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. 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. 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., Plaintiffs-Appellees,
v.
Alex M. Azar II; United States Department of Health And Human Services; Diane Foley; Office of Population Affairs, Defendants-Appellants. State of Washington; National Family Planning and Reproductive Health Association; Feminist Women's Health Center; Deborah Oyer, M.D.; Teresa Gall, 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.
D.C.
Nos. 3:19-cv-01184-EMC, 3:19-cv-01195-EMC, 6:19-cv-00317-MC,
6:19-cv-00318-MC, 1:19-cv-03040-SAB, 1:19-cv-03045-SAB
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 Defendants-Appellants.
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; 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
Plaintiffs-Appellees 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; 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 Plaintiff-Appellee
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.
Before: Edward Leavy, Consuelo M. Callahan, and Carlos T.
Bea, Circuit Judges.
ORDER
ON MOTIONS FOR STAY PENDING APPEAL
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 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.
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.
ORDER
PER
CURIAM:
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 ...