STATE OF OHIO; STATE OF ALABAMA; STATE OF ARKANSAS; STATE OF FLORIDA; STATE OF KANSAS; COMMONWEALTH OF KENTUCKY; STATE OF MISSOURI; STATE OF NEBRASKA; STATE OF OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF WEST VIRGINIA v. XAVIER BECERRA, Secretary, Department of Health and Human Services and JESSICA S. MARCELLA, Deputy Assistant Secretary for Population Affairs, in their official capacities; DEPARTMENT OF HEALTH AND HUMAN SERVICES; OFFICE OF POPULATION AFFAIRS - Articles

All Content

STATE OF OHIO; STATE OF ALABAMA; STATE OF ARKANSAS; STATE OF FLORIDA; STATE OF KANSAS; COMMONWEALTH OF KENTUCKY; STATE OF MISSOURI; STATE OF NEBRASKA; STATE OF OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF WEST VIRGINIA v. XAVIER BECERRA, Secretary, Department of Health and Human Services and JESSICA S. MARCELLA, Deputy Assistant Secretary for Population Affairs, in their official capacities; DEPARTMENT OF HEALTH AND HUMAN SERVICES; OFFICE OF POPULATION AFFAIRS

Posted by: Karen Belcher on Nov 30, 2023

Court: 6th Circuit Court (Published Opinions)

Attorneys 1: ARGUED: Benjamin M. Flowers, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants.

Attorneys 2: ARGUED: Courtney L. Dixon, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

Attorneys 3: ON BRIEF: Benjamin M. Flowers, Stephen P. Carney, Sylvia May Mailman, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, Thomas T. Hydrick, OFFICE OF THE SOUTH CAROLINA ATTORNEY GENERAL, Columbia, South Carolina, for Appellants.

Attorneys 4: ON BRIEF: Abby C. Wright, Kyle T. Edwards, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

Attorneys 5: ON BRIEF: Christian B. Corrigan, OFFICE OF THE MONTANA ATTORNEY GENERAL, Helena, Montana, Steven H. Aden, AMERICANS UNITED FOR LIFE, Washington, D.C., Alan E. Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Blair J. Greenwald, OFFICE OF THE NEW YORK ATTORNEY GENERAL, New York, New York, Robin Summers, NATIONAL FAMILY PLANNING & REPRODUCTIVE HEALTH ASSOCIATION, Washington, D.C., Margaret M. Dotzel, Catherine S. Duval, Casey Trombley-Shapiro Jonas, Alyssa M. Howard, ZUCKERMAN SPAEDER LLP, Washington, D.C., for Amici Curiae.

Judge(s): MOORE, THAPAR, and LARSEN, Circuit Judges

Court Appealed: United States District Court for the Southern District of Ohio at Cincinnati

LARSEN, Circuit Judge. In 2021, the Department of Health and Human Services (HHS) issued a final rule governing the Title X grant program, which makes grants to assist in the establishment and operation of family planning projects. Among other things, the Rule interpreted § 1008 of Title X, which bars funds appropriated under the Title X grant program from being “used in programs where abortion is a method of family planning.” A group of states sued, seeking to block two provisions of the 2021 Rule. First, the States challenge the 2021 Rule’s elimination of a prior HHS rule that required grantees to maintain strict physical and financial separation between their Title X programs and any abortion-related services they might provide. Second, they challenge the Rule’s requirement that Title X projects provide referrals for abortion services when requested by the patient.

The Supreme Court has already had occasion to interpret § 1008, the statutory provision at the heart of this case. In Rust v. Sullivan, the Supreme Court held that § 1008 is ambiguous as to program integrity and referrals for abortion and that Chevron deference applies. 500 U.S. 173, 184 (1991). Therefore, we defer to the agency’s interpretation of § 1008 if the interpretation is permissible. Id. While the doctrinal landscape undergirding Rust has shifted significantly since it was decided, Rust, and its application of Chevron, remain binding on this court. Applying Rust, we cannot say that the 2021 Rule’s referral requirement is an impermissible interpretation of § 1008. However, we hold that the 2021 Rule’s program-integrity requirements do not represent a permissible interpretation of § 1008. We therefore AFFIRM the district court’s denial of a preliminary injunction in part and REVERSE in part.

Attachments: