Madeline O’Toole, Associate Member, University of Cincinnati Law Review
Enacted in 1970, Title X is a federal grant program administered by the U.S. Department of Health and Human Services (“HHS”) that provides individuals with family planning services. In fiscal year 2019, $286 million was appropriated to Title X providers. Over 3,500 clinical sites receive Title X grants to support nearly 4 million persons, 90 percent of which are at or below 200 percent of the federal poverty level.
Section 1008 of Title X provides that “[n]one of the funds under this title shall be used in programs where abortion is a method of family planning.” While HHS has never allowed grantees to use Title X funds to provide abortions, the department’s interpretation of Section 1008 has changed over its 50 years of existence. From 1970 to 1988, HHS interpreted Section 1008 as prohibiting Title X grantees from promoting abortion as a method of family planning. In 1988, the HHS Secretary adopted a “Gag Rule” further prohibiting both counseling on and referrals for abortion. Despite the Gag Rule being upheld by the Supreme Court in Rust v. Sullivan, HHS suspended it in 1993, reinstituting the 1981 nondirective pregnancy counseling. This nondirective mandate was added to the HHS appropriations act in 1996 and has appeared in every appropriations act since. Furthermore, in 2000, HHS issued a rule reflecting the previous 1981 guidelines, requiring Title X providers to give information and counseling regarding abortion and a referral upon request of the patient.
In its most recent interpretation of Section 1008, HHS Secretary Azar issued a rule in 2019 that partially revives the 1988 Gag Rule. The new Final Rule provides that a Title X provider may not refer a pregnant patient for abortion, but must refer her to a provider for prenatal health care. Further, Title X providers may choose to provide nondirective pregnancy counseling, but must neither promote abortion, nor present abortion as the only option. Finally, under the new rule, if a patient is provided a referral for a purpose other than abortion, Title X staff must not identify to the patient who on the list of providers, if any, provide abortions.
Both the Fourth and Ninth U.S. Circuit Courts of Appeal have recently heard administrative challenges to the current HHS rule. This article examines the split in authority between the two courts.
A. State of California v. Azar
The Ninth Circuit Court of Appeals vacated a district court’s preliminary injunction order enjoining the HHS from enforcing its most recent Final Rule interpreting Section 1008 of Title X. The majority held the Final Rule was a reasonable interpretation of Section 1008, and not in conflict with the Affordable Care Act (“ACA”). Additionally, the court found the Final Rule was not arbitrary and capricious because HHS gave reasonable explanations for its provisions.
The court first rejected the plaintiffs’ argument that the Final Rule violates the 1996 appropriations rider, or ‘Nondirective Mandate’ which provides that funding granted to Title X projects should not be expended for abortion and that all pregnancy counseling should be nondirective. It found that the terms “counseling” and “referral” are distinct from one another based on their common usage. Furthermore, the court held that because neither Title X nor the appropriations rider defines the term “nondirective,” it must give substantial deference to HHS’s interpretation of the term. Therefore, nondirective pregnancy counseling as provided in the Final Rule means the physician provides a non-suggestive presentation of options. Nondirective pregnancy counseling does not mean, however, that all options must be presented on an equal basis. Given these interpretations, the Ninth Circuit found that because pregnancy counseling does not include referrals, and the word nondirective means a non-suggestive presentation of options, nondirective pregnancy counseling does not require that referrals for abortion and prenatal care be provided on the same basis.
Additionally, the court dismissed plaintiffs’ contention that the Final Rule conflicts with the Noninterference Mandate of the ACA. The majority reasoned that under Supreme Court jurisprudence, a decision to not fund abortion does not impose a burden on women seeking abortions. Specifically, the Supreme Court in Rust v. Sullivan held that restrictions on Title X funding leave the Title X provider free to perform those restricted services outside of the Title X project. Therefore, the Court found such regulations restricting funding did not impose a significant burden on the doctor-patient relationship or impede access to such services. The Ninth Circuit held that the same reasoning applies in the case at hand.
Finally, the majority held multiple provisions in the Final Rule as not arbitrary and capricious. The physical separation requirement was deemed necessary to ensure Title X funds, as mandated by Section 1008, not support programs where abortion is offered. The cost-benefit analysis was based on HHS’s own predictions regarding Title X grantee behavior and the agency did not have to accept the high cost-estimates of commenters. The counseling and referral restrictions do not violate ethical obligations because the Final Rule allows nondirective pregnancy counseling on a patient’s options, one of which is abortion. HHS’s requirement that pregnancy counseling be provided by medical doctors or advanced practice providers is based in their expertise. Lastly, the requirement that family planning methods be acceptable and effective rather than medically approved sufficiently prohibits Title X providers from engaging in fraudulent activities.
As a result of these findings, the Ninth Circuit determined the plaintiffs would not succeed on the merits of their claims and vacated the preliminary injunction.
B. Mayor and City Council of Baltimore v. Azar
On the other hand, an en banc court for the Fourth Circuit affirmed a district court’s permanent injunction enjoining HHS from implementing and enforcing the Final Rule throughout Maryland. The court upheld this injunction on the grounds that the Final Rule is both arbitrary and capricious and contrary to law.
Firstly, the court held that the Final Rule was arbitrary and capricious because HHS provided an inadequate explanation for its decision “‘to disagree with comments made by every major medical organization regarding the Final Rule’s contravention of medical ethics’” and its inadequate consideration of the “‘likely costs and benefits of the physical separation requirement.’”
Looking to the record, the court found that all the medical organizations that submitted comments to HHS about the Final rule expressed concern that the Final Rule would undermine the doctor-patient relationship by forcing physicians to withhold important medical information from the patient. In response, HHS merely stated it disagreed with the comments that the Rule is inconsistent with and violates the ethical obligations of medical professionals. The court found this explanation in support of the Final Rule unsatisfactory in light of the comments and evidence in the record before the agency. Additionally, the Fourth Circuit rejected the Government’s argument that there is no ethical obligation upon physicians to refer for abortions in light of conscience statutes. The court also dismissed the Ninth Circuit’s decision upholding the Final Rule, finding that it did not address HHS’s failure to justify its Final Rule is medically ethical given the evidence in record to the contrary. Therefore, the court held the Final Rule was inconsistent with medical ethics and was, as a result, arbitrary and capricious.
The majority also held the Final Rule as arbitrary and capricious because there was no justification for the estimated cost of complying with its physical separation provision, which requires physical and financial separation between Title X programs and any activities that fall outside of that program. The court found comments in the record predicting that the cost would far exceed the $30,000 the Final Rule estimated.
Secondly, the Fourth Circuit held the Final Rule was not in accordance with the Nondirective and Noninterference Mandates. In Rust v. Sullivan, the Supreme Court established that the language in Section 1008 of Title X is ambiguous under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. because it does not directly address counseling, referrals, and the like. As a result, the court analyzed whether HHS’s interpretation of Section 1008 in the Final Rule is permissible or reasonable under Chevron. A rule is neither permissible or reasonable if it is contrary to the law.
Under the Nondirective Mandate, a Title X program must provide nondirective pregnancy counseling where the physician presents options in a non-suggestive manner. The court found that the Final Rule is directive because it requires physicians to refer a pregnant patient for prenatal care while simultaneously prohibiting abortion referrals. The Noninterference Mandate of the ACA provides that HHS shall not promulgate any rule that “interferes with communications regarding a full range of treatment options between the patient and the provider” and “restricts the ability of health care providers to provide full disclosure of all relevant information to patients making health care decisions.” The court held that prohibiting Title X physicians from making abortion referrals when the patient requests it does in fact interfere with provider-patient communications. Further, by not allowing Title X providers to indicate which providers perform abortions, they are not able to provide a full disclosure of relevant information to their patients.  Therefore, the court held the Final Rule unlawful because it is contrary to both the Nondirective and Noninterference Mandates.
Despite the concern and pushback from the medical community commenters, under current law, the 2019 Final Rule is likely valid as held by the Ninth Circuit. However, there is doubt as to whether precedent yielding such a decision will remain in place in light of the recent confirmation of Supreme Court Justice Amy Coney Barrett.
Under current law and Supreme Court jurisprudence, a court reviewing an agency action or statutory interpretation should typically defer to such action or interpretation. In Chevron, the Court held that a court reviewing an agency’s interpretation of a statute must first determine if Congress directly addressed the issue in question under the statue. If Congress did not address the issue or its intent is ambiguous, the reviewing court must then determine if the agency’s interpretation of the statute is permissible. Agency regulations are given deference unless they are arbitrary and capricious or contrary to the statute. Additionally, a rule is arbitrary and capricious if the agency does not provide a satisfactory explanation for its action.
Here, Section 1008 as enacted by Congress provides that “[n]one of the funds under this title shall be used in programs where abortion is a method of family planning.” Rust v. Sullivan established that the language in Section 1008 is ambiguous under the first step in Chevron. Therefore, a court must afford deference to the Final Rule in question, unless it is arbitrary and capricious or contrary to law.
Examining the Final Rule, it is neither arbitrary and capricious nor contrary to law. Firstly, the Fourth Circuit held that the Final Rule was arbitrary and capricious based on HHS’s inadequate explanation for disagreeing with major medical commenters. While the majority found that HHS merely disagreed with commenters that stated the Final Rule is inconsistent with medical ethics, the agency did in fact provide a more substantive explanation for its disagreement. HHS stated that a Title X provider may provide nondirective pregnancy counseling which includes abortion as a pregnancy option. Further, HHS explained that if a patient were to request a referral for abortion, the Title X provider is free to explain that the project does not fund such referrals. Therefore, one can reasonably discern from the agency’s explanation that, “there is no withholding of information without the patient’s knowledge and thus no violation of medical ethics.” HHS also looked to Federal and State conscience laws for what medical ethics requires, and reasoned that ethics cannot simultaneously require providers to make referrals for abortions and permit those same providers to refuse to make referrals for abortions. Even if one does not agree with HHS’s explanations that the Final Rule is consistent with medical ethics, these explanations are satisfactory enough to support the Final Rule because there is a “rational connection between the facts and choices made.”
Additionally, the Final Rule does not violate the Nondirective or Noninterference Mandates. While the Nondirective Mandate requires nondirective pregnancy counseling, “nondirective” modifies the term counseling and not referrals. Counseling and referrals are different given the fact that referrals, by nature, can only be directive. Thus, the Final Rule’s requirement that Title X providers refer pregnant patients for prenatal care and its prohibition on abortion referrals are allowable under the 1996 appropriations rider.
Finally, the Final Rule is a decision to not subsidize certain acts by Title X providers rather than a decision on what conduct to prohibit. The Final Rule does not violate the Noninterference Mandate of the ACA because it does not constitute an “affirmative interference” with the doctor-patient relationship and communications within that relationship. The statute itself prohibits the HHS Secretary from promulgating regulations that create unreasonable barriers, impede access to health care, interfere with doctor-patient communications, and the like. The verbs used in the Noninterference Mandate relate to affirmative interferences. The Final Rule constitutes a decision to not subsidize certain referrals, an omission, as opposed to an affirmative interference in doctor-patient communications. Thus, the Final Rule does not violate the Noninterference Mandate as it still leaves the doctor free to make a referral for abortion outside of the Title X context.
However, if either of the decisions regarding the Final Rule’s validity are appealed to the Supreme Court, it is difficult to predict what the outcome may be. While the conservative majority on the Court would favor more restrictive agency rules when it comes to counseling and referrals for abortion, they also seem to favor an overturn of Chevron, and “deconstruction of the administrative state.” With the potential overturn of Chevron, either Congress would have to amend Title X to fill in the gaps it originally left for HHS to address or the courts themselves would be left to interpret statutory ambiguities. A departure from Chevron would leave not only Title X’s interpretation in doubt, but countless other regulations promulgated by federal agencies.
Ultimately, the Final Rule is likely valid given the substantial deference currently afforded to the statutory interpretations of federal agencies. Despite this, Chevron, the Supreme Court jurisprudence that affords such deference to agency decisions, may be overturned by the Supreme Court in the near future. Chief Justice Roberts and Justices Gorsuch, Kavanaugh, and Thomas have all indicated their willingness to reconsider current court deference to agencies. With the addition of Justice Amy Coney Barrett, who has “a history of taking a narrow view of the government’s regulatory powers,” a clear majority exists to either completely overturn Chevron or significantly limit it. This could leave the validity of regulations such as the Final Rule at issue here in doubt, and leave more policymaking in the hands of Congress and the courts.
 Title X Program Funding History, Office of Population Affairs, https://opa.hhs.gov/grant-programs/archive/title-x-program-funding-history (last visited Oct. 27, 2020).
 FY 2020 Budget in Brief, https://www.hhs.gov/sites/default/files/fy-2020-budget-in-brief.pdf.
 42 U.S.C. § 300a-6.
 Mayor of Balt. v. Azar, Nos. 19-1614, 20-1215, 2020 U.S. App. LEXIS 28127 *13 (4th Cir. Sep. 3, 2020).
 Id. at *16.
 Id. at *20.
 Id. at *21.
 Id. at ** 22-23.
 Id. at ** 23-24.
 Id. at *24.
 California v. Azar, 950 F.3d 1067, 1105 (9th Cir. 2020).
 Id. at 1105.
 Id. at 1085
 Id. at 1085-86.
 Id. at 1088, citing Rust v. Sullivan, 500 U.S. 173, 184 (1991).
 Id. at 1088.
 Id. at 1091.
 Id. at 1092
 Id. at 1092-93.
 Id. at 1093.
 Id. at 1094.
 Id. at 1095.
 Id. at 1097.
 Id. at 1101.
 Id. at 1102.
 Id. at 1103.
 Id. at 1104.
 Id. at 1105.
 Mayor of Balt. v. Azar, Nos. 19-1614, 20-1215.
 Id. at ** 31-32.
 Id. at * 32 (quoting S.J.A. 1309).
 Id. at ** 34-35.
 Id. at * 36.
 Id. at *38 (citing State Farm, 463 U.S. at 43).
 Id. at **39-40.
 Id. at **41-42.
 Id. at **42-43.
 Id. at **43-44.
 Id. at *47
 Id. at *47 (citing Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 843-44 (1984)).
 Id. at *47-48 (citing Judulang v. Holder, 565 U.S. 42, 52 n.7 (2011)).
 Id. at *48
 Id. at *48-49
 Id. at *59-60 (quoting 42 U.S.C. §18114(1)-(5)).
 Id. at *60.
 Id. at *47.
 Chevron, U.S.A., Inc. v. NRDC, Inc. 467 U.S. 837, 844 (1984).
 Id. at 842-43
 Id. at 843.
 Id. at 844; 5 U.S.C. §706(2)(A).
 Mayor of Balt. v. Azar, Nos. 19-1614, 20-1215 at *31.
 42 U.S.C. § 300a-6.
 Mayor of Balt. v. Azar, Nos. 19-1614, 20-1215 at **17-18.
 Id. at **33-34 (quoting 84 Fed. Reg. at 7724.)
 Id. at *135.
 Id. at *35
 Id. at * 39.
 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).
 Id. at *22.
 Mayor of Balt. v. Azar, Nos. 19-1614, 20-1215 at *22.
 Id. at *117.
 Id. at *123.
 Id. at **123-24.
 James Goodwin, Will Confirming Judge Barrett be the Death of Chevron Deference?, Union of Concerned Scientists (Oct. 15, 2020) https://blog.ucsusa.org/guest-commentary/will-confirming-judge-barrett-be-the-death-of-chevron-deference.
 Chris Matthews, A Barrett court would continue Trump’s deregulatory agenda long after he’s left the White House, experts say, MarketWatch (Oct. 12, 2020) https://www.marketwatch.com/story/a-barrett-court-could-continue-trumps-deregulatory-agenda-long-after-hes-left-the-white-house-experts-say-2020-10-10.