RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 24a0199p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

STATE OF TENNESSEE,

Plaintiff-Appellant,

v.

XAVIER BECERRA, in his official capacity as Secretary 

of Health and Human Services; UNITED STATES 

DEPARTMENT OF HEALTH AND HUMAN SERVICES;

JESSICA S. MARCELLA, in her official capacity as 

Deputy Assistant Secretary for Population Affairs; 

OFFICE OF POPULATION AFFAIRS,

Defendants-Appellees.

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No. 24-5220

Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville.

No. 3:23-cv-00384—Travis Randall McDonough, District Judge.

Argued: July 18, 2024

Decided and Filed: August 26, 2024

Before: GIBBONS, KETHLEDGE, and DAVIS, Circuit Judges.

_________________

COUNSEL

ARGUED: Whitney D. Hermandorfer, OFFICE OF THE TENNESSEE ATTORNEY 

GENERAL, Nashville, Tennessee, for Appellant. Courtney L. Dixon, UNITED STATES 

DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Whitney D. 

Hermandorfer, J. Matthew Rice, Philip Hammersley, Harrison Gray Kilgore, Trenton 

Meriwether, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, 

for Appellant. Courtney L. Dixon, Brian J. Dixon, UNITED STATES DEPARTMENT OF 

JUSTICE, Washington, D.C., for Appellee. Justin L. Matheny, OFFICE OF THE MISSISSIPPI 

ATTORNEY GENERAL, Jackson, Mississippi, Christopher P. Schandevel, ALLIANCE 

DEFENDING FREEDOM, Lansdowne, Virginia, Eric N. Kniffin, ETHICS & PUBLIC POLICY 

CENTER, Washington, D.C., Brianne J. Gorod, CONSTITUTIONAL ACCOUNTABILITY 

CENTER, Washington, D.C., for Amici Curiae.

>
No. 24-5220 Tennessee v. Becerra, et al. Page 2

DAVIS, J., delivered the opinion of the court in which GIBBONS, J., joined in full. 

KETHLEDGE, J. (pp. 24–31), delivered a separate opinion dissenting in part and concurring in 

the judgment in part.

_________________

OPINION

_________________

DAVIS, Circuit Judge. In 2021, the United States Department of Health and Human 

Services (“HHS”) promulgated a rule requiring Title X grant recipients to provide neutral, 

nondirective counseling and referrals for abortions to patients who request it. Tennessee, which 

has been a Title X recipient for over 50 years, recently outlawed most abortions in the state. 

After doing so, Tennessee would commit only to conducting counseling and referrals for options 

deemed legal in the state. HHS considered Tennessee’s commitment to be out of compliance 

with its regulatory requirements. So it opted to discontinue the grant. Tennessee filed suit to 

challenge HHS’s action and enjoin it from closing the grant. The district court denied 

Tennessee’s request for preliminary injunction because it held that Tennessee does not have a 

strong likelihood of succeeding on the merits of its claim and that the balance of the remaining 

preliminary injunction factors weigh in HHS’s favor. For the reasons set forth below, we affirm.

I.

A.

Factual Background. In 1970, Congress enacted Title X of the Public Health Service Act 

(alternately “the Act”) to authorize HHS to award discretionary grants to fund family-planning 

projects. See 42 U.S.C. §§ 300(a), 300a-4(a)–(b); Family Planning Services and Population 

Research Act, Pub. L. No. 91-572, 84 Stat. 1504, 1508 (1970). Title X authorizes HHS to “enter 

into contracts with public or nonprofit private entities” to establish and operate these familyplanning projects, 42 U.S.C. § 300(a), and these grants are to be “made in accordance with such 

regulations as the Secretary may promulgate,” id. § 300a-4(a). Nevertheless, Section 1008 of the 

Act provides that “[n]one of the funds appropriated . . . shall be used in programs where abortion 

is a method of family planning.” Id. § 300a-6. HHS has varied in its interpretation of the limit 
No. 24-5220 Tennessee v. Becerra, et al. Page 3

that § 1008 imposes on its regulatory authority. As a result, it has vacillated from regulations 

requiring funded projects to provide nondirective counseling and referrals for abortion (2000–

2019), to forbidding such activity (2019–2021), to requiring nondirective counseling and 

abortion referrals if requested by the patient (2021–present). See Ohio v. Becerra, 87 F.4th 759, 

765–67 (6th Cir. 2023) (summarizing the history of the Counseling and Referral rule). 

Generally, HHS grants are awarded for a one-year period and any subsequent continuation 

awards are similarly determined one year at a time. 42 C.F.R. § 59.8(a)–(b). When “non–

Federal” entities fail to comply with the “[f]ederal statutes, regulations, or the terms and 

conditions” of an award, HHS is empowered to terminate the grant. 45 C.F.R. §§ 75.371(c), 

75.372(a)(1).

In October 2021, HHS promulgated a rule requiring Title X programs to offer pregnant 

clients the opportunity to receive “neutral factual information and nondirective counseling” 

regarding prenatal care and delivery, infant care, foster care, adoption, and abortion.1 Ensuring 

Access to Equitable, Affordable, Client-Centered, Quality Family Planning Services, 86 Fed. 

Reg. 56144 (Oct. 7, 2021); see also 42 C.F.R. § 59.1 et seq; 42 C.F.R. § 59.5(a)(5)(i)–(ii). The 

2021 Rule also required Title X programs to provide referrals for any of these options in 

response to a patient request. 42 C.F.R. § 59.5(a)(5)(ii). To comply with § 1008’s prohibition of 

funding for programs where abortion is a method of family planning, the 2021 Rule emphasized 

that a referral for abortion services “may include providing a patient with the name, address, 

telephone number, and other relevant factual information” about a medical provider, but that a 

Title X project “may not take further affirmative action (such as negotiating a fee reduction, 

making an appointment, providing transportation) to secure abortion services for the patient.” 

Ensuring Access, 86 Fed. Reg. at 56150.

In March 2022, HHS awarded the Tennessee Department of Health a Title X grant for the 

period from April 1, 2022, through March 31, 2023. The notice of award stated that the amount 

requested represented the one-year “budget period,” (as opposed to the project’s five-year 

1Through this rule, HHS readopted the regulations in place from 2000 to 2019. 86 Fed. Reg. 56144, 56144 

(Oct. 7, 2021).
No. 24-5220 Tennessee v. Becerra, et al. Page 4

period), and that it was “not obligated to make additional Federal Funds available.” (R. 1-7, 

PageID 172).

In June 2022, the Supreme Court handed down its decision in Dobbs v. Jackson Women’s 

Health Organization, 597 U.S. 215 (2022), in which it held that there is no individual right under 

the Constitution to obtain an abortion. Following Dobbs, several states—Tennessee included—

implemented laws that criminalized abortion in all but a few circumstances. Reasoning that 

Dobbs did not affect the Title X grant regime, in January 2023, HHS notified grantees it would 

be auditing their compliance with its counseling and referral regulations. HHS requested that 

grantees submit copies of their policies for providing neutral, nondirective options counseling 

and referrals for abortion services and a signed statement confirming compliance with those 

regulations. 

Tennessee responded by submitting a letter confirming its compliance with the regulation 

and attaching its policy. The policy stated, in pertinent part, that Title X “[p]atients with positive 

pregnancy test[s] must be offered the opportunity to be provided information and counseling 

regarding all options that are legal in the State of Tennessee.” (R. 1-3, PageID 99). The letter 

did not clarify which options the state deemed “legal in the State of Tennessee,” but seemed to 

be alluding to a new law that had recently taken effect restricting abortion in the State. See Tenn. 

Code Ann. § 39-15-213. HHS notified Tennessee that its response appeared to place it out of 

compliance and offered Tennessee the option of submitting an “alternate compliance proposal” 

with specific examples of acceptable arrangements. (R. 1-9, PageID 190). For instance, HHS 

suggested the option of providing Title X patients with the number for a national call-in hotline 

where operators would supply referral information. Tennessee responded by reiterating its 

compliance based on its understanding of its obligations under state law and federal regulations. 

(R. 1-10, PageID 192 (citing Tenn. Code Ann. § 39-15-213(a)(1))). HHS disagreed with 

Tennessee’s assertion that it was in compliance. On March 20, 2023, the agency sent the state a 
No. 24-5220 Tennessee v. Becerra, et al. Page 5

letter explaining its decision to decline to issue a Title X continuation award to the Tennessee 

Department of Health.2

B.

Procedural History. In October 2023, Tennessee brought the instant action in the United 

States District Court for the Eastern District of Tennessee seeking: (1) a declaratory judgment 

under 28 U.S.C. § 2201 stating that HHS’s termination of the state’s Title X funding was 

unlawful; (2) dissolution of HHS’s March 20, 2023, discontinuation decision; (3) a preliminary 

injunction enjoining HHS and others from enforcing or implementing the discontinuation 

decision; (4) to enjoin HHS from withholding Title X funds based on the counseling and referral 

clause; (5) reinstatement of Title X funds from the date of discontinuation; and (6) any and all 

other relief the court deemed proper. 

In November 2023, this court reviewed a similar Title X case and held that HHS’s 2021 

Rule was a permissible construction of the Title X statute. See Ohio, 87 F.4th at 771–72. Based 

in large part on our decision in Ohio, the district court denied Tennessee’s preliminary 

injunction, concluding that Tennessee was not likely to succeed on the merits and that the 

balance of the equities and the public interest did not favor relief. The district court further 

concluded that Tennessee had “no basis to force funding from HHS without meeting the 

obligations upon which the [Title X] funding [was] conditioned.” (R. 30, PageID 857). 

Tennessee timely appealed. 

II.

We review a district court’s denial of a motion for a preliminary injunction for abuse of 

discretion. Wonderland Shopping Ctr. Venture Ltd. P’ship v. CDC Mortg. Cap., Inc., 274 F.3d 

1085, 1097 (6th Cir. 2001). We will find that a district court has abused its discretion when it has 

made “clearly erroneous findings of fact, improperly applied the governing law, or used an 

erroneous legal standard.” Id. (quoting Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir.2001)). 

2HHS concluded that a continuation award was not “in the best interest of the government” based on its 

determination that Tennessee’s Title X project was not in compliance with the Title X regulation. (See R. 1-12, 

PageID 198 (quoting 42 C.F.R. § 59.8(b))).
No. 24-5220 Tennessee v. Becerra, et al. Page 6

Though we review de novo the question of whether a movant is likely to succeed on the merits, a 

district court’s ultimate determination as to whether the factors weigh in favor of granting or 

denying preliminary injunctive relief is subject to review for abuse of discretion. Ohio, 87 F.4th 

at 768 (citing City of Pontiac Retired Emps. Ass’n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 

2014) (en banc) (per curiam)). Thus, absent a legal or factual error, “the district court’s 

weighing and balancing of the equities will be overruled ‘only in the rarest of cases.’” Am. 

Imaging Servs., Inc. v. Eagle-Picher Indus., Inc. (In re Eagle-Picher Indus., Inc.), 963 F.2d 855, 

858 (6th Cir. 1992) (citations omitted).

Courts consider four factors when determining whether to grant a preliminary injunction: 

“(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant 

would suffer irreparable injury without the injunction; (3) whether issuance of the injunction 

would cause substantial harm to others; and (4) whether the public interest would be served by 

issuance of the injunction.” Ohio, 87 F.4th at 768 (citing City of Pontiac, 751 F.3d at 430). 

“Where the federal government is the defendant, as here, the third and fourth factors merge.” Id. 

(citing Nken v. Holder, 556 U.S. 418, 435 (2009)). 

III.

Likelihood of Success on the Merits. Tennessee first argues that it has a strong likelihood 

of success on the merits because HHS’s discontinuation of Title X funds usurped Congress’s sole 

Spending Clause powers and disregarded the Administrative Procedure Act’s (“APA”) limits. 

A.

The Spending Clause. Tennessee maintains that HHS’s enforcement (through rescission 

of funding) of the 2021 Rule’s counseling and referral requirements violated the Spending 

Clause of the United States Constitution. It argues that HHS’s imposition of these requirements 

usurped Congress’s exclusive authority to regulate Title X funding. The Spending Clause 

empowers Congress to “lay and collect Taxes . . . to pay the Debts and provide for the common 

Defence and general Welfare of the United States.” U.S. Const. art. I, § 8. It grants Congress the 

broad power to “set the terms” for when and to whom it will disburse federal funds. Cummings 

v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 216 (2022). As it regards funds disbursed to 
No. 24-5220 Tennessee v. Becerra, et al. Page 7

individual states, Congress’s spending power operates like a contract; “in return for federal 

funds,” states must agree to “comply with federally imposed conditions.” Pennhurst State Sch. 

& Hosp. v. Halderman, 451 U.S. 1, 17 (1981).

As a result, Congress’s legitimacy to legislate under the spending power depends on 

(1) whether Congress’s conditions on its grants of federal funds are unambiguous; and (2) 

“whether the State voluntarily and knowingly accepts the terms of the ‘contract.’” Id. Because 

the district court reasonably concluded that Congress unambiguously authorized HHS to regulate 

Title X eligibility; the conditions of the grant were unambiguous; and Tennessee knowingly and 

voluntarily accepted the grant’s terms, we find that the district court did not abuse its discretion 

in concluding that Tennessee is unlikely to succeed on the merits of its Spending Clause claim. 

1.

Unambiguous Statutory Authorization. Tennessee argues that Congress did not 

unambiguously place counseling and referral requirements in Title X and did not grant HHS the 

authority to add these conditions. Therefore, these conditions violate the Spending Clause. 

Tennessee’s arguments here mirror the state of Oklahoma’s challenge to HHS’s counseling and 

referral requirements which it asserted in Oklahoma v. United States Department of Health & 

Human Servs., 107 F.4th 1209, 1217 (10th Cir. 2024). Under similar facts, the state of Oklahoma 

also argued that Title X’s ambiguity prevented HHS from imposing counseling and referral 

requirements on grant recipients. Like Tennessee, Oklahoma argued that because the Supreme 

Court, in Rust v. Sullivan, 500 U.S. 173 (1991), held that § 1008’s language barring usage of 

federal funds “in programs where abortion is a method of family planning” is ambiguous, then 

“Congress’s silence on counseling and referrals render[ed] Title X ambiguous for purposes of the 

spending power.” Oklahoma, 107 F.4th at 1218 (quoting 42 U.S.C. § 300a-6). The Oklahoma

court rejected these arguments because it found that Congress’s instructions to HHS to determine 

eligibility for Title X grants likely did not violate the spending powers. Id. (citing 42 U.S.C. 

§ 300a-4(a); § 300a-4(b)). We agree.

To begin, as the Oklahoma court recognized, Congress’s charge to HHS to promulgate 

eligibility requirements for Title X funds is explicit; “Grants . . . made under this subchapter shall 
No. 24-5220 Tennessee v. Becerra, et al. Page 8

be made in accordance with such regulations as the Secretary may promulgate” and “shall be 

payable . . . subject to such conditions as the Secretary may determine to be appropriate” so they 

are “effectively utilized for the purposes for which made.” 42 U.S.C. § 300a-4(a)–(b). In this 

way, Congress both imposed on the Secretary the responsibility to fashion conditions and alerted 

grant recipients to the existence of conditions for funding. As to the former, the Supreme Court, 

in recognition of the fact that Congress is unable to “prospectively resolve every possible 

ambiguity concerning particular applications of requirements,” has permitted such delegations. 

Bennett v. Kentucky Dep’t. of Educ., 470 U.S. 656, 669 (1985). True, the statutory language does 

not illuminate the nature of any such conditions on the grant. But these questions can be 

resolved by looking to both statutes and an agency’s authorized regulations. In Bennett that 

meant looking to the statute’s language indicating that Title I education funds could not be used 

to supplant state and local funds for public schools, along with the Department of Education’s 

(“DOE”) regulations specifying the measures that states and local grant recipients were required 

to take to assure compliance with the grant. When the DOE issued a final order, demanding that 

Kentucky repay funds that it purportedly used to supplant state educational funding “in violation 

of statutory and regulatory requirements,” the state challenged the action as a violation of the 

Spending Clause. Id. at 663. Though the Court of Appeals had found that “the statute and 

regulations concerning supplanting were not unambiguous,” id. (cleaned up), the Supreme Court 

upheld the agency action; Kentucky had agreed to but failed to comply with the conditions for 

the grant as set forth in the statute and regulations, so the DOE could pursue this statutory 

remedy. See Jackson v. Birmingham Bd. of Ed., 544 U.S. 167, 183 (2005) (crediting Title IX’s 

implementing regulations as well as circuit precedent interpreting the statute with placing grant 

recipients on notice of potential liability for retaliatory actions).

Here, Title X “unambiguously authorized HHS to impose conditions for federal grants” 

to ensure that the funds issued will be efficaciously put to use for their intended purpose. 

Oklahoma, 107 F.4th at 1219 (citing 42 U.S.C. § 300a-4(b); 86 Fed. Reg. 56144, 56154 (Oct. 7, 

2021)). This clear delegation of authority to HHS, viewed in combination with HHS’s 2021 

counseling and referral regulation, are sufficient for notice purposes under the Spending Clause.
No. 24-5220 Tennessee v. Becerra, et al. Page 9

Resisting this conclusion, Tennessee argues that Rust’s holding that § 1008 is ambiguous 

as it relates to counseling and referrals for abortions, precluded HHS from requiring counseling 

and referrals and violated the Spending Clause. But as discussed, the Supreme Court has long 

recognized Congress’s power to authorize agencies to issue grants and leave the minutia of its 

spending programs to be clarified through regulations and other guidelines—even in the face of 

statutory ambiguity. Id. at 1218 (citing Bennett, 470 U.S. at 670 (“We agree with the [agency] 

that the [state grantee] clearly violated existing statutory and regulatory provisions . . . .”) 

(emphasis added) (collecting cases)3). Again, Title X authorizes HHS “to make grants . . . to 

State health authorities to assist in planning, establishing, maintaining, coordinating, and 

evaluating family planning services.” 42 U.S.C. § 300a(a). It directs that these grants “shall be 

made in accordance with such regulations as the Secretary may promulgate.” Id. § 300a-4(a). 

And Congress made the disbursement of grant funds “subject to such conditions as the Secretary 

may determine to be appropriate to assure that such grants will be effectively utilized for the 

purposes for which made.” Id. § 300a-4(b). These clauses, in addition to HHS’s regulations 

explaining the importance of nondirective counseling and referrals for Title X services, foreclose 

Tennessee’s arguments. See Bennett, 470 U.S. at 670. Congress made compliance with HHS’s 

requirements a clear and unambiguous condition of receiving a Title X grant. See 86 Fed. Reg. 

56144, 56154 (Oct. 7, 2021). Moreover, we agree with our concurring colleague that Congress’s 

inclusion of a yearly appropriations rider which expressly contemplates nondirective pregnancy 

counseling lends further support for the notion that HHS acted within its authority in setting that 

condition for funding—a fact that has implications for both the Spending Clause and APA 

analysis. See Omnibus Consol. Rescissions and Appropriations Act of 2022, Pub. L. No. 117-

103, 136 Stat. 49, 444 (Mar. 15, 2022).

Tennessee’s reliance on Kentucky v. Yellen, 54 F.4th 325 (6th Cir. 2022) and West Virginia 

ex rel. Morrisey v. U.S. Department of Treasury, 59 F.4th 1124 (11th Cir. 2023) does not increase 

3

See id. (reviewing the spending power based on both the “the statutory provisions” and “the 

regulations . . . and other guidelines provided by the [the agency] at th[e] time” that funding had been accepted); see 

also Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 643 (1999) (finding an agencies’ unambiguous regulations 

satisfied the notice requirements under the spending power); South Dakota v. Dole, 483 U.S. 203, 206 (1987) 

(“Congress . . . has repeatedly employed the spending power ‘to further broad policy objectives by conditioning 

receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.’” 

(emphasis added) (quoting Fullilove v. Klutznick, 448 U.S. 448, 474 (1980))).
No. 24-5220 Tennessee v. Becerra, et al. Page 10

its likelihood of success on the merits. It insists that these two cases support its proposition that, 

in the face of an ambiguous statute, regulations alone generally cannot establish conditions. 

Specifically, Tennessee argues that HHS was barred from resolving § 1008’s ambiguity through 

its own interpretations. But Yellen, which grappled with a vague rather than an ambiguous 

statute, did not reach a holding on the broader question of whether Congress could condition 

funding on compliance with agency regulations. 54 F.4th at 353. Indeed, in Yellen, the 

Department of Treasury argued that statutory language alone sufficiently placed states on notice 

of its conditions for funding. Id. And in Morrisey,

4

the Eleventh Circuit found that grantees 

were subject to regulations and legal requirements in place when the grants were made. 59 F.4th 

at 1148 (acknowledging that Congress may require grantees to abide by “‘the legal requirements 

in place when the grants were made’ [and] [t]hese ‘legal requirements’ include existing 

regulations.”) (quoting Bennett, 470 U.S. at 670). Thus, because § 1008 is situated among other 

provisions of Title X that clearly instruct HHS to determine the eligibility requirements, the 

district court did not err in concluding that Congress’s delegation to HHS would not violate the 

Spending Clause. 

2.

Voluntarily and Knowingly. The district court likely also did not err in determining that 

Tennessee voluntarily and knowingly agreed to HHS’s requirement for nondirective counseling 

and referrals. Despite Congress’s broad powers to set the unambiguous terms of its grants, it 

may not do so in a manner that “surprise[es] participating States with post acceptance or 

‘retroactive’ conditions.” Pennhurst, 451 U.S. at 25. As discussed above, this means that HHS’s 

decision to discontinue Tennessee’s grant based on the state’s refusal to adhere to the counseling 

and referral conditions would violate the Spending Clause if it imposed new requirements after

Tennessee’s acceptance of the grant. See Bennett, 470 U.S. at 670 (“[L]iability is determined 

by[] the legal requirements in place when the grants were made.”). But HHS issued the 

4

In addition to Morrisey’s nonbinding effect on our jurisprudence, the circumstances there differ from this 

case in two important ways. In an effort to resolve the ambiguity of a tax offset provision in a stimulus act which 

potentially implicated states’ sovereign tax authority, the Treasury Department created an entirely new regulatory 

framework. The HHS did no such action. Second, the Treasury Department’s regulatory framework changed the 

fundamental function of the relevant statute. The HHS’s counseling and referral requirements here do not have such 

a fundamental effect on the application of the grant program. See Oklahoma, 107 F.4th at 1219.
No. 24-5220 Tennessee v. Becerra, et al. Page 11

nondirective counseling and referral requirements in 2021, which then went into effect on 

November 8, 2021—several months before Tennessee accepted its Title X grant award in March 

2022. See 86 Fed. Reg. 56144 and (R. 1-7, PageID 170). Moreover, as the district court aptly 

observed, the Counseling and Referral Rule has been in place in all but two of the last twentynine years. As a decades-long recipient of Title X funds, Tennessee was aware of this fact. 

So Tennessee was on clear notice of the 2021 Rule and voluntarily agreed to its requirements 

when it accepted the grant. See Miss. Comm’n on Env’t Quality v. EPA, 790 F.3d 138, 179 (D.C. 

Cir. 2015) (“[T]he fact that the State has long accepted billions of dollars notwithstanding the 

challenged conditions may be an additional relevant factor in the contract-like analysis the Court 

has in mind for assessing the constitutionality of Spending Clause legislation.”).

Tennessee points out that HHS issued the 2021 Rule at a time when the law of the land 

stated that women had a constitutional right to obtain an abortion. Thus, there was no possibility 

that the state’s adherence to the Rule might conflict with a law banning the procedure. But after 

the Supreme Court’s decision in Dobbs, Tennessee criminalized the procedure in all but the 

narrowest of cases. It argues that this “supervening illegality” of abortions in the state 

demonstrated a clear and permissible public policy statement on an issue within the domain of its 

own sovereignty. This critical shift in circumstances, according to Tennessee, rendered 

inadequate any notice of the Rule it had received pre-criminalization because the 2021 Rule did 

not contemplate such a scenario. (ECF 20, Appellant’s Br. 30). But to the extent that Tennessee 

argues that the 2021 Rule is “silent” regarding its obligations post-Dobbs, HHS provided detailed 

guidance on how its nondirective counseling and referral requirements remained unchanged and 

active. Consistent with § 1008, HHS reiterated that Title X projects “may not take further 

affirmative action . . . to secure abortion services for the patient.” (R. 1-6, PageID 165 (citing 65 

Fed. Reg. at 41281)). And after Tennessee raised compliance concerns following its 

criminalization of abortion, HHS offered Tennessee the opportunity to submit an “alternate 

compliance proposal,” which included the option to use a national call-in hotline where thirdparty operators would supply the requisite information. (R. 1-9, PageID 190). Thus, given that 

Dobbs did not address what, if any, effect the decision might have on Title X’s underlying 

program requirements, the district court did not err in determining that Tennessee voluntarily and 

knowingly agreed to the conditions when accepting its grant award.
No. 24-5220 Tennessee v. Becerra, et al. Page 12

3.

Tennessee’s Sovereignty. Tennessee also asserts that HHS’s 2021 Rule violates the 

spending power because it infringes on Tennessee’s state sovereignty. It suggests that the 2021 

Rule’s counseling and referral requirements compel Tennessee to undermine its own state 

criminal abortion laws. But like Oklahoma, Tennessee may not use its state criminal laws to 

“dictate eligibility requirements” for Title X grants. Oklahoma, 107 F.4th at 1220 (citing 

Planned Parenthood Fed’n of Am., Inc. v. Heckler, 712 F.2d 650, 663 (D.C. Cir. 1983) 

(“Although Congress is free to permit the states to establish eligibility requirements for 

recipients of Title X funds, Congress has not delegated that power to the states.”)). The 2021 

Rule makes no reference to incorporating state law and does not limit compliance with its 

requirements to the procedures available within a given state. And Tennessee was free to 

voluntarily relinquish the grants for any reason, especially if it determined that the requirements 

would violate its state laws. (R. 1-9, PageID 190); see also Rust, 500 U.S. at 199 n.5 (“The 

recipient is in no way compelled to operate a Title X project; to avoid the force of the 

regulations, it can simply decline the subsidy.”)). Instead, Tennessee decided to accept the grant, 

subject to the 2021 Rule’s counseling and referral requirements.

In addition, Tennessee’s suggestion that the 2021 Rule violates the Spending Clause by 

impairing its general police powers to regulate “health and welfare” through “limits on the 

medical profession” is unsubstantiated. Thus, we find that the district court did not err in its 

conclusions that Title X and HHS’s regulations did not violate the spending power and that 

Tennessee voluntarily and knowingly accepted its grant conditions. Tennessee is not likely to 

succeed on its Spending Clause claims.

B.

Tennessee’s APA Challenge. Tennessee next argues that HHS’s decision to discontinue 

funding its grant violated the APA. Specifically, Tennessee asserts that HHS’s action to enforce 

the 2021 Rule: (1) exceeded HHS’s regulatory authority under Title X; (2) is unreasonable; (3) is 

arbitrary and capricious; and (4) represents a new legislative rule which may only be 

promulgated via notice-and-comment rulemaking. 
No. 24-5220 Tennessee v. Becerra, et al. Page 13

1.

Compliance with Title X. Tennessee maintains that HHS has misinterpreted § 1008’s 

prohibition on the use of Title X funds for “programs where abortion is a method of family 

planning.” 42 U.S.C. § 300a-6. It argues that the best reading of that provision, according to its 

text and history, is that it bars HHS from conditioning Title X funding on grantees’ counseling or 

referring for abortion services. This court must “hold unlawful and set aside agency 

action . . . found to be . . . in excess of statutory jurisdiction, authority, or limitations, or short of 

statutory right.” 5 U.S.C. § 706(2).

Several states raised similar arguments before this court in Ohio, 87 F.4th at 770–75. In 

Ohio, we held that HHS’s application of the 2021 Rule was within its statutory authority. Id. In 

deciding Ohio, we relied on the Supreme Court’s conclusion in Rust, that § 1008 is indeed 

ambiguous with respect to nondirective counseling and referral options under Chevron step one 

and that given this ambiguity, under Chevron step two, HHS’s “reasoned analysis” for 

proscribing such actions was a permissible construction of Title X. Rust, 500 U.S. at 187; see 

also Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). Thus, in 

reviewing HHS’s 2021 Rule requiring nondirective counseling and referral in Ohio, we held that 

HHS’s action also “must” have been permissible under Chevron’s step two analysis so long as 

HHS adequately explained its choice. Ohio, 87 F.4th at 772. In other words, because Rust held 

that a permissible construction of § 1008 permitted HHS to promulgate regulations banning 

counseling and referrals for abortion, we held that HHS’s subsequent promulgation of a rule 

going the opposite way also “must” have been permissible so long as it adequately explained its 

choice. Id. at 722. We also concluded that HHS’s reasoned analysis was sufficient to establish 

that the 2021 Rule is not arbitrary and capricious—regardless of whether it represents the best 

reading of the statute. 

Since our decision in Ohio, Chevron deference has fallen. See Loper Bright Enters. v. 

Raimondo, 144 S. Ct. 2244, 2273 (2024). Consequently, given Rust’s and Ohio’s application of 

Chevron deference to HHS’s actions relating to the provisions of neutral, nondirective 
No. 24-5220 Tennessee v. Becerra, et al. Page 14

counseling5and referrals in those cases, Tennessee challenges their precedential effect. 

However, the extent to which Loper Bright undermines the validity of prior cases that were 

decided using Chevron deference depends on several factors not addressed by the parties in their 

briefing. In its guidance to lower courts, the Court broadly stated that it “do[es] not call into 

question prior cases that relied on the Chevron framework.” Id. And it further explained that 

“[t]he holdings of those cases that specific agency actions are lawful . . . are still subject to 

statutory stare decisis despite [its] change in interpretive methodology.” Id. (citing CBOCS West, 

Inc. v. Humphries, 553 U.S. 442, 457 (2008)). So, while Loper Bright opens the door to new 

challenges based on new agency actions interpreting statutes, it forecloses new challenges based 

on specific agency actions that were already resolved via Chevron deference analysis. See id. 

Unremarked upon was whether statutory stare decisis includes Circuit court precedent. See id.; 

see also Amy Coney Barrett, Statutory Stare Decisis in the Court of Appeals, 73 Geo. Wash. L. 

Rev. 317 (2005). For instance, here, Tennessee’s argument involves the same “specific agency 

action”6challenged in Ohio—the HHS’s application of its 2021 Rule interpreting § 1008 to 

require nondirective counseling and referral options. In Ohio, we concluded that the 2021 Rule 

was lawful. Regardless of whether Ohio binds us,7like the Oklahoma court, we find its 

conclusion upholding the 2021 Rule—and by extension its enforcement against Tennessee 

here—persuasive. Ohio relied on Rust for its determination that HHS acted within statutory 

authority in treating referrals as falling outside of § 1008’s restriction on using funds for 

programs in which abortion is a “method of family planning.” We have held that we are bound 

by precedent “unless a Supreme Court decision ‘mandates modification’ of our precedent.” RLR 

Investments, LLC v. City of Pigeon Forge, Tenn., 4 F.4th 380, 390 (2021) (quoting United States 

v. Moody, 206 F.3d 609, 615 (6th Cir. 2000)). A fair reading of Loper Bright leads us to conclude 

5The states declined to challenge the counseling requirement included in the 2021 Rule in Ohio v. Becerra, 

87 F.4th 759, 773 (6th Cir. 2023).

6

“‘[A]gency action’ includes the whole or a part of any agency rule, order, license, sanction, relief, or the 

equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551.

7

In Metropolitan Hospital v. U.S. Department of Health and Human Services, we concluded that statutory 

stare decisis attaches to our own cases interpreting statutes in relation to their application under the APA only when 

such prior decisions were based on a finding that the terms of the statute were unambiguous and therefore left no 

room for agency discretion. 712 F.3d 248, 255–56 (6th Cir. 2013) (citing Nat’l Cable and Telecomms. Ass’n v. 

Brand X Internet Servs., 545 U.S. 967, 982 (2005)).
No. 24-5220 Tennessee v. Becerra, et al. Page 15

that the district court did not improperly accede to the holdings in Rust and our earlier decision in 

Ohio. The Supreme Court cautioned litigants hoping to rehash or relitigate previously settled 

issues decided on Chevron that “[m]ere reliance on Chevron cannot constitute a special 

justification for overruling such a holding.” Loper Bright, 144 S. Ct. at 2273 (quoting 

Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014) (cleaned up)). To argue 

as much, the Court continued, would “at best,” be “just an argument that the precedent was 

wrongly decided.” Id. And this, as the majority concluded, is “not enough to justify overruling a 

statutory precedent.” Id. 

Here, Tennessee argues that Loper Bright abrogated the precedential effect of Rust and 

Ohio because they relied on Chevron. But this is exactly the conclusion that Loper Bright

rejected; Loper Bright does not dictate abandonment of Rust or Ohio because it does not “call 

into question prior cases that relied on Chevron.” Id. And, even if the “specific agency action” 

in Rust was HHS’s 1988 Rule prohibiting counseling and referral requirements pursuant to 

§ 1008, our own circuit precedent addressed the inverse specific agency action and specifically 

affirmed HHS’s authority under Title X to require nondirective counseling and referral options. 

See Ohio, 87. F.4th at 772. In short, abandoning Rust and Ohio based on their reliance on 

Chevron, is unwarranted. Alternatively, Tennessee argues Ohio and Rust are distinguishable 

because they only involved facial challenges to § 1008. Tennessee asserts that its claim is an asapplied challenge because it disputes HHS’s decision to discontinue its Title X funding based on 

the state’s refusal to unqualifiedly confirm its commitment to give neutral nondirective 

counseling and referrals after passing a law banning abortion post-Dobbs. But this as-applied 

distinction is less meaningful where, as discussed above, Dobbs did not address its effect on Title 

X’s underlying program requirements or HHS’s enforcement of such requirements. See Dobbs, 

597 U.S. at 231. In other words, despite the change in circumstances, Tennessee’s claim centers 

on its challenge of HHS’s statutory authority to apply the 2021 Rule. See 42 U.S.C. § 300a-4(b). 

Notably, the counseling and referral requirements were unambiguously in place before Tennessee 

accepted its grant award and before it changed its own laws. As such, Tennessee’s arguments 

amount to whether the counseling and referral requirements were legal as per the limitation 

contained in § 1008. Because this is the same issue addressed in Rust and Ohio, it has likely 

been foreclosed. Nevertheless, while the district court must ultimately determine whether HHS’s 
No. 24-5220 Tennessee v. Becerra, et al. Page 16

actions complied with Title X, we confine our inquiry to whether the district court erred in its 

tentative conclusion. See Oklahoma, 107 F.4th at 1226. And even if we accept that Ohio is no 

longer binding, we agree with its conclusion that the 2021 Rule is lawful. 

Applying Loper Bright, the best reading of § 1008 permits both neutral, non-directive 

counseling and referrals. As noted earlier, Congress’s yearly spending rider presumes the 

provision of such counseling, specifically instructing—like the 2021 Rule—that all pregnancy 

counseling must be non-directive. Requiring grantees to follow up with additional information 

to those who request it, in the form of names, addresses, and phone numbers of health care 

providers, is a natural outgrowth of that counseling. And short of that, HHS has granted 

Tennessee the option of merely providing patients with a hotline number where they can obtain 

such health care provider information. Under either scenario, the grant recipient’s role is 

informational only. It neither recommends nor promotes any particular pregnancy care option, 

while, at the same time, it promotes HHS’s stated intention to advance a patient-centered 

approach. In this light, it seems quite a stretch to say that merely supplying to patients health 

provider information or a means to obtain such information elevates a grantee’s actions to the 

status of having abortion as a method of family planning. Even accepting the dissent’s definition 

of the term “method,” the provision of such information cannot be characterized as a deliberate 

or systematic action toward a particular end. Offering a list of phone numbers is simply too 

attenuated an act to characterize an entire program as one that conclusively offers abortion as a 

“method of family planning.” For this reason, Tennessee is unlikely to succeed on its claim that 

the 2021 Rule violates the APA. The 2021 Rule’s counseling and referral requirement is 

consistent with the meaning of § 1008. 

Tennessee also relies on a series of other arguments to attack HHS’s authority based on 

§ 1008’s ambiguity. For instance, it argues that because of § 1008’s ambiguity, HHS’s actions 

implicated the major-questions doctrine, which requires agencies to have “clear congressional 

authorization” before making major policy decisions. W. Virginia v. EPA, 597 U.S. 697, 722 

(2022). But, given the limited scope of HHS’s authority under Title X, the doctrine is likely not 

implicated. Title X describes HHS’s authority to “make grants to and enter into contracts with 

public or nonprofit private entities to assist in establishment and operation of voluntary family 
No. 24-5220 Tennessee v. Becerra, et al. Page 17

planning projects which shall offer a broad range of acceptable and effective family planning 

methods and services.” 42 U.S.C. § 300(a). We agree with the district court’s conclusion that 

this language sets forth a sufficiently intelligible principle supporting Congress’s delegation. See 

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 474 (2001). And as the district court accurately 

observed, HHS does not “exercise powers of vast economic and political significance.” Ala. 

Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2489 (2021). It issued only 

eighty-six Title X grants in 2023 with an average award value of $3 million. Office of 

Population Affairs, Fiscal Year 2023 Title X Service Grant Awards, https://opa.hhs.gov/grantprograms/title-x-service-grants/current-title-x-servicegrantees/fy2023-title-X-service-grantawards (last accessed Aug. 16, 2024). Given this relatively circumscribed grant-making 

authority, it is unlikely that HHS has run afoul of the non-delegation doctrine here and we see no 

reason to disturb the district court’s conclusion on this point. See, e.g., FDA v. Brown & 

Williamson Tobacco Corp., 529 U.S. 120, 159–60 (2000) (finding nondelegation problem where 

“the FDA . . . asserted jurisdiction to regulate an industry constituting a significant portion of the 

American economy.”). 

2.

Compliance with HHS Regulations. Tennessee next argues that HHS’s actions are 

inconsistent with its own regulations because program services must be “allowable under state 

law” and referrals must be made to service providers “in close physical proximity.” (ECF 20,

Appellant’s Br. 44 (citing 42 C.F.R. § 59.5(b)(6)); (id. at 45 (citing 42 C.F.R. § 59.5(b)(8))).

Allowable Under State Law. “[A] fundamental canon of statutory construction is that 

when interpreting statutes, the language of the statute is the starting point for interpretation, and 

it should also be the ending point if the plain meaning of that language is clear.” Saginaw 

Chippewa Indian Tribe of Mich. v. Blue Cross Blue Shield of Mich., 32 F.4th 548, 557 (6th Cir. 

2022) (citations and quotations omitted). 42 C.F.R. § 59.5(b)(6) states that Title X projects must 

“[p]rovide that family planning medical services will be performed under the direction of a 

clinical services provider, with services offered within their scope of practice and allowable 

under state law, and with special training or experience in family planning.” (emphasis added). 

Tennessee first argues that the plain meaning of § 59.5(b)(6) is that its Title X project may not 
No. 24-5220 Tennessee v. Becerra, et al. Page 18

encompass services relating to abortions because the procedure is not allowable under state law 

in Tennessee. But as the district court correctly concluded, Tennessee’s interpretation does not 

reflect the plain meaning of the regulation. There is no indication that the nondirective options 

for counseling and the neutral information required by the Rule are not “allowable under state 

law” in Tennessee. Though Tennessee law prohibits a person from performing an abortion, the 

law “contains no language whatsoever related to counseling or referral[s],” and does not overlap 

with § 59.5(b)(6). (R. 30, PageID 840); see Tenn. Code Ann. § 39-15-213. Indeed, HHS’s 

commentary accompanying the 2021 Rule indicates HHS included the “allowable under state 

law” phrase to “more clearly reflect the role of a broader range of healthcare providers in 

providing Title X services.” 86 Fed. Reg. at 56163–64 (emphasis added). Thus, this provision 

addresses “who” may qualify as a clinical services provider, not the types of services provided 

under Title X programs. In short, because Tennessee law does not prohibit mere abortion-related 

counseling or referrals, we find no conflict between § 59.5(b)(6) and Tennessee law. The district 

court did not err in this regard.

Close Physical Proximity. Tennessee next argues that 42 C.F.R. § 59.5(b)(8)’s mandate to 

provide services close to patients, conflicts with its need to refer patients to out-of-state providers 

due to its laws criminalizing abortions. Section 59.5(b)(8) requires Title X projects to “[p]rovide 

for coordination and use of referrals and linkages with [other health-care entities], who are in 

close physical proximity to the Title X site, when feasible, in order to promote access to services 

and provide a seamless continuum of care.” (emphasis added). However, the phrase “when 

feasible” in this provision plainly modifies the requirement to refer to providers “in close 

physical proximity to the Title X site.” Id. Thus, as the district court again correctly determined, 

the regulation only requires that Title X projects refer patients to nearby healthcare providers 

“when it is possible to do so.” When such close-in-proximity referrals are not possible, it 

permits the referral to be made “to a provider farther away.” (R. 30, PageID 837–39 (quoting 42 

C.F.R. § 59.5(b)(8)); 86 Fed. Reg. at 56164 (explaining that “referrals are to be to providers in 

close proximity to the Title X site when feasible”). This regulation does not require a referral to 

a provider within the state. The district court did not err.
No. 24-5220 Tennessee v. Becerra, et al. Page 19

3.

Finally, Tennessee contends that HHS’s counseling and referral conditions are arbitrary 

and capricious because the agency failed to consider several “important aspect[s]” of its 

requirement. (ECF 20, Appellant’s Br. 47 (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. 

Auto. Ins., 463 U.S. 29, 43 (1983))).

Federalism Concerns. First, Tennessee asserts that HHS ignored federalism concerns 

because its decision to discontinue Tennessee’s grant award did not consider the effect of Dobbs 

on counseling and referral requirements. But as discussed above, HHS issued extensive 

guidance about the effect of Dobbs on the requirements regarding counseling and referrals. 

Though Tennessee is correct that the 2021 Rule did not contemplate Dobbs, that case did not 

address the power of the agency to set conditions on federal grants. 597 U.S. at 231. And as the 

Supreme Court has previously noted, “[t]he recipient is in no way compelled to operate a Title X 

project; to avoid the force of the regulations, it can simply decline the subsidy.” Rust, U.S. at 

199 n.5. The district court did not err here.

Unlawful Position Switch. Tennessee argues that the rescindment was an “unlawful 

position switch,” because it came only months after HHS approved Tennessee’s Title X program 

with “full awareness the State’s post-Dobbs policy that ‘[n]o referrals for abortion are made.’” 

(ECF 20, Appellant’s Br. 50 (quoting (R. 1-1, PageID 56))). Tennessee points to HHS’s July 

2022 program review of its Title X project to support its argument that the agency unlawfully 

changed positions. However, the July 2022 program review indicated that there would be a 

follow-up if Tennessee changed its counseling and referral policies in response to the abortion 

restriction that was soon to take effect. And regardless, the counseling and referral requirements 

have been in place since 2021, before Tennessee applied for and received Title X funds. 

Reliance Interests. Lastly, Tennessee argues that the rescindment overlooked Tennessee’s 

legitimate reliance interests in the grant award because it has been receiving Title X funding for 

50 years. And the rescindment was procedurally invalid because HHS was required to undertake 

notice-and-comment rulemaking procedures to impose “new requirements” on Tennessee’s Title 

X project. (ECF 20, Appellant’s Br. 53 (quoting Nat’l Council for Adoption v. Blinken, 4 F.4th 
No. 24-5220 Tennessee v. Becerra, et al. Page 20

106, 114 (D.C. Cir. 2021) (citation omitted)). But Tennessee’s notice-and-comment arguments 

fail because HHS did not impose any “new” requirements on grantees. Furthermore, Tennessee 

likely has no legally cognizable reliance interest in the receipt of a discretionary funding award 

on the conditions that it prefers. Cf. Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 222 

(2016). HHS’s regulations make clear that Title X grants provide funding for one year with the 

option of issuing noncompetitive continuation grants for additional years. 42 C.F.R. § 59.8(b). 

HHS was not obligated to award more. Id. § 59.8(c). The district court did not err in this regard.

IV.

Irreparable Harm. Tennessee argues that it will face irreparable harm without an 

injunction because the rescindment: (1) will cause Tennessee severe financial losses that it 

cannot later recover; (2) threatens the viability of Tennessee’s Title X program; (3) causes 

irreparable reputational harm impacting its ability to secure future federal grants; and 

(4) interferes with its “sovereign interest” in setting its own abortion laws. Maryland v. King, 

567 U.S. 1301, 1303 (2012) (Roberts, C.J., in chambers). 

“A plaintiff’s harm from the denial of a preliminary injunction is irreparable if it is not 

fully compensable by monetary damages.” Overstreet v. Lexington-Fayette Urb. Cnty. Gov’t, 

305 F.3d 566, 578 (6th Cir. 2002) (citing Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th 

Cir. 1992)). Tennessee bears the burden of showing that its injuries are both “certain and 

immediate” and not “speculative or theoretical.” D.T. v. Sumner Cnty. Schs., 942 F.3d 324, 327 

(6th Cir. 2019) (citation omitted). However, finding harm is not enough for Tennessee to satisfy 

its burden here. It is “the peculiarity and size of a harm” that “affects its weight in the equitable 

balance.” Kentucky v. Biden, 57 F.4th 545, 556 (6th Cir. 2023). For instance, when the 

likelihood of success on the merits is low, plaintiffs must inversely show a higher degree of harm 

to warrant an injunction. See Friendship Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100, 105 

(6th Cir. 1982) (“[I]n general, the likelihood of success that need be shown . . . will vary 

inversely with the degree of injury the plaintiff will suffer absent an injunction.”) (citation 

omitted).
No. 24-5220 Tennessee v. Becerra, et al. Page 21

The district court satisfied itself that Tennessee’s harm was insufficient to warrant a 

preliminary injunction because its claims failed to establish a high degree of harm. Tennessee 

says the court abused its discretion because Tennessee believes it will suffer severe financial, 

reputational, and sovereign harm. Specifically, it argues that its loss of $7 million in federal 

Title X funds will cause irreparable harm because the funds are unrecoverable, and this court in 

Ohio has similarly found lower amounts of lost federal funds sufficient to compel an injunction. 

87 F.4th at 782–83. But there, the state of Ohio lost one-fifth of its Title X funding because of 

HHS’s contested rule change. Id. Moreover, the court found that Ohio established that it was 

likely to succeed on the merits of one of its claims, further warranting an injunction. 

Tennessee’s situation is different. Unlike Ohio, Tennessee lost its funding because it refused to 

comply with requirements established before it accepted the grant and declined to proceed with 

HHS’s proffered alternative. There was no intervening rule change. We agree with the district 

court that Tennessee likely will not succeed on the merits. So, while Tennessee’s complaints 

may demonstrate some degree of harm, the state was required to show a higher degree of harm 

than what was asserted here. See Friendship Materials, 679 F.2d at 105. 

Second, there is no indication that Tennessee will lose its Title X program because of the 

lack of federal funding. Irreparable injury cannot be speculative. See D.T., 942 F.3d at 327 

(requiring that irreparable harm not be speculative); see also Mich. Coal. of Radioactive Material 

Users, Inc. v. Griepentrog, 945 F.2d 150, 154 (6th Cir. 1991) (“[T]he harm alleged must be both 

certain and immediate, rather than speculative or theoretical.”). As it currently stands, the 

Tennessee legislature has already provided the state’s Title X project with the $7 million it 

would have otherwise received from HHS. (R. 21-1, PageID 335, ¶15). The Tennessee 

legislature earmarked the appropriations to fund its Title X project as “recurring.” (R. 21-1, 

PageID 335, ¶15). Because this suggests that Tennessee’s family planning program will 

continue to be funded—at least in the near-term—Tennessee’s arguments that it will lose its 

program based on a lack of federal funding amount to speculation. 

Tennessee’s next claim, that it will suffer irreparable reputational harm, is similarly 

unpersuasive. Tennessee argues that because HHS is required to report its termination of 

Tennessee’s grant to the federal grantee clearinghouse, the Federal Awardee Performance and 
No. 24-5220 Tennessee v. Becerra, et al. Page 22

Integrity Information System (“FAPIIS”), HHS’s actions threaten Tennessee’s “ability to obtain 

[any] future Federal funding.” (see R. 1-9, PageID 190). Tennessee cites ACT, Inc. v. 

Worldwide Interactive Network, Inc., 46 F.4th 489, 503–04 (6th Cir. 2022), for the proposition 

that its possible reported status is the type of reputational damage that “constitute[s] irreparable 

harm” because it is “likely to occur” and “difficult to quantify monetarily.” (ECF 20, 

Appellant’s Br. 56). But Tennessee provided no evidence as to how being reported would 

“affect the grants it currently receives or will receive in the future.” (R. 30, PageID 854 (citing 

ACT, Inc., 46 F.4th at 503–04). True, the inclusion in FAPIIS “may” affect a grantee’s ability to 

obtain future federal funding, (see R. 1-9, PageID 190). But Tennessee does not do its part to 

establish the evidence of how FAPIIS inclusion has hurt grantees “in the past” or that it “is likely 

to occur again.” State of Ohio ex rel. Celebrezze v. Nuclear Regul. Comm’n, 812 F.2d 288, 290 

(6th Cir. 1987). Thus, because Tennessee does not provide the “requisite facts and affidavits” 

supporting its theory of reputational harm, Ohio, 87 F.4th at 784, we agree with the district court 

that Tennessee’s reputational-injury claim is too speculative.

Last, Tennessee claims that HHS’s interference with its “sovereign interest” in setting its 

abortion laws constitutes a form of irreparable injury. (ECF 20, Appellant’s Br. 56–57 (citing 

Maryland, 567 U.S. at 1303)). However, we have already concluded that there is no direct 

conflict between HHS’s counseling and referrals requirement and Tennessee’s recent abortion 

criminalization laws. Moreover, as discussed above, Tennessee was free to voluntarily 

relinquish the grants for any reason, especially if it determined the requirements would violate its 

state laws. (R. 1-9, PageID 190); see also Rust, 500 U.S. at 199 n.5. Thus, because the district 

court thoroughly addressed each of Tennessee’s arguments regarding irreparable harm and 

correctly found them insufficient, we find that the district court did not abuse its discretion here.

V.

The Public Interest. Tennessee argues that declining to issue an injunction harms the 

public interest because it deprives Tennesseans of family planning services and generates new 

public-health risks. “[T]he public’s true interest lies in the correct application of the law.” 

Kentucky v. Biden, 23 F.4th 585, 612 (6th Cir. 2022) (citation omitted); see also Priorities USA 

v. Nessel, 860 F. App’x 419, 423 (6th Cir. 2021) (“[T]he public interest necessarily weighs 
No. 24-5220 Tennessee v. Becerra, et al. Page 23

against enjoining a duly enacted statute, and our assessment that the appellants will likely prevail 

on the merits tips the public-interest factor further in their favor.”).

The district court found that this factor favored HHS because the court found HHS’s 

actions lawful, and both parties had agreed that the public interest lies in the correct application 

of Title X and its regulations. Because we similarly find that HHS’s actions were lawful, we 

find no abuse of discretion here.

VI.

Tennessee cannot demonstrate how HHS’s decision to discontinue its Title X grant due to 

the state’s failure to comply with the 2021 Rule’s requirements regarding counseling and referral 

for abortions, violated the Spending Clause or the APA. As a result, Tennessee is unable to 

prove the likelihood of its claims succeeding on the merits. The district court thoroughly 

assessed the balance of interests and found that they did not support granting an injunction. The 

district court’s handling of Tennessee’s claims in denying the motion for a preliminary 

injunction was consistent with this court’s precedent and did not constitute an abuse of 

discretion. Because the majority of the preliminary injunction factors do not favor Tennessee’s 

position, we find that the balance of the equities weighs in favor of denying a preliminary 

injunction.

For the reasons above, we AFFIRM the judgment of the district court.
No. 24-5220 Tennessee v. Becerra, et al. Page 24

_____________________________________________________________________

DISSENTING IN PART / CONCURRING IN THE JUDGMENT IN PART

_____________________________________________________________________

KETHLEDGE, Circuit Judge, dissenting in part and concurring in the judgment in part. 

Tennessee should succeed on its claim under the Administrative Procedure Act, 5 U.S.C. 

§ 706(2)(A), that HHS’s abortion-referral requirement is contrary to law. The relevant law here 

is § 1008 of Title X, which provides that “[n]one of the funds appropriated under this title shall 

be used in programs where abortion is a method of family planning.” 42 U.S.C. § 300a-6. Yet 

HHS’s 2021 Rule specifies—as a condition of Title X funding—that recipients must, upon a 

patient’s request, provide referrals to abortion providers. The question, then, is whether HHS’s 

abortion-referral requirement makes Tennessee’s program one in which “abortion is a method of 

family planning[,]” in violation of § 1008.

A threshold issue is whether authority definitively to interpret § 1008 lies with the courts 

or with HHS. In Rust v. Sullivan, 500 U.S. 173, 184 (1991), the Supreme Court said the agency 

had that authority, under the Court’s decision seven years earlier in Chevron, U.S.A. Inc. v. Nat’l 

Res. Defense Council, Inc., 467 U.S. 837 (1984). Rust was a Chevron case down to its bones: in 

the first sentence of its analysis, the Court said that “[w]e need not dwell on the plain language 

of” § 1008 because that “language is ambiguous.” 500 U.S. at 184. The Court then described 

the question before it as “whether the agency’s answer is based on a permissible construction of 

the statute.” Id. (quoting Chevron, 467 U.S. at 842-43). The agency’s answer there was the 

opposite of its answer here: in its 1988 Rule, HHS stated that, under § 1008, a “Title X project 

may not provide counseling concerning the use of abortion as a method of family planning or 

provide referral for abortion as a method of family planning.” Id. at 179 (quoting 42 C.F.R. 

§ 59.8(a)(1) (1989)) (emphasis added). The Court then deferred to that interpretation and 

deemed the 1988 Rule lawful.
No. 24-5220 Tennessee v. Becerra, et al. Page 25

In the decades since, HHS has gone back and forth as to whether Title X programs may 

or even must provide abortion counseling and referrals. The 2021 Rule at issue here takes the 

“must provide” approach. Last year, our court acknowledged that Chevron and hence Rust 

remained binding precedent—even though the Supreme Court had recently granted certiorari to 

consider whether to overrule Chevron. See Ohio v. Becerra, 87 F.4th 759, 769 (6th Cir. 2023); 

Loper Bright Enters. v. Raimondo, 143 S. Ct. 2429 (2023) (mem.). Accordingly, we held, 

“Rust’s holding requires us to reject the States’ argument that the 2021 Rule’s referral 

requirement is contrary to law.” Ohio, 87 F.4th at 771.

During the pendency of this appeal, however, the Supreme Court overruled Chevron. See 

Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2273 (2024). In Loper Bright, the Court 

observed what the Court in Chevron had not: that § 706 of the Administrative Procedure Act 

“directs that, ‘[t]o the extent necessary to decision and when presented, the reviewing court shall 

decide all relevant questions of law, interpret constitutional and statutory provisions, and 

determine the meaning or applicability of the terms of an agency action.”’ Id. at 2302 (quoting 5 

U.S.C. § 706). Hence, the Court observed, the APA “codifies for agency cases the 

unremarkable, yet elemental proposition reflected by judicial practice dating back to Marbury v. 

Madison, 1 Cranch 137, 177 (1803): that courts decide legal questions by applying their own 

judgment.” Loper Bright, 144 S. Ct. at 2261. Thus—in agency cases as in any other case of 

statutory interpretation—the court must identify the statute’s “single, best meaning” rather than 

merely a permissible one. Id. at 2266. And in agency cases specifically, “[c]ourts must exercise 

their independent judgment in deciding whether an agency has acted within its statutory 

authority, as the APA requires.” Id. at 2273.

Whether HHS “has acted within its statutory authority” is precisely the question 

presented here. Yet the Department of Justice (as counsel for HHS) insists that, in answering 

that question, Loper Bright is of no moment whatever. Specifically, before argument, the 

Department opposed supplemental briefing as to the effect of Loper Bright upon our decision in 

this appeal. Instead, the Department merely asserted that, in Rust, the Court concluded that 

§ 1008 “‘does not speak’ [“directly” is the next word in Rust] to ‘counseling’ or ‘referral’”—as 

if, even after Loper Bright, the judicial task was therefore at an end. Dep’t. of Justice 28(j) 
No. 24-5220 Tennessee v. Becerra, et al. Page 26

Letter of July 3, 2024 (citing Rust, 500 U.S. at 184). And at oral argument, the agency’s counsel 

repeatedly refused to answer questions about what § 1008 means—instead asserting (again) that 

we remain bound by Rust. Oral Arg. at 20:00-26:45, 33:30-36:20. In support, the Department 

emphasizes one sentence from Loper Bright—in which the Court said its decision did “not call 

into question prior cases that relied on the Chevron framework.” 144 S. Ct. at 2273. So in the 

Department of Justice’s view, apparently, Chevron lives on in perpetuity as to any statute that the 

Supreme Court has ever deemed ambiguous under that doctrine.

But the Department studiously overlooks the extent to which lower courts remain bound 

by the Court’s “prior cases that relied on the Chevron framework.” Id. And in the very next 

sentence of Loper Bright, the Chief Justice was surpassingly clear in defining that extent: “The 

holdings of those cases that specific agency actions are lawful—including the Clean Air Act 

holding of Chevron itself—are still subject to statutory stare decisis despite our change in 

interpretive methodology.” Id. (emphasis added).

The “specific agency action” held lawful in Rust was the 1988 Rule, which has since 

been rescinded. Thus, in this appeal, we have no occasion to defer to that holding. Instead, we 

“must exercise [our] independent judgment in deciding whether [the] agency has acted within its 

statutory authority, as the APA requires.” Id. We would therefore contravene Loper Bright if 

we deferred to the agency’s interpretation of § 1008 in the 2021 Rule. (And to say the agency 

actually interpreted § 1008 is generous, since in the Rule the agency nowhere deigns to interpret 

it.)

So our court must determine for itself whether the 2021 Rule’s abortion-referral 

requirement is contrary to law. Again, § 1008 provides: “None of the funds appropriated in this 

title shall be used in programs where abortion is a method of family planning.” I have no quarrel 

with HHS’s definition of “family planning”—under the prior administration’s 2019 Rule and the 

2021 Rule alike—as a process by which individuals can determine “the number and spacing” of 

their children. See 42 C.F.R. § 59.1 (2019); 42 C.F.R. § 59.1 (2021). And the word “where,” as 

used in § 1008, pretty clearly means “in which[.]” See Bryan A. Garner, Garner’s Modern 

American Usage 856 (3d ed. 2009); Webster’s Third New International Dictionary (Unabridged) 

2602 (1971). A “method,” in turn, is not merely a means of obtaining a particular end, but a 
No. 24-5220 Tennessee v. Becerra, et al. Page 27

“regular, orderly,” or “systematic” means of doing so. See Webster’s New Universal 

Unabridged Dictionary 1134 (2d ed. 1983); Webster’s Third New International Dictionary 2322. 

So a method is a deliberate or systematic means of obtaining a particular end.

Section 1008 thus denies funding to programs in which abortion is a regular or systematic 

means of enabling individuals to determine the number and spacing of their children. For 

achieving that end, of course, there are many means other than abortion: contraception, 

abstinence, in vitro fertilization, adoption. A program that has nothing to do with a particular 

means is not a program in which that means is a “method.” For a program to be one in which a 

particular means “is a method of family planning,” rather, the program must assist the patient in 

using or obtaining that means, and do so in a deliberate or systematic way. Yet the program 

itself need not provide the ultimate service or product necessary for those means: the 2019 and 

2021 Rules both expressly contemplate referrals to “actual providers of services,” 42 C.F.R. 

§ 59.5(b)(8), (9) (2019) and 42 C.F.R. § 59.5(b)(8), (9) (2021); and surely adoption and IVF, for 

example, are methods of family planning for programs that help patients obtain those services 

elsewhere. For a means to be attributable to a program as a “method,” therefore, deliberate or 

systematic facilitation must be enough.

Facilitation means assistance toward a particular end. In this context, facilitation means 

assistance toward a patient’s use of a particular means of family planning. Referral is such 

assistance, regardless of the means the patient seeks. For in family planning, as in life generally, 

knowledge of where to obtain a product or procedure is the first step toward actually obtaining it. 

Indeed, in the 2021 Rule, HHS itself acknowledged that referrals to abortion providers are 

“affirmative action” toward actually obtaining an abortion—when HHS stated that, apart from 

the referral itself, a Title X funds recipient “may not take further affirmative action (such as 

negotiating a fee reduction, making an appointment, providing transportation) to secure abortion 

services for the patient.” 86 Fed. Reg. 56144, 56150 (Oct. 7, 2021) (emphasis added). For 

purposes of § 1008, however, HHS’s distinction between referrals and these other affirmative 

actions is without a difference: all these actions provide assistance toward “secur[ing] abortion 

services for the patient.” Id. And the referral requirement makes that assistance systematic, 

since by its terms every recipient of Title X funds must provide it.
No. 24-5220 Tennessee v. Becerra, et al. Page 28

Just as adoption or IVF are methods of family planning for programs that refer patients to 

providers for those services, therefore, so too is abortion a method of family planning for 

programs that refer patients to abortion providers. And the 2021 Rule mandates that every Title 

X program do exactly that. Thus, HHS’s abortion-referral requirement makes every Title X 

program one “where abortion is a method of family planning.”

HHS counters, in passing, that Tennessee could comply with the referral requirement “by 

providing Title X patients the number for a call-in hotline where operators would supply the 

requisite information.” Br. at 10. But the “hotline” would supply the patient with the same 

information (“requisite” for obtaining an abortion) that handing her a printed list of abortion 

providers would. That indeed would transparently be the whole point of the exercise. Providing 

the patient with the hotline number would facilitate actually obtaining an abortion just as handing 

her the form would. That the hotline would contrive to add a step to that referral process 

(namely, that of dialing a phone number) should make zero difference to the analysis under 

§ 1008. Courts enforce legal rules, rather than allow parties patently to circumvent them.

In sum, the abortion-referral requirement likely violates § 1008’s proscription, and I 

would enjoin its enforcement.

* * *

A closer question is whether the 2021 Rule’s requirement of nondirective counseling 

regarding abortion is likewise contrary to § 1008. The 2021 Rule provides in relevant part:

A project must:

(i) Offer pregnant clients the opportunity to be provided information and counseling 

regarding each of the following options:

(A) Prenatal care and delivery;

(B) Infant care, foster care, or adoption; and

(C) Pregnancy termination.

(ii) If requested to provide such information and counseling, provide neutral, factual 

information and nondirective counseling on each of the options, and, referral upon 

request, except with respect to any option(s) about which the pregnant client 

indicates they do not wish to receive such information and counseling.
No. 24-5220 Tennessee v. Becerra, et al. Page 29

42 C.F.R. § 59.5 (2021). Counseling on these topics must therefore be “neutral” and 

“nondirective[.]” The question, then, is whether the counseling requirement—to provide, upon 

request, nondirective counseling regarding abortion and various other topics—likewise makes a 

Title X program one in which abortion is a method of family planning.

An action is not a “method” just because it makes a particular outcome more likely. 

Rather, a method is deliberate or systematic action toward a particular end. And nondirective 

counseling by definition is not directed toward a particular outcome. (The same is not true of 

promotion or advocacy: persuading a person to choose a particular outcome is a deliberate step 

toward reaching it.) Nondirective counseling helps the patient choose her own means of family 

planning, but advances none of them. Hence nondirective counseling does not amount to 

deliberate or systematic facilitation of any of the pregnancy options the counseling might cover. 

Thus, the 2021 Rule’s requirement of nondirective counseling likely does not violate § 1008.

An appropriations rider enacted every year since 1996 (including the years relevant here) 

all but confirms the point. By way of background, Congress “may amend substantive law in an 

appropriations statute, as long as it does so clearly.” Robertson v. Seattle Audubon Soc., 503 

U.S. 429, 440 (1992). “Clearly” need not mean “expressly.” In Robertson, for example, the 

Court held that an appropriations statute had implicitly (though clearly) “modified” provisions of 

the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq., among two other Acts. 503 U.S. at 438-

40.

Here, the appropriations rider provides in relevant part:

For carrying out the program under Title X . . . to provide for voluntary 

family planning projects, $286,479.00: Provided, that amounts provided to said 

projects under such title shall not be expended for abortions, [and] that all 

pregnancy counseling shall be nondirective[.]

Omnibus Consol. Rescissions and Appropriations Act of 2022, Pub. L. No. 117-103, 136 Stat. 

49, 444 (Mar. 15, 2022).

An ordinary reader would understand the phrase “all pregnancy counseling shall be 

nondirective” to mean that nondirective pregnancy counseling is permissible under Title X. In 

like fashion, for example, the phrases “all passenger vehicles must have seatbelts” and “all dogs 
No. 24-5220 Tennessee v. Becerra, et al. Page 30

shall be kept on a leash,” proscribe neither manufacturing passenger vehicles nor taking dogs for 

a walk; instead, those phrases specify a condition for doing those things lawfully. Here, the 

specified condition is that counseling be “nondirective”; and the rider makes clear enough that 

pregnancy counseling is lawful under Title X so long as that condition is met.

Moreover, the rider’s reference to “all” pregnancy counseling suggests that such 

counseling may concern various topics; and the relevant context—among other things, that the 

rider’s preceding clause ends with the word “abortions”—suggests that abortion is one of them. 

Indeed, in light of § 1008, one can surmise that abortion, above all, was the topic Congress had 

in mind when it mandated that “pregnancy counseling” be nondirective. Thus—regardless of 

whether one thinks that § 1008, construed within its four corners, would bar nondirective 

counseling regarding abortion—§ 1008 construed along with the appropriations rider, in the 

years in which the rider is enacted, very likely permits such counseling. The prior administration 

thought so, see 84 Fed. Reg. 7714, 7745-46 (Mar. 4, 2019); and I think they were likely right. 

Nor should it matter that the 2019 Rule permitted such counseling, whereas the 2021 Rule 

requires it: if nondirective counseling falls outside the proscription of § 1008, whether an agency 

permits or requires it is immaterial for purposes of that proscription. Thus, in my view, 

Tennessee is unlikely to prevail on its claim under the APA that the 2021 Rule’s requirement of 

nondirective pregnancy counseling is contrary to law; and so I would not enjoin that 

requirement.

* * *

Given that (in my view) the abortion-referral requirement violates § 1008, I do not reach 

Tennessee’s parallel challenge to that requirement on constitutional grounds (namely under the 

Spending Clause). See Northwest Austin Mun. Utility Dist. No. One v. Holder, 557 U.S. 193, 

205 (2009). Tennessee does claim that the 2021 Rule’s requirement of nondirective pregnancy 

counseling likewise “expressly violate[s] the Spending Clause by imposing unforeseen 

conditions far afield from Congress’s Title X legislation.” Complaint ¶112. But I think that 

claim will likely fail, since the rider plainly contemplates nondirective pregnancy counseling and 

indeed prescribes a rule for its legality (namely that the counseling be nondirective). Nor do I 
No. 24-5220 Tennessee v. Becerra, et al. Page 31

think that Tennessee will likely show that the agency’s actions with regard to the counseling 

requirement were arbitrary and capricious under the APA.

I respectfully dissent in part and concur in the judgment in part.