins, 519 U.S. 452, 462 (1997). As in Auer, there is no reason here to think that HHS’s position is a “post hoc rationalization.” Id. Indeed, HHS has long treated “counseling” and “referral” as distinct concepts. The 1981 guidelines and the 2000 Rule both provided that Title X projects were required to provide “nondirective counseling on each of the options [including pregnancy termination], and referral upon request.” 65 Fed. Reg. at 41,279; Program Guidelines for Project Grants for Family Planning Services, § 8.6 (1981) (emphasis added); see also 53 Fed. Reg. at 2923 (explaining that the 1981 guidelines required providers to furnish “nondirective ‘options couns[e]ling”—including “on pregnancy termination (abortion)”—“followed by referral for these services if [the patient] so requests”). And the 2000 Rule treated “non-directive counseling,” see 65 Fed. Reg. at 41,272–74, as distinct from “[r]eferral[s] for abortion, see id. at 41,274.

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317 (1989) (defining “counseling” as “[a]dvice and psychological support given by a health professional and usually aimed at helping a person cope with a particular problem”). By contrast, “referral” is defined as “the process of directing or redirecting (as a medical case, a patient) to an appropriate specialist or agency for definitive treatment.” Referral, Webster’s Third New International Dictionary 1908 (2002). As in Rust, “[t]he broad language of Title X,” as amended by the 1996 appropriations rider, “plainly allows [HHS]’s construction of the statute.” 500 U.S. at 184.

Plaintiffs’ and the dissent’s argument that the term “pregnancy counseling” must be interpreted as including referrals is primarily based on their reading of a separate statute enacted by Congress, the Children’s Health Act of 2000, Pub. L. No. 106-310, 114 Stat. 1101 (2000); see Dissent at 90–91. A provision of that Act, the “Infant Adoption Awareness” section, 42 U.S.C. § 254c-6, requires HHS to make grants to adoption organizations “for the purpose of developing and implementing programs to train the designated staff of eligible health centers in providing adoption information and referrals to pregnant women on an equal basis with all other courses of action included in nondirective counseling to pregnant women.” 42 U.S.C. § 254c-6(a)(1). According to plaintiffs and the dissent, this language shows Congress intended that referrals be “included in nondirective counseling” and that all options, including abortion, should be presented on an equal basis. See Dissent at 90–91.

This argument fails. The Infant Adoption Awareness section neither provides a definition of “nondirective counseling” nor “expressly states” that nondirective

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counseling “encompasses referrals.” Cf. Dissent at 87 n.4.16 Simply put, the section does not show that referrals are a type of nondirective counseling. Indeed, it does not impose any requirements or limitations on nondirective pregnancy counseling at all; rather, it provides funds to adoption organizations to enable them to offer training to the staff of health centers regarding the provision of adoption information and referrals to clients. HHS could reasonably conclude that this section does not indicate that it considers referrals to be a type of counseling, as opposed to something that may occur at the same time as counseling. 84 Fed. Reg. at 7733. Given that the Infant Adoption Awareness section is not part of Title X, does not use language similar to that in the 1996 appropriations rider, and was enacted for a substantially different purpose, it sheds no light on Congress’s intent in enacting the appropriations rider or on the interpretation of its statutory language. Cf. Northcross v. Bd. of Educ. of Memphis City Sch., 412 U.S. 427, 428 (1973) (per curiam) (providing that it is appropriate to interpret the language of two separate statutes pari passu where two statutes use similar language and were enacted for the same purpose).17

16 Although the dissent claims that Congress “clarified the meaning of the term ‘nondirective’” and that Congress’s “intent is clear,” in fact, the dissent merely offers its own interpretation of what the term means in context. Dissent at 90.
17 In addition to discussing the Infant Adoption Awareness section, 42 U.S.C. § 254c-6(a)(1), both the plaintiffs and HHS point to other statutes that reference counseling and referrals. HHS notes that Congress has frequently referred to counseling and referrals separately, showing that the two are legally distinct concepts. See, e.g., 42 U.S.C. § 300z-10(a) (“Grants or payments may be made only to . . . projects which do not provide abortions or abortion counseling or referral . . . .”); id. § 300z-3(b) (referring to “counseling and referral services”); 18 U.S.C. § 248(e)(5)

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Plaintiffs’ and the dissent’s second argument, that industry practice requires interpreting “counseling” as including referrals, also fails, because the sources on which plaintiffs rely shed no light on the proper interpretation of the term “nondirective pregnancy counseling.” Dissent at 87 n.4. Plaintiffs first point to HHS’s guidelines in Providing Quality Family Planning Services (the QFP), which state that during a “visit [to] a provider of family planning services,” pregnancy-test results “should be presented to the client, followed by a discussion of options and appropriate referrals.” U.S. Dep’t of Health & Human Servs., Providing Quality Family Planning Services, Morbidity & Mortality Wkly. Rep., Apr. 25, 2014, at 13–14. Rather than requiring an interpretation of counseling as including referrals, this language suggests that counseling (i.e., “discussion of options”) and referrals are distinct. Plaintiffs also point to a letter submitted by the American Medical Association (AMA) during the notice-and-comment period on the Final Rule. In this letter, the AMA listed several provisions in its Code of Medical Ethics which it claimed made it unethical for a practitioner to refrain from providing “all appropriate

(“reproductive health services” includes “counseling or referral services relating to the human reproductive system, including services relating to pregnancy or the termination of a pregnancy”). Plaintiffs identify other statutes that suggest referrals can occur during the course of counseling. See, e.g., 42 U.S.C. § 300ff-33 (“post-test counseling (including referrals for care)” provided to individuals with positive HIV/AIDS test); id. § 3020e-1(b) (referring to “pension counseling and information programs” that “provide outreach, information, counseling, referral, and other assistance”); 20 U.S.C. § 1161k(c)(4)(A) (requiring college counselors to provide “referrals to and follow-up with other student services staff”). Because these statutes do not use the same language as the appropriations rider and were not enacted for the same purpose, they do not assist us in interpreting Congress’s direction “that all pregnancy counseling shall be nondirective.” See 84 Fed. Reg. at 7745.

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referrals, including for abortion services.” But the provisions of the code cited in the letter do not even discuss referrals, let alone define the term; rather, they state that patients have a right “to receive information from their physicians and to have the opportunity to discuss the benefits, risks, and costs of appropriate treatment alternatives” and “to expect that their physicians will provide guidance about what they consider the optimal course of action for the patient based on the physician’s objective professional judgment.” These sources do not show that the term “referrals” is included in the phrase “nondirective pregnancy counseling.”18

Because HHS can reasonably interpret “nondirective pregnancy counseling” as not including referrals, see 84 Fed. Reg. at 7716, plaintiffs fail at the first step of their arguments, that “pregnancy counseling” must be deemed to include referrals.

2

Plaintiffs also fail at the second step of their argument: that the term “nondirective” means the presentation of all options on an equal basis. Neither Title X nor the appropriations rider defines “nondirective.” Again, because Congress has “not directly addressed the precise question at issue,” Chevron, 467 U.S. at 843, we must give substantial deference to HHS’s interpretation. Rust, 500 U.S. at 184. In the Final Rule, HHS filled the Congressional silence by interpreting “nondirective pregnancy counseling” to mean

18 The dissent does not address these sources and merely asserts, without explanation, that “industry understanding recognizes that counseling includes referrals.” Dissent at 87 n.4 (citing California, 385 F. Supp. 3d at 989).

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“the meaningful presentation of options where the physician or advanced practice provider (APP) is ‘not suggesting or advising one option over another.’” 84 Fed. Reg. at 7716 (quoting 138 Cong. Rec. H2822-02, 2826 (statement of Rep. Lloyd)).

Under this definition, “nondirective” does not mean the presentation of all possible medical options. Rather, “nondirective” means that options must be provided in a neutral manner, without suggesting or advising one option over another. Thus, a physician or APP providing nondirective counseling to a client does not have to discuss every possible option available to that client, but must present options in a neutral manner and refrain from encouraging the client to select a particular option. In other words, HHS interpreted “nondirective” to refer to the neutral manner in which counseling is provided rather than to the scope of topics that must be covered in counseling. 84 Fed. Reg. at 7716.

This is a reasonable interpretation of “nondirective.” It is consistent with HHS’s longstanding distinction between “nondirective” counseling that is “neutral” and “directive” counseling that encourages or promotes abortion. Nat’l Family Planning, 979 F.2d at 229. And it is consistent with the dictionary definition of the term “nondirective” as a type of counseling where “the counselor refrains from interpretive or associative comment but usually by repeating phrases used by the client encourages [the client] to express, clarify, and restructure [the client’s] problems.” Nondirective, Webster’s Third New International Dictionary 1536 (2002); see also 84 Fed. Reg. at 7716 (nondirective counseling involves “clients tak[ing] an active role in processing their experiences and identifying the direction of the interaction”). Because

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HHS’s interpretation of “nondirective” is reasonable, we defer to that interpretation. See Chevron, 467 U.S. at 843–44; Nw. Envtl. Advocates v. EPA, 537 F.3d 1006, 1014 (9th Cir. 2008).

We also reject plaintiffs’ and the dissent’s argument that the Final Rule is directive because it requires referrals for medically necessary prenatal health care. Dissent at 85. HHS could reasonably conclude that referrals for prenatal care are nondirective, as HHS defines this term, because a referral for prenatal care does not steer the client toward any particular option and does not discourage a client from seeking an abortion outside of the Title X program. As HHS points out, “seeking prenatal care is not the same as choosing the option of childbirth.” 84 Fed. Reg. at 7748. Further, HHS could reasonably conclude that providing a referral for prenatal care is not directive because it is “medically necessary” for the health of the client during pregnancy, id. at 7748, 7761–62, regardless of whether the client later chooses an abortion outside of a Title X project.19 “Where care is medically

19 Plaintiffs and the dissent point to declarations from doctors and nurse practitioners conclusorily stating that prenatal care “is not medically necessary for someone who wishes to terminate her pregnancy.” Dissent at 88 n.5. But HHS reasonably concluded otherwise, 84 Fed. Reg. at 7748, 7761–62, based on its determination that “pregnancy may stress and affect extant [i.e., existing] health conditions [of the client],” such that “primary health care may be critical to ensure that pregnancy does not negatively impact such conditions,” id. at 7750.
The dissent’s argument that HHS did not justify the referral requirement on the ground that prenatal care is medically necessary for the health of the client, Dissent at 88 n.5, is refuted by the record; indeed, the sentence of the Final Rule on which the dissent relies for this argument makes clear that prenatal care is “important for . . . the health of the women,” 84 Fed. Reg. at 7722 (emphasis added); see also id. at 7748,

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necessary, as prenatal care is for pregnancy, referral for that care is not directive because the need for the care preexists the direction of the counselor, and is, instead, the result of the woman’s pregnancy diagnosis or the diagnosis of a health condition for which treatment is warranted.” Id. at 7748. Because prenatal care is medically necessary for a pregnant client, see id. at 7748, 7761–62, referrals for such care are distinguishable from referrals for abortions for the purpose of family planning, which are not medically necessary. Indeed, the Supreme Court has long recognized that abortion need not be treated the same as other medical procedures: “Abortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life.” Harris v. McRae, 448 U.S. 297, 325 (1980); see also Maher, 432 U.S. at 480 (“The simple answer to the argument” that a law imposes different requirements on abortion than other medical procedures is that other “procedures do not involve the termination of a potential human life.”).20 Given these distinctions, requiring

7761–62.
20 Given the “inherent[] differen[ces]” between abortion and other medical procedures, McRae, 448 U.S. at 325, the dissent’s attempt to liken nontherapeutic abortion to treatment options for prostate cancer is meritless, Dissent at 87. Prostate cancer is a disease, and “chemotherapy, radiation, [and] hospice” are treatment options. Dissent at 87. Pregnancy is not a disease, and a nontherapeutic abortion is not a treatment option.
By contrast, abortion is not used as a “method of family planning” under § 1008 or the Final Rule when abortion is medically necessary (i.e., therapeutic). See Abortion, elective, The American Medical Association Encyclopedia of Medicine 57 (1989) (defining a “therapeutic abortion” as an abortion “carried out to save the life or health of the mother”). Referrals for and counseling on therapeutic abortions are not subject to the same restrictions as those imposed on nontherapeutic ones; rather, in

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referrals for medically necessary prenatal health care but not
for nontherapeutic abortions does not make pregnancy counseling directive.21

situations where “emergency care is required,” the Final Rule requires that clients be referred “immediately to an appropriate provider of medical services needed to address the emergency.” 42 C.F.R. § 59.14(b)(2); see also id. § 59.14(e)(2) (requiring referral for emergency medical care upon the discovery of an ectopic pregnancy).
21 The dissent’s argument that clients who receive counseling on prenatal care and abortion (but not referrals for abortion providers) are “coerced,” “demeaned,” and prevented from taking “an active role in identifying the direction” of their lives is absurd. Dissent at 88 (cleaned up). Nothing in the Final Rule prevents clients from procuring abortions. See 42 C.F.R. § 59.14. Similarly, the dissent’s reliance on the 2000 Rule to argue that failing to provide abortion referrals is coercive, Dissent at 88 n.5, is misplaced because the 2000 Rule merely suggested that a referral for “prenatal care and delivery” might be coercive if the client has rejected that option, 65 Fed. Reg. at 41,275 (emphasis added); the 2000 Rule said nothing about whether it is coercive to require a referral for prenatal care to safeguard the health of the client, see 84 Fed. Reg. at 7722.
The dissent’s suggestion that clients relying on Title X services cannot locate abortion providers without a referral from a Title X counselor, Dissent at 89 n.6, is contrary to the reality—recognized in the Final Rule—that “[i]nformation about abortion and abortion providers is widely available and easily accessible, including on the internet,” 84 Fed. Reg. at 7746. We decline to second-guess HHS’s determination based on plaintiffs’ unsupported declarations. See Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2571 (2019); cf. Dissent at 89 n.6. In any event, Title X was not designed to be a source of assistance for procuring abortions, cf. Dissent at 87–89; rather, Congress’s purpose in enacting Title X was to “fund and, thereby, encourage preconception services, a focus that “generally excludes payment for postconception care and services,” including abortion. 84 Fed. Reg. at 7723. Congress’s restriction on Title X projects leaves clients with “at least the same range of choice in deciding whether to obtain” an abortion as they would have had if Congress provided no Title X funding. Harris, 448 U.S. at 317. As Rust

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Nor is the Final Rule directive because it allows referrals for adoption. See 42 C.F.R. § 59.5(a)(1). The Infant Adoption Awareness section, 42 U.S.C. § 254c-6(a)(1), does not require Title X projects to urge or encourage adoptions; rather, it provides funds for training staff of eligible health centers (which may include Title X projects) to provide adoption information and referrals on an equal basis with other courses of action included in nondirective counseling. Based on this legislation, HHS reasonably concluded that referrals for adoption are “appropriate under Title X, since Congress specified that Title X clinics and providers were eligible health centers to whom adoption related training should be offered,” 84 Fed. Reg. at 7730. Further, the language of the Infant Adoption Awareness section suggests that Congress did not interpret the phrase “nondirective counseling” as necessarily requiring a presentation of all options on an equal basis. To the contrary, if Congress had defined “nondirective counseling” to require the presentation of all options on an equal basis, it would have been unnecessary to encourage health center staff to present information about adoption “on an equal basis with all other courses of action” as part of nondirective counseling, because the staff would have already been required to do so. 42 U.S.C. § 254c-6(a)(1).

recognized, “a doctor’s ability to provide, and a woman’s right to receive, abortion-related information remains unfettered outside the context of the Title X project.” 500 U.S. at 203. That some Title X clients “may be effectively precluded by indigency” or other circumstances from procuring “abortion-related services” is a product of those circumstances, “not of governmental restrictions.” Id.; cf. Dissent at 89 n.6. Thus, the dissent, and the amici on which it relies, mistakenly fault the Final Rule for not helping clients “access[] abortion.” Dissent at 87–89.

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Finally, the Final Rule’s restrictions on referral lists do not render pregnancy counseling directive because a referral list does not present information in a way that encourages or promotes a specific option—it is merely “[a] list of licensed, qualified, comprehensive primary health care providers.” 42 C.F.R. § 59.14(b)(1)(ii). As Rust recognized, doctors are “free to make clear that advice regarding abortion is simply beyond the scope of the program.” 500 U.S. at 200.22

Because HHS has reasonably interpreted the phrase “pregnancy counseling” as not including referrals, and has interpreted the word “nondirective” to mean a neutral presentation of options as opposed to the presentation of all possible options, we reject plaintiffs’ argument that the term “nondirective pregnancy counseling” requires the provision of referrals for abortion on the same basis as referrals for prenatal care and adoption. Accordingly, the challenged provisions of the Final Rule do not violate the 1996 appropriations rider.

22 Plaintiffs briefly argue that the Final Rule’s general prohibition on promoting or providing support for abortion as a method of family planning, see 42 C.F.R. § 59.14(a), may “chill discussions of abortion and thus inhibit[] neutral and unbiased counseling.” We reject this argument. If a provider promoted or supported abortion as a method of family planning, the counseling would be directive and therefore violate the appropriations rider. See 84 Fed. Reg. at 7747. By contrast, the Final Rule’s prohibition on promoting or supporting abortion as a method of family planning both reinforces the rider’s nondirective-counseling requirement and implements § 1008’s prohibition on using Title X funds in programs “where abortion is a method of family planning.” § 1008, 42 U.S.C. § 300a-6.

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B

Plaintiffs next argue that the Final Rule is inconsistent with § 1554 of the ACA. See § 1554, 124 Stat. at 259 (codified at 42 U.S.C. § 18114). In March 2010, Congress passed the ACA “to expand coverage in the individual health insurance market,” King v. Burwell, 135 S. Ct. 2480, 2485 (2015), and to decrease the cost of health care, Nat’l Fed. of Indep. Bus. v. Sebelius, 567 U.S. 519, 538 (2012). The ACA adopted “a series of interlocking reforms” primarily involving insurance reform, including barring insurers from considering an individual’s health when deciding whether to offer coverage, requiring individuals to maintain health insurance coverage or face a penalty, and offering certain tax credits to make health insurance more affordable. King, 135 S. Ct. at 2485.

While Title I of the ACA focuses on health insurance issues, Subtitle G of that title, entitled “Miscellaneous Provisions,” does not address insurance directly. Instead, it sets forth a series of measures aimed at protecting the interests of entities and individuals that might be affected by the ACA’s sweeping program. Among other things, it requires HHS to promote transparency by providing a “list of all of the authorities provided to the Secretary under th[e] Act.” 42 U.S.C. § 18112. It also precludes discrimination against health care providers for failing to offer assisted suicide, see id. § 18113, ensures that individuals and entities have the freedom not to participate in federal health insurance programs, see id. § 18115, and prohibits health care programs and employers from engaging in various discriminatory acts, see id. § 18116. Section 1554, part of Subtitle G’s “Miscellaneous Provisions,” is titled “Access to therapies” and provides:

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Notwithstanding any other provision of this Act, the Secretary of Health and Human Services shall not promulgate any regulation that—

(1) creates any unreasonable barriers to the ability of individuals to obtain appropriate medical care;

(2) impedes timely access to health care services;

(3) interferes with communications regarding a full range of treatment options between the patient and the provider;

(4) restricts the ability of health care providers to provide full disclosure of all relevant information to patients making health care decisions;

(5) violates the principles of informed consent and the ethical standards of health care professionals; or

(6) limits the availability of health care treatment for the full durations of a patient’s medical needs.

§ 1554, 124 Stat. at 259; 42 U.S.C. § 18114.

Plaintiffs and the dissent contend that three provisions of the Final Rule conflict with this provision of the ACA: the Final Rule’s restrictions on promoting or supporting abortion

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as a method of family planning and making referrals for abortion; its physical and financial separation requirement; and its requirement that providers encourage family participation in family planning decisions. Dissent at 92–93.23

We disagree. The Supreme Court has long made a distinction between regulations that impose burdens on health care providers and their clients and those that merely reflect Congress’s choice not to subsidize certain activities. See Rust, 500 U.S. at 192; cf. United States v. Am. Library Ass’n, 539 U.S. 194, 211–12 (2003); Regan v. Taxation With

23 The government argues that plaintiffs’ ACA-based challenge is waived because § 1554 was not raised during the notice-and-comment period, and so HHS did not have an opportunity to provide analysis and reasoning regarding whether the Final Rule was consistent with § 1554 or to make any conforming changes to the Final Rule. Plaintiffs contend that many comments used terminology similar to that used in § 1554, and the similarity in terminology was enough to give HHS notice that the Final Rule could violate § 1554. For instance, plaintiffs claim that commenters’ objections to the Final Rule on the grounds that it would “ban Title X providers from giving women full information about their health care options” gave HHS notice that the Final Rule would violate § 1554’s ban on promulgating a regulation that “interferes with communications regarding a full range of treatment options.” 42 U.S.C. § 18114(3). The district courts agreed. See California, 385 F. Supp. 3d at 994–95; Oregon, 389 F. Supp. 3d at 914; Washington, 376 F. Supp. 3d at 1130. Because there is an obvious difference between arguing that a regulation violates best medical practices and arguing that a regulation violates a statute, we are doubtful that plaintiffs preserved their argument that the Final Rule violated § 1554. See Koretoff v. Vilsack, 707 F.3d 394, 398 (D.C. Cir. 2013) (per curiam) (holding that a proponent must raise a “specific argument,” as opposed to a “general legal issue” to preserve a legal argument for review) (citing Nuclear Energy Inst., Inc. v. Envtl. Prot. Agency, 373 F.3d 1251, 1291 (D.C. Cir. 2004)). Nevertheless, because the Final Rule does not conflict with § 1554, we need not address this question of waiver.

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Representation of Wash., 461 U.S. 540, 549–50 (1983). Under the Supreme Court’s jurisprudence, a state’s decision not to subsidize abortion on the same basis as other procedures does not impose a burden on women, even when indigence “may make it difficult and in some cases, perhaps, impossible for some women to have abortions,” because the law “neither created nor in any way affected” her indigent status. Maher, 432 U.S. at 474; see also Webster v. Reprod. Health Servs., 492 U.S. 490, 509–10 (1989) (holding that a state law prohibiting abortions in public hospitals was permissible because it “leaves a pregnant woman with the same choices as if the State had chosen not to operate any public hospitals at all”); Harris, 448 U.S. at 317 (“[T]he Hyde Amendment [prohibiting the use of federal funds to pay for abortion services except under specified circumstances] leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all.”).

Rust applied this well-established principle to the Title X context, rejecting arguments that the 1988 Rule’s limitations on counseling and referrals for abortion impermissibly burdened the doctor-patient relationship, interfered with a woman’s right to make “an informed and voluntary choice by placing restrictions on the patient-doctor dialogue,” and impeded a woman’s access to abortion services. 500 U.S. at 202. The Court recognized “[t]here is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy.” Id. at 193 (quoting Maher, 432 U.S. at 475). A government restriction on funding certain activities “is not denying a benefit to anyone, but is instead simply insisting that public funds be spent for the purposes

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for which they were authorized.” Id. at 196. Nor do restrictions on funding interfere with appropriate medical care. In the context of Title X funding, restrictive regulations “leave the [Title X] grantee unfettered” in the services it can perform outside of the Title X project, id., because the regulations “govern solely the scope of the Title X project’s activities” and “do not in any way restrict the activities of those persons acting as private individuals,” id. at 198–99. Further, “the Title X program regulations do not significantly impinge upon the doctor-patient relationship” because the doctor and patient may “pursue abortion-related activities when they are not acting under the auspices of the Title X project,” id. at 200, and “[a] doctor’s ability to provide, and a woman’s right to receive, information concerning abortion and abortion-related services outside the context of the Title X project remains unfettered,” id. at 203. The Court distinguished the sorts of limitations imposed by the 1988 Rule from a regime “in which the Government has placed a condition on the recipient of the subsidy rather than on a particular program or service, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program.” Id. at 197 (emphasis omitted).24

Rust’s logic applies equally to statutory and constitutional claims. If, as the Supreme Court has concluded, a rule

24 The Supreme Court has repeatedly reaffirmed Rust’s ruling that the government may constitutionally preclude recipients of federal funds from addressing specified subjects so long as the limitation does not interfere with a recipient’s conduct outside the scope of the federally funded program. See Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 213 (2013) (citing Rust, 500 U.S. at 195 n.4); accord Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2246 (2015).

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implementing the government’s policy decision to encourage childbirth rather than abortion does not burden or interfere with a client’s health care at all, see Harris, 448 U.S. at 317, then it does not matter whether the client’s heath care rights were created by the Constitution or a statute.

The same reasoning applies here and requires us to distinguish between § 1554’s prohibition on direct interference with certain health care activities and the Final Rule’s directives that ensure government funds are not spent for an unauthorized purpose. As in Rust, the Final Rule’s restrictions on funding certain activities do not create unreasonable barriers, impede access to health services, restrict communications, or otherwise involve “denying a benefit to anyone.” Id. at 196. Nor, as Rust explained, do they interfere with appropriate medical care or “significantly impinge upon the doctor-patient relationship.” Id. at 200. Rather, the Final Rule leaves a grantee “unfettered in its other activities” because it governs solely the scope of the services funded by Title X grants, id. at 196, and doctors and their clients remain free to exchange abortion-related information outside the context of the Title X project, id. at 203.25 Therefore, the Final Rule’s measures to ensure that government funds are spent for the purposes for which they

25 Plaintiffs and the California district court speculate (without any support in the record) that the Final Rule’s referral-list restrictions will delay clients from locating abortion providers and thus leave them worse off. See California, 385 F. Supp. 3d at 998. This is merely another version of the argument that Congress cannot prohibit Title X projects from assisting clients seeking abortion referrals. But such an argument has been rejected by the Supreme Court. See Rust, 500 U.S. at 193–94 (recognizing that restrictions of this type are permissible to ensure that “the limits of [Title X] are observed” so that project grantees and their employees do not “engag[e] in activities outside of the project’s scope”).

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were authorized does not violate § 1554’s restrictions on direct regulation of certain aspects of care.

The ACA itself makes clear that § 1554 is meant to prevent direct government interference with health care, not to affect Title X funding decisions. The most natural reading of § 1554 is that Congress intended to ensure that HHS, in implementing the broad authority provided by the ACA, does not improperly impose regulatory burdens on doctors and patients. Indeed, by introducing § 1554 with language focusing on the ACA—that “[n]otwithstanding any other provision of this Act,” HHS may not take certain steps, 42 U.S.C. § 18114—Congress showed its intent to ensure that certain interests of individuals and entities would be protected notwithstanding the broad scope of the ACA, and that such protections would supersede any other provision of the ACA “in the event of a clash.” NLRB v. SW Gen., Inc., 137 S. Ct. 929, 939 (2017) (citations omitted).

By contrast, the ACA did not seek to alter the relationship between federally funded grant programs and abortion in a fundamental way. See, e.g., Pub. L. No. 111-148, title X, § 10104(c)(2), 124 Stat. at 897 (codified at 42 U.S.C. § 18023(c)(2)). Section 10104(c)(2)(A) of the Act provides that “[n]othing in this Act shall be construed to have any effect on Federal laws regarding (i) conscience protection; (ii) willingness or refusal to provide abortion; and (iii) discrimination on the basis of the willingness or refusal to provide, pay for, cover, or refer for abortion or to provide or participate in training to provide abortion.” 42 U.S.C. § 18023(c)(2)(A). An Executive Order issued shortly after the ACA was passed emphasized the ACA’s neutrality regarding abortion issues, stating that “[u]nder the Act, longstanding Federal laws to protect conscience . . . remain

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intact and new protections prohibit discrimination against health care facilities and health care providers because of an unwillingness to provide, pay for, provide coverage of, or refer for abortions.” Ensuring Enforcement and Implementation of Abortion Restrictions in the Patient Protection and Affordable Care Act, Exec. Order No. 13,535, 75 Fed. Reg. 15,599 (Mar. 24, 2010). Nor did the ACA single out Title X for any changes. The ACA mentions Title X only to clarify that Title X providers may qualify as “teaching health centers” eligible for funds under a different grant program. See Pub. L. No. 111-148, tit. V, § 5508, 124 Stat. at 669–70 (codified at 42 U.S.C. § 293l-1).

In short, the ACA did not address the implementation of Congress’s choice not to subsidize certain activities. The Final Rule places no substantive barrier on individuals’ ability to obtain appropriate medical care or on doctors’ ability to communicate with clients or engage in activity when not acting within a Title X project, and therefore the Final Rule does not implicate § 1554.26

26 The plaintiffs raise several other arguments that the Final Rule violates Title X, but they do not merit much discussion. First, Washington argues that the Final Rule violates § 1008’s requirement that “acceptance by any individual of family planning services . . . shall be voluntary” because the Final Rule requires doctors to provide referrals for prenatal care regardless whether a client asks for abortion information. We disagree. The Final Rule preserves the requirement that “[a]cceptance of services must be solely on a voluntary basis,” 42 C.F.R. § 59.5(a)(2), and nothing in the Final Rule makes acceptance of family planning services a “prerequisite to eligibility for or receipt of any other service or assistance from, or to participation in, any other program.” 42 U.S.C. § 300a-5.
Second, some plaintiffs argue, and the Washington district court held, 376 F. Supp. 3d at 1130, that the central purpose of Title X is “to equalize access to comprehensive, evidence-based, and voluntary family planning”

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In sum, the Final Rule is not contrary to the appropriations rider, § 1554 of the ACA, or Title X. Plaintiffs’ claims based on these provisions will not succeed. Accordingly, plaintiffs have not demonstrated likelihood of success on the merits based on these grounds. See Winter, 555 U.S. at 20.

IV

We now turn to plaintiffs’ arguments that the Final Rule is arbitrary and capricious under the APA.27 The APA
requires a reviewing court to “hold unlawful and set aside

and that the Final Rule is inconsistent with this purpose. We disagree. The Supreme Court determined that provisions substantially identical with those in the Final Rule were consistent with Title X. Rust, 500 U.S. at 178–79.
Finally, Washington argues in passing that 42 C.F.R. § 59.18 is invalid because it allows Title X funds to be used “to offer family planing methods and services” but not “to build infrastructure for purposes prohibited with these funds, such as support for the abortion business of a Title X grantee or subrecipient.” 42 C.F.R. § 59.18(a) (emphasis added). According to Washington, this provision “limits the use of Title X funds for core functions” and therefore violates a provision of Title X authorizing the use of funds “to assist in the establishment and operation of voluntary family planning projects,” § 1001; 42 U.S.C. § 300. This argument is meritless, because § 59.18 merely harmonizes § 1001 with § 1008’s prohibition on the use of Title X funds “in programs where abortion is a method of family planning.” § 1008; 42 U.S.C. § 300a-6.
27 While the district court in Oregon found only “serious questions going to the merits of [the] claims that the Final Rule is arbitrary and capricious,” 389 F. Supp. 3d at 903, the California district court went further and concluded that the promulgation of the Final Rule was, in fact, arbitrary and capricious, 385 F. Supp. 3d at 1000. Rather than review these determinations separately, we consolidate our analysis given that the Final Rule is not arbitrary and capricious as a matter of law.

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agency action, findings, and conclusions found to be . . . arbitrary [or] capricious.” 5 U.S.C. § 706(2)(A). Our review under this directive is narrow and deferential. Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2569 (2019). We “must uphold a rule if the agency has examined the relevant considerations and articulated a satisfactory explanation for its action, including a rational connection between the facts found and the choice made.” FERC v. Elec. Power Supply Ass’n, 136 S. Ct. 760, 782 (2016) (cleaned up). “Th[is] requirement is satisfied when the agency’s explanation is clear enough that its path may reasonably be discerned,” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) (internal quotation marks omitted), even where an agency’s decision is “of less than ideal clarity,” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009).

We defer to the agency’s expertise in interpreting the record and to “the agency’s predictive judgment” on relevant questions. Id. at 521; see also Trout Unlimited v. Lohn, 559 F.3d 946, 959 (9th Cir. 2009). “It is well established that an agency’s predictive judgments about areas that are within the agency’s field of discretion and expertise are entitled to particularly deferential review, so long as they are reasonable.” BNSF Ry. Co. v. Surface Transp. Bd., 526 F.3d 770, 781 (D.C. Cir. 2008) (quoting Wis. Pub. Power, Inc. v. FERC, 493 F.3d 239, 260 (D.C. Cir. 2007)). Agency predictions of how regulated parties will respond to its regulations do not require “complete factual support in the record” and “necessarily involve[] deductions based on the expert knowledge of the agency.” FCC v. Nat’l Citizens

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Comm. for Broad., 436 U.S. 775, 814 (1978) (internal quotation marks omitted).28

We also defer to the agency’s expertise in identifying the appropriate course of action. With respect to the agency’s final decision, we cannot “ask whether a regulatory decision is the best one possible or even whether it is better than the alternatives.” Elec. Power Supply Ass’n, 136 S. Ct. at 782. Nor may we “substitute our judgment for that of the [agency].” Dep’t of Commerce, 139 S. Ct. at 2569. We are also prohibited from “second-guessing the [agency]’s weighing of risks and benefits and penalizing [it] for departing from the . . . inferences and assumptions” of others. Id. at 2571.

Nor do we give heightened review to agency action that “changes prior policy.” Fox, 556 U.S. at 514. The APA “makes no distinction . . . between initial agency action and subsequent agency action undoing or revising that action.” Id. at 514–15. Initial agency determinations are “not instantly carved in stone.” Chevron, 467 U.S. at 863. Of course, the “requirement that an agency provide reasoned explanation for its action would ordinarily demand that [the agency] display awareness that it is changing position” and “that there are good reasons for the new policy.” Fox, 556 U.S. at 515. For example, an agency may not “depart from a prior policy sub

28 The district courts relied on the predictions and opinions of experts provided by plaintiffs. See, e.g., California, 385 F. Supp. 3d at 1015–19; Oregon, 389 F. Supp. 3d at 918; Washington, 376 F. Supp. 3d at 1131. But it is not our job to weigh evidence or pick the more persuasive opinions and predictions. Rather, the agency has discretion to rely on its own expertise “even if, as an original matter, a court might find contrary views more persuasive.” Lands Council v. McNair, 629 F.3d 1070, 1074 (9th Cir. 2010) (internal quotations marks omitted).

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silentio or simply disregard rules that are still on the books.” Id. Likewise, “[i]t would be arbitrary or capricious to ignore,” where applicable, that “its new policy rests upon factual findings that contradict those which underlay its prior policy,” or that “its prior policy has engendered serious reliance interests that must be taken into account.” Id. But under our narrow review, an agency “need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates.” Id. In sum, we “must confine ourselves to ensuring that [the agency] remained within the bounds of reasoned decisionmaking.” Dep’t of Commerce, 139 S. Ct. at 2569 (internal quotation marks omitted).

Plaintiffs argue that several aspects of the Final Rule are arbitrary and capricious: (1) the physical and financial separation requirement; (2) HHS’s overall cost-benefit analysis; (3) the counseling and referral restrictions; (4) the requirement that pregnancy counseling be provided only by medical doctors or advanced practice providers; and (5) the requirement that family planning options be “acceptable and effective,” rather than also “medically approved.” We consider these arguments in turn.

A

Plaintiffs first argue that HHS’s promulgation of the physical and financial separation requirement in 42 C.F.R. § 59.15 was arbitrary and capricious because HHS failed to substantiate an adequate need for the requirement and ignored the predictions of some commenters that the requirement

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would have a significant adverse impact on the Title X network and client health.

We disagree. HHS examined the relevant considerations and provided a reasoned analysis for adopting this provision. See Elec. Power Supply Ass’n, 136 S. Ct. at 782. It stated its primary reason for reestablishing the requirement was that physical separation would more effectively implement § 1008. 84 Fed. Reg. at 7764. While the financial separation required by the 2000 Rule was a necessary component of § 1008’s implementation, HHS explained, physical separation was equally required given Congress’s mandate that Title X funds not support programs in any location “‘where’ abortion is offered as a method of family planning.” Id. at 7765 (emphasis added). HHS also expressly adopted the 1988 Rule’s rationale for physical and financial separation upheld in Rust, id., and gave ample additional reasons supporting this conclusion.

First, HHS pointed to the public confusion caused when physical separation was lacking. Id. According to HHS, the performance of abortion services and Title X-funded services in the same location engendered confusion and rendered it “often difficult for patients, or the public, to know when or where Title X services end and non-Title X services involving abortion begin.” Id. at 7764. This confusion was evidenced by comments HHS had received on the Final Rule; according to HHS, many commenters seemed wholly unaware of the fact that Title X explicitly excludes funding for projects where abortion is a method of family planning. Id. at 7729. HHS could reasonably conclude that the physical separation requirements could help minimize the appearance that the government is funding abortion as a method of family planning. See Brief of Amici Curiae Ohio and 12 Other States

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in Support of Defendants-Appellants and Reversal at 16–19, California v. Azar, Nos. 19-15974 & 19-15979 (9th Cir. June 7, 2019) (emphasizing the importance to many citizens of putting “a greater distance between public funding and abortion-performing entities,” and noting that at least 18 states have enacted laws designed to avoid even the appearance that state healthcare funds are being used to support entities involved in abortion services).

Second, HHS concluded that performing all services in the same facility “create[s] a risk of the intentional or unintentional use of Title X funds for impermissible purposes, the co-mingling of Title X funds, . . . and the use of Title X funds to develop infrastructure that is used for the abortion activities of Title X clinics.” 84 Fed. Reg. at 7764. This risk is not speculative. As HHS explained, economies of scale and shared overhead achieved through collocation of a Title X clinic and an abortion-providing clinic effectively support the provision of abortion. See id. at 7766. HHS relied in part on recent studies that show abortions are increasingly being performed at facilities that had historically focused on providing contraceptive and family planning services (the typical profile of facilities that receive Title X funds), which supports the inference that a growing number of Title X recipients may perform abortions at facilities that also offer Title X-funded services. Id. at 7765.

In reaching its conclusion, HHS responded to commenters’ concerns in detail. HHS first noted the concern that requiring physical and financial separation “would increase the cost for doing business.” Id. at 7766. HHS explained that such comments confirmed its concern that Title X funds were directly or indirectly supporting abortion as a method of family planning. Id. “Money is fungible,”

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Holder v. Humanitarian Law Project, 561 U.S. 1, 31 (2010), and HHS reasonably concluded that “flexibility in the use of Title X funds under the 2000 [Rule]” allowed grantees to use Title X funds to “build infrastructure that can be used for [prohibited] purposes . . . such as support for the abortion business of a Title X grantee,” 84 Fed. Reg. at 7773, 7774.

Next, with respect to those Title X projects that would need to make changes to comply with the separation requirements, HHS predicted that the costs of compliance would not be as significant as some commenters predicted. Id. at 7781 (noting such commenters “did not provide sufficient data to estimate these [predicted] effects across the Title X program”). HHS discounted the predictions, which relied on “assumptions that [providers] would have to build new facilities in order to comply with the requirements.” Id. Rather, HHS predicted that most entities would likely choose lower cost methods of compliance. Id. For example, “Title X providers which operate multiple physically separated facilities and perform abortions may shift their abortion services, and potentially other services not financed by Title X, to distinct facilities, a change which likely entails only minor costs.” Id. HHS explained that the Final Rule permitted “case-by-case determinations on whether physical separation is sufficiently achieved to take the unique circumstances of each program into consideration,” and that “[p]roject officers are available to help grantees successfully implement the Title X program” and to come up with “a workable plan” for compliance. Id. at 7766.

Finally, HHS addressed the “contention of some commenters that the physical and financial separation requirements will destabilize the network of Title X providers,” upset the reliance interests of providers who have

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incurred costs relying on HHS’s previous regulations, and “exacerbate health inequalities or harm patient care.” Id. HHS disagreed with the commenters’ predictions that the separation requirements would result in a significant departure of Title X providers from the program, explaining that the Final Rule “continues to allow organizations to receive Title X funds even if they also provide abortion as a method of family planning, as long as they comply with” the separation requirements. Id. HHS further noted that a Congressional Research Service report estimated that only 10 percent of clinics that receive Title X funding offer abortion as a method of family planning. Id. at 7781. And while some Title X providers “may share resources with unaffiliated entities that offer abortion as a method of family planning,” HHS estimated that only around 20 percent of all Title X service sites had “their Title X services and abortion services . . . currently collocated” such that they would be materially impacted by the separation requirements. Id. Accordingly, HHS concluded that the separation requirements would have only “minimal effect on the majority of current Title X providers.” Id.

At the same time, HHS predicted that providers who were willing to comply with the new requirements would expand their services and that other provisions of the Final Rule would encourage new “individuals and institutions to participate in the Title X program.” Id. at 7766. For example, HHS expected “that honoring statutory protections of conscience in Title X may increase the number of providers in the program,” because providers or entities would now “know they will be protected from discrimination on the basis of conscience with respect to counseling on, or referring for, abortion.” Id. at 7780. HHS cited a poll by the Christian Medical Association showing that faith-based

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medical professionals would limit the scope of their practice without conscience protections; HHS reasoned the Final Rule’s prohibition on abortion referral and removal of the 2000 Rule’s abortion counseling requirement would allow such professionals to enter the Title X program. Id. at 7780 n.138.29 And while HHS acknowledged that it “cannot calculate or anticipate future turnover in grantees,” under HHS’s “best estimates,” it did “not anticipate that there will be a decrease in the overall number of facilities offering services, since it anticipates other, new entities will apply for funds, or seek to participate as subrecipients, as a result of the final rule.” Id. at 7782.30

Plaintiffs, in effect, argue that HHS’s determination was arbitrary and capricious because the agency relied on its own predictions and rejected those submitted by commenters opposing the Final Rule. We reject this argument because

29 HHS’s inferences regarding the data’s implication for Title X applications is within HHS’s core area of expertise and therefore entitled to deference. See Trout Unlimited, 559 F.3d at 959; BNSF Ry. Co., 526 F.3d at 781. The dissent’s de novo evaluation of the study is not entitled to such deference. See Dissent at 103–104.
30 In supporting its argument that HHS’s cost-benefit analysis is arbitrary and capricious, the dissent looks outside the record to argue that some grantees, such as Planned Parenthood, have voluntarily terminated their participation in Title X. See Dissent at 101 & n.15. Of course, such post hoc, extra-record evidence cannot be a basis for determining whether HHS’s promulgation of the Final Rule was arbitrary and capricious. In any event, the dissent’s extra-record observation is misleading: HHS has issued supplemental grant awards to other Title X recipients that, in HHS’s estimation, “will enable grantees to come close to—if not [in excess of]—prior Title X patient coverage,” Press Release, Dep’t Health & Human Servs., HHS Issues Supplemental Grant Awards to Title X Recipients (Sept. 30, 2019), https://www.hhs.gov/about/news/2019/09/ 30/hhs-issues-supplemental-grant-awards-to-title-x-recipients.html.

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HHS’s predictive judgments about the Final Rule’s effect on the availability of Title X services are entitled to deference. See Trout Unlimited, 559 F.3d at 959. Here, the predictions concern matters squarely within HHS’s “field of discretion and expertise.” BNSF Ry. Co., 526 F.3d at 781 (quoting Wis. Pub. Power, 493 F.3d at 260). As the agency tasked with implementing the grant program, HHS is in the best position to anticipate the behavior of grantees and prospective grantees. HHS reasonably considered the evidence before it, where “complete factual support” for any prediction was “not possible or required,” Nat’l Citizens Comm. for Broad., 436 U.S. at 814, such that its decision “remained ‘within the bounds of reasoned decisionmaking,’” Dep’t of Commerce, 139 S. Ct. at 2569 (quoting Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 105 (1983)). Although the commenters opposing the Final Rule provided numerous expert declarations elaborating their gloomy assumptions about the future behavior and activities of current and future Title X grantees, at bottom such future-looking “pessimistic” predictions and assumptions are “simply evidence for the [agency] to consider,” Dep’t of Commerce, 139 S. Ct. at 2571, and are not entitled to controlling weight.31 HHS

31 Department of Commerce held that it was not arbitrary and capricious for the Secretary of Commerce to decline to rely on the conclusions of the “technocratic” experts in the Census Bureau. 139 S. Ct. at 2571. So too here: HHS may reasonably decide not to rely on the opinions of outside commenters, even where they claim expertise. The dissent insinuates that reliance on Department of Commerce is misplaced because “the Court struck down the Secretary of Commerce’s attempt to reinstate the citizenship question on the census.” Dissent at 101 n.15. But the Court “d[id] not hold that the agency decision . . . was substantively invalid”; it merely affirmed the district court’s decision to remand to the agency due to a perceived “mismatch between the decision the Secretary made and the rationale provided.” Dep’t of Commerce, 139 S. Ct. at 2575–76. Here, there is no “disconnect between the decision [HHS] made

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need not produce “some special justification for drawing [its] own inferences and adopting [its] own assumptions.” Id. Although plaintiffs and the dissent have reached a different conclusion, we consider only whether the agency examined the relevant considerations and laid a reasonably discernable path.

In light of HHS’s reasoned explanation of its decisions and its consideration of the comments raised, we reject plaintiffs’ arguments that HHS failed to base its decision on evidence, failed to consider potential harms in its cost-benefit analysis, failed to explain its reasons for departing from the 2000 Rule’s provisions, and failed to consider the reliance interest of providers who have incurred costs relying on HHS’s previous regulation. The Final Rule’s separation requirements are not arbitrary and capricious.

B

Plaintiffs and the dissent make a similar argument that HHS’s cost-benefit analysis of the Final Rule was arbitrary and capricious. Dissent at 100–106. They argue that HHS ignored the commenters who predicted the Final Rule would cause an exodus of Title X providers and have a deleterious effect on client care, and instead relied on its own predictions about the Final Rule’s benefits.

Like plaintiffs’ challenge to the physical and financial separation requirements, the challenge to HHS’s cost-benefit analysis fails. HHS considered and addressed “the concern

and the explanation given,” id. at 2575, so the grounds on which Department of Commerce ultimately affirmed the decision to remand are irrelevant.

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expressed by some commenters regarding the effect of this rule on quality and accessibility of Title X services,” and explained its reasons for relying on its own predictions regarding the likely behavior of current and future Title X grantees. 84 Fed. Reg. at 7780. HHS likewise rejected the “extremely high cost estimates” for compliance with the separation requirements, reasoning that providers would tend to seek out lower cost options, such as shifting abortion services to distinct facilities rather than constructing new ones. Id. at 7781–82.32 HHS was not required to accept the commenters’ “pessimistic” cost predictions, Dep’t of Commerce, 139 S. Ct. at 2571, and the agency adequately explained why it did not expect grantees to participate in a mass rejection of Title X funds, see 84 Fed. Reg. at 7766. In

32 The dissent asserts that HHS “calculated [the] costs of compliance with the physical separation requirement in a ‘mystifying’ way.” Dissent at 102 n.16 (quoting California, 385 F. Supp. 3d at 1008). But there is nothing “mystifying” about HHS’s cost estimates. HHS estimated that between 10 and 30 percent of all Title X projects would need to be evaluated to determine compliance with the physical separation requirements. 84 Fed. Reg. at 7781. It then predicted that such evaluations would determine that between 10 to 20 percent of the evaluated sites do not comply with the physical separation requirements. Id. “At each of these service sites, [HHS] estimates that an average of between $20,000 and $40,000, with a central estimate of $30,000, would be incurred to come into compliance with physical separation requirements in the first year following publication of a final rule in this rulemaking.” Id. at 7781–82. HHS then added together the costs of conducting the evaluations and bringing non-compliant facilities into compliance, and concluded its estimates “would imply costs of $36.08 million in the first year following publication of a final rule.” Id. at 7782. Based solely on statements made by plaintiffs’ lawyers during oral argument, the dissent speculates that HHS’s cost estimates were too optimistic. Dissent at 102 n.16. But we need not favor plaintiffs’ pessimistic cost estimates over those provided by HHS. See Dep’t of Commerce, 139 S. Ct. at 2571.

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light of HHS’s conclusion that an ample number of Title X projects would continue to provide family planning services, HHS reasonably concluded that the harms flowing from a gap in care would not develop. See id. at 7775, 7782. We give substantial deference to such predictive judgments within the scope of HHS’s expertise. Trout Unlimited, 559 F.3d at 959. On this record, we will not second-guess HHS’s consideration of the risks and benefits of its action. See Dep’t of Commerce, 139 S. Ct. at 2571.

C

Plaintiffs next assert that the referral restrictions are arbitrary and capricious. They first argue that HHS failed to justify the need for this provision adequately. We disagree. HHS stated it was reestablishing the 1988 Rule for referrals because it concluded that the 2000 Rule was inconsistent with § 1008. Under HHS’s interpretation of § 1008, “in most instances when a referral is provided for abortion, that referral necessarily treats abortion as a method of family planning.” 84 Fed. Reg. at 7717. Further, HHS concluded that the 2000 Rule’s requirement that Title X projects provide abortion referrals and nondirective counseling on abortion was inconsistent with federal conscience laws. Id. at 7716. HHS referenced its 2008 nondiscrimination regulations, which had reached the same conclusion. Id. (quoting 73 Fed. Reg. at 78,087). HHS also explained that eliminating the 2000 Rule’s counseling and referral requirements would “reduce the regulatory burden [on HHS] associated with monitoring and regulating Title X providers for compliance,” id. at 7719, “add clarity to extant conscience protections, [and make] it easier for entities to participate who may have felt unable to do so in the past,” id. at 7778. In sum, HHS

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engaged in “reasoned decisionmaking.” Dep’t of Commerce, 139 S. Ct. at 2569.33

Plaintiffs next argue that HHS did not justify the need for the counseling and referral restrictions because non-objecting health care staff could provide counseling and referrals for abortion without violating the federal conscience laws. Therefore, plaintiffs urge, HHS’s reliance on federal conscience laws as justification was arbitrary and capricious. We reject this argument, because it amounts to little more than the claim that HHS should have adopted plaintiffs’ preferred regulatory approach. But HHS acted well within its authority in deciding how best to avoid conflict with the federal conscience laws. We do not “ask whether a regulatory decision is the best one possible or even whether it is better than the alternatives.” Elec. Power Supply Ass’n, 136 S. Ct. at 782. Rather, we defer to the agency’s reasoned conclusion.

Plaintiffs also argue that HHS failed to consider claims by some commenters that the restrictions would require “providers to violate their ethical obligations to stay in the program” because they require “providers to withhold information about abortion (including referral) that the patient needs,” and to provide “a biased and misleading list of

33 The plaintiffs’ argument that the referral restrictions are arbitrary and capricious because they conflict with guidelines in the QFP is meritless, because these guidelines were based on the 2000 Rule, and are superseded by the Final Rule. See Dep’t Health & Human Servs., Announcement of Availability of Funds for Title X Family Planning Services Grants, at 14–15 (2019).

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primary health care providers.”34 But HHS specifically addressed those concerns. It stated that the counseling and referral restrictions would not result in ethical violations because the Final Rule permitted providers to give “nondirective pregnancy counseling to pregnant Title X clients on the patient’s pregnancy options, including abortion.” 84 Fed. Reg. at 7724.35 HHS reasoned that the

34 The dissent repeatedly echoes the plaintiffs’ claims that the Final Rule contradicts or violates medical ethics because it limits Title X projects from encouraging and supporting abortion and from referring clients to abortion providers. See Dissent at 92–93, 98–99 & n.13. Despite the dissent’s and plaintiffs’ ethical claims, neither cites an opinion from the AMA’s Code of Medical Ethics directly addressing abortion. See, e.g., Dissent at 99 n.13. Rather, the dissent and plaintiffs cite more general guidance regarding a physician’s obligation to inform the patient regarding “treatment alternatives” for medical conditions; because a nontherapeutic abortion is not a “treatment” option for a medical condition but rather a procedure for terminating a healthy pregnancy, such guidance does not directly relate to this issue.
It is not surprising that medical ethical rules are not as absolute as the dissent claims; as noted in Roe v. Wade, the AMA’s views of medical ethics and abortion changed from a condemnation of the “unwarrantable destruction of human life” to the conclusion that abortions could properly be performed in some circumstances. 410 U.S. 113, 142 (1973). Despite greater public acceptance of abortion today, the issue raises controversial ethical questions, as demonstrated by (among other things) the continued enactment of federal conscience laws and public comments urging HHS to protect physicians’ ability to decline to counsel on or refer for abortion. See 84 Fed. Reg. at 7746–47; see also Brief of Amici Curiae Ohio, supra at 16 (many citizens “believe that permitting abortion providers or advocates to participate in providing a government-funded service implies a public imprimatur on abortion—an imprimatur that citizens legitimately seek to withhold”).
35 The dissent argues that in reaching this conclusion, HHS contradicted its prior conclusion in the 2000 Rule as to “what medical ethics demand.” Dissent at 99. But HHS did not provide an opinion on

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Final Rule allows physicians “to discuss the risks and side effects of each option, [including abortion,] so long as this counsel in no way promotes or refers for abortion as a method of family planning.” Id. A client may “ask questions and . . . have those questions answered by a medical professional.” Id. HHS also noted that where care is medically necessary, referral for that care is required, notwithstanding the Final Rule’s other requirements. Id. Consistent with Rust, HHS concluded that “it is not necessary for women’s health that the federal government use the Title X program to fund abortion referrals, directive abortion counseling, or give to women who seek abortion the names of abortion providers.” Id. at 7746.36 These statements show HHS examined the relevant considerations arising from commenters citing medical ethics and rationally articulated an explanation for its conclusion. See Elec. Power Supply Ass’n, 136 S. Ct. at 782.

this issue when it overruled its prior 1988 Rule; it merely referenced the views of commenters, without adopting those views as its own. See 65 Fed. Reg. at 41,273. Thus, the dissent’s argument that HHS “changed its position on what medical ethics demand” is meritless.
36 Rust rejected ethical arguments similar to those raised here. See 500 U.S. at 213–14 (Blackmun, J. dissenting) (arguing that “the ethical responsibilities of the medical profession demand” that a physician be free to inform patients about abortion). According to the Court, “the Title X program regulations do not significantly impinge upon the doctor-patient relationship” because, among other reasons, “the doctor-patient relationship established by the Title X program [is not] sufficiently all encompassing so as to justify an expectation on the part of the patient of comprehensive medical advice,” and “a doctor’s silence with regard to abortion cannot reasonably be thought to mislead a client into thinking that the doctor does not consider abortion an appropriate option for her,” given that “[t]he program does not provide post conception medical care.” Id. at 200. And under the Final Rule, as under the 1988 Rule, “[t]he doctor is always free to make clear that advice regarding abortion is simply beyond the scope of the program.” Id.

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Because HHS’s decisionmaking path “may reasonably be discerned,” Dep’t of Commerce, 139 S. Ct. at 2578, we reject plaintiffs’ claims that the counseling and referral restrictions are arbitrary and capricious.

D

We next consider plaintiffs’ claim that the Final Rule’s requirement that all pregnancy counseling be provided by medical doctors or advanced practice providers is arbitrary and capricious. Plaintiffs argue that because HHS defined the term “advanced practice providers” too narrowly, and did not have a reasoned basis for drawing the line at which medical professionals may provide pregnancy counseling, the provision is arbitrary and capricious.

We disagree. HHS explained that, in its judgment, “medical professionals who receive at least a graduate level degree in the relevant medical field and maintain a federal or State-level certification and licensure to diagnose, treat, and counsel patients . . . are qualified, due to their advanced education, licensing, and certification to diagnose and treat patients while advancing medical education and clinical research.” 84 Fed. Reg. at 7728.37 We have no basis to conclude that this line-drawing determination, an inherently discretionary task, “is so implausible” that a difference with

37 Although the dissent asserts that this requirement will “reduce the number of people who can provide pregnancy counseling and . . . require significant changes in Title X providers’ staffing,” Dissent at 102, HHS’s definition covers a wide range of licensed medical professionals that HHS reasonably deemed qualified to provide health care advice, including physician assistants, certified nurse practitioners, clinical nurse specialists, certified registered nurse anesthetists, and certified nurse-midwifes, see 42 C.F.R. § 59.2.

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plaintiffs’ views “could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Accordingly, we reject plaintiffs’ arguments that HHS’s technical determination of which medical professionals may provide pregnancy counseling is arbitrary and capricious.

E

Finally, we reject plaintiffs’ argument that HHS was arbitrary and capricious in reestablishing the language of the 1988 Rule’s requirement that all family planning methods and services be “acceptable and effective,” instead of retaining the 2000 Rule’s revision requiring that such methods and services also be “medically approved.” 84 Fed. Reg. at 7732.

HHS adequately explained its reasons for reestablishing the 1988 Rule. HHS explained that the change was intended to “ensure that the regulatory language is consistent with the statutory language,” id. at 7740, which requires Title X projects to “offer a broad range of acceptable and effective family planning methods and services,” 42 U.S.C. § 300(a). HHS also explained that the meaning of “medically approved” was unclear. 84 Fed. Reg. at 7741. “For example, would approval by one medical doctor suffice, or would some larger number need to approve, and if so, how many; would certain medical organizations, or governmental organizations, or both, need to approve, and if so, which ones; would a certain level of medical consensus need to exist concerning a particular method or service, and if so, how would the Department measure that consensus; and when doctors and medical organizations disagree either about a family planning

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method or service, how would that requirement apply?” Id. at 7732.

HHS also explained its rejection of the comment suggesting the phrase “medically approved” means “FDA approved.” HHS stated that “[s]ome family planning methods cannot be medically approved by . . . the [FDA], because they do not fall within its jurisdiction,” and provided examples, such as fertility-awareness based methods of family planning. Id. at 7741 & n.69. In HHS’s judgment, “[t]his did not mean that such methods of family planning are unacceptable or ineffective in the view of medical sources.” Id. at 7741. Accordingly, HHS determined that “[t]he statutory language of ‘acceptable and effective family methods or services,’ without the phrase ‘medically approved[,]’ provides sufficient guidance to Title X projects in considering the types of family planning methods and services that they provide.” Id.

HHS likewise sufficiently addressed comments that its decision to omit the phrase “medically approved” would promote political ideology over science, lead to negative health consequences for clients, and undermine recommendations from other agencies. See id. at 7740–41. We defer to HHS’s reasonable conclusion that Title X’s statutory requirement that family planning methods and services must be “acceptable and effective” sufficiently prohibits Title X projects from engaging in health fraud or quackery. Id. at 7741.

Because HHS “examined the relevant considerations and articulated a satisfactory explanation for its action,” Elec. Power Supply Ass’n, 136 S. Ct. at 782 (cleaned up), we reject

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plaintiffs’ argument that this change was arbitrary and capricious.

In sum, we hold that the Final Rule is not arbitrary and capricious.

* * *

Because plaintiffs’ claims will not succeed given our resolution of the underlying legal questions, we end our analysis here. See Munaf, 553 U.S. at 691; Garcia, 786 F.3d at 740. We hold that the Final Rule is a reasonable interpretation of § 1008, it does not conflict with the 1996 appropriations rider or other aspects of Title X, and its implementation of the limits on what Title X funds can support does not implicate the restrictions found in § 1554 of the ACA. Moreover, the Final Rule is not arbitrary and capricious because HHS properly examined the relevant considerations and gave reasonable explanations. See Elec. Power Supply Ass’n, 136 S. Ct. at 782. Plaintiffs will not prevail on the merits of their legal claims, so they are not entitled to the “extraordinary remedy” of a preliminary injunction. See Winter, 555 U.S. at 22. Accordingly, the district courts’ preliminary injunction orders are vacated and the cases are remanded for further proceedings consistent with this opinion. The government’s motion for a stay pending appeal is denied as moot.

VACATED AND REMANDED.38

38 Costs on appeal shall be taxed against plaintiffs.

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PAEZ, Circuit Judge, joined by THOMAS, Chief Judge, WARDLAW and FLETCHER, Circuit Judges, dissenting:

Millions of Americans depend on Title X for their health care, including lifesaving breast and cervical cancer screenings, HIV testing, and infertility and contraceptive services. Congress created the Title X program in 1970 to ensure that family planning services would be “readily available to all persons desiring such services,” Pub. L. No. 91-572 § 2, 84 Stat. 1504 (1970), and entrusted the United States Department of Health and Human Services (“HHS”) with the responsibility of disbursing Title X funds to health care providers serving low-income Americans.

Since then, Congress has twice circumscribed HHS’s authority in administering the Title X program. First, Congress directed that the health care providers who receive Title X funds inform pregnant patients of their options without advocating one choice over another. Second, Congress barred HHS from promulgating regulations that burden patients’ access to health care, interfere with communications between patients and their health care providers, or delay patients’ access to care.

In 2019, HHS promulgated the regulations at issue in this litigation (“the Rule”). See Compliance with Statutory Program Integrity Requirements, 84 Fed. Reg. 7714 (Mar. 4, 2019). Among other things, the Rule gags health care providers from fully counseling women about their options while pregnant and requires them to steer women toward childbirth (the “Gag Rule”). It also requires providers to physically and financially separate any abortion services they provide (through non-Title X funding sources) from all other

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health care services they deliver (the “Separation Requirement”).

Three separate district courts in well-reasoned opinions recognized that the Rule breaches Congress’s limitations on the scope of HHS’s authority and enjoined enforcement of the Rule.1 In vacating the district courts’ preliminary injunctions, the majority sanctions the agency’s gross overreach and puts its own policy preferences before the law. Women2 and their families will suffer for it. I strongly dissent.

***

The majority would return us to an older world, one in which a government bureaucrat could restrict a medical professional from informing a patient of the full range of health care options available to her. Fortunately, Congress has ensured such federal intrusion is no longer the law of the land.

1 See Oregon v. Azar (Oregon), 389 F. Supp. 3d 898 (D. Or. 2019); State of California v. Azar (California), 385 F. Supp. 3d 960 (N.D. Cal. 2019); Washington v. Azar (Washington), 376 F. Supp. 3d 1119 (E.D. Wash. 2019).
2 While the Rule disproportionately impacts women, people of all genders rely on Title X services, can become pregnant, and will suffer the consequences of the Rule. See, e.g., Cal. Code Regs., tit. 2, § 11035(g) (defining individuals eligible for pregnancy accommodation as including “transgender employee[s] who [are] disabled by pregnancy”); Jessica A. Clarke, They Them, and Theirs, 132 Harv. L. Rev. 894, 954 (2019) (“People of all gender identities can be pregnant[.]”); see also Juno Obedin-Maliver & Harvey J. Makadon, Transgender Men and Pregnancy, 9 Obstetric Med., 4, 5 (2016).

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The majority heavily relies, mistakenly, on Rust v. Sullivan and Harris v. McRae, decisions that held the Constitution confers no affirmative entitlement to state subsidization of abortion. Maj. Op. 22–24, 50 n.21, 55–59; Rust, 500 U.S. 173, 201 (1991); McRae, 448 U.S. 297, 318 (1980); see also Webster v. Reproductive Health Services, 492 U.S. 490, 509 (1989); Maher v. Roe, 432 U.S. 464, 474 (1977). “Whether freedom of choice that is constitutionally protected warrants federal subsidization,” the Court reasoned in McRae, “is a question for Congress to answer, not a matter of constitutional entitlement.” 448 U.S. at 318. It is constitutionally permissible to “leave[] an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all.” Id. at 317. In other words, Congress can choose to disburse its funds however it likes. I do not take issue with that principle.

The problem for the majority’s position is that Congress has in fact chosen to disburse public funds differently since the days of Rust. Perhaps recognizing that medical ethics and gender norms have evolved, Congress in 1996 and again in 2010 enacted statutory protections that exceed the constitutional floor set decades ago. In 1996 (and every year since) Congress clarified that its decision not to subsidize abortion does not prohibit pregnancy counseling on the range of women’s options; to the contrary, Congress explicitly required that “all pregnancy counseling shall be nondirective.” Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (“the nondirective mandate”). And, in 2010, Congress prohibited HHS from promulgating regulations that

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frustrate patients’ ability to access health care. 42 U.S.C. § 18114.

The majority disregards twenty years of progress, insistent on hauling the paternalism of the past into the present. Because Congress has clarified the scope of HHS’s authority, the Rust line of cases has little bearing on the matter before us. Our only task is to determine whether HHS has exceeded the authority Congress granted it. And as the district courts concluded, it has.

I. The Rule Violates Congress’s Nondirective Mandate

Since 1996, Congress has provided a clear limitation on Title X funding, specifying “that all pregnancy counseling shall be nondirective.” Department of Defense and Labor, Health and Human Services, and Education Appropriations Act, and Continuing Appropriations Act, Pub. L. No. 115245, 132 Stat. 2981, 3070–71 (2018) (emphasis added). The district courts separately determined that the Rule conflicts with Congress’s nondirective mandate. 5 U.S.C. § 706(2)(A); see Oregon, 389 F. Supp. 3d at 909–13; California, 385 F. Supp. 3d at 986–92; Washington, 376 F. Supp. 3d at 1130. I agree.3

3 We review for abuse of discretion the district courts’ grant of the preliminary injunctions. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). “The district court’s interpretation of the underlying legal principles, however, is subject to de novo review and a district court abuses its discretion when it makes an error of law.” Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003). Because Plaintiffs’ first two claims, namely whether the Rule violates Congress’s nondirective mandate or the Affordable Care Act, turn on the merits of several legal issues, I agree with the majority that we may address the merits of those issues directly. The majority goes too far,

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The Rule is nothing but directive. By its very terms, it requires a doctor to refer a pregnant patient for prenatal care, even if she does not want to continue the pregnancy, while gagging her doctor from referring her for abortion, even if she has requested specifically such a referral. 42 C.F.R. §§ 59.14(a), (b). The Rule does not stop there. If a doctor provides a patient a referral list of primary health care providers, no more than half of those providers may offer abortion services. 42 C.F.R. § 59.14(c)(2). And if the patient asks who on the list might actually provide her an abortion? The Rule muzzles her doctor from telling her. Id. The result is that patients are steered toward childbirth at every turn.

What can a doctor even say when confronted with her patient’s questions about abortion? The Rule bars doctors from “promot[ing] . . . or support[ing] abortion as a method of family planning, []or tak[ing] any other affirmative action to assist a patient” in exercising her right to abortion. 42 C.F.R. § 59.14(a); see also 42 C.F.R. § 59.5(a)(5). Imagine a patient visits her Title X provider and asks whether she can get an abortion at the local hospital. Would it qualify as “promoting” abortion to answer the question? The Gag Rule makes doctors who desire to provide their patients with accurate information “walk on eggshells to avoid a potential transgression of the . . . Rule, whereas those describing the option of continuing the pregnancy face no comparable risk.” California, 385 F. Supp. 3d at 992.

however, in adjudicating the merits of the third claim, namely whether the promulgation of the Rule was arbitrary and capricious, for the reasons discussed in Section III, infra.

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The result is Kafkaesque. Oregon, 389 F. Supp. 3d at 912. As Judge McShane of the District of Oregon observed:

The Gag Rule is remarkable in striving to make professional health care providers deaf and dumb when counseling a client who wishes to have a legal abortion or is even considering the possibility. The rule handcuffs providers by restricting their responses in such situations to providing their patient with a list of primary care physicians who can assist with their pregnancy without identifying the ones who might perform an abortion. Again, the response is required to be, “I can’t help you with that or discuss it. Here is a list of doctors who can assist you with your pre-natal care despite the fact that you are not seeking such care. Some of the providers on this list—but in no case more than half—may provide abortion services, but I can’t tell you which ones might. Have a nice day.” This is madness.

Id. at 913 (footnote omitted).

The majority purports to see no problem here. Although HHS itself defines “nondirective counseling” as “the meaningful presentation of options where the [medical professional] is ‘not suggesting or advising one option over another,’” 84 Fed. Reg. at 7716 (citation omitted), the majority insists such counseling does not require the meaningful presentation of “all” options. Maj. Op. 47. Rather, in the majority’s tortured telling, “nondirective”

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requires only the “neutral” presentation of some options.4 Maj. Op. 47.

Excluding an entire category of options is neither meaningful nor neutral. If a man were diagnosed with prostate cancer, and his doctor concluded that chemotherapy, radiation, or hospice were equally viable responses, each with different consequences for his quality of life, he would be upset, to say the least, to discover that he had been referred only for hospice care. Such a sham “presentation” of options would in no sense be nondirective.

So too here. Indeed, HHS itself has recognized that there can be no meaningful choice when a whole category of

4 The majority sanctions HHS’s post hoc interpretation that “counseling” does not include “referrals.” Maj. Op. 41–46. Judge Chen of the Northern District of California readily dismissed this argument. California, 385 F. Supp. 3d at 988–91. As Judge Chen explained, nondirective counseling encompasses referrals for three reasons. First, Congress expressly stated so, a point HHS recognized when it promulgated the Rule. See 42 U.S.C. § 254c-6(a)(1) (requiring HHS to make training grants on “providing adoption information and referrals to pregnant women on an equal basis with all other courses of action included in nondirective counseling to pregnant women”) (emphasis added); 84 Fed. Reg. at 7733 (“Congress has expressed its intent that postconception adoption information and referrals be included as part of any nondirective counseling in Title X projects when it passed . . . 42 U.S.C. 254c-6[.]”) (emphasis added). Second, HHS itself describes referrals as part of counseling throughout the Rule and has done so across administrations. See, e.g., 84 Fed. Reg. at 7730, 7733–34; U.S. Dep’t Health & Human Services, Program Guidelines for Project Grants for Family Planning Services § 8.2 (1981) (“Post-examination counseling should be provided to assure that the client . . . receives appropriate referral for additional services as needed.”). Third, industry understanding recognizes that counseling includes referrals. See California, 385 F. Supp. 3d at 989.

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options is hidden from a patient: “In nondirective counseling, abortion must not be the only option presented by [medical professionals]; otherwise the counseling would violate . . . the Congressional directive that all pregnancy counseling be nondirective[.]” 84 Fed. Reg. at 7747. The Gag Rule does exactly that. For all pregnancy counseling not involving abortion, women can take an “active” and “informed” role in their pregnancy and family planning process; but once a woman asks for abortion information, she can no longer be provided all the information she seeks about her own medical care. See 84 Fed. Reg. at 7716–17. “[E]mpower[ed]” so long as she does what the agency and the majority want; “coerc[ed]” and demeaned if she tries to “take an active role in . . . identifying the direction” of her life’s course. 84 Fed. Reg. at 7716; 65 Fed. Reg. at 41275.5 The consequences will

5 Indeed, in 2000, the agency concluded that “requiring a referral for prenatal care and delivery or adoption where the client rejected those options would seem coercive and inconsistent with the concerns underlying the ‘nondirective’ counseling requirement.” 65 Fed. Reg. at 41275 (emphasis added).
The majority attempts to salvage the prenatal care referral requirement by claiming that prenatal care is medically necessary for all patients’ health, regardless of their intent to end a pregnancy. Maj. Op. 48 & n.19. That’s not true, as the American College of Obstetricians and Gynecologists (“ACOG”) and other professional medical associations, as well as numerous physicians and other health care providers have attested. See, e.g., Br. of Amici Curiae Am. Coll. of Obstetricians & Gynecologists, et al., at 14–15 (“Prenatal care is not medically indicated when a pregnant patient plans to terminate her pregnancy—it is recommended only when a patient plans to continue her pregnancy.”); Decl. of J. Elisabeth Kruse, Nat’l Family Planning & Reprod. Health Ass’n Supplemental Excerpts of Record (“SER”) at 256 (Washington) (“[O]f course, such care is not medically necessary for someone who wishes to terminate her pregnancy.”); Decl. of Dr. Melissa Marshall, California SER 579 (California) (“[P]renatal health care is not medically necessary when a

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be profound, delaying some women’s access to time-sensitive
care and preventing others from accessing abortion altogether.6

patient is terminating her pregnancy.”); Decl. of Dr. Judy Zerzan-Thul, Washington SER 161 (Washington) (“[I]f a patient determined to be pregnant elects to terminate the pregnancy, pre-natal care would not be medically necessary.”). And, regardless, that’s not how HHS justified the requirement. Rather, HHS required the prenatal care referral because “such care is important” not only for women’s health but also “for healthy pregnancy and birth.” 84 Fed. Reg. at 7722 (emphasis added).
6 As health care providers and amici make clear, the notion that “information about abortion is readily available ‘on the internet’ betrays a complete lack of understanding of the realities of our Title X patient population” who, “because of language, literacy (including health literacy and electronic literacy), or economic barriers[,]” depend on referrals from Title X providers in order to access care. Kruse, Nat’l Family Planning & Reprod. Health Ass’n SER 262 (Washington); see also Decl. of Dr. Sarah Prager, id. at 298–99 (“Because many Title X patients have linguistic, educational, informational, and financial barriers to accessing healthcare, the impediments introduced by the New Rule may prevent such patients from accessing abortion altogether.”); Decl. of Dr. Blair Darney, Oregon SER 41 (Oregon) (“Researchers have studied the reasons women delay entry to care for abortion; logistics such as knowing where to go is among the reasons.”); cf. Maj. Op. 50 n.21.
The barriers created by the Gag Rule are particularly substantial for young people, LGBTQ people, those with limited English proficiency, and patients in rural areas. See, e.g., Br. of Amici Curiae Nat’l Ctr. for Youth Law, et al., at 16–17 (“Adolescents without easy access to transportation, a phone, and the Internet might be unable to research the providers on the list they are given. They also might not immediately comprehend that a medical professional, whom they trust, has referred them for care that they do not need or want . . . . Particularly for adolescents who are homeless or in foster care, navigating a maze of providers that might or might not offer abortion services could prove impossible.”); Br. of Amici Curiae Nat’l Ctr. for Lesbian Rights, et al., at 13; Decl. of Kathryn Kost, California SER 156 (California). As one health care provider concluded, “The New

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Congress has prohibited such a result. Contrary to the majority’s contention that HHS is owed Chevron deference because Congress has not clarified the meaning of the term “nondirective”, Maj. Op. 46, Congress has in fact done so. And where Congress’s intent is clear, we “must give effect to the unambiguously expressed intent of Congress.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).

Congress has used “nondirective counseling” in only two instances: the annual HHS Appropriations Act at issue here and section 254c-6(a)(1) of the Public Health Service Act (“PHSA”). The latter provides that HHS shall make training grants “providing adoption information and referrals to pregnant women on an equal basis with all other courses of action included in nondirective counseling to pregnant women.” 42 U.S.C. § 254c-6(a)(1) (emphasis added).

In response, the majority asserts that because § 254c6(a)(1) is not part of Title X and was enacted for a different purpose, “it sheds no light on Congress’s intent in enacting the appropriations rider or on the interpretation of its statutory language.” Maj. Op. 44. If § 254c-b(a)(1) sheds no light, HHS certainly didn’t think so: it relied on the PHSA definition in formulating the Rule. See 84 Fed. Reg. at 7733 (“Congress has expressed its intent that . . . referrals be included as part of any nondirective counseling in Title X projects when it passed the . . . Public Health Service Act[.]”); 84 Fed. Reg. at 7745. As HHS apparently recognized, Congress’s use of the term “nondirective

Rule’s coercive requirements would force me to disrespect, contradict, and patronize my patient, and violate her trust[.]” Kruse, Nat’l Family Planning & Reprod. Health Ass’n SER 262 (Washington).

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counseling” should be read consistently between the PHSA and the nondirective appropriations rider to include providing referrals on an equal basis with all other options. See Erlenbaugh v. United States, 409 U.S. 239, 243 (1972) (“[A] legislative body generally uses a particular word with a consistent meaning in a given context.”); see also Dir., Office of Workers’ Comp. Prog., Dep’t of Labor v. Newport News Shipbldg. & Dry Dock Co., 514 U.S. 122, 130 (1995) (instructing that in interpreting an ambiguous statutory phrase, “[i]t is particularly illuminating to compare” two different statutes employing the “virtually identical” phrase).

Because the Gag Rule requires doctors to push patients toward one option over another, it violates Congress’s mandate that patients receive counseling on their pregnancy options in a nondirective manner.

II. The Rule Violates Section 1554 of the Affordable Care Act

In 2010, as part of the Affordable Care Act’s (“ACA”) sweeping reforms, Congress imposed limits on the scope of HHS’s regulatory authority:

Notwithstanding any other provision of this Act, the Secretary of Health and Human Services shall not promulgate any regulation that—

(1) creates any unreasonable barriers to the ability of individuals to obtain appropriate medical care;

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(2) impedes timely access to health care services;

(3) interferes with communications regarding a full range of treatment options between the patient and the provider;

(4) restricts the ability of health care providers to provide full disclosure of all relevant information to patients making health care decisions;

(5) violates principles of informed consent and the ethical standards of health care professionals; or

(6) limits the availability of health care treatment for the full duration of a patient’s medical needs.

42 U.S.C. § 18114 (“section 1554”). The three district courts separately determined that the Rule violates section 1554 of the ACA. See Oregon, 389 F. Supp. 3d at 914–15; California, 385 F. Supp. 3d at 992–1000; Washington, 376 F. Supp. 3d at 1130. I agree.

First, the Gag Rule—which restricts communications between health care providers and patients, 42 C.F.R. §§ 59.14(a)–(c)—will “obfuscate and obstruct patients from receiving information and treatment for their pressing medical needs.” California, 385 F. Supp. 3d at 998; see also Washington, 376 F. Supp. 3d at 1130. In so doing, the Rule exceeds HHS’s statutory authority: it “impedes timely access to health care services[,]” “interferes with communications

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regarding a full range of treatment options[,]” “restricts the ability of health care providers to provide full disclosure of all relevant information to patients making health care decisions[,]” and “violates . . . the ethical standards of health care professionals[.]” 42 U.S.C. § 18114.

Second, the Separation Requirement—which requires Title X recipients to physically and financially separate abortion provision from all other medical services, through the use of separate entrances and exits as well as separate accounting, personnel, and medical records, 42 C.F.R. § 59.15—plainly will impinge on the ability of providers to offer care. See Oregon, 389 F. Supp. 3d at 915; Washington, 376 F. Supp. 3d at 1130. By its own terms, HHS’s Separation Requirement creates unreasonable barriers to health care; it also frustrates “timely access” to care, contrary to Congress’s plain directive that HHS may not do so. 42 U.S.C. § 18114.

Finally, the Rule’s requirement that doctors encourage family participation in reproductive decisions will “force [doctors] to breach their ethical obligations” in certain circumstances. California, 385 F. Supp. 3d at 1000; see also Washington, 376 F. Supp. 3d at 1130. This requirement directly contravenes Congress’s prohibition on promulgating regulations that “violate[] . . . the ethical standards of health care professionals[.]” 42 U.S.C. § 18114.

Tellingly, the majority does not even attempt to argue that the Rule complies with the ACA. Instead, it characterizes the Rule as falling conveniently outside the scope of the limitations Congress imposed on HHS in the ACA. It relies on the Rust and McRae line of cases for the proposition that, as a constitutional matter, Congress need not subsidize abortion. It then asserts that the constitutional minima

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identified in those cases “applies equally” to statutory claims. Maj. Op. 55–59. The majority offers no support for this bold proposition.

How could it? Congress may, and regularly does, enact statutory requirements and protections that exceed the constitutional floor. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 828 (1986) (“The Due Process Clause demarks only the outer boundaries . . . . Congress and the states, of course, remain free to impose more rigorous standards[.]”); Am. Legion v. Am. Humanist Assoc., 139 S. Ct. 2067, 2094 (2019) (Kavanaugh, J., concurring) (“The constitutional floor is sturdy and often high, but it is a floor.”). That is exactly what Congress has done here.7 That a congressional decision not to subsidize abortion does not burden the abortion right in the constitutional sense, see e.g., McRae, 448 U.S. at 316, has no

7 The majority’s assertion that the ACA does not impact Title X is contradicted by the terms of the ACA. Maj. Op. 59–60. Section 1554 governs “any regulation,” 42 U.S.C. § 18114 (emphasis added). If Congress had meant to restrict its scope to the ACA, it would have said “any regulation pursuant to this Act.” Cf. St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 550 (1978) (discussing the breadth of the word “any” and concluding that if Congress intends to limit the scope of statutory language, it will make that explicit). As Judge Chen reasoned, the clause “[n]otwithstanding any other provision of this Act” is most naturally read to mean that the Secretary “cannot engage in the type of rulemaking proscribed by [s]ection 1554 even if another provision . . . could be construed to permit it.” California, 385 F. Supp. 3d at 995. In other words, “the directive of [s]ection 1554 is to be given primacy” over other parts of the ACA.

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bearing whatsoever on whether an agency has overstepped its statutory authority. And, here, the agency has.8

III. The Rule Is Likely Arbitrary and Capricious

Finally, I turn to Plaintiffs’ claim that the promulgation of the Rule was arbitrary and capricious under the Administrative Procedure Act (“APA”). As an initial matter, the majority contends that it is appropriate, on review of the district courts’ preliminary injunctions, to adjudicate the merits of the arbitrary and capricious claim. Maj. Op. 35–39. It is not. Unlike our consideration of Plaintiffs’ first two claims, which required us to address the underlying legal question to determine whether the district courts abused their discretion, review of the arbitrary and capricious claim requires examination of the administrative record. We do not have the complete administrative record before us, and neither did the district courts when they issued the preliminary injunctions. Deciding the merits of Plaintiffs’ arbitrary and capricious claim is therefore premature. See Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984) (“If a court is to review an agency’s action fairly, it should have before it neither more nor less information than did the agency when it made its decision.”) (emphasis added); Nat. Res. Def. Council, Inc. v. Train, 519 F.2d 287, 291 (D.C. Cir. 1975) (“The Administrative Procedure Act and the cases require that the complete

8 The majority makes much of the fact that the Rule is purportedly “less restrictive in at least one important respect” than the 1988 regulation upheld in Rust. Maj. Op. 16. That is immaterial. The Rust decision predated the passage of the nondirective mandate by half a decade and the ACA by two decades, so whether the Rule or its 1988 predecessor violated those laws was not and could not possibly have been before the Court.

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administrative record be placed before a reviewing court.”); see also Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (“[G]iven the haste that is often necessary . . . a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits. A party thus is not required to prove his case in full at a preliminary-injunction hearing[.]”).9 Indeed, “[t]o review less than the full administrative record might allow a party to withhold evidence unfavorable to its case, and so the APA requires review of ‘the whole record.’” Boswell Mem’l Hosp., 749 F.2d at 792. Accordingly, I address only Plaintiffs’ likelihood of success on the merits. The majority should have done the same.10

9 Indeed, while Defendants pursued their appeals of the preliminary injunctions, briefing advanced to the merits in the Eastern District of Washington. There, Defendants produced to Plaintiffs the full administrative record (two months after the preliminary injunction issued), see Case No. 1:19-cv-03040-SAB, Dkt. No. 88 (June 24, 2019) and, with the benefit of the complete record, Plaintiffs further developed their arbitrary and capricious claim. See Case No. 1:19-cv-03040-SAB, Dkt. No. 121 (Nov. 20, 2019).
10 The cases on which the majority relies to proceed to the merits are inapt. First, unlike the cases the majority cites, Maj. Op. 35–39, we do not have the full administrative record before us. Cf. Beno v. Shalala, 30 F.3d 1057, 1064 n.11 (9th Cir. 1994) (reaching the merits because “Plaintiffs’ . . . claim requires a review of the administrative record, which is complete, and interpretation of relevant statutes; additional fact-finding is not necessary to resolve this claim”) (emphasis added); Blockbuster Videos, Inc. v. City of Tempe, 141 F.3d 1295, 1297 (9th Cir. 1998) (same, because “[t]he record . . . is fully developed”); see also Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) (“The APA specifically contemplates judicial review on the basis of the agency record compiled in the course of . . . [the] agency action[.]”) (emphasis added). Nor is this a case that implicates sensitive foreign policy concerns. Munaf v. Geren,

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Under the APA, a court “shall . . . hold unlawful and set aside agency action . . . found to be . . . arbitrary [and] capricious.” 5 U.S.C. § 706(2)(A). An agency action is arbitrary and capricious if “the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, [or] offered an explanation for its decision that runs counter to the evidence before the agency.” Motor Vehicle Mfrs’ Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). “[T]he agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Id. (internal quotation marks omitted).

When an agency changes its policy, the agency must provide a “reasoned explanation for its action.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). The new policy need not be better than the old one, but it must be permissible and based on “good reasons.” Id. When the reasons the agency relies on for changing its position are “not new,” the agency fails to provide a “reasoned explanation.” Org. Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 967 (9th Cir. 2015) (en banc). “In explaining its changed position, an agency must also be cognizant that longstanding policies may have engendered serious reliance interests that must be taken into account.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (internal quotation marks omitted). Here, the Rule replaced the regulation adopted in 2000, not the 1988 regulation addressed in Rust; thus the 2000 Rule is the one to which we must look to assess

553 U.S. 674, 692 (2008) (reasoning that reaching the merits was “the wisest course” because the case “implicate[d] sensitive foreign policy issues in the context of ongoing military operations”).

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HHS’s changed positions. See Standards of Compliance for Abortion-Related Services in Family Planning Services Projects, 65 Fed. Reg. 41270 (Jul. 3, 2000). Plaintiffs are likely to prevail on their claim that the promulgation of the Rule was arbitrary and capricious for at least two reasons.11

A. HHS Failed to Provide a Reasoned Justification for Its Policy Change

First, the Rule represents a dramatic shift in policy, yet HHS failed to provide the required “reasoned explanation for its action.” Fox Television, 556 U.S. at 515. Take the Gag Rule and Separation Requirement, for example. In 2000, when it adopted regulations rescinding the 1988 version of the Gag Rule, HHS explicitly considered Congress’s recently enacted nondirective mandate as well as comments emphasizing that “medical ethics and good medical care . . . requir[e] that patients receive full and complete information

11 None of the district courts needed to address Plaintiffs’ arbitrary and capricious arguments because they had independently found Plaintiffs were likely to succeed on their other merits arguments. Nevertheless, each district court recognized the strength of Plaintiffs’ APA challenge. California, 385 F. Supp. 3d at 1000–19 (addressing—with painstakingly detailed analysis—the shortcomings of HHS’s justifications for the physical separation requirement, the counseling and referral restrictions, the “physicians or advanced practice providers” requirement, and the removal of the “medically approved” requirement, as well as HHS’s inadequate cost-benefit analysis); Oregon, 389 F. Supp. 3d at 917–18 (noting that HHS “nowhere squares” particular medical ethics requirements with the requirements of the Rule and that HHS “appears to have failed to seriously consider persuasive evidence”); Washington, 376 F. Supp. 3d at 1131 (recognizing that Plaintiffs and amici had “presented facts and argument that the . . . Rule is arbitrary and capricious because it reverses long-standing positions of [HHS]” without considering relevant medical opinions and likely consequences).

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to enable them to make informed decisions”; “[c]onsequently,” the agency “decided to reflect [the nondirective requirement] . . . in the regulatory text.” 65 Fed. Reg. at 41273. By contrast, here HHS has changed its position on what medical ethics demand without providing a reasoned explanation for or acknowledgment of the change, as is required by the APA.12 See Org. Vill. of Kake, 795 F.3d at 966 (“Unexplained inconsistency between agency actions is a reason for holding an interpretation to be an arbitrary and capricious change.”) (internal quotation marks and citation omitted).13

12 That abortion remains controversial, as the majority contends, Maj. Op. 75 n.34, does not explain why HHS may shift its understanding of medical ethics from 2000 without a reasoned explanation.
13 I also agree with Judge McShane of the District of Oregon that HHS’s “failure to respond meaningfully to the evidence” that the Gag Rule contradicts medical ethics “renders its decision[] arbitrary and capricious.” Oregon, 389 F. Supp. 3d at 918 (quoting Tesoro Alaska Petroleum Co. v. FERC, 234 F.3d 1286, 1294 (D.C. Cir. 2000)). A doctor and leader of the American Medical Association—the organization that “literally wrote the book on medical ethics”—stated that the American Medical Association’s Code of Medical Ethics prohibits withholding information from a patient, except in emergency situations, and requires decisions or recommendations to be based on the patient’s medical needs. Id. at 916. He concluded that the Gag Rule “is an instruction to physicians to intentionally mislead patients, which, if followed, is an instruction for physicians to directly violate the Code of Medical Ethics[.]” Id. at 917.
In its cursory response, HHS merely announced that it “believes” the Rule presents no ethical problems because patients are permitted to ask questions “and to have those questions answered by a medical professional.” 84 Fed. Reg. at 7724. That assertion is contradicted by the plain text of the Rule, which specifically prohibits medical professionals from answering certain questions, such as, “who on this list is an abortion provider?” 42 C.F.R. § 59.14(c)(2). HHS’s insistence that the Gag Rule is “nondirective” does not salvage the Rule either, as it is both conclusory

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Similarly, in 2000, HHS recognized that “Title X grantees are subject to rigorous financial audits” and ultimately concluded that a physical separation requirement “is not likely ever to result in an enforceable compliance policy that is consistent with the efficient and cost-effective delivery of family planning services.” 65 Fed. Reg. at 41275–76 (2000) (emphasis added). As justification for its about-face in the new Rule, HHS speculated about a “risk” of Title X funds being used for impermissible purposes.14 84 Fed. Reg. at 7765 (discussing the risk of “potential co-mingling” without citing any evidence of co-mingled funds). A speculative risk is not a reasoned explanation. Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1244 (9th Cir. 2001); see also Nat’l Fuel Gas Supply Corp. v. FERC, 468 F.3d 831, 841 (D.C. Cir. 2006).

B. HHS’s Cost-Benefit Analysis Is Contrary to the Evidence

Second, the Rule is likely arbitrary and capricious because HHS offered an explanation for its cost-benefit

and, for the reasons explained in Section I, supra, false. Because the Gag Rule “contradicts . . . persuasive evidence from the leading expert on medical ethics,” and HHS has failed to present even a “plausible explanation outlining its rationale for rejecting the evidence and reaching a different conclusion,” Oregon, 389 F. Supp. 3d at 917 (citing State Farm Mut., 463 U.S. at 43), it is arbitrary and capricious. The majority is wrong to conclude otherwise.
14 To be clear: the “recent studies” that the majority notes HHS relied on do not demonstrate any actual misuse of Title X funds. Maj. Op. 66. Rather, they reflect facilities that comply with Title X but likely will be forced out of the program by the Separation Requirement. 84 Fed. Reg. at 7765.

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analysis that runs contrary to the evidence before the agency. See State Farm Mut., 463 U.S. at 43. As the district courts explained, there are at least three provisions of the Rule that will cause providers to leave the Title X program, leading to decreased access to Title X-funded care, which will in turn create costs that HHS did not account for.

First, the Gag Rule. Because it “require[s] doctors to violate . . . fundamental ethical and professional norms[,]” Oregon, 389 F. Supp. 3d at 916, the Gag Rule will trigger providers to leave the Title X program, “drastically reduc[ing] access to Title X services, and lead[ing] to serious disruptions in care for Title X patients.” California, 385 F. Supp. 3d at 1008. For example, the provider serving approximately 40% of all Title X patients—1.6 million people—which is also the only family planning provider in ten percent of rural counties, declared that if the Gag Rule is implemented, it will leave the Title X program in order to maintain its ethical obligations to patients.15 Oregon, 389 F. Supp. 3d at 918; California, 385 F. Supp. 3d at 979.

15 Indeed, this exodus has come to pass. Plaintiffs informed us that all Planned Parenthood Title X direct grantees would withdraw from Title X beginning August 19, 2019, as a result of enforcement actions by HHS, and they have done so. See Sarah McCammon, Planned Parenthood Withdraws From Title X Program Over Trump Abortion Rule, Nat’l Pub. Radio (Aug. 19, 2019), https://www.npr.org/2019/08/19/752438119/pla nned-parenthood-out-of-title-x-over-trump-rule. Planned Parenthood is not alone. See Nicole Acevedo, Nearly 900 Women’s Health Clinics Have Lost Federal Funding Over Gag Rule, NBC News (Oct. 22, 2019) https://www.nbcnews.com/news/latino/nearly-900-women-s-healthclinics-have-lost-federal-funding-n1069591; Anna North, How A Beloved Clinic for Low-Income Women Is Fighting to Stay Alive in the Trump Era, Vox (Nov. 22, 2019), https://www.vox.com/identities/2019/11/22/2095 2297/title-x-funding-abortion-birth-control-trump.

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Second, the Separation Requirement. Compliance with the Separation Requirement will be so cost-prohibitive for many providers that they will have to leave the Title X program.16 California, 385 F. Supp. 3d at 1008–11.

Third, the requirement that only “physicians or advanced practice providers” may provide counseling. See 84 Fed. Reg. at 7727–28 (defining “advanced practice providers”). This limitation will significantly reduce the number of people who can provide pregnancy counseling and will require significant changes in Title X providers’ staffing, or else devastate their capacity to serve patients. Id. at 7778 (noting that for “1.7 million Title X family planning encounters in 2016,” services were delivered by providers who are not “physicians or advanced practice providers”); California, 385 F. Supp. 3d at 1013 (recognizing that “65% of Title X sites rel[ied] on trained health educators, registered nurses, and other qualified providers (excluding physicians and advanced practice clinicians) to counsel patients in selecting contraceptive methods”) (internal quotation marks and citation omitted).

16 HHS also calculated costs of compliance with the physical separation requirement in a “mystifying” way. California, 385 F. Supp. 3d at 1008. HHS’s internal guidelines—and common sense—suggest that compliance costs for making physically separate facilities would include expenses related to equipment, leasing space, utilities, and personnel. Yet, HHS estimated that an average of only $30,000 per affected Title X site would be incurred to comply with the physical separation requirement. 84 Fed. Reg. at 7782. As Plaintiffs’ counsel indicated at oral argument, even just hiring a single front desk staff member to staff a new entrance to a facility would exceed that estimate, not to mention all the other costs that would accompanying creating and maintaining such a facility. See, e.g., Washington SER 355–56 (Washington); California SER 396–97 (California).

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HHS dismissed the loss of access by speculating that there would not “be a decrease in the overall number of facilities offering [Title X] services, since [HHS] anticipates other, new entities will apply for funds, or seek to participate as subrecipients, as a result of the final rule.” 84 Fed. Reg. at 7782. HHS simultaneously contradicted that very prediction, by stating, “[HHS] cannot calculate or anticipate future turnover in grantees.” Id. (emphasis added). Nonetheless, HHS stated, “[b]ased on [HHS’s] best estimates, it anticipates that the net impact on those seeking services from current grantees will be zero[.]” Id. HHS provided no explanation of how it arrived at its “best estimates.” See also California, 385 F. Supp. 3d at 983 (“[A]t oral argument [before the district court], when pressed for any record evidence substantiating this (highly consequential) assertion, Defendants’ counsel could offer none.”). Nor did HHS provide any specifics about its estimates, such as the locations or geographic distribution of any “new” clinics, their number or size, or how long it would take them to become operational grantees. Thus, HHS failed to offer “an explanation for its decision that runs counter to the evidence before” it. State Farm Mut., 463 U.S. at 43. Proceeding in this manner is the hallmark of arbitrary and capricious administrative action.

The majority disagrees, citing readily distinguishable case
law and a poll that did not conclude what the majority purports it does.17 Maj. Op. 68–69. The “poll” that HHS

17 The majority relies extensively on the Supreme Court’s recent opinion, Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019). Maj. Op. 62, 63–64, 70–77. That case raised the issue of whether the Secretary of Commerce was required to accept the Census Bureau’s predictions about accurate gathering of citizenship data. Dep’t of Commerce, 139 S.

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cited is a summary showing both that a majority of “faithbased healthcare professionals” would prefer not to violate their conscience and that a majority of them never experienced pressure to refer a patient for a procedure to which the professional had moral, ethical, or religious objections. 84 Fed. Reg. at 7780 n.138; Freedom2Care & The Christian Med. Ass’n, National Poll Shows Majority Support Healthcare Conscience Rights, Conscience Law (May 3, 2011), https://perma.cc/3AU4-ACGA. Nothing suggests that the poll asked medical professionals about expanding into Title X. It is baffling how HHS made the leap from the poll data—the quality and veracity of which is unclear from the summary the agency cited—to its conclusion that there would be no decrease in facilities. Id. And a predicate to giving deference to an agency is that the agency’s inferences must not contradict the findings of the study. State Farm Mut., 463 U.S. at 43. That is by no means de novo review, contrary to the majority’s contention. Maj. Op. 69 n.29.

Ct. at 2569. The Court held that the Secretary was not beholden to the Bureau’s analysis because “the Census Act authorizes the Secretary, not the Bureau, to make policy choices within the range of reasonable options[,]” id. at 2571 (emphasis added), and there was support for the Secretary’s decision, id. at 2569. Conversely, here, we are reviewing HHS’s own administrative decisions in the face of contravening evidence, and there is no support for HHS’s decisions.
Moreover, the Court struck down the Secretary of Commerce’s attempt to reinstate the citizenship question on the census. See 139 S. Ct. at 2575–76 (“Our review is deferential, but we are ‘not required to exhibit a naiveté from which ordinary citizens are free.’”). Similarly, here, deference to HHS does not mean turning a blind eye to the agency’s actions, as the majority does.

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Moreover, the cases on which the majority relies to endorse HHS’s guesswork arose in different circumstances. Maj. Op. 68–71. When the Supreme Court in FCC v. National Citizens Committee for Broadcasting condoned an agency’s “forecast” for future behaviors without “complete factual support,” the underlying agency decision was “to ‘grandfather’” existing policies into a new rule. 436 U.S. 775, 813–14 (1978). There, the agency’s predictions concerned maintenance of the status quo, rather than the change in policy HHS made here. And in other cases cited by the majority, the regulations at issue “reflect[ed] reasoned predictions about technical issues.” BNSF Ry. Co. v. Surface Transp. Bd., 526 F.3d 770, 781 (D.C. Cir. 2008) (citation omitted); see also Trout Unlimited v. Lohn, 559 F.3d 946, 959 (9th Cir. 2009) (noting that the record showed that the agency relied on “scientific data, and not on mere speculation”). HHS’s prediction here is not reasoned or based on any data or studies, and should not be afforded deference. See Sorenson Commc’ns Inc. v. FCC, 755 F.3d 702, 708 (D.C. Cir. 2014) (“[T]he wisdom of agency action is rarely so self-evident that no other explanation is required.”); McDonnell Douglas Corp. v. U.S. Dep’t of the Air Force, 375 F.3d 1182, 1187 (D.C. Cir. 2004) (“[W]e do not defer to the agency’s conclusory or unsupported suppositions.”).

Further, because of HHS’s sunny, and baseless, prediction that new clinics will appear to provide services to at least 40% of the patient population served by Title X, HHS did not address the potential health consequences of decreased services and their corresponding costs in its cost-benefit analysis. As the Northern District of California recognized, the decreased services could cause a 31% increase in the nation’s unintended pregnancy rate, which would lead to “[b]illions of dollars in public costs[.]” California, 385 F.

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Supp. 3d at 1016. Even if the number of clinics were to remain the same, a changed geographic reach would have devastating consequences. See 84 Fed. Reg. at 7782 (recognizing that patients will have to travel further to obtain health care); California, 385 F. Supp. 3d at 1017–18 (noting that when a rural Indiana county lost a Planned Parenthood clinic, “the county lost free HIV testing services and almost immediately experienced one of the largest and most rapid HIV outbreaks the country has ever seen”) (internal quotation marks omitted). An agency governed by the APA must grapple with potential costs, and HHS—an agency with power over public health, no less—failed to do so here. See State Farm Mut., 463 U.S. at 43; Nat’l Ass’n of Home Builders v. EPA, 682 F.3d 1032, 1040 (D.C. Cir. 2012).

The majority is correct that we give agencies deference—but only insofar as the agency “examine[s] the relevant data and articulate[s] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” State Farm Mut., 463 U.S. at 43 (internal quotation marks omitted). The majority fails to hold HHS to that basic standard here.

***

In vacating the preliminary injunctions, the majority blesses an executive agency’s disregard of the clear limits placed on it by Congress. The consequences will be borne by the millions of women who turn to Title X-funded clinics for lifesaving care and the very contraceptive services that have caused rates of unintended pregnancy—and abortion—to plummet.

I strongly dissent.