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Mayor and City Council of Baltimore v. Azar

United States District Court, D. Maryland

May 30, 2019

ALEX M. AZAR II, Secretary of Health and Human Services, et al., Defendants.


          Richard D. Bennett United States District Judge

         This case involves the challenge by the Mayor and City Council of Baltimore (“Baltimore City”) to a rule promulgated by the United States Department of Health and Human Services that would amend federal regulations with respect to the funding of family planning services. It has been preceded by similar lawsuits in United States District Courts in the states of Washington, California, Oregon, and Maine. Now pending before this Court is Baltimore City's Motion for a Preliminary Injunction seeking to prevent the federal government from putting these amended regulations into effect. The City has wisely not sought a nationwide injunction. Wisely so, as this Court most respectfully is not inclined to join the cascade of nationwide injunctions issued by United States District Judges across the country with respect to many administrative policies of the federal government. It is not the role of this Court to become involved in these policy questions. Quite simply, the executive branch of government is entitled to deference with respect to its administrative orders.

         However, the executive branch of government is not entitled to circumvent by administrative order existing laws passed by the United States Congress. When the executive branch seeks to do so, it must be constrained by the federal judiciary.[1] Accordingly, for the reasons that follow, a Preliminary Injunction shall be entered in this case enjoining the United States Department of Health and Human Services from implementing these new federal regulations in the State of Maryland until this matter is resolved on the merits.

         Specifically, Baltimore City brings a ten-Count Complaint pursuant to the Administrative Procedures Act (“APA”) against Alex M. Azar II, in his official capacity as the Secretary of Health and Human Services; United States Department of Health and Human Services (“HHS”); Diane Foley, M.D., in her official capacity as the Deputy Assistant Secretary, Office of Population Affairs; and Office of Population Affairs (collectively, “Defendants” or “the Government”). (Compl., ECF No. 1.) Baltimore City challenges the final rule (“Final Rule”) promulgated on March 4, 2019 by HHS amending the regulations developed to administer Title X of the Public Health Service Act, 42 U.S.C. §§ 300 to 300a-6, which provides federal funding for family-planning services. (Id. at ¶¶ 1, 3.) Baltimore City's motion seeks a preliminary injunction to prevent the Government from putting into effect certain provisions of the Final Rule that had been scheduled to go into effect on May 3, 2019.[2] (Pl.'s Mot., ECF No. 11.) This Court held a hearing on April 30, 2019, has heard the arguments of counsel, and has reviewed the submissions of the parties.

         For the reasons that follow, this Court holds that the Final Rule likely violates provisions of the Affordable Care Act, 42 U.S.C. § 18114, enacted in 2010, and Congress' nondirective mandate in the Continuing Appropriations Act, 2019, Pub. L. 115-245, 132 Stat. 2981, 3070-71 (2018), which has been consistently included by Congress with respect to Title X appropriations funding every year since 1996. Accordingly, this Court shall GRANT Plaintiff's Motion for Preliminary Injunction (ECF No. 11) against enforcement of the Final Rule in Maryland. The Government shall be enjoined from implementing or enforcing any portion of the Final Rule in the State of Maryland during the pendency of this litigation and until this matter is resolved on the merits.[3]


         I. Title X History

         A. Inception of Title X

          Almost fifty years ago, in 1970, Congress enacted Title X, the only federal program specifically dedicated to funding family planning services. Public Health Service Act, 84 Stat. 1506, as amended 42 U.S.C. §§ 300 to 300a-6. Title X addresses low-income individuals' lack of equal access to family planning services by authorizing the Secretary of Health and Human Services (“the Secretary”) to “make grants to and enter into contracts with public or nonprofit private entities to assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services.” Id. § 300(a). Title X grant money is provided in a lump sum and may be used both to cover the costs of family planning care for those with incomes below or near the federal poverty level and to pay for non-service costs like purchasing contraceptives or training staff. Id. § 300. Through this mechanism, low-income families have free or low-cost access to clinical professional contraceptive methods and devices, and testing and counseling services related to reproductive health, including pregnancy testing and counseling.

         All grants and contracts must “be made in accordance with such regulations as the Secretary may promulgate.” Id. § 300a-4. Section 1008 of the Act provides that “[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning.” Id. § 300a-6. Consistent with this restriction, HHS has never permitted Title X grantees to use Title X funds to perform or subsidize abortions. See 42 C.F.R. §§ 59.5(a)(5), 59.9 (1986). The initial regulations, issued in 1971, stated that Section 1008 simply required that a Title X “project will not provide abortions as a method of family planning.” 36 Fed. Reg. 18, 465, 18, 466 (1971) (codified at 42 C.F.R. § 59.5(9) (1972)). “During the mid-1970s, HHS General Counsel memoranda made a further distinction between directive (‘encouraging or promoting' abortion) and nondirective (‘neutral') counseling on abortion, prohibiting the former and permitting the latter.” Nat'l Family Planning & Reprod. Health Ass'n, Inc. v. Sullivan, 979 F.2d 227, 229 (D.C. Cir. 1992). In 1981, HHS issued “Program Guidelines” that mandated nondirective abortion counseling by Title X projects upon a patient's request. Id.

         B. The 1988 Regulations

          In 1988, HHS promulgated new regulations “designed to provide ‘clear and operational guidance' to grantees about how to preserve the distinction between Title X programs and abortion as a method of family planning.” Rust v. Sullivan, 500 U.S. 173, 179 (1991) (quoting 53 Fed. Reg. 2923-2924 (1988)). The 1988 regulations established a much broader prohibition on abortion counseling and referrals. They included a “gag rule”[4] that prohibited Title X projects from counseling or referring clients for abortion as a method of family planning; a “separation requirement” that required grantees to separate their Title X project physically and financially from prohibited abortion-related activities; established compliance standards; and prohibited certain activities that promote, encourage, or advocate abortion, such as using funds for performance of pro-abortion lobbying, materials, or legal action. See 42 C.F.R. § 59 (1991).

         Title X grantees and doctors who supervised Title X funds promptly challenged the facial validity of the regulations and sought injunctive relief to prevent implementation. Rust, 500 U.S. at 181. The regulations were challenged on the grounds that they were not authorized by Title X and that they violated the First and Fifth Amendment rights of the Title X clients and the First Amendment rights of the health providers. Id. A preliminary injunction was initially granted. Id. Ultimately, the challenge came before the United States Supreme Court, which held in Rust v. Sullivan, 500 U.S. at 185, that the legislative history was ambiguous with respect to Congress' intent in enacting Title X and the prohibition of Section 1008. Applying Chevron[5] deference to the agency's interpretation, id. at 186-87, the Supreme Court therefore held that the 1988 regulations were a permissible construction of Title X and did not violate either the First or Fifth Amendments to the Constitution. Id. at 185, 203.

         These 1988 regulations, however, were never fully implemented. In 1991, President George H. W. Bush issued a memorandum to the HHS Secretary, directing adherence to four principles “compatible with free speech and the highest standards of medical care.” Nat'l Family Planning, 979 F.2d at 230. “In a press conference, President George H.W. Bush asserted: ‘[U]nder my directive, they can go ahead-patients and doctors can talk about absolutely anything they want, and they should be able to do that.'” Id. The 1988 regulations were suspended by the Secretary in 1993, resulting in Title X grantees returning to operating under the 1981 guidelines. See 58 Fed. Reg. 7462, 7462 (1993). These 1981 guidelines mandated nondirective abortion counseling upon a patient's request. See California v. Azar, No. 19-cv-01184-EMC, No. 19-cv-01195-EMC, 2019 WL 1877392, at *3 (N.D. Cal. Apr. 26, 2019) (quoting 53 Fed. Reg. 2922, 2923 (1988)).

         For over 20 years, beginning in 1996, and every year since, Congress has always added a clarifying statement regarding Section 1008 in its Title X appropriations bill. Alongside the statement that “amounts provided to [Title X] projects . . . shall not be expended for abortions, ” Congress has included language that emphasizes that “all pregnancy counseling shall be nondirective” (“Nondirective Mandate”). See, e.g., Continuing Appropriations Act, 2019, Pub. L. 115-245, 132 Stat. 2981, 3070-71 (2018); see also 65 Fed. Reg. 41, 272-73.

         C. The 2000 Regulations

          New regulations were finalized in 2000, 65 Fed. Reg. 41270 (Jul. 3, 2000), codified at 42 C.F.R. Pt. 59, revoking the 1988 regulations, and these regulations remain in effect today. The Final Rule, promulgated on March 4, 2019, and at issue in this case, would replace the 2000 regulations. Under the 2000 regulations, Title X grantees are required to “provide neutral, factual information and nondirective counseling on each of the options, and referral” upon request. 42 C.F.R. § 59.5(a)(5) (July 3, 2000). The options include: “(A) Prenatal care and delivery; (B) Infant care, foster care, or adoption; and (C) Pregnancy termination.” 65 Fed. Reg. at 41, 279. Grantees' non-Title X abortion activities must be “separate and distinct” from Title X activities, but “[c]ertain kinds of shared facilities are permissible, so long as it is possible to distinguish between the Title X supported activities and non-Title X abortion-related activities.” 65 Fed. Reg. at 41281.

         D. The Affordable Care Act

         In 2010, Congress passed the Affordable Care Act (“ACA”) and included language in section 1554 that limited the rulemaking authority of HHS as follows:

Notwithstanding any other provision of this Act, the Secretary of Health and Human Services shall not promulgate any regulation that-
(1) creates any unreasonable barriers to the ability of individuals to obtain appropriate medical care;
(2) impedes timely access to health care services;
(3) interferes with communications regarding a full range of treatment options between the patient and the provider;
(4) restricts the ability of health care providers to provide full disclosure of all relevant information to patients making health care decisions;
(5) violates the principles of informed consent and the ethical standards of health care professionals; or
(6) limits the availability of health care treatment for the full duration of a patient's medical needs.

42 U.S.C. § 18114.

         E. The Final Rule

         On June 1, 2018, HHS published the Final Rule in the Federal Register.[6] During the 60-day public comment period, HHS received more than 500, 000 comments, including comments from most major medical associations. Certain revisions were made to the proposed rule, and HHS published the Final Rule in the Federal Register on March 4, 2019. The Rule had an implementation date of May 3, 2019.[7] The Final Rule contains two key provisions that are essentially a reversion back to the 1988 Regulations. These two provisions are central to Baltimore City's claims in this case:

         1. The Gag Rule

         The Final Rule imposes broad restrictions on what health care providers under the Title X program may inform pregnant patients. It provides that a “Title X project may not perform, promote, refer for, or support abortion as a method of family planning, nor take any other affirmative action to assist a patient to secure such an abortion.” 84 Fed. Reg. at 7788-89 (to be codified at 42 C.F.R. § 59.14(a)). Even if a client specifically requests a referral to an abortion provider, the Title X grantee can at most offer a a list of “comprehensive primary health care providers, ” “some, but not the majority” of which may “also provide abortion.” Id. at 7789. The list cannot identify which providers provide the abortion services she is requesting. The project staff are prohibited from answering a direct inquiry about which providers provide abortion. Id. Moreover, because the list is limited to “comprehensive primary health care providers, ” specialized reproductive health care providers are excluded. At the same time, Title X providers must provide all pregnant patients with a referral for prenatal care, regardless of the patients' wishes, on the basis that prenatal referrals are “medically necessary.” 84 Fed. Reg. 7, 789 (to be codified at 42 C.F.R. § 59.14(b)(1)). Furthermore, the provider must counsel a patient seeking an abortion on options she may not wish to pursue, while providing information about the “risks and side effects [of abortion] to both mother and unborn child.” Id. at 7, 747; see Id. (“abortion must not be the only option presented”).

         2. The ...

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