RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0261p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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STATE OF OHIO; STATE OF ALABAMA; STATE OF
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ARKANSAS; STATE OF FLORIDA; STATE OF KANSAS;
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COMMONWEALTH OF KENTUCKY; STATE OF MISSOURI;
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STATE OF NEBRASKA; STATE OF OKLAHOMA; STATE OF
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SOUTH CAROLINA; STATE OF WEST VIRGINIA, > No. 21-4235
Plaintiffs-Appellants, │
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│
v. │
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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, │
Defendants-Appellees. │
┘
Appeal from the United States District Court for the Southern District of Ohio at Cincinnati.
No. 1:21-cv-00675—Timothy S. Black, District Judge.
Argued: October 27, 2022
Decided and Filed: November 30, 2023
Before: MOORE, THAPAR, and LARSEN, Circuit Judges.
_________________
COUNSEL
ARGUED: Benjamin M. Flowers, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellants. Courtney L. Dixon, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellees. 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. Abby C. Wright, Kyle T. Edwards, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. 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
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 2
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.
LARSEN, J., delivered the opinion of the court in which THAPAR, J., joined. MOORE,
J. (pp. 29–53), delivered a separate opinion concurring in the judgment in part and dissenting in
part.
_________________
OPINION
_________________
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
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 3
represent a permissible interpretation of § 1008. We therefore AFFIRM the district court’s
denial of a preliminary injunction in part and REVERSE in part.
I.
Title X of the Public Health Service Act empowers the Secretary of Health and Human
Services “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 (including
natural family planning methods, infertility services, and services for adolescents).” 42 U.S.C.
§ 300(a). Such grants are “made in accordance with such regulations as the Secretary may
promulgate.” Id. § 300a-4(a). At the heart of this case is the meaning of § 1008 of Title X,
which states: “None of the funds appropriated under this subchapter shall be used in programs
where abortion is a method of family planning.” Id. § 300a-6. Since the program’s inception,
HHS regulations interpreting § 1008’s prohibition have flipped back and forth as new
administrations have come into power. In particular, HHS has taken different approaches to
determining what § 1008 requires with respect to two aspects of Title X program administration.
The first is “program integrity”—the degree of separation a grantee must maintain between its
Title X grant program and any program it may run that provides abortion-related services.1 See
Rust, 500 U.S. at 187. The second is whether Title X programs must or may make referrals for
abortion without running afoul of § 1008.
For context, we briefly recount the history of HHS’s various rules interpreting § 1008.
Beginning in 1981, HHS issued “Program Guidelines for Project Grants for Family Planning
Services,” without notice and comment, which required for the first time that Title X programs
offer nondirective counseling to a pregnant patient on her options, including abortion, followed
by a referral to an abortion provider upon the patient’s request. Statutory Prohibition on Use of
Appropriated Funds in Programs Where Abortion is a Method of Family Planning, 53 Fed. Reg.
2,922, 2,923 (Feb. 2, 1988) (describing prior agency policies). HHS permitted grantees to
1
In Rust, the Supreme Court held that Title X “expressly distinguishes between a Title X grantee and a
Title X project.” 500 U.S. at 196. Grantees may “engage in abortion-related activity” but must do so “separately
from activity receiving federal funding.” Id. at 198.
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 4
provide Title X services and abortion-related services at a single site, so long as they maintained
a separation that went beyond a “mere exercise in bookkeeping.” Standards of Compliance for
Abortion-Related Services in Family Planning Service Projects, 58 Fed. Reg. 7,462, 7,462 (Feb.
5, 1993) (describing prior policies).
HHS changed course in 1988, when the agency addressed the scope of § 1008 in
notice-and-comment rulemaking for the first time. The 1988 Rule prohibited Title X projects
from promoting, counseling on, or providing referrals for abortion. 53 Fed. Reg. at 2,923–24.
The agency interpreted § 1008 to prohibit counseling on and referrals for abortion, reasoning that
those “activities are integral parts of the provision of any method of family planning, [so] to
interpret section 1008 as applicable only to the performance of abortion would be inconsistent
with the broad prohibition against use of abortion as a method of family planning.” Id. at 2,923.
The 1988 Rule also imposed strict program-integrity rules, which required grantees to keep their
Title X programs “physically and financially separate” from all abortion-related activities. Id. at
2,945. HHS interpreted § 1008 to “mandate” physical and financial separation, reasoning that
“[h]aving a program that is separate from [abortion] activities is a necessary predicate to any
determination that abortion is not being included as a method of family planning in the Title X
program.” Id. at 2,940. Whether a Title X program had “objective integrity and independence
from prohibited activities” was to be determined through a case-by-case review of facts and
circumstances. Id. at 2,945. HHS outlined a list of factors it would consider, including “the
existence of separate accounting records,” the “degree of separation from facilities” like waiting
rooms, the “existence of separate personnel,” and the extent of overlap between signs and other
promotional material. Id.
The Supreme Court upheld these provisions of the 1988 Rule in Rust v. Sullivan,
500 U.S. 173 (1991). The Court first deemed the text of § 1008 “ambiguous,” concluding that
the statute “does not speak directly to the issues of counseling, referral, advocacy, or program
integrity.” Id. at 184. The Court likewise found the “legislative history . . . ambiguous and
unenlightening” on these questions. Id. at 186, 188. The Court therefore concluded that
Chevron deference applied, and it deferred to HHS’s reasonable interpretation of § 1008 as
expressed in the 1988 Rule. Id. at 184–90.
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 5
In 2000, HHS revoked the 1988 Rule and replaced it with another. The 2000 Rule
required Title X projects to provide pregnant women with nondirective information and
counseling regarding their options, including abortion, and to make referrals upon request.
Standards of Compliance for Abortion-Related Services in Family Planning Services Projects,
65 Fed. Reg. 41,270, 41,279 (July 3, 2000). HHS explained that it did not consider the
“provision of neutral and factual information about abortion,” including referrals, “to promote or
encourage abortion as a method of family planning.” Id. at 41,270–74. The 2000 Rule also
eliminated the 1988 Rule’s strict program-integrity requirements. See id. at 41,275–76. HHS
said that grantees would still be required to maintain a separation that was more than a “mere
exercise in bookkeeping” and “demonstrate” by “financial records, counseling and service
protocols, administrative procedures, and other means” that Title X funds were not being used to
“promot[e], or encourage[] abortion as a method of family planning.” Id. at 41,270, 41,276. But
Guidance published alongside the 2000 Rule provided no direction on how to maintain
separation beyond “mere . . . bookkeeping”; instead, the Guidance provided only examples of
permissible integration. Id. at 41,270. Common waiting rooms, common staff, and maintenance
of a single filing system were all permitted, so long as costs were properly allocated. Provision
of Abortion-Related Services in Family Planning Services Projects, 65 Fed. Reg. 41,281, 41,292
(July 3, 2000).
In 2019, HHS reversed course again. Like the 1988 Rule, the 2019 Rule required that
Title X projects be physically and financially separate from any abortion-related activities the
grantee might engage in. Compliance With Statutory Program Integrity Requirements, 84 Fed.
Reg. 7,714, 7,789 (Mar. 4, 2019). The 2019 Rule also prohibited Title X programs from making
abortion referrals, but unlike the 1988 Rule, the 2019 Rule allowed nondirective pregnancy
counseling, which could include discussion of abortion. Id. at 7,717.
The 2019 Rule prompted litigation. The Ninth Circuit upheld the rule, Becerra v. Azar,
950 F.3d 1067, 1074 (9th Cir. 2020) (en banc) (holding that the 2019 Rule was a reasonable
interpretation of Title X and was not arbitrary and capricious), while the Fourth Circuit
permanently enjoined its operation, but only in Maryland. Mayor of Baltimore v. Azar, 973 F.3d
258, 296 (4th Cir. 2020) (en banc) (holding that the 2019 Rule was contrary to law and arbitrary
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 6
and capricious). The Supreme Court granted certiorari to resolve the circuit split, but dismissed
the case without decision when HHS announced its intent to engage in a new rulemaking.
See Oregon v. Cochran, 141 S. Ct. 1369 (2021); Oregon v. Becerra, 141 S. Ct. 2621 (2021);
Becerra v. Mayor of Baltimore, 141 S. Ct. 2170 (2021).
In 2021, HHS issued the final rule at issue in this case. Ensuring Access to Equitable,
Affordable, Client-Centered, Quality Family Planning Services, 86 Fed. Reg. 56,144 (Oct. 7,
2021). The 2021 Rule eliminated the 2019 Rule’s strict program-integrity requirements,
reinstating the 2000 Rule and its accompanying guidance. Id. The 2021 Rule also replaced the
2019 Rule’s ban on abortion referrals with a mandate that Title X projects make abortion
referrals upon request. Id. at 56,179. The 2021 Rule went into effect on November 8, 2021, and
applied to the 2022 Title X grant cycle.2 Id. at 56,144.
Twelve states—Ohio, Alabama, Arizona,3 Arkansas, Florida, Kansas, Kentucky,
Missouri, Nebraska, Oklahoma, South Carolina, and West Virginia—challenged the 2021 Rule
and sought a preliminary injunction. The States argued that the 2021 Rule was contrary to law
and arbitrary and capricious under the Administrative Procedure Act (APA). The district court
denied the preliminary injunction. Applying Chevron deference, the district court held that the
2021 Rule comported with Title X and was not arbitrary and capricious. The States appealed
and filed an emergency motion for an injunction pending appeal. A motions panel of this court
denied the States’ motion for an injunction pending an appeal, concluding that the States had not
demonstrated that they would be irreparably harmed without the injunction. Ohio v. Becerra,
No. 21-4235, 2022 WL 413680, at *1 (6th Cir. Feb. 8, 2022). The court “express[ed] no opinion
on the States’ likelihood of success on the merits [of] their claims. Nor [did it] comment on
whether the States could successfully obtain an injunction at some later point.” Id. at *5. We
now review the district court’s denial of a preliminary injunction.
2
The 2021 Rule may be found at 42 C.F.R. §§ 59.1–59.11.
3
On April 7, 2023, this court granted Arizona’s motion to voluntarily withdraw from this appeal pursuant
to Federal Rule of Appellate Procedure 42(b)(2). See App. R. 79.
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 7
II.
We 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.” City of Pontiac Retired Emps. Ass’n v. Schimmel,
751 F.3d 427, 430 (6th Cir. 2014) (per curiam) (en banc) (citation omitted). Where the federal
government is the defendant, as here, the third and fourth factors merge. Nken v. Holder,
556 U.S. 418, 435 (2009).
We review de novo whether the movant is likely to succeed on the merits. City of
Pontiac, 751 F.3d at 430. We review the district court’s ultimate determination as to whether the
four factors weigh in favor of granting or denying preliminary injunctive relief for abuse of
discretion. Id.
We do not come to the task of interpreting § 1008 with a blank slate. As previously
mentioned, the U.S. Supreme Court ruled on the meaning of § 1008 over thirty years ago in Rust
v. Sullivan, 500 U.S. 173 (1991). In Rust, the 1988 Rule was challenged on the ground that its
strict separation requirements and prohibition on abortion counseling and referrals represented an
impermissible interpretation of Title X.4 500 U.S. at 181. The Court upheld the 1988 Rule,
applying the two steps of the Chevron deference framework. The Court held that § 1008 was
ambiguous at Chevron step one. Id. at 184. The Court did not engage the text of the provision,
instead explaining that it need not “dwell on the plain language of the statute because [it]
agree[d] with every court to have addressed the issue that the language is ambiguous.” Id.
Specifically, the Court held that the text of the statute did not “speak directly to the issues of
counseling, referral, advocacy, or program integrity” and that the “legislative history is
ambiguous and unenlightening.” Id. at 184, 186. So its only question was “whether the agency’s
answer [was] based on a permissible construction of the statute.” Id. at 184 (quoting Chevron,
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984)). The Court determined
4
The 1988 Rule was also challenged on constitutional grounds, which are not at issue here.
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 8
that the 1988 Rule reasonably interpreted the statute and therefore deferred to the agency at
Chevron step two. Id. at 185–90.
Thirty years later, we find ourselves in an odd spot. Rust rests in a doctrinal landscape
that has shifted dramatically since the Court last opined on Title X. The status of the Chevron
deference doctrine is notoriously uncertain. The last time the Supreme Court applied Chevron’s
two-step test was in 2016. Cuozzo Speed Techs., LLC v. Lee, 579 U.S. 261, 276–83 (2016).
Since then, individual Justices have at times referenced Chevron deference in separate writings,
but the Court has not actually applied it. See, e.g., Pereira v. Sessions, 138 S. Ct. 2105, 2121
(2018) (Alito, J., dissenting) (concluding that the case should have been resolved using a
“straightforward application of Chevron,” but that “the Court, for whatever reason, is simply
ignoring Chevron”). But neither has the Court formally overruled Chevron, even in cases where
it had the opportunity to do so. See Buffington v. McDonough, 143 S. Ct. 14, 14 (2022) (mem.);
Am. Hosp. Ass’n v. Becerra, 142 S. Ct. 1896 (2022); Pereira, 138 S. Ct. at 2129 (Alito, J.,
dissenting) (“Chevron . . . remains good law.”). And the Court has now granted certiorari,
potentially to resolve the question of whether Chevron should be overruled. See Loper Bright
Enters. v. Raimondo, 143 S. Ct. 2429, 2429 (2023) (mem.).
Whatever Chevron’s vitality, it has undoubtedly “become pitted with exceptions and
caveats.” Buffington, 143 S. Ct. at 20 (Gorsuch, J., dissenting from the denial of certiorari). For
instance, the Court recently clarified that Chevron deference does not apply when the agency’s
interpretation involves a “major question,” see West Virginia v. EPA, 142 S. Ct. 2587 (2022),
and has suggested that the Court may decline to consider whether any deference is due when the
agency itself does not invoke Chevron, HollyFrontier Cheyenne Refin., LLC v. Renewable Fuels
Ass’n, 141 S. Ct. 2172, 2180 (2021). Recent precedent has also fundamentally changed how
courts should perform a Chevron deference analysis. Now we are to apply a far more rigorous
analysis at step one than was typical in Chevron’s heyday. See, e.g., Arangure v. Whitaker, 911
F.3d 333, 336 (6th Cir. 2018) (Courts “must first exhaust the ‘traditional tools’ of statutory
interpretation and ‘reject administrative constructions’ that are contrary to the clear meaning of
the statute.” (quoting Chevron, 467 U.S. at 843 n.9)); Seminole Nursing Home, Inc. v. Comm’r of
Internal Revenue, 12 F.4th 1150, 1156 (10th Cir. 2021) (“Determining whether a statute is
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ambiguous on a particular point can be an arduous undertaking; ‘a court must exhaust all the
“traditional tools” of construction.’ The court ‘must carefully consider the text, structure,
history, and purpose of a [statute],’ and proceed to step two only if ‘the interpretive question still
has no single right answer.’” (alteration in original) (quoting Kisor v. Wilkie, 139 S. Ct. 2400,
2415 (2019) (internal citations omitted)); Tovar v. Zuchowski, 982 F.3d 631, 634–35 (9th Cir.
2020) (At Chevron step one, “we must ‘exhaust all the traditional tools of construction’ before
we ‘wave the ambiguity flag.’” (quoting Kisor, 139 S. Ct. at 2415)). While the Court in Rust
said it “need not dwell on the plain language of the statute,” 500 U.S. at 184, courts today are
expected to dwell on the language at length.
Despite this uncertainty, the Supreme Court has instructed that when one of its precedents
“has direct application in a case, yet appears to rest on reasons rejected in some other line of
decisions, the Court of Appeals should follow the case which directly controls, leaving to this
Court the prerogative of overruling its own decisions.” Agostini v. Felton, 521 U.S. 203, 237
(1997) (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)).
In other words, we apply directly applicable Supreme Court precedent as it currently stands,
without projecting where we think it may be headed.
Rust remains binding precedent and controls here. Neither party contests that we are
bound by Rust’s determination that § 1008 is ambiguous under step one of Chevron, so we take
that as our starting point. See Mayor of Baltimore, 973 F.3d at 283; Azar, 950 F.3d at 1074–75.
Thus, “our discussion of the merits is cabined to an analysis of whether HHS’s interpretation of
Section 1008 in the Final Rule is ‘permissible’ or ‘reasonable’ at Chevron step two.” Mayor of
Baltimore, 973 F.3d at 283.
With this in mind, we address the two challenged features of the 2021 Rule, which the
States argue represent an impermissible construction of § 1008 and are arbitrary and capricious.
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 10
III.
A.
We begin with the 2021 Rule’s referral requirement. The 2021 Rule requires that Title X
programs “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. 42 C.F.R. § 59.5(a)(5)(i)–(ii). Title X programs must also provide a referral for
any of these options if the patient so requests. Id. § 59.5(a)(5)(ii). The referral “may include
providing a patient with the name, address, telephone number, and other relevant factual
information (such as whether the provider accepts Medicaid, charges, etc.) about an abortion
provider,” but the 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.” 86 Fed. Reg. at 56,150 (quoting 65 Fed. Reg. at 41,281).
1.
Our analysis starts with Rust. The 1988 Rule at issue in Rust prohibited Title X programs
from counseling on or making referrals for abortion. 53 Fed. Reg. at 2,945. The 1988 Rule
replaced HHS’s 1981 policy, which required non-directive counseling on and referrals for
abortion. Id. at 2,923. Before the Supreme Court, each side argued that the plain text of § 1008
spoke directly to counseling and referral and compelled an outcome in its favor.
Petitioner, Dr. Rust, argued that the 1988 Rule’s ban on abortion counseling and referral
was an impermissible interpretation of § 1008. According to Rust, “[a] clinic that provide[d]
counseling services to pregnant patients about a range of options, including abortion, [was] not in
ordinary parlance one that use[d] abortion ‘as a method of family planning.’” Brief for
Petitioners at 41, Rust, 500 U.S. 173 (No. 89-1391). Instead, Rust argued, a “method of family
planning” was “a particular contraceptive procedure or technology.” Id. Referral for abortion,
Rust reasoned, was therefore not a family planning method, but was rather a family planning
service. Id. at 42. And because § 1008 disallows the use of Title X funds only in programs
where “abortion is a method of family planning,” Rust argued that HHS lacked authority to ban
abortion counseling or referral. Id. In short, Rust argued that when Congress banned the use of
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 11
Title X funds in “programs where abortion is a method of family planning,” 42 U.S.C. § 300a-6,
it was not banning the use of Title X funds to counsel or refer for abortions because engaging in
those activities is not using abortion as a “method of family planning.”
The government took the opposite view. It argued that at Chevron step one, “Section
1008—read in light of Title X’s structure, purpose and history—answers the precise question at
issue: Title X projects may not engage in abortion counseling, referral or advocacy.” Brief for
Respondent at 33, Rust, 500 U.S. 173 (Nos. 89-1391, 89-1392). In the government’s view, “[i]f
the Title X project provides information or counseling that characterizes abortion as a family
planning option, then it has become a ‘program[] where abortion is a method of family
planning.’” Id. at 34 (quoting 42 U.S.C. § 300a-6). “It would be wholly anomalous,” the
government argued, “to read Section 1008 to mean that a program that merely counsels but does
not perform abortions does not include abortion as a method of family planning.” Id. at 34–35
(quoting New York v. Sullivan, 889 F.2d 401, 407 (2d Cir. 1989)); see also Rust, 500 U.S. at 181.
The Supreme Court rejected each party’s position that the text of § 1008 compelled, or
even “sp[oke] directly to,” its reading of the text. Rust, 500 U.S. at 184. The Court noted that
“Title X does not define the term ‘method of family planning,’ nor does it enumerate what types
of medical and counseling services are entitled to Title X funding.” Id. The legislative history
was also “ambiguous and fail[ed] to shed light on relevant congressional intent.” Id. at 185. The
Court continued: “At no time did Congress directly address the issues of abortion counseling,
referral, or advocacy. The parties’ attempt to characterize highly generalized, conflicting
statements in the legislative history into accurate revelations of congressional intent are
unavailing.” Id. So, the question for the Court became whether the agency’s position—that a
program that counsels or refers for abortion is one “where abortion is a method of family
planning”—was reasonable at Chevron step two. “Based on the broad directives provided by
Congress in Title X in general and § 1008 in particular,” the Court was “unable to say that the
Secretary’s construction of the prohibition in § 1008 to require a ban on counseling, referral, and
advocacy within the Title X project is impermissible.” Id. at 184. The Court therefore deferred
to HHS’s interpretation and upheld the Rule’s ban on counseling and referrals.
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Rust’s holding requires us to reject the States’ argument that the 2021 Rule’s referral
requirement is contrary to law. The States insist that the plain text of § 1008 compels the
conclusion that a program that refers for abortion is one where abortion is a method of family
planning. But that’s the same argument the government made in Rust. And the Supreme Court
did not bite.
Nor does it matter—so far as Rust’s reading of § 1008 goes—that HHS requires referrals,
rather than merely permitting them. The Supreme Court in Rust rejected the arguments proffered
by both parties—that providing counseling and referral for abortion is either necessarily treating,
or not treating, “abortion as a method of family planning.” Rust, 500 U.S. at 184–85. The Court
instead concluded that the statute “does not speak directly to the issues of counseling [or]
referral.” Id. at 184. In light of this holding, it must be permissible for an administration to treat
referrals either as falling inside or outside § 1008’s prohibition, so long as the Department
adequately explains its choice.
In HHS’s present judgment, a program that provides a referral for abortion upon request
is not one “where abortion is a method of family planning.” 86 Fed. Reg. at 56,149–50. But the
agency also acknowledged that § 1008 imposes constraints. HHS clarified that a referral cannot
go beyond the provision of neutral information, cautioning that taking any “affirmative” step,
such as “negotiating a fee reduction, making an appointment, or providing transportation,” would
cross the line into promoting or encouraging abortion, which would run afoul of § 1008. Id. at
56,150. In light of the Supreme Court’s holding in Rust, our question is not whether this is the
best interpretation of § 1008, only whether it is an impermissible one. We cannot say that it is.
2.
That does not end the matter, though. Even if the referral mandate is not contrary to law,
it still might be “arbitrary and capricious.” 5 U.S.C. § 706(2)(A). We cannot vacate a rule for
being arbitrary and capricious unless the agency “entirely failed to consider an important aspect
of the problem, offered an explanation for its decision that runs counter to the evidence before
the agency, or is so implausible that it could not be ascribed to a difference in view or the
product of agency expertise.” Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644,
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658 (2007) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983)). We do not apply greater scrutiny to agency action that changes a prior
policy because the APA makes no distinction between “initial agency action and subsequent
agency action undoing or revising that action.” FCC v. Fox Television Stations, Inc., 556 U.S.
502, 515 (2009). The Court made this point in Rust itself. Rust, 500 U.S. at 186 (“This Court
has rejected the argument that an agency’s interpretation ‘is not entitled to deference because it
represents a sharp break with prior interpretations’ of the statute in question.” (quoting Chevron,
467 U.S. at 862)). Our question is merely whether the agency has “justified [its] change of
interpretation with a ‘reasoned analysis.’” Id. at 187 (quoting State Farm, 463 U.S. at 42).
Although courts “are to engage in a careful review of the facts and record, our ultimate standard
of review is narrow and deferential.” Mayor of Baltimore, 973 F.3d at 318 (Richardson, J.,
dissenting) (concluding that the 2019 Rule was not arbitrary and capricious). So long as “the
agency’s explanation is clear enough that its path may reasonably be discerned,” the court must
respect its policy choice. Id. (quoting Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 221
(2016)).
Here, the States have not shown that HHS’s decision to require referrals upon request
was arbitrary and capricious. First, HHS explained its decision to depart from the 2019 Rule,
which banned referrals. In HHS’s judgment, the fact that so many providers withdrew because
of the 2019 Rule’s referral prohibition, “leaving multiple states without any Title X providers,”
was “a change in circumstances that, in the Department’s view, demand[ed] reconsideration of
the 2019 rule.” 86 Fed. Reg. at 56,146, 56,150. That, of course, would not be enough to explain
why HHS chose to replace its ban with a mandate, rather than a permissive regime. But HHS
offered some justification for that too, explaining that, in its view, counseling and “referral upon
request for option(s) the client wishes to receive” are “critical for the delivery of quality, client-
centered care.” Id. at 56,154. HHS also readopted the agency’s prior determination that “the
provision of a referral is the logical and appropriate outcome of the counseling process.” 65 Fed.
Reg. at 41,274. And, it’s important to note, the States do not challenge the counseling
requirement.
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 14
The States offer several reasons why they believe that the agency failed to adequately
justify its referral mandate. Some are more convincing than others, but ultimately, none carries
the day.
The States’ most serious contention is that HHS failed to adequately consider the States’
views on medical ethics—an “important aspect of the problem” before it. See Nat’l Ass’n of
Home Builders, 551 U.S. at 658. Although HHS took account of the “ethical codes of major
medical organizations” which opposed the 2019 Rule’s referral ban, see 86 Fed. Reg. 19,812,
19,817 (notice of proposed rule), HHS failed to consider whether the 2021 Rule’s referral
requirement “conflicts with multiple States’ ethical standards governing the practice of
medicine—standards that confirm that sound medical practice does not require complicity in
abortion.” Appellants Br. at 43. And the agency was aware of this concern; the States raised it
in a letter they submitted during the agency’s notice and comment process.5
The States have a point. The agency did not address conflicting state ethics laws when
explaining its decision to impose a referral requirement. It considered federal conscience laws.
See 86 Fed. Reg. at 56,153–54 (“Section D. Application of Conscience and Religious Freedom
Statutes to Title X”). And it credited one comment from one unnamed organization that said that
the 2019 Rule’s ban on referrals made it “impossible” to “provide healthcare and information to
patients consistent with medical ethics.” Id. at 56,146. But the agency did not mention state
ethics laws whatsoever. This raises some concern. As the States’ comment letter noted,
“medical organizations represent doctors—the parties regulated by rules of medical ethics.”
R. 1-2, PageID 45. And while these views may be helpful, it is the States, not the organizations,
that actually “regulate the ethics of the medical profession.” Id. Agencies, of course, need not
consider every alternative view. Oakbrook Land Holdings, LLC v. Comm’r of Internal Revenue,
28 F.4th 700, 714 (6th Cir. 2022). But privileging the voice of the regulated, at the expense of
the regulator, might well cause the agency to miss an “important aspect of the problem” before it.
See Nat’l Ass’n of Home Builders, 551 U.S. at 658. Here, however, we cannot say that the
agency lost sight either of the ethical problem before it or of the substance of the States’ views.
5
All plaintiff-States signed this letter, in addition to a number of other States not party to this case.
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 15
In their letter to the agency, the States stressed that a referral mandate would conflict with
a number of state conscience statutes that respect the rights of medical personnel and facilities to
decline to perform or participate in abortion activities.6 The States’ point was to rebut the notion
that medical ethics require health care providers to make abortion referrals. As noted above,
HHS did not consider those laws. But the final rule did consider federal conscience laws
providing similar protections, a point the States acknowledge. The States do not claim that the
state conscience rules are more exacting than the federal conscience rules.7 And HHS pledged in
the preamble to the 2021 Rule that providers and entities who are covered by federal conscience
laws “will not be required to counsel or refer for abortions in the Title X program.” 86 Fed. Reg.
at 56,153.8 So the Rule responded to the States’ expressed concern. By pledging to respect
6
The letter cited the following statutes: Ky. Rev. Stat. § 311.800(4); La. Rev. Stat. § 40:1061.2; Mont.
Code Ann. § 50-20-11(2); Or. Rev. Stat. § 435.485; Ariz. Rev. Stat. § 36-2154(A); Conn. Agencies Regs. § 19-13-
D54(f); Fla. Stat. § 390.0111(8); N.Y. Civ. Rights Law § 79-i; Ohio Rev. Code § 4731.91; 18 Pa. Cons. Stat.
§ 3213(d); Wis. Stat. § 253.09(1).
7
We note that the Louisiana statute the States cite contains a section providing criminal penalties for
abortion in the event that Roe v. Wade, 410 U.S. 113 (1973), were overturned. See La. Stat. Ann. § 40:1061(A).
When HHS implemented the 2021 Rule, that had not yet happened. The Supreme Court decided Dobbs v. Jackson
Women’s Health Org. in June of 2022. 142 S. Ct. 2228 (2022). The impact of Dobbs on the Title X program is
undoubtedly an “important aspect” of the question now, but “judicial review of agency action is limited to the
grounds that the agency invoked when it took the action.” DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891,
1907 (2020) (citation omitted).
8
We are somewhat puzzled about the interaction between the Rule’s referral requirement and one federal
conscience law, the Weldon Amendment, as applied to State grantees. The Weldon Amendment is an
appropriations rider that has been attached to every HHS appropriation since 2004. See, e.g., Consolidated
Appropriations Act, 2022, Pub. L. No. 117-103, div. H, title V, § 507(d)(1), 136 Stat. 49, 496 (Mar. 15, 2022). It
says that appropriated funds may not
be made available to a Federal agency or program, or to a State or local government, if such
agency, program, or government subjects any institutional or individual health care entity to
discrimination on the basis that the health care entity does not provide, pay for, provide coverage
of, or refer for abortions.
Id. (emphasis added).
Both HHS and the States seem to agree that the States are not “health care entities” entitled to conscience protection.
See id. § 507(d)(2) (defining “health care entities”). States typically apply for Title X grants and then subgrant the
funds to county boards of health and other “health care entities.” See Nat’l Fam. Plan. & Reprod. Health Ass’n, Inc.
v. Gonzales, 468 F.3d 826, 828 (D.C. Cir. 2006). As grantees, the States must ensure that their subrecipients are
complying with all Title X regulations, including the 2021 Rule’s referral requirement. 86 Fed. Reg. at 56,152.
Thus, the 2021 Rule would seem to forbid States from subgranting to “health care entities” who will not refer for
abortion; that, in turn, seems to force the States to “discriminat[e] on the basis that the health care entity does not . . .
refer for abortions,” the very thing the Weldon Amendment forbids. § 507(d)(1), 136 Stat. at 496. But, although the
States raised such a claim in their complaint, they did not press it either here or in the district court, so we will not
consider it further.
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federal conscience laws, HHS necessarily acknowledged Congress’s agreement with the States’
point—that “one can ethically practice medicine without making these referrals.” Reply Br. at
17. In the end, acknowledging the ethical debate, HHS exercised its judgment and decided that a
“client-centered” approach should prevail: a “default” rule requiring referrals upon request,
subject to conscience exemptions for objecting providers. 86 Fed. Reg. at 56,153. Perhaps, as
some commentators pointed out, a more straightforward approach would have been to adopt a
permissive regime, “since the conscience statutes protect objecting providers from those
requirements in any case.” Id. But the question on arbitrary and capricious review is not
“whether a regulatory decision is the best one possible or even whether it is better than the
alternatives.” FERC v. Elec. Power Supply Ass’n, 577 U.S. 260, 292 (2016). Instead, we must
“uphold a rule if the agency has ‘examine[d] the relevant [considerations] and articulate[d] a
satisfactory explanation for its action.” Id. (quoting State Farm, 463 U.S. at 30 (1983))
(alterations in original). “As long as ‘the agency’s explanation is clear enough that its path may
reasonably be discerned,’ we must respect its policy choice.” Mayor of Baltimore, 973 F.3d at
318 (Richardson, J., dissenting) (quoting Encino Motorcars, LLC, 578 U.S. at 221) (concluding
that the 2019 Rule was not arbitrary and capricious).
The States next charge that HHS did not “explain how its own conclusion [that referral
necessarily treats abortion as a method of family planning] from 2019 has been disproven.”
Appellants Br. at 41. But this was not a fact that the agency needed to “disprove.” Instead, it is
a question of law whether § 1008 requires or permits the agency to treat a program that makes
abortion referrals as one “where abortion is a method of family planning.” In Rust, the Supreme
Court held that § 1008 is ambiguous on this point. And when the agency changes course in
interpreting an ambiguous statute, “it suffices that the new policy is permissible under the statute,
that there are good reasons for it, and that the agency believes it to be better.” Fox Television
Stations, Inc., 556 U.S. at 515.
In sum, the Supreme Court’s holding in Rust requires us to reject the States’ argument
that the referral mandate is arbitrary and capricious. And it is not the role of the court to “second
guess[] the analysis and policy judgments that undergird the agency’s regulations.” Mayor of
Baltimore, 973 F.3d at 325 (Richardson, J., dissenting). HHS acknowledged it was changing
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 17
course and gave rational reasons why it thought a change in policy was necessary and preferable.
That is enough to withstand arbitrary and capricious review. See Fox Television Stations, Inc.,
556 U.S. at 515. The States are not likely to succeed on the merits of this claim.
B.
Next, we turn to the 2021 Rule’s program-integrity requirements. The 2021 Rule
“revoke[d] the requirements of the 2019 regulations, including . . . eliminating requirements for
strict physical and financial separation between abortion-related activities and Title X project
activities.” 86 Fed. Reg. at 56,144. In its place, the 2021 Rule readopted HHS’s 2000-era
policy, which contained no “requirement for physical separation.” Id.; 65 Fed. Reg. at 41,276.
Again, our analysis starts with Rust. There, the parties disputed what program-integrity
requirements are necessary to comply with § 1008. HHS argued that the 1988 Rule’s strict
physical separation requirements—which are largely the same as those in the 2019 Rule—were
necessary to comply with § 1008. Rust, 500 U.S. at 188 (quoting 53 Fed. Reg. at 2,940 (1988)).
The petitioners, on the other hand, argued that the 1988 Rule’s physical separation requirements
were inconsistent with the plain language of Title X because they “frustrate[d] the clearly
expressed intent of Congress that Title X programs be an integral part of a broader,
comprehensive, health-care system.” Id. at 187–88. Once again, the Court did not accept either
party’s position that § 1008 compelled its reading of the text at Chevron step one. Instead, the
Court concluded that § 1008 neither prohibited, nor required, the strict program-integrity
protocols of the 1988 Rule. Id. at 188–90. And at Chevron step two, the Court upheld the 1988
Rule’s program-integrity policy because it was “based on a permissible construction of the
statute and [was] not inconsistent with congressional intent.” Id. at 188.
Though Rust held that § 1008 didn’t “speak directly to . . . program integrity,” and was
therefore “ambiguous” in that regard, 500 U.S. at 184, it did set out some clear benchmarks.
First, it rejected Rust’s argument that either the statute or the legislative history required
integration of abortion activities and Title X programs. Had it been otherwise, the Court would
have been obligated to declare the 1988 Rule’s separation requirements contrary to law. Next,
the Court made clear that § 1008 does not require separation at the grantee level. “Title X
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expressly distinguishes between a Title X grantee and a Title X project.” Id. at 196 (emphasis in
original). So, the Court concluded, § 1008 does not ban any person or entity who receives a Title
X grant from also “engag[ing] in abortion-related activity.” Id. at 198. But a plain reading of
§ 1008 also tells us that the statute requires more than just a separation of funds; the statute does
not, for example, say merely that “no Title X funds shall be used for abortions or abortion
services.”9 Instead, it requires separation at the program level. The statute says that “[n]one of
the funds appropriated under” Title X “shall be used in programs where abortion is a method of
family planning.” 42 U.S.C. § 300a-6 (emphasis added). So, in explaining why the 1988 Rule
did not amount to an unconstitutional condition, the Court made clear that a grantee may choose
to provide abortion services, so long as it “conduct[s] those activities through programs that are
separate and independent from the project that receives Title X funds.”10 Rust, 500 U.S. at 196
(emphasis added).
How to go about implementing this statutory directive is largely for the agency to decide.
HHS has discretion to carry out the Title X program in any manner consistent with a
“permissible construction of the statute.” Chevron, 467 U.S. at 843. Here, both the text of the
statute and the Supreme Court’s interpretation plainly set forth the legislative command: no Title
X funds may be “used in programs where abortion is a method of family planning,” 42 U.S.C.
§ 300a-6, so any abortion “programs” a Title X grantee runs must be kept separate from Title X
projects and funds, Rust, 500 U.S. at 190. The agency’s discretion comes in its ability to choose
the means to hit that statutory target. But the statute mandates separate “programs” (rather than
demanding separate grantees, or merely requiring separate books), and the agency must enforce
that limitation.
9
By contrast, Congress has included language in appropriations bills allocating funds for the Title X
program that says funds “shall not be expended for abortions.” See, e.g., Consolidated Appropriations Act, 2022,
Pub. L. No. 117-103, div. H, title II, Family Planning (Mar. 15, 2022).
10
As the dissent points out, the Court here was explaining why the 1998 Rule did not violate the First
Amendment. Rust, 500 U.S. at 197. But in so doing, it provided an important reason why the 1988 Rule’s program-
integrity requirements were consistent with § 1008—Title X grantees could still perform abortion services, but they
were required to do so “through programs that [were] separate and independent from the project that the receives
Title X funds.” Id. at 196. This comports with the plain language of § 1008, which says that no Title X funds may
be “used in programs where abortion is a method of family planning.”
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The 1988 and 2019 Rules chose similar means to implement the statutory command—
strict financial and physical separation. That’s how one would know whether a grantee that
provided both abortion-related services and Title X family planning services kept the abortion
activities to a “program” that was “separate” from the Title X project.11 See id. at 179
(explaining that the 1988 Rule was “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.” (quoting 53 Fed. Reg. at 2,923–24)); id. at 188 (quoting 1988 Rule
for the proposition that “[h]aving a program that is separate from [abortion] activities is a
necessary predicate to any determination that abortion is not being included as a method of
family planning in the Title X program”) (quoting 53 Fed. Reg. at 2,940)). An outside observer,
or an HHS compliance officer, could tell the difference between the two “programs” because
they would not share physical space, or personnel, or records. In Rust, the Supreme Court said
this was a “permissible” way to meet the statutory goal of keeping the programs separate. Id. at
188–90. But the Court also said that was not the exclusive way in which the agency might meet
Congress’s goal—it rejected the Secretary’s argument that the 1988 Rules were required. Id. at
189.
How does the 2021 Rule purport to ensure that any abortion “program” a Title X grantee
runs is kept separate and distinct from Title X projects and funds? It “eliminat[ed] requirements
for strict physical and financial separation between abortion-related activities and Title X project
activities.” 86 Fed. Reg. at 56,144. In its place, the 2021 Rule reverted to the language of the
11
Both the 1988 and 2019 rules used the term “program” and “project” interchangeably. See 53 Fed. Reg.
at 2,922; 84 Fed. Reg. at 7,714. The 2000 and 2021 Rules do not say that the terms are used interchangeably, but
HHS represents in its brief that it views the terms that way. See Appellee Br. at 28. And the States do not argue
otherwise. Across administrations, HHS has defined “program/project” similarly, and somewhat circularly, to
“mean a plan or sequence of activities that is funded to fulfill the requirements elaborated in a Title X funding
announcement.” 84 Fed. Reg. at 7,787 (2019 Rule); see 53 Fed. Reg. at 2,944 (1988 Rule) (“program” and
“project” . . . mean “a coherent assembly of plans, activities, and supporting resources contained within an
administrative framework” and a “Title X program” or “Title X project” means “the identified program which is
approved by the Secretary for support under section 1001 of the Act.”); 65 Fed. Reg. at 41,276 (2000 Rule) (“The
Department has traditionally viewed a grant project as consisting of an identified set of activities supported in whole
or in part by grant funds.”); 65 Fed Reg. at 41,282 (2000 Guidance) (“The Title X project is the set of activities the
grantee agreed to perform in the relevant grant documents as a condition of receiving Title X funds.”). In other
words, as HHS defined the terms, a program or project is the set of activities that receive grant funding and are,
therefore, subject to the grant conditions. So the conditions on the grant-funded set of activities are what distinguish
a Title X program from other programs.
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2000 Rule, which says nothing about any sort of separation. Instead, it merely states that an
eligible Title X project must “[n]ot provide abortion as a method of family planning.” 42 C.F.R.
§ 59.5; 65 Fed. Reg. at 41,279. The preamble to the 2021 Rule indicates, however, that it
reinstated Guidance accompanying the 2000 Rule. 86 Fed. Reg. at 56,150. That Guidance says
that “[n]on-Title X abortion activities must be separate and distinct from Title X project
activities.” 65 Fed. Reg. at 41,282. It also says that “separate bookkeeping entries alone will not
satisfy the spirit of the law. Mere technical allocation of funds, attributing federal dollars to non-
abortion activities, is not a legally supportable avoidance of section 1008.” Id.
So what does the Guidance require beyond separate bookkeeping? If it requires anything,
the Guidance doesn’t say. We know it’s not a “separate health facility.” Id. The Guidance
makes clear that “[s]eparation of Title X from abortion activities does not require” that. Id.
Inside a common health facility, a “common waiting room is permissible, as long as the costs
[are] properly pro-rated.” Id. So is the “maintenance of a single file system for abortion and
family planning patients . . . so long as costs are properly allocated.” Id. “[C]ommon staff is
permissible” too “so long as salaries are properly allocated.” Id. So, from the examples HHS
has provided, it seems that cost-accounting is, in fact, the only limit on comingling. To be
complete, with respect to common staff, the Guidance also requires that “all abortion related
activities of the staff members [be] performed in a program which is entirely separate from the
Title X project.” Id. (emphasis added). But since our quest is to uncover what the Guidance
means by a “separate” “program,” this latter qualification offers no help. And neither does the
Guidance’s blessing of a “hospital offering abortions for family planning purposes and also
housing a Title X project,” which is “permissible, as long as the abortion activities are
sufficiently separate from the Title X project.” Id. (emphasis added). The Guidance does
nothing to answer the critical question: sufficiently separate, how?
The Guidance does offer one more clue. It says that “[w]here a grantee conducts abortion
activities that are not part of the Title X project and would not be permissible if they were, the
grantee must ensure that the Title X supported project is separate and distinguishable from those
other activities.” Id. It then offers a test: “What must be looked at is whether the abortion
element in a program of family planning is so large and so intimately related to all aspects of the
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 21
program as to make it difficult or impossible to separate the eligible and the non-eligible items of
cost.” Id. (emphasis added).
The States say that this language decides the case. Section 1008 prohibits Title X funds
from being “used in programs where abortion is a method of family planning.” 42 U.S.C.
§ 300a-6. But the Guidance “says that Title X grantees can have an ‘abortion element in a
program of family planning services,’ as long as it is not too ‘large’ or ‘intimately related’ with
the non-abortion parts of the family-planning program.” Appellants Br. at 24–25. The States say
this cannot be a permissible reading of the statute. Taken at face-value, the States have a point;
obviously, a Title X “program” cannot have an “abortion element,” no matter how small and
unrelated it is to other aspects of the program. But even giving the most charitable reading to
this language, as the district court did, does not help us discover a “permissible” construction of
the statute.
As HHS and the district court see it, the Department’s “unfortunate” “choice of the word
‘program’” is of no concern because it does not mean “that a Title X program may have an
‘abortion element.’” Ohio v. Becerra, 577 F. Supp 3d 678, 691 n.13 (S.D. Ohio 2021). Rust
held that “Title X expressly distinguishes between a Title X grantee,” which may run an abortion
program, “and a Title X project,” which may not. Rust, 500 U.S. at 196; see also id. at 198.
And the Guidance does say that “[n]on-Title X abortion activities must be separate and distinct
from Title X project activities.” 65 Fed. Reg. at 41,282. So “reading the passage with full
context,” Becerra, 577 F. Supp. 3d at 691 n.13, the district court and the Secretary essentially ask
us to construe the Guidance as if it said: “What must be looked at is whether the abortion
element in a grantee’s collective set of “program[s] of family planning” (which may encompass
both Title X programs and abortion programs) “is so large and so intimately related to all aspects
of the [collective set of] program[s] as to make it difficult or impossible to separate the eligible
and the non-eligible items of cost.” See id. at 690 (quoting 65 Fed. Reg. at 41,282); see id. at
691 n.13.
Of course, that’s not what the Guidance says. But even if we were to give it this
construction, the Guidance still fails in its critical task—to offer a permissible construction of the
statute’s key term, “program.” The Guidance offers just one test for assessing whether a “Title X
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 22
supported project [or program] is separate and distinguishable from [abortion] activities.”
65 Fed. Reg. at 41,282. “What must be looked at” is whether the “abortion element” is “so
large” and “so intimately related” to the Title X activities that it is just too hard to “separate the
eligible and the non-eligible items of cost.” Id. In other words, so long as it is possible to
account for the “abortion costs,” the Guidance deems the “abortion program” to be “separate and
distinguishable” from the Title X project. And the examples, whose limits all boil down to cost-
accounting, confirm this construction.
This test cannot be squared with the statute. Section 1008 does not say merely that no
Title X funds “shall be used for abortions or abortion-related activity.” If it did, then perhaps
mere cost-accounting would suffice. But the statute requires more than separate dollars. It
requires separate programs: no Title X funds “shall be used in programs where abortion is a
method of family planning.” 42 U.S.C. § 300a-6 (emphasis added). That language can only be
read to say that no Title X funds can be used in such “programs,” even to support non-abortion
activities.12 Title X funds cannot be spent even on contraceptive counseling, a core-Title X
function, if the “program” is one “where abortion is a method of family planning.” 42 U.S.C.
§ 300a-6. So it is incumbent upon the agency to have a discernible, and permissible, conception
of what constitutes a “program.” And because it violates the statute for any Title X dollars to be
spent, even for Title X-approved purposes, in a “program where abortion is a method of family
planning,” id., the boundaries of the “program” cannot be defined merely by how the money is
spent. The Agency does not say otherwise. Indeed, HHS acknowledges that a “[m]ere technical
allocation of funds, attributing federal dollars to non-abortion activities, is not a legally
supportable avoidance of section 1008.” 65 Fed. Reg. at 41,282. Yet the only dividing line the
agency has offered to distinguish one “program” from another is whether it is possible to
“separate the eligible and the non-eligible items of cost.” Id.; see also id. (listing examples of
12
To be clear, we do not hold that § 1008 requires “complete physical separation,” as the dissent seems to
believe. Dissent Op. at 42. Such a holding would conflict with Rust, which held that complete separation was
permitted but not required. See supra at 19. We disagree, however, with the dissent that if the Court in Rust
“believed physical separation requirements were mandated by the statute, it would not have held that § 1008 was
ambiguous.” Dissent Op. at 40. Contrary to the dissent’s suggestion, it does not follow that because the Court did
not believe that § 1008 required complete physical separation, the Court thought that § 1008 required no physical
separation. Nothing in Rust can be read as the Court concluding as much.
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permissible integration of Title X program and abortion program facilities and personnel, “so
long as costs are properly allocated” or “pro-rated”).
The Agency offers little in response. It points to the Guidance’s language requiring that a
grantee’s “Title X-supported project must be ‘separate and distinguishable’ from any abortion-
related activities,” but it does not answer what it means by those terms. Appellee Br. at 27
(quoting 65 Fed. Reg. at 41,282). It insists that “more than mere ‘separate bookkeeping’” is
required,” id. (quoting 65 Fed. Reg. at 41,282), though both its many examples and its lone test
say otherwise. It says that a grantee may use “financial records, counseling and service
protocols, administrative procedures, and other means” to “demonstrate” that its Title X and
abortion programs are “distinct.” Id. (quoting 65 Fed. Reg. at 41,276). And it promises “robust
monitoring processes to ensure grantee compliance, . . . including through regular grant reports,
compliance monitoring visits, and legally required audits.” Id. (quoting 86 Fed. Reg. at 56,152).
But these “means” of enforcing compliance do not answer the question before us. Our question
is whether the agency has permissibly determined what it must enforce. That is, has the agency
permissibly determined when Title X funds would be mis-spent through “use[] in programs
where abortion is a method of family planning”? 42 U.S.C. § 300a-6 (emphasis added).
HHS has offered but one answer to this question—Title X funds may not be “used in
programs where abortion is a method of family planning,” id., when the “abortion element” is
“so large” and “so intimately related” to the Title X project that it would be “difficult or
impossible to separate the eligible and the non-eligible items of cost items of cost.” 65 Fed. Reg.
at 41,282. But, as we have explained, that answer is insufficient to mark the critical boundary set
forth in the statute—between what is and what is not a “program[] where abortion is a method of
family planning.” 42 U.S.C. § 300a-6 (emphasis added).
The Supreme Court in Rust upheld the 1988 Rule’s decision to mark the boundaries
between a grantee’s Title X “program” and any abortion-related “program” through strict
physical and financial separation. 500 U.S. at 190. At the same time, because the statute is
“ambiguous” on this score and does not “speak directly to the issue[] of . . . program integrity,”
other approaches are possible. Id. at 184. Yet the Agency must offer some concrete conception,
beyond mere financial separation, of the statute’s key term “program,” so that it can ensure
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compliance with the statute’s command that no Title X funds “shall be used in programs where
abortion is a method of family planning.” 42 U.S.C. § 300a-6. Because the 2021 Rule fails in
this regard, its construction is not a permissible reading of the statute, and the States are likely to
succeed on the merits of this challenge.
IV.
“Even with a high likelihood of success on the merits, a preliminary injunction is not
warranted unless the plaintiffs are likely to suffer irreparable injury in the absence of interim
relief.” Kentucky v. Biden, 57 F.4th 545, 555 (6th Cir. 2023). Before any grants had been
awarded under the 2021 Rule, the States sought an injunction pending appeal, offering three
theories of harm: (1) increased competition for Title X funds from other prospective grantees
who were unable or unwilling to comply with the stricter 2019 Rule; (2) reputational injury that
would result from any loss of funding affecting the States’ ability to provide the level of
healthcare services their citizens had come to expect; and (3) injury caused by forcing the States
to put their imprimatur on abortion. Ohio v. Becerra, 2022 WL 413680, at *3 (6th Cir. Feb. 8,
2022). A motions panel of this court rejected all three theories of harm at that stage of the
litigation. Id. at *2.
Relevant here is the States’ competition-based theory of harm, which posits that
applicants for government grants “suffer [an] injury in fact when agencies lift regulatory
restrictions on their competitors or otherwise allow increased competition against them.”
Sherley v. Sebelius, 610 F.3d 69, 72 (D.C. Cir. 2010) (alteration in original) (citation omitted);13
Planned Parenthood of Greater Wash. & N. Idaho v. Dep’t of Health & Hum. Servs., 946 F.3d
1100, 1108 (9th Cir. 2020) (“An agency action that increases competition tilts the playing field
for parties that were already competing, and those parties suffer an injury-in-fact.”); Clinton v.
City of New York, 524 U.S. 417, 432–33 (1998). The motions panel deemed this theory too
13
The motions panel questioned Sherley’s relevance because Sherley held that increased competition “can
suffice as an injury-in-fact for standing purposes,” but did not “comment on when that injury might be irreparable”
in the preliminary injunction context. Becerra, 2022 WL 413680, at *3. But the panel did not explain why harm in
the standing context would not be relevant to the irreparable harm inquiry in the preliminary injunction context.
Assuming that a party has successfully made the requisite showing of a cognizable injury for standing, the question
at the preliminary injunction stage is whether that harm is irreparable. See D.T. v. Sumner Cnty. Schs., 942 F.3d
324, 327 (6th Cir. 2019).
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 25
speculative at the time because it was premised on the then-uncertain prediction that the States
would receive less Title X funding under the new rule. Becerra, 2022 WL 413680, at *4.
Because “[n]o grant money ha[d] been allocated,” the motions panel could not determine “at
th[at] point” whether HHS would “provide the States with less money” than under the 2019
Rule. Id. at *3. The panel said that “any economic injury in this case would only occur . . . after
HHS determine[d] its Title X funding allocations for the 2022-2023 funding year.” Id. at *4.
Shortly after the motions panel’s decision, HHS announced its 2022-23 grant awards.14
The agency’s announcement established that the economic harm the States predicted had come
to pass. At least one of the appellant States, Ohio, received fewer Title X funds following the
adoption of the 2021 Rule. The States filed a motion, asking us to take judicial notice of this
fact. In their motion, the States point out that the Ohio Department of Health received $1,760,00
less compared to its previous annual award under the 2019 Rule, representing a substantial
twenty-percent decrease. App. R. 57 at 2.
HHS contends that we cannot consider the grant award amounts because when the district
court denied the preliminary injunction, the grants had not yet been made, so they were not part
of the record before the district court. But we retain the power to take judicial notice of changed
circumstances. Reply Br. at 21 (citing Namo v. Gonzales, 401 F.3d 453, 458 (6th Cir. 2005);
Broom v. Shoop, 963 F.3d 500, 509 (6th Cir. 2020); Mallory v. Eyrich, 922 F.2d 1273,1281 (6th
Cir. 1991)).15 HHS’s grant announcement is publicly available online, is “not subject to
reasonable dispute” and “can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” Fed. R. Evid. 201(b); see United States v. Husein, 478 F.3d
318, 337 (6th Cir. 2007) (applying rule to request on appeal). What’s more, it cannot be that the
14
HHS Awards $256.6 Million to Expand & Restore Access to Equitable & Affordable Title X Family
Planning Services Nationwide, Mar. 30, 2022, https://www hhs.gov/about/news/2022/03/30/hhs-awards-256-
million-to-expand-restore-access-to-equitable-affordable-title-x-family-planning-services-nationwide html.
15
We have adopted HHS’s argument in an unpublished opinion. Johnson v. City of Memphis, 444 F.
App’x 856, 860 n.2 (6th Cir. 2011). And in a published opinion, we’ve stated that our task on an appeal from a
preliminary injunction is “to review the record that was before the district court.” Wilson v. Williams, 961 F.3d 829,
833 (6th Cir. 2020) (quoting Johnson, 444 F. App’x at 860 n.2). But the unpublished opinion is not binding. And,
in our published opinion, nothing turned on our suggestion that our review was limited to the record before the
district court. See id. at 833. So, any suggestion in Wilson that we cannot take judicial notice of changed
circumstances in an appeal from a preliminary injunction was dicta, and therefore nonbinding. See Wright v.
Spaulding, 939 F.3d 695, 701 (6th Cir. 2019).
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 26
States’ claim of injury was too early at the injunction-pending-appeal stage—because the alleged
harm was too uncertain—but is too late now that the harm has actually come to pass. We
therefore hold that at least Ohio16 has made the requisite showing of irreparable injury based on
its competition-based theory of harm.
HHS counters that the States “do not attempt to explain how any decrease in funds would
be traceable to increased competition rather than to the agency’s independent judgments about a
grantee’s performance on [various performance] factors.” Appellee Br. at 16 (“Title X grant
applications are evaluated based on a broad range of criteria, including, for example, evidence of
the applicant’s ability to increase access to quality family planning services and the applicant’s
history of performance.” (cleaned up)). But the causal link here is not obscure. With respect to
Ohio, the only State to submit evidence supporting its claim of competitive injury, an official
from the Ohio Department of Health attested: “Before the 2019 Rule went into effect . . . both
the Ohio Department of Health and Planned Parenthood of Greater Ohio received grants. After
the 2019 Rule, Planned Parenthood of Greater Ohio stopped participating in Title X, and the
Ohio Department of Health received all of the funds that were allocated to grantees in Ohio—
amounting to $8.8 million in each of 2020-2021 and 2021-2022.” Becerra, 2022 WL 413680, at
*3. And after the adoption of the 2021 Rule, HHS “announced two grants in the State of Ohio:
Planned Parenthood of Greater Ohio . . . has now been awarded $2 million. The Ohio
Department of Health was awarded $7,040,000 . . . a decrease of $1,760,000 from its previous
(undisputed) annual award of $8,800,000.” App. R. 57 at 1–2. In other words, when Planned
Parenthood (the only other grant recipient in Ohio) “dropped out of Title X, Ohio’s funding went
up. When Planned Parenthood reentered, Ohio’s funding went down.” Reply Br. at 25. And
nothing in the record supports HHS’s suggestion that Ohio’s decrease in funds was a result of
poor performance. In sum, due to the rule change, Ohio lost one-fifth of its Title X funding, an
amount that it cannot get back: “economic injuries caused by federal agency action are generally
16
Of the eleven remaining Plaintiff-States, only Ohio submitted a declaration providing concrete evidence
that it would face increased competition as a result of the 2021 Rule. R. 50, PageID 678. And in the States’ motion
to take judicial notice of the 2022–23 grants, the States note only that “some of the appellant States are receiving
fewer Title X funds in light of the Final Rule’s adoption.” App. R. 57 at 1 (emphasis added). But the motion
provides no funding data for any state but Ohio.
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 27
unrecoverable because the APA does not waive sovereign immunity for damages claims.”
Becerra, 2022 WL 413680, at *4. The 2021 Rule has caused irreparable harm.
V.
Finally, we consider whether issuing an injunction would serve the public interest. The
States argue correctly that the public interest lies in correctly applying the law and that, because
the Rule’s program integrity policy is not a reasonable interpretation of § 1008, enjoining the
Rule would serve the public interest. See Coal. to Def. Affirmative Action v. Granholm, 473 F.3d
237, 252 (6th Cir. 2006). HHS, on the other hand, argues that the public interest favors leaving
the 2021 Rule in place because the former 2019 Rule reduced patient access to Title X services.
Ohio introduced some evidence undermining this concern: testimony in the record reflects that
the Ohio Department of Health used its supplemental Title X funding to fill the service gaps in
counties where Planned Parenthood had stopped offering Title X services after withdrawing from
the Title X program. R. 1-1, PageID 30–31. With that said, data from the preamble to the 2021
Rule suggests otherwise. HHS stated that Ohio “experienced a 10 percent decline in service sites
between 2018 and 2020, an 18 percent decline in clients from 2018 to 2019, and a 57 percent
decline in clients from 2019 to 2020.” 86 Fed. Reg. at 56,151. The agency explained, “While
many states and territories experienced a decline in clients from 2019 to 2020 due to COVID-19,
Ohio’s percentage decline in clients from 2019 to 2020 ranked 18th in order of states from
largest to smallest decline.” Id. Given the public interest in correctly applying the law on the
one hand but the apparent decrease in services in Ohio on the other, we thus find that this factor
does not cut in either direction.
With the majority of the preliminary injunction factors favoring the States’ position, we
therefore find that the balance of the equities weighs in favor of a preliminary injunction.
But that relief must be limited to Ohio. A showing of irreparable harm is an
indispensable perquisite for the issuance of a preliminary injunction. D.T., 942 F.3d at 327 (“If
the plaintiff isn’t facing imminent and irreparable injury, there’s no need to grant relief now as
opposed to at the end of the lawsuit.”); State of Ohio ex rel. Celebrezze v. Nuclear Regul.
Comm’n, 812 F.2d 288, 290 (6th Cir. 1987) (“In order to substantiate a claim that irreparable
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 28
injury is likely to occur, a movant must provide some evidence that the harm has occurred in the
past and is likely to occur again.”). As discussed above, Ohio is the only plaintiff-State that
provided the requisite facts and affidavits supporting the States’ assertion that the 2021 Rule
would cause them to suffer the competition-based harm. See Celebrezze, 812 F.2d at 290. Ohio
argues that a nationwide injunction is necessary to ensure that it “suffer[s] no adverse
consequences.” Reply Br. at 24. But Ohio’s competition-based theory of harm is premised on
the increased competition within Ohio’s borders—specifically from Planned Parenthood of Ohio,
the only other Title X grantee in the state. See id. at 19–20 (“Now that HHS has awarded
$2 million to Planned Parenthood of Greater Ohio for the coming grant year, Ohio will receive
$1.76 million less. The overall increase in grants for Ohio providers did not overcome the State
of Ohio’s loss to competitor Planned Parenthood.”); Appellants Br. at 12 (“Before the 2019 Rule,
Planned Parenthood was the only other grantee in Ohio. Once Planned Parenthood left the
program, Ohio applied for and received more than $4 million annually in additional Title X
funds.”). Ohio has not made the requisite showing that a nationwide preliminary injunction is
necessary to ameliorate its competition-based harm. See Gill v. Whitford, 138 S. Ct. 1916, 1934
(2018) (“A plaintiff’s remedy must be tailored to redress the plaintiff’s particular injury.” (citing
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 353 (2006)); McNeilly v. Land, 684 F.3d 611,
615 (6th Cir. 2012) (“The party seeking the preliminary injunction bears the burden of justifying
such relief.” (citing Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 441 (1974)).
In sum, we hold that the preliminary injunction factors weigh in favor of granting relief
on the challenge to the 2021 Rule’s program-integrity requirements. Because only Ohio made
the requisite showing of irreparable harm, Ohio is entitled to a preliminarily injunction enjoining
the United States from enforcing the 2021 Rule’s program integrity rules in Ohio in a manner
that would affect the allocation of funding in Ohio.
***
We AFFIRM in part, REVERSE in part, and REMAND to the district court for further
proceedings consistent with this opinion.
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 29
_____________________________
CONCURRENCE / DISSENT
_____________________________
KAREN NELSON MOORE, Circuit Judge, concurring in the judgment in part and
dissenting in part. This ought to be a simple, straightforward application of well-established
precedent in administrative law. The Department of Health and Human Services (“HHS”) issued
a final rule in 2021 governing the Title X program, which makes grants to support the
establishment and operation of voluntary family-planning service projects. The 2021 Rule
interpreted various provisions of Title X, including, as is relevant to this appeal, § 1008 of Title
X, codified at 42 U.S.C. § 300a-6. Section 1008 bars funds appropriated under Title X from
being “used in programs where abortion is a method of family planning.” 42 U.S.C. § 300a-6.
The 2021 Rule revoked the previous regulation, the 2019 Rule, which had required grantees to
maintain strict physical and financial separation between Title X programs and any abortion-
related services they might provide and which barred Title X grantees from providing referrals
for abortion services upon request. The 2021 Rule reinstated, with some updates, the 2000 Rule,
which required only financial separation between Title X programs and grantees’ other activities
and required Title X grantees to provide referrals for abortion services upon request.
A group of states sued, seeking to block these two changes. The States argued that the
2021 Rule’s program-integrity and abortion-referral provisions are “not in accordance” with
§ 1008 and that they are “arbitrary and capricious” in violation of the Administrative Procedure
Act (“APA”). 5 U.S.C. § 706(2)(A). They sought a preliminary injunction to reinstate the 2019
Rule, which the district court denied, and they timely appealed. I would conclude that the States
are not likely to succeed on their challenges to the program-integrity provisions or the referral
provisions of the 2021 Rule. I would also conclude that the public interest weighs in favor of
denying a preliminary injunction. Therefore I would affirm the district court’s denial of a
preliminary injunction, and I dissent from section III.B and part of section V of the majority
opinion.
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 30
I. BACKGROUND
Congress enacted Title X “[t]o promote public health and welfare by expanding,
improving, and better coordinating the family planning services and population research
activities of the Federal Government.” Family Planning Servs. & Pop. Res. Act of 1970, Pub. L.
No. 91-572, 84 Stat. 1504. Under the statute, the Secretary of HHS “is authorized 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 (including natural family planning methods,
infertility services, and services for adolescents).” 42 U.S.C. § 300(a). The statute also
authorizes the Secretary to “make grants to public or nonprofit entities and to enter into contracts
with public or private entities and individuals to provide the training for personnel to carry out
family planning service programs described in section 300 or 300a of this title.” 42 U.S.C.
§ 300a-1. The statute provides further guidance on how the grant program is to operate. It
specifies that grantees must make assurances that “(1) priority will be given in such project or
program to the furnishing of such services to persons from low-income families; and (2) no
charge will be made in such project or program for services provided to any person from a low-
income family except to the extent that payment will be made by a third party (including a
government agency) which is authorized or is under legal obligation to pay such charge.”
42 U.S.C. § 300a-4(c). And finally, the statute requires that “[n]one of the funds appropriated
under this subchapter shall be used in programs where abortion is a method of family planning.”
42 U.S.C. § 300a-6. This final provision was enacted as § 1008 of Title X.
HHS regulations set out how the program works. “Any public or nonprofit private entity
in a State may apply for a grant under this subpart.” 42 C.F.R. § 59.3 (2021). Potential grantees
submit an application that includes a description of the proposed project and how it will satisfy
the Title X requirements, a budget and explanation of the amount of funds the project is
requesting, and “[a] description of the standards and qualifications which will be required for all
personnel and for all facilities to be used by the project.” Id. § 59.4(c)(3). Projects must
“[p]rovide a broad range of acceptable and effective medically approved family planning
methods (including natural family planning methods) and services (including pregnancy testing
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 31
and counseling, assistance to achieve pregnancy, basic infertility services, STI services,
preconception health services, and adolescent-friendly health services).” Id. § 59.5(a)(1).
Projects obtain their funding from multiple sources; “[n]o grant may be made for an amount
equal to 100 percent for the project’s estimated costs.” Id. § 59.7(c). And, most relevant to this
case, projects must also “[n]ot provide abortion as a method of family planning.” Id.
§ 59.5(a)(5).
The 2021 Rule revoked the 2019 Rule and then readopted the 2000 Rule with some
minor changes. Ensuring Access to Equitable, Affordable, Client-Centered, Quality Family
Planning Servs. (“2021 Rule Preamble”), 86 Fed. Reg. 56,144, 56,144 (Oct. 7, 2021).1 Guidance
published alongside the 2000 Rule states that the § 1008 bar on the use of Title X funds in
programs in which abortion is a method of family planning “applies not only to the performance
of abortion by a Title X project, but also to the conduct of certain abortion-related activities by
the project. However, the prohibition does not apply to all the activities of a Title X grantee, but
only to those within the Title X project.” Provision of Abortion-Related Services in Family
Planning Services Projects (“2000 Guidance”), 65 Fed. Reg. 41,281, 41,281 (Jul. 3, 2000). The
2000 Rule expressed HHS’s interpretation of the statute, which in its view “on its face, requires
financial separation only.” Standards of Compliance for Abortion-Related Services in Family
Planning Services Projects (“2000 Rule”), 65 Fed. Reg. 41,270, 41,275 (Jul. 3, 2000). The
agency therefore “accepted the suggestion of a number of the comments that the requirement for
physical separation be dropped.” Id. at 41,276.
In so doing, the agency determined that although the prohibition on the use of Title X
funds in programs where abortion is a method of family planning “was held to go beyond a
requirement for the technical allocation of funds between Title X project activities and
impermissible abortion activities,” id. at 41,275, requiring financial separation only, and not
physical separation, was sufficient to satisfy the statutory command. The test the agency put
forth to determine whether financial separation of a Title X project from a grantee’s other
activities was possible asked “whether the abortion element in a program of family planning
services is so large and so intimately related to all aspects of the program as to make it difficult
1
The 2021 Rule is now found in the Code of Federal Regulations (“C.F.R.”). See 42 C.F.R. §§ 59.1–59.11.
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 32
or impossible to separate the eligible and non-eligible items of cost.” 2000 Guidance, 65 Fed.
Reg. at 41,282. Read in context, this test essentially asks if, within a potential grantee’s general
program of family planning services, abortion services play such a large role that they are
intimately related to all aspects of the family planning program, thus making it difficult or
impossible to identify a Title X-eligible project that can operate financially separately from the
rest of the grantee’s activities—meaning that the financial separation required under the 2021
Rule goes beyond “[m]ere technical allocation of funds” or “separate bookkeeping entries
alone.” Id.
II. ANALYSIS
Courts must 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 absent the injunction; (3) whether the injunction
would cause substantial harm to others; and (4) whether the public interest would be served by
the issuance of an injunction.” Am. Civil Liberties Union Fund of Mich. v. Livingston County,
796 F.3d 636, 642 (6th Cir. 2015) (quoting Bays v. City of Fairborn, 668 F.3d 814, 818–19 (6th
Cir. 2012)). When the federal government is the defendant, the third and fourth factors merge.
Commonwealth v. Biden, 57 F.4th 545, 556 (6th Cir. 2023).
The Sixth Circuit “reviews the district court’s denial of a motion for a preliminary
injunction for abuse of discretion.” Wonderland Shopping Ctr. Venture Ltd. Partnership v. CDC
Mortg. Capital, Inc., 274 F.3d 1085, 1097 (6th Cir. 2001); see also Benisek v. Lamone, 538 U.S.
----, 138 S. Ct. 1942, 1943–44 (2018) (per curiam) (reviewing a district court’s decision to deny
a preliminary injunction for abuse of discretion, “keeping in mind that a preliminary injunction is
‘an extraordinary remedy never awarded as of right.’” (quoting Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 24 (2008))); Tumblebus, Inc. v. Cranmer, 399 F.3d 754, 760 (6th Cir.
2005); Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 540–
41 (6th Cir. 2007). Although “[t]he district court’s determination of whether the movant is likely
to succeed on the merits is a question of law and is accordingly reviewed de novo,” “the district
court’s ultimate determination as to whether the four preliminary injunction factors weigh in
favor of granting or denying preliminary injunctive relief is reviewed for abuse of discretion.”
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 33
Certified Restoration Dry Cleaning Network, 511 F.3d at 541. When reviewing a district court’s
decision for abuse of discretion, “[t]he district court’s determination will be disturbed only if the
district court relied upon clearly erroneous findings of fact, improperly applied the governing
law, or used an erroneous legal standard.” Hamilton’s Bogarts, Inc. v. Michigan, 501 F.3d 644,
649 (6th Cir. 2007) (quoting Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 888 (6th Cir.
2000)). Absent a legal or factual error, “the district court’s weighing and balancing of the
equities is overruled ‘only in the rarest of cases.’” American Imaging Servs., Inc. v. Eagle-
Picher Indus., Inc. (In re Eagle-Picher Indus., Inc.), 963 F.2d 855, 858 (6th Cir. 1992) (quoting
NAACP v. City of Mansfield, 866 F.2d 162, 166 (6th Cir. 1989)).
A. Likelihood of Success on the Merits
1. Impermissible Interpretation of § 1008
The States contend that HHS’s interpretation is an impermissible interpretation of the
statute. Despite the majority’s musings on the vitality and the future of deference to agency
interpretation of statutes under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984), it is the law of the land, and it is our duty to apply the law as stated by the
Supreme Court. Agostini v. Felton, 521 U.S. 203, 237 (1997). We therefore must apply the
Chevron framework. At Chevron Step One, a court asks “whether Congress has directly spoken
to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for
the court, as well as the agency, must give effect to the unambiguously expressed intent of
Congress.” Chevron, 467 U.S. at 842–43. “[I]f the statute is silent or ambiguous with respect to
the specific issue,” however, we proceed to Chevron Step Two, in which “the question for the
court is whether the agency’s answer is based on a permissible construction of the statute.” Id. at
843.
Both parties agree that Chevron applies to HHS’s interpretation of § 1008. Appellants
Br. at 16; Appellees Br. at 26–27. Section 1008 states simply: “None of the funds appropriated
under this subchapter shall be used in programs where abortion is a method of family planning.”
42 U.S.C. § 300a-6. The majority correctly recognizes that the Supreme Court has already
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 34
answered the Chevron Step One question—the language of Section 1008 is ambiguous. Rust v.
Sullivan, 500 U.S. 173, 184 (1991). The Supreme Court held in Rust that:
we agree with every court to have addressed the issue that the language is
ambiguous. The language of § 1008—that “[n]one of the funds appropriated
under this subchapter shall be used in programs where abortion is a method of
family planning”—does not speak directly to the issues of counseling, referral,
advocacy, or program integrity.
Id. (emphasis added). The Supreme Court’s holding is binding on this court, and we must
therefore proceed to Chevron Step Two.
At Chevron Step Two, we consider whether the agency’s rule “is based on a permissible
construction of the statute.” Chevron, 467 U.S. at 843. “A permissible construction is one that is
not ‘arbitrary, capricious, or manifestly contrary to the statute.’” Metro. Hosp. v. U.S. Dep’t of
Health & Hum. Servs., 712 F.3d 248, 265 (6th Cir. 2013) (quoting Chevron, 467 U.S. at 844).
“[I]f the implementing agency’s construction is reasonable, Chevron requires a federal court to
accept the agency’s construction of the statute, even if the agency’s reading differs from what the
court believes is the best statutory interpretation.” Nat’l Cable & Telecom. Ass’n v. Brand X
Internet Servs., 545 U.S. 967, 980 (2005). “Whether an agency’s construction is reasonable
depends, in part, ‘on the construction’s “fit” with the statutory language, as well as its conformity
to statutory purposes.’” Oakbrook Land Holdings, LLC v. Comm’r, 28 F.4th 700, 719 (6th Cir.
2022) (quoting Good Fortune Shipping SA v. Comm’r, 897 F.3d 256, 262 (D.C. Cir. 2018)).
For the sake of clarity, I provide the 2000 Guidance on separation:
Non-Title X abortion activities must be separate and distinct from Title X
project activities. Where a grantee conducts abortion activities that are not part of
the Title X project and would not be permissible if they were, the grantee must
ensure that the Title-X supported project is separate and distinguishable from
those other activities. What must be looked at is whether the abortion element in
a program of family planning services is so large and so intimately related to all
aspects of the program as to make it difficult or impossible to separate the eligible
and non-eligible items of cost.
The Title X project is the set of activities the grantee agreed to perform in
the relevant grant documents as a condition of receiving Title X funds. A grant
applicant may include both project and nonproject activities in its grant
application, and, so long as these are properly distinguished from each other and
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 35
prohibited activities are not reflected in the amount of the total approved budget,
no problem is created. Separation of Title X from abortion activities does not
require separate grantees or even a separate health facility, but separate
bookkeeping entries alone will not satisfy the spirit of the law. Mere technical
allocation of funds, attributing federal dollars to non-abortion activities, is not a
legally supportable avoidance of section 1008.
Certain 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: (a) A common waiting room is permissible, as long as the costs
[are] properly pro-rated; (b) common staff is permissible, so long as salaries are
properly allocated and all abortion related activities of the staff members are
performed in a program which is entirely separate from the Title X project; (c) a
hospital offering abortions for family planning purposes and also housing a Title
X project is permissible, as long as the abortion activities are sufficiently separate
from the Title X project; and (d) maintenance of a single file system for abortion
and family planning patients is permissible, so long as costs are properly
allocated.
Whether a violation of section 1008 has occurred is determined by
whether the prohibited activity is part of the funded project, not by whether it has
been paid for by federal or non-federal funds. A grantee may demonstrate that
prohibited abortion-related activities are not part of the Title X project by various
means, including counseling and service protocols, intake and referral procedures,
material review procedures, and other administrative procedures.
2000 Guidance, 65 Fed. Reg. at 41,282; see also 2021 Rule Preamble, 86 Fed. Reg. at 56,150
(readopting the 2000 Rule). This regulation clearly determines that programs—meaning Title X
projects—must be kept financially separated, but need not be physically separated. This
requirement goes beyond the “[m]ere technical allocation of funds,” which would presumably
involve using one central budget for the entire set of family planning services that a grantee or
subgrantee offers and attributing federal dollars to non-abortion line items; instead, the
regulation requires that the costs be allocated, salaries pro-rated, and the finances of a Title X
project or program be kept separate from the grantee’s overall budget, or even its overall family-
planning services budget. “[C]onsiderable weight should be accorded to an executive
department’s construction of a statutory scheme it is entrusted to administer,” Chevron, 467 U.S.
at 844, and therefore we must defer to this interpretation unless it is “manifestly contrary” to the
statutory command in § 1008, id. I cannot agree with the majority that this interpretation is
“manifestly contrary” to the statutory text.
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 36
The States’ first argument that the regulations are an impermissible interpretation of the
statute rests on the contention that the 2021 Rule “permits [] Title X funds to flow to programs
where abortion is a method of family planning,” while “the statute prohibits Title X grants from
being used in a program where abortion is a method of family planning.” Appellants Br. at 25
(emphasis removed). They base this argument on a specious misreading of the 2000 Guidance.
The States contend that the 2000 Guidance expressly permits Title X funds to be used for
abortion activities, based on this sentence, divorced entirely from the surrounding context:
“What must be looked at is whether the abortion element in a program of family planning
services is so large and so intimately related to all aspects of the program as to make it difficult
or impossible to separate the eligible and non-eligible items of cost.” 2000 Guidance, 65 Fed.
Reg. at 41,282. The States contend that this means that the 2000 Guidance, and thereby the 2021
Rule “permits . . . Title X funds to flow to programs where abortion is a method of family
planning.” Appellants Br. at 25.
The States’ reading of the 2000 Guidance strains credulity. When read in context, it is
quite clear that the “program of family planning services” that is permitted to have an “abortion
element” refers not to a grantee’s Title X project, but to its overall “program” of family planning
services, as in, “a set of related measures, events, or activities with a particular long-term aim,”
Program, New Oxford American Dictionary (3d ed. 2015); “a plan of procedure: a schedule or
system under which action may be taken toward a desired goal: a proposed project or
scheme,” Program, Merriam-Webster’s Unabridged Dictionary, Merriam Webster,
https://unabridged.merriam-webster.com/unabridged/program (accessed Aug. 23, 2023), or “a
plan or scheme of any intended proceedings . . . ; an outline or abstract of something to be done,”
programme/program, n., sense 4, Oxford English Dictionary (July 2023). The statute quite
clearly bars the use of federal funds in Title X projects/programs where abortion is a method of
family planning, and the 2021 Rule does so as well. But grantees may have an overarching
program of family planning options that they offer to clients, of which a Title X project is but
one part. And the Supreme Court has held that “Title X expressly distinguishes between a Title
X grantee and a Title X project.” Rust, 500 U.S. at 196 (emphasis in original). The passage to
which the States object identifies the key method by which HHS can determine that a potential
Title X grantee is ineligible to host a Title X project—if its overall program of family planning
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 37
includes an abortion element that is so large or integrated that it cannot be separated financially
from the potential Title X project, as § 1008 and the 2021 Rule requires. In this way, providers
like Planned Parenthood may offer abortion services to their clients, and, provided that those
abortion services are not so large a part of their overall programming that they cannot be
separated financially from their other activities, also may operate a Title X project that provides
low-cost family-planning services that do not include abortion.
The States’ next argument is that the rule violates § 1008 because it “directly or indirectly
subsidizes abortion as a method of family planning” by permitting Title X grant recipients to
offer abortion services in the same facility in which they offer Title X services. Appellants Br. at
25. The States contend that because money is “fungible,” “every dollar an abortion provider
receives through Title X frees up another dollar that the grantee can use to subsidize abortion.”
Id. at 25–26. This argument is foreclosed by the Supreme Court’s reasoning in Rust and in
Agency for International Development v. Alliance for Open Society International, Inc., 570 U.S.
205 (2013). In Rust, the Supreme Court acknowledged that Title X grantees were not prohibited
from engaging in abortion-related activities as long as those activities were kept separate from
Title X funds, because public funds can “be spent for the purposes for which they were
authorized.” Rust, 500 U.S. at 196. In Alliance, the Supreme Court held that a grant funding
condition that required grantees to agree that they opposed prostitution and sex trafficking
violated the First Amendment. 570 U.S. at 221. The Court summarily rejected the petitioners’
argument that the funding condition was “necessary because, without it, the grant of federal
funds could free a recipient’s private funds ‘to be used to promote prostitution or sex
trafficking,’” because this argument “assumes that federal funding will simply supplant private
funding, rather than pay for new programs or expand existing ones.” Id. at 220. The Court
distinguished Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), reasoning that not only
did that case involve the context of a ban on material support for terrorist organizations, but also
“the record indicated that support for those organizations’ nonviolent operations was funneled to
support their violent activities.” All. for Open Soc’y, 570 U.S. at 220. Nowhere in the record
here have the petitioners shown that federal funds were “funneled” to support the provision of
abortion.
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It is clear that Title X projects often represent an extension of services that grantees offer;
Planned Parenthood affiliates reported, after withdrawing from the Title X program, “decreases
of over 25% in visits by patients at or below the federal poverty line and 30% decreases in visits
by patients who typically self-pay for care.” Amicus Br., Planned Parenthood Fed. of Am., Inc.
at 9. These statistics illustrate the harm that the reduction in Title X-funded services caused to
Planned Parenthood’s client base, of which the majority have incomes at or below 150% of the
federal poverty level, as well as the fact that the loss of Title X funds for grantees like Planned
Parenthood resulted in Planned Parenthood performing fewer Title-X-supported services like Pap
tests, STI tests, and breast exams. Id. at 9–10. These statistics also illustrate that in the absence
of federal funds, Planned Parenthood offers fewer low-cost family-planning and preventive-care
services—indicating that federal funding does not “simply supplant private funding, rather than
pay for new programs or expand existing ones.” All. for Open Soc’y, 570 U.S. at 220.
There is yet another problem with the States’ fungibility argument; the 2019 Rule still
permitted abortion providers to receive Title X funds, provided that they complied with onerous
physical and financial separation requirements. By the States’ logic, the 2019 Rule also
improperly subsidized abortion services by “freeing up” funds. Restoring the rule would not
resolve their concerns about “freeing up” funds. This is made particularly evident by the
discussion of “economies of scale.” Appellants Br. at 26. As HHS points out, providers can still
achieve economies of scale even with strict physical and financial separation because they can,
for example, order ordinary supplies in bulk at a lower cost. Appellees Br. at 32. If the “freeing
up” theory is taken to its logical conclusion, even this would be an impermissible “freeing up”
because the cost savings to the grantee’s abortion-providing from such bulk ordering, made
possible by the increase in services that the grantee would provide under its physically separate
Title X project, would necessarily “free up” other funds.
The States make no other arguments. And the majority must sense the weaknesses in
their arguments, as it has opted not to rely on them in order to hold in the States’ favor. The
majority has instead seen fit to make out of whole cloth a new argument on the States’ behalf and
to determine that it wins the day. The majority concludes that “a plain reading of § 1008 . . . tells
us that the statute requires more than just a separation of funds; the statute does not, for example,
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 39
say merely that ‘no Title X funds shall be used for abortions or abortion services.’ Instead, it
requires separation at the program level.” Maj. Op. at 18 (first emphasis added) (footnote
omitted). It arrives at this conclusion because “[t]he statute says that ‘none of the funds
appropriated under’ Title X ‘shall be used in programs where abortion is a method of family
planning.’” Id. (emphasis added by majority).
The majority encounters its first problem quite quickly: there is no requirement in the
statute that there be more than a separation of funds between the Title X project and any abortion
activities performed by the grantee. The majority directly contradicts the Supreme Court’s clear
holding that the statute is ambiguous and says nothing about program integrity to hold instead
that the statute requires more than just financial separation. The Court in Rust was clear: “[t]he
language of § 1008—that ‘[n]one of the funds appropriated under this subchapter shall be used in
programs where abortion is a method of family planning’—does not speak directly to the issue[]
of . . . program integrity.” 500 U.S. at 184. The Court concluded that the physical and financial
separation requirements in the 1988 regulations were “based on a permissible construction of the
statute and are not inconsistent with congressional intent.” Id. at 188. That is because, as the
Court explicitly stated, “if one thing is clear from the legislative history, it is that Congress
intended that Title X funds be kept separate and distinct from abortion-related activities,” id. at
190 (emphasis added), and that “[h]ere Congress forbade the use of appropriated funds in
programs where abortion is a method of family planning,” id. at 191 (emphasis added). That is
the plain meaning of § 1008, as determined by the Supreme Court.
The majority then selectively and misleadingly quotes Rust to imply that the Supreme
Court held that Title X requires grantees to have separate “abortion ‘programs’”2 run separately
and independently from Title X projects. Maj. Op. at 18. Of course, upon reading the passage
from which the majority repeatedly quotes, it becomes clear that the Rust Court was instead
describing the 1988 Rule: “The regulations govern the scope of the Title X project’s activities,
and leave the grantee unfettered in its other activities. The Title X grantee can continue to
perform abortions, provide abortion-related services, and engage in abortion advocacy; it simply
2
With a little selective quotation, the majority invents the phrase “abortion ‘programs’”—a phrase that
appears neither in the statute, nor in Rust, nor in any of the regulations at issue.
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is required to conduct those activities through programs that are separate and independent from
the project that receives Title X funds. 42 C.F.R. § 59.9 (1989).” 500 U.S. at 196. The Court
was doing so in the context of explaining why the 1988 Rule’s program-integrity requirements
did not infringe upon the First Amendment rights of Title X grantees. Id. And contrary to the
majority’s apparent position that a discussion in Rust pertaining to the constitutionality of the
1988 rule somehow elucidates what is statutorily permissible, Maj. Op. 18 n.10, Rust itself time
and time again holds that § 1008 is ambiguous with respect to how to police the line between a
Title X project and non-Title X activities, see Rust, 500 U.S. at 184, 187–91. What is clear from
the statute and its history is simply a command that “Title X funds be kept separate and distinct
from abortion-related activities.” Id. at 190 (emphases added).
The ambiguity in § 1008 lies in the method by which the administration must distinguish
between a Title X project and a grantee’s other activities. The Supreme Court in Rust held that
requiring both financial and physical separation was not inconsistent with the regulation. 500
U.S. at 187. But it also declined to agree with the contention that “[m]eeting the requirement of
section 1008 mandates that Title X programs be organized so that they are physically and
financially separate . . . .” Id. at 188 (quoting 53 Fed. Reg. 2940 (1988)). If the Court believed
physical separation requirements were mandated by the statute, it would not have held that
§ 1008 was ambiguous. The foundation of the majority’s opinion here—that the plain text of the
statute requires more than financial separation of Title X projects (programs) from grantees’
other activities, or that Rust itself requires more than financial separation of Title X projects from
grantees’ other activities—is plainly wrong. Attempting to gin up some further requirements by
looking to a nonrelevant discussion in Rust, contrary to both the statute and the Court’s holdings,
is disingenuous at best.
Having concluded that financial separation between a Title X project and a grantee’s
other activities is insufficient as a matter of the statutory text, in blatant contradiction to binding
Supreme Court precedent, the majority embarks on a “quest” to discern the meaning of a
program, for which it believes the agency must “have a discernible, and permissible,
conception.” Maj. Op. at 20, 22. It argues that the regulations do not answer “what is and what
is not a ‘program[] where abortion is a method of family planning.’” Id. at 23 (emphasis added
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by majority) (quoting 42 U.S.C. § 300a-6). And it argues that HHS “must offer some concrete
conception, beyond mere financial separation, of the statute’s key term ‘program,’ so that it can
ensure compliance with the statute’s command that no Title X funds ‘shall be used in programs
where abortion is a method of family planning.’” Id. at 23–24.
But in the majority’s “quest” to find the meaning of the word “program,” it did not
consider looking to the statute itself. The statute defines Title X programs in § 1003 and § 1001,
codified at 42 U.S.C. §§ 300, 300a-1. Section 1003 authorizes the HHS Secretary to “make
grants . . . to provide the training for personnel to carry out family planning service programs as
described in section 300 or 300a of this title.” 42 U.S.C. § 300a-1 (emphasis added). Turning
back to § 1001, then, we find the description of a “family planning service program”: a
“voluntary family planning project[] which shall offer a broad range of acceptable and effective
family planning methods and services (including natural family planning methods, infertility
services, and services for adolescents).” 42 U.S.C. § 300(a). The meaning of § 1008 thus
becomes clear: “None of the funds appropriated under this title shall be used in [family-planning
service programs described in section 1001] where abortion is a method of family planning.”
42 U.S.C. § 300a-6. Section 1006 also refers to “projects” and “programs” interchangeably.
42 U.S.C. § 300a-4 (“no grant under any such section for any program or project”; “unless the
grant is to be made for a program or project”; “[a] grant may be made or contract entered into
under section 300 or 300a of this title for a family planning service project or program”;
“priority will be given in such project or program”; “no charge will be made in such project or
program” (emphases added)). As the majority notes, “HHS has defined ‘program/project’
similarly” across administrations. Maj. Op. at 19 n.11. The 2000 Guidance defines a Title X
project as “the set of activities the grantee agreed to perform in the relevant grant documents as a
condition of receiving Title X funds.” 65 Fed. Reg. at 41,282. Thus, in order to comply with
§ 1008, abortion and abortion-related services may not be part of the set of activities the grantee
performs with Title X funding. And any activities performed by a grantee that are not part of the
“set of activities the grantee agreed to perform in the relevant grant documents as a condition of
receiving Title X funds,” id., must be part of a separate “project” or “program,” because they are
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 42
certainly not part of the Title X project or program.3 As amici have noted, “Title X-funded
providers operate like other outpatient medical providers, and as such, entities that also provide
other health care services, including abortion care—without Title X funds and outside their Title
X-funded projects, though sometimes under the same roof—have participated in Title X . . .
throughout its history.” Amicus Br., Nat’l Family Planning & Reproductive Health Ass’n, at 5
(emphasis added). The 2021 Rule requires that Title X funds be used only for project purposes.
2021 Rule, 42 C.F.R. § 59.9. It is unclear why a grantee would be able to perform health care
services like, for example, setting broken bones or treating cardiovascular illnesses under the
same roof as a Title X project if complete physical separation is truly required to ensure that
Title X funds are not being misused. If occurring under the same roof or using the same staff
could render a medical service otherwise unconnected with the Title X project’s stated and
approved activities part of its “program,” many current Title X providers would suddenly
become ineligible to host a Title X project. It is therefore quite clear that a Title X project or
program is what must be separate from the grantee’s overall activities, and the Title X project is
what must not include abortion services (or, indeed, any services unconnected with family
planning) in its delineated set of activities.
The majority wrongly states that “the 2021 Rule reverted to the language of the 2000
Rule, which says nothing about any sort of separation.” Maj. Op. at 19–20 (emphasis added).
But the 2000 Rule explicitly provided for financial separation of Title X projects from grantees’
other activities, as the statute mandates. That is clear both from the agency’s discussion of the
comments it received in response to its notice of formal rulemaking, 2000 Rule, 65 Fed. Reg. at
41,276, and in the test that it promulgated to determine whether the Title X project is separate
and distinguishable from other activities: it cannot be “difficult or impossible to separate the
eligible and non-eligible items of cost” between a Title X project and a grantee’s overall family-
3
Suppose, for example, a small, rural hospital regularly provides treatment for cardiovascular disease or
broken bones. It also operates a Title X project. Just as it would violate the statute for Title X grant funds to be
used to support abortion activities, it would also violate the statute for Title X grant funds to be used to subsidize
cardiovascular disease treatment or treatment of broken bones. But a grantee would not need to establish that they
have a physically separate cardiovascular or orthopedic program. It would simply need to show that, despite using
the same filing system, waiting rooms, and nursing staff, it was possible to distinguish financially its Title X-
subsidized family-planning-service activities, like appointments for a Pap test or STI test, from its activities treating
or diagnosing patients’ cardiovascular illnesses or broken bones.
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 43
planning program (which may include abortion services). 2000 Guidance, 65 Fed. Reg. at
41,282. The 2000 Guidance specifies that “[m]ere technical allocation of funds, attributing
federal dollars to non-abortion activities, is not a legally supportable avoidance of section 1008.”
Id. The majority willfully misreads this as an acknowledgement that financial separation is
insufficient. It is instead an acknowledgement that financial separation, beyond simple
bookkeeping exercises that allocate federal dollars to Title X-supported activities, is mandated
by the statute. That means that a grantee cannot simply incorporate Title X funds into their
general budget and, on paper, attribute those funds to Title X activities. Financial separation, in
the sense that the Title X project has its own budget, out of which the Title X project pays for the
pro-rated costs of the waiting room, the pro-rated portions of salaries for staff working within the
Title X project, and the pro-rated costs of a common filing system, is required under the
regulations. Id. The regulations provide further guidance on how to effect this financial
separation: “A grantee may demonstrate that prohibited abortion-related activities are not part of
the Title X project by various means, including counseling and service protocols, intake and
referral procedures, material review procedures, and other administrative procedures.” Id. These
administrative procedures make it possible for grantees to distinguish items of cost that are
attributable to the Title X project, as opposed to the grantee’s non-Title X activities (which may
include abortion services).
The majority thinks that this is the same as merely avoiding the use of federal funds for
abortions or abortion activity. But it is not. The 2000 Guidance specifies that “[w]hether a
violation of section 1008 has occurred is determined by whether the prohibited activity is part of
the funded project, not by whether it has been paid for by federal or non-federal funds.” Id.
(emphasis added). This is an explicit recognition that exercises in bookkeeping are not
sufficient. The Title X project, which is “the set of activities the grantee agreed to perform in the
relevant documents as a condition of receiving Title X funds,” cannot include abortion-related
activities. Id. Title X projects are funded by multiple sources; they cannot be funded by the
federal government entirely. 2021 Rule, 42 C.F.R. § 59.7(c) (“No grant may be made for an
amount equal to 100 percent for the project’s estimated costs.”). An evaluation of the Title X
grant program explains some of the sources of funding for Title X grantees and subrecipients:
No. 21-4235 Ohio, et al. v. Becerra, et al. Page 44
Title X funds represent only a portion of grantee and delegate budgets, and
for some only a small fraction. . . . Title X clinics may also receive funds from
Medicaid, Maternal and Child Health (MCH) block grants . . . , state and local
appropriations, the State Children’s Health Insurance Program, Social Services
block grants, and Temporary Assistance for Needy Families . . . . Most clinics
also have patients who are covered by private insurance or who pay out of pocket
for services, and some receive charitable donations.
Inst. of Med. Comm. on a Comprehensive Review of the HHS Office of Family Planning Title X
Program, A REVIEW OF THE HHS FAMILY PLANNING PROGRAM: MISSION, MANAGEMENT, AND
MEASUREMENT OF RESULTS 116–17 (Butler A. Stith & Clayton E. Wright, eds. 2009) (footnotes
omitted). As the Supreme Court recognized in Rust, a “grantee, which normally is a health-care
organization, may receive funds from a variety of sources for a variety of purposes. The grantee
receives Title X funds, however, for the specific and limited purpose of establishing and
operating a Title X project.” 500 U.S. at 196 (citing 42 U.S.C. § 300(a)) (emphasis added). The
Title X project, which is comprised of a defined set of activities and a defined budget, cobbles
together funding from various private and public sources to accomplish its stated goal of
“provid[ing] a broad range of acceptable and effective medically approved family planning
methods (including natural family planning methods)” which cannot include abortion, “and
services (including infertility services and services for adolescents).” 2021 Rule, 42 C.F.R.
§ 59.5(a)(1). At the same time, a grantee operating a Title X project may receive a variety of
public and private funds with which it provides a variety of services—which can include family-
planning services not funded by Title X, like abortion services, as well as services completely
unrelated to family planning, like treatment for broken bones or cardiovascular disease. Title X
funds, however, can be used “solely for the purpose for which the funds were granted in
accordance with the approved application and budget”—that is, the specific activities that the
grantee has applied for and received funds to perform. Id. § 59.9.
The Supreme Court has held that the statute is ambiguous and says nothing about
program integrity. Rust, 500 U.S. at 184. In such cases, a court “must defer to a reasonable
construction by the agency charged with its implementation.” Barnhart v. Thomas, 540 U.S. 20,
26 (2003) (emphasis added). HHS has made a policy decision to interpret the ambiguous
language in § 1008 to require financial but not physical separation of a Title X project from a
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grantee’s other activities. HHS’s regulations repeatedly state that abortion activities must be
separate and distinct from Title X project activities and, fundamentally, that it must be possible
to distinguish items of cost so that they can be attributed either to the Title X project and its
defined budget or to the grantee’s overall program of non-Title X services.
Binding Supreme Court precedent requires us to give deference to an agency’s
interpretation of the statutory scheme it administers. Chevron, 500 U.S. at 844. We do so unless
the agency’s interpretation is “manifestly contrary” to the statute. Id. The majority attempts to
shoehorn its assessment that financial separation requirements alone are insufficient into
Chevron Step Two. But the majority’s approach is fundamentally an attempt to circumvent the
explicit holding in Rust that Title X says nothing about program integrity. The majority offers
no explanation for its determination the financial separation requirements imposed by the 2021
Rule are “manifestly contrary” to the statute––other than the majority’s incorrect assumption that
the statute requires more than financial separation of a Title X project from a grantee’s other
activities—which is an effective holding that the statute is not ambiguous as to program-integrity
requirements. The majority, in essence, quibbles with the methods by which HHS has chosen to
distinguish Title X projects from grantees’ overall programs of family-planning services without
any basis in the statutory text, because the majority simply prefers to require more than just
financial separation. But this is not the role of the courts. As the Supreme Court has said,
“Chevron is rooted in a background presumption of congressional intent: namely, ‘that
Congress, when it left ambiguity in a statute’ administered by an agency, ‘understood that the
ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather
than the courts) to possess whatever degree of discretion the ambiguity allows.’” City of
Arlington v. F.C.C., 569 U.S. 290, 296 (2013) (quoting Smiley v. Citibank (South Dakota), N.A.,
517 U.S. 735, 740–41 (1996)).
Once one brushes aside the legal minutiae, the import of the majority’s view is clear.
Tucked away in a footnote, the majority gives up the game, eschewing its focus on its invented
“program” issue to say what it wanted to all along: that § 1008 requires physical separation to
meet any program-integrity requirement, despite Rust’s clear holding that § 1008 says nothing of
the sort. Maj. Op. at 22 n.12 (“Contrary to the dissent’s suggestion, it does not follow that
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because the Court did not believe that § 1008 required complete physical separation, the Court
thought that § 1008 required no physical separation.”). So understood, the rest of the majority’s
opinion reveals itself as merely an attempt to clothe pure judicial policymaking in legal jargon.
That is, the opinion is an attempt to confuse the reader, by suggesting that it is not requiring
some extratextual preference, but instead holding HHS to its statutory obligations. Id. at 23–24
(stating that “the Agency must offer some concrete conception, beyond mere financial
separation, of the statute’s key term ‘program’ so that it can ensure compliance with the statute’s
command”). Evidently, that “concrete conception” of “program” means that abortion activities
cannot be done under a Title X grantee’s roof. Any other analysis in the majority opinion is
meant to distract, not to elucidate Congress’s intent.
Judges ought not behave like lawmakers, imposing their policy preferences by judicial
fiat. A regulation is not an impermissible interpretation of a statute merely because it is not how
a particular couple of judges would have written it. A permissible interpretation need not be the
best or the only interpretation. The administrative scheme that the majority finds is now
impermissible existed for nearly twenty years—through Republican and Democratic
administrations alike, including on both sides during periods where one party held a majority of
seats in both legislative chambers and the presidency at the same time with no change to the
statutory text, even as HHS required only financial separation of Title X projects from grantees’
other activities. Cf. Commodity Futures Trading Comm’n v. Schor, 478 US. 833, 846 (1986)
(“[C]ongressional failure to revise or repeal the agency’s interpretation is persuasive evidence
that the interpretation is the one intended by Congress.”). The majority has usurped the role of
the executive and the legislature by imposing its view of the best reading of an ambiguous
statute.
I would decline to contradict binding Supreme Court precedent. Because the 2021 Rule
is not “manifestly contrary” to Title X, I would defer to HHS.
2. Arbitrary or Capricious
I would further hold that the 2021 Rule is not arbitrary or capricious. Courts do not
vacate rules as arbitrary or capricious unless the agency “entirely failed to consider an important
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aspect of the problem, offered an explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be ascribed to a difference in view or the
product of agency expertise.” Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S.
644, 658 (2007) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins.
Co., 463 U.S. 29, 43 (1983)). An agency, in a formal rulemaking, “must examine the relevant
data and articulate a satisfactory explanation for its action including a ‘rational connection
between the facts found and the choice made.’” State Farm, 463 U.S. at 43 (quoting Burlington
Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The Supreme Court has held that
“[t]hat requirement is satisfied when the agency’s explanation is clear enough that its ‘path may
reasonably be discerned.’” Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 221 (2016)
(quoting Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)).
The APA “makes no distinction . . . between initial agency action and subsequent agency
action undoing or revising that action,” so we do not apply greater scrutiny to agency actions that
change a prior policy. F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 514–15 (2009).
When an agency changes its position, it “must at least ‘display awareness that it is changing
position’ and ‘show that there are good reasons for the new policy,’” and also “be cognizant that
longstanding policies may have ‘engendered serious reliance interests that must be taken into
account.’” Encino Motorcars, 579 U.S. at 221–22 (quoting Fox, 556 U.S. at 515).
The States first argue that, in abandoning the 2019 Rule’s strict program-integrity
requirements, HHS failed to adopt “any alternative to keep Title X funds from being used to
subsidize abortion.” Appellants Br. at 34. They argue that HHS therefore failed to “consider an
‘important aspect of the problem,’” failed to “‘show that there are good reasons for the new
policy,’” and “failed to consider alternative policies.” Id. (first quoting Michigan v. E.P.A., 576
U.S. 743, 752 (2015), then quoting Encino, 579 U.S. at 221). These arguments are unavailing.
As discussed above, HHS repealed the 2019 Rule and the provisions requiring strict physical
separation of Title X projects and replaced them with provisions requiring only financial
separation. The 2000 Rule and the 2021 Rule describe the separation necessary to comply with
Title X’s command that funds not be used in programs where abortion is a method of family
planning.
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HHS gave legitimate reasons for returning to the financial separation policy set out in the
2000 Rule. The agency examined over thirty reports from the Government Accountability
Office, Office of the Inspector General, and Congressional Research Service involving Title X.
2021 Rule Preamble, 86 Fed. Reg. at 56,145. It determined that there were only minor
compliance issues with grantees, which occurred in the 1980s, and that the strict separation
requirements had diverted funds from the “core purpose” of Title X, which is the provision of
family-planning services, due to the increased compliance costs that grantees incurred as a result
of the new physical separation requirements. Id. At the same time, there were significant
impacts on the efficacy of the Title X program; many providers withdrew from the program in
direct response to the implementation of the 2019 Rule—which had the result that Title X
grantees provided Title X services to 844,083 fewer clients in 2019 as compared to 2018. Id. at
56,146. The agency determined that “[t]he 2019 rule has significantly decreased the number of
low-income, uninsured, and racial and ethnic minorities accessing Title X services.” Id.
Because the “mandate of the Title X program is to support access to critical family planning and
preventive health services,” “the result of the 2019 rule ran counter to that effort.” Id. at 56,147.
The agency laid out its legitimate reasons for returning to its previous policy of requiring
financial separation, rather than physical separation.
The States contend that HHS failed to consider alternatives that are less strict than the
2019 Rule but stricter than the 2021 Rule. This is incorrect. HHS explicitly stated that it
“considered one option to maintain many elements of the 2019 rule and to impose additional
restrictions on grantees. This approach would exacerbate the trends of reduced Title X grantees,
subrecipients, service sites, and clients served that [HHS] ha[d] observed under the 2019 rule.”
Id. at 56,176. The States then contend that the agency should have “alleviate[d] the compliance
burden” by “dedicating funds to assist grantees” with compliance costs. Appellants Br. at 36
(quotation omitted). But these are not solutions to the principal problem that HHS identified
with alternatives to the ultimate final rule: the separation requirements provided no “discernible
compliance benefits” and diverted Title X funds away from its core purpose of providing family
planning services but instead caused “increased infrastructure costs.” 2021 Rule Preamble,
86 Fed. Reg. at 56,145. These alternatives would still direct funds away from the provision of
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family-planning services and towards compliance efforts that the agency had already determined
were not necessary. The agency clearly considered alternatives.
The States then contend that HHS failed to consider reliance interests. Appellants Br. at
38. Although agencies must consider that “longstanding policies may have ‘engendered serious
reliance interests,’” Encino Motorcars, 579 U.S. at 222 (quoting Fox, 556 U.S. at 515), the 2019
Rule was not longstanding, cf. Breeze Smoke, LLC v. U.S. F.D.A, 18 F.4th 499, 507 (6th Cir.
2021) (holding that “the FDA’s 2019 guidance does not qualify as ‘longstanding’”). It also
cannot be said that the agency did not consider reliance interests; HHS explicitly noted that “a
few states were able to increase their service sites following the 2019 rule,” and specifically
referenced Ohio as one such state, but noted that these states were “the exception,” and that the
2019 rule overall “resulted in a significant loss of grantees, subrecipients, and service sites, and
close to one million fewer clients served from 2018 to 2019.” 2021 Rule Preamble, 86 Fed. Reg.
at 56,151. The agency was entitled to consider the effect of the new rule on states that expanded
the number of service sites and to determine that a change in the rule, while it might have
negatively impacted a few states, would have an overall benefit for the program as a whole.
The States’ argument that HHS did not consider the effect of returning to the 2000 Rule
on the public support for the Title X program is also easily dispensed with. HHS readopted the
2000 Rule that “had been in effect for nearly the entirety of the Title X program, had been
widely accepted by grantees, had enabled the Title X program to operate successfully, and had
not resulted in any litigation.” Id. at 56,145. The States provide no evidence beyond conclusory
claims that grantees will not participate in the program or that Congress would be less likely to
fund the program, despite the clear evidence that it was actually the 2019 rule that resulted in
“much resistance and/or a lack of interest” on the part of potential Title X providers. Id. at
56,151.
Because the program-integrity provisions in the 2021 Rule are neither manifestly
contrary to the statute nor arbitrary or capricious, I would hold that the States are not likely to
succeed on the merits of their claim.
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B. Irreparable Harm
I would hold that the States have not shown that they will suffer an irreparable harm. The
only cases the States cite in support of their theory of irreparable harm by increased competition
are Sherley v. Sebelius, 610 F.3d 69, 74 (D.C. Cir. 2010), and Planned Parenthood of Greater
Washington & N. Idaho v. U.S. Dep’t of Health & Hum. Servs., 946 F.3d 1100, 1108 (9th Cir.
2020). Both of these cases considered whether increased competition can serve as an injury-in-
fact for standing purposes, and neither held that increased competition constitutes an irreparable
harm. Sherley, 610 F.3d at 73 (“[A]n actual or imminent increase in competition . . . will almost
certainly cause an injury in fact.”); Planned Parenthood, 946 F.3d at 1108 (“‘[T]he inability to
compete on an equal footing in [a] bidding process’ is sufficient to establish injury-in-fact.”
(quoting Ne. Fla. Chapter of Assoc. Gen. Contractors of Am. v. City of Jacksonville, 508 U.S.
656, 666 (1993))). In fact, the D.C. Circuit later reasoned that it was “necessarily uncertain” that
invalidating the challenged rule “would result in the plaintiffs getting any more grant money
from the NIH,” Sherley v. Sebelius, 644 F.3d 388, 398 (D.C. Cir. 2011), and invalidated the
district court’s grant of a preliminary injunction to the plaintiffs in that case—which was
predicated on the same theory of increased competition for discretionary grant funding as the
required irreparable injury, see Sherley v. Sebelius, 704 F. Supp. 2d 63, 72 (D.D.C. 2010),
vacated, 644 F.3d 388 (D.C. Cir. 2011). Neither the States nor the majority have cited any other
basis for the novel theory that increased competition for discretionary grant funds constitutes an
irreparable injury.
The majority also relies on an unpublished order stating that “economic injuries caused
by federal agency action are generally unrecoverable because the APA does not waive sovereign
immunity for damages claims.” Ohio v. Becerra, No. 21-4235, 2022 WL 413680, at *4 (6th Cir.
Feb. 8, 2022). But even if economic injuries are unrecoverable, under our precedent, irreparable
harms must also be “certain and great.” State of Ohio ex rel. Celebrezze v. Nuclear Regulatory
Comm’n, 812 F.2d 288, 290 (6th Cir. 1987). Our cases considering economic losses irreparable
have highlighted the substantial attendant harms that made those economic losses “great.” See
Performance Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373, 1382 (6th Cir. 1995)
(holding that “[t]he impending loss or financial ruin of [a plaintiff’s] business constitutes
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irreparable injury”). This is an immensely broad statement that will have extended follow-on
effects—not least that it will effectively do away with the irreparable-harm requirement when the
government is a defendant in an injunctive suit. It cannot be that a party may sue and establish
irreparable harm if it sustains an economic loss of any magnitude when such loss results from
federal agency action. Preliminary injunctions are “an extraordinary remedy.” Winter v. Natural
Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).
C. Public Interest
I would conclude that public interest weighs against granting an injunction. The majority
deems this preliminary injunction factor a draw, based on an affidavit submitted by Ohio
suggesting that Ohio expanded services in counties formerly served by Planned Parenthood. But
HHS’s data paints a more complete picture of how patient access was reduced by the 2019 Rule.
In addressing this very point, the preamble introducing the 2021 Rule specifically
discusses Title X services in Ohio after the imposition of the 2019 Rule. HHS concluded that
“[d]espite the state health department receiving additional funds to provide Title X services
following the departure of another grantee, [Family Planning Annual Report] data from Ohio,
however, do not provide any clear support” for the claim that Ohio would be able to increase the
number of Title X clients served. 2021 Rule Preamble, 86 Fed. Reg. 56,151. According to the
agency, “the state experienced a 10 percent decline in service sites between 2018 and 2020, an
18 percent decline in clients from 2018 to 2019, and a 57 percent decline in clients from 2019 to
2020.” Id. The agency concluded that even though Ohio had expanded its service sites, “[t]he
data show that even if the same amount of funding is provided to a different set of grantees in a
given area, it does not necessarily follow that the same number of clients will be served or same
number of services will be provided, depending on the differences in grantee service capacity.”
Id. HHS’s data indicates that there was an eighteen-percent decline in clients served from 2018
to 2019 in Ohio, prior to the COVID-19 pandemic. Id.
Ohio may have serviced a slightly higher number of visits in 2021 than it did in each of
2018, 2019, and 2020. R. 1-1 (Clark Decl. at 5–6) (Page ID #31–32). But that number does not
make up for the 57 percent decline in the number of clients. 2021 Rule Preamble, 86 Fed. Reg.
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at 56,151. In 2018, prior to the imposition of the 2019 Rule, Ohio had 100,033 family-planning
users. RTI Int’l, TITLE X FAMILY PLANNING ANNUAL REPORT: 2018 NAT’L SUMMARY, Ex. B-1.
In 2019, during which the 2019 Rule was implemented and the new program-integrity provisions
requiring both physical and financial separation were imposed, the number of family-planning
users in Ohio declined to 81,876. RTI Int’l, TITLE X FAMILY PLANNING ANNUAL REPORT: 2019
NAT’L SUMMARY, Ex. B-1. In 2020, by contrast, the number of family-planning users in Ohio
had declined to 35,175—even though the Ohio Department of Health apparently serviced the
same number of “visits.” RTI Int’l, TITLE X FAMILY PLANNING ANNUAL REPORT: 2020 NAT’L
SUMMARY, Ex. B-1; R. 1-1 (Clark Decl. at 5–6) (Page ID #31–32). In 2021, with Title X still
operating under the 2019 Rule, Ohio again served only 35,942 family-planning users, even as the
Ohio Department of Health claims that it was servicing more visits in 2021 than it had in 2018,
2019, or 2020. RTI Int’l, TITLE X FAMILY PLANNING ANNUAL REPORT: 2021 NAT’L SUMMARY,
Ex. B-1. This data clearly supports HHS’s conclusion that the number of clients served in Ohio
decreased after the imposition of the 2019 Rule.
Rather than interrogate these statistics, the majority throws up its hands, cites HHS’s and
Ohio’s respective positions, and calls the public-interest factor a draw. But patient access was
clearly reduced by the 2019 Rule. And that means that the district court did not abuse its
discretion in finding that restoring this access outweighs whatever interests the States might have
at this stage.
Finally, though I would not lean on the majority’s conclusory statement that “the public
interest lies in correctly applying the law,” Maj. Op. at 27—which makes the public-interest
inquiry “no more than a makeweight for the court’s consideration of the moving party’s
probability of eventual success on the merits,” Cont’l Grp., Inc. v. Amoco Chemicals Corp., 614
F.2d 351, 358 (3d Cir. 1980)—the majority misapplies the law, for all of the reasons that I have
discussed. We have consistently recognized the importance of and public interest in respecting
our “limited role under the Constitution’s separation of powers, even if we think it would be
good policy” to disregard Congress’s choices. Elhady v. Unidentified CBP Agents, 18 F.4th
880, 883 (6th Cir. 2021), cert. denied sub nom. Elhady v. Bradley, 143 S. Ct. 301 (2022). Rust
already deemed § 1008 ambiguous, and Chevron tells us that “[i]f Congress has explicitly left a
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gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a
specific provision of the statute by regulation.” Chevron, 467 U.S. at 843–44. The public
interest undoubtedly lies in our respecting Congress’s choice, and upholding the Executive’s
reasonable action in line with that choice. The balance of the equities, therefore, weighs in favor
of denying a preliminary injunction.
III. CONCLUSION
A district court’s “determination as to whether the four preliminary injunction factors
weigh in favor of granting or denying preliminary injunctive relief is reviewed for abuse of
discretion.” Certified Restoration Dry Cleaning, 511 F.3d at 541. This is a “highly deferential”
standard of review. Id. (quoting Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000)). If a
district court has not “relied upon clearly erroneous findings of fact, improperly applied the
governing law, or used an erroneous legal standard,” we must not disturb its determination.
Hamilton’s Bogarts, 501 F.3d at 649 (quoting Nightclubs, Inc. v. City of Paducah, 202 F.3d 884,
888 (6th Cir. 2000)). As the district court has not erred in any of these ways, I would decline to
disturb its decision not to issue a preliminary injunction.
The majority has taken a straightforward application of administrative law and Supreme
Court precedent and twisted it to impose its atextual views on the agency charged with
administering Title X. The majority misunderstands the plain-language meaning of the statute
and the HHS regulations implementing the statute. And it exceeds the bounds of the judicial role
by effectively refusing to defer to a clearly permissible interpretation of an ambiguous statute.
I respectfully dissent.