State of Tennessee v. Xavier Becerra ( 2024 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0199p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
STATE OF TENNESSEE,
│
Plaintiff-Appellant, │
│
v. │
> No. 24-5220
│
XAVIER BECERRA, in his official capacity as Secretary │
of Health and Human Services; UNITED STATES │
DEPARTMENT OF HEALTH AND HUMAN SERVICES; │
JESSICA S. MARCELLA, in her official capacity as │
Deputy Assistant Secretary for Population Affairs; │
OFFICE OF POPULATION AFFAIRS, │
Defendants-Appellees. │
┘
Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville.
No. 3:23-cv-00384—Travis Randall McDonough, District Judge.
Argued: July 18, 2024
Decided and Filed: August 26, 2024
Before: GIBBONS, KETHLEDGE, and DAVIS, Circuit Judges.
_________________
COUNSEL
ARGUED: Whitney D. Hermandorfer, OFFICE OF THE TENNESSEE ATTORNEY
GENERAL, Nashville, Tennessee, for Appellant. Courtney L. Dixon, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Whitney D.
Hermandorfer, J. Matthew Rice, Philip Hammersley, Harrison Gray Kilgore, Trenton
Meriwether, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee,
for Appellant. Courtney L. Dixon, Brian J. Dixon, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee. Justin L. Matheny, OFFICE OF THE MISSISSIPPI
ATTORNEY GENERAL, Jackson, Mississippi, Christopher P. Schandevel, ALLIANCE
DEFENDING FREEDOM, Lansdowne, Virginia, Eric N. Kniffin, ETHICS & PUBLIC POLICY
CENTER, Washington, D.C., Brianne J. Gorod, CONSTITUTIONAL ACCOUNTABILITY
CENTER, Washington, D.C., for Amici Curiae.
No. 24-5220 Tennessee v. Becerra, et al. Page 2
DAVIS, J., delivered the opinion of the court in which GIBBONS, J., joined in full.
KETHLEDGE, J. (pp. 24–31), delivered a separate opinion dissenting in part and concurring in
the judgment in part.
_________________
OPINION
_________________
DAVIS, Circuit Judge. In 2021, the United States Department of Health and Human
Services (“HHS”) promulgated a rule requiring Title X grant recipients to provide neutral,
nondirective counseling and referrals for abortions to patients who request it. Tennessee, which
has been a Title X recipient for over 50 years, recently outlawed most abortions in the state.
After doing so, Tennessee would commit only to conducting counseling and referrals for options
deemed legal in the state. HHS considered Tennessee’s commitment to be out of compliance
with its regulatory requirements. So it opted to discontinue the grant. Tennessee filed suit to
challenge HHS’s action and enjoin it from closing the grant. The district court denied
Tennessee’s request for preliminary injunction because it held that Tennessee does not have a
strong likelihood of succeeding on the merits of its claim and that the balance of the remaining
preliminary injunction factors weigh in HHS’s favor. For the reasons set forth below, we affirm.
I.
A.
Factual Background. In 1970, Congress enacted Title X of the Public Health Service Act
(alternately “the Act”) to authorize HHS to award discretionary grants to fund family-planning
projects. See 42 U.S.C. §§ 300(a), 300a-4(a)–(b); Family Planning Services and Population
Research Act, Pub. L. No. 91-572, 84 Stat. 1504, 1508 (1970). Title X authorizes HHS to “enter
into contracts with public or nonprofit private entities” to establish and operate these family-
planning projects, 42 U.S.C. § 300(a), and these grants are to be “made in accordance with such
regulations as the Secretary may promulgate,” id. § 300a-4(a). Nevertheless, Section 1008 of the
Act provides that “[n]one of the funds appropriated . . . shall be used in programs where abortion
is a method of family planning.” Id. § 300a-6. HHS has varied in its interpretation of the limit
No. 24-5220 Tennessee v. Becerra, et al. Page 3
that § 1008 imposes on its regulatory authority. As a result, it has vacillated from regulations
requiring funded projects to provide nondirective counseling and referrals for abortion (2000–
2019), to forbidding such activity (2019–2021), to requiring nondirective counseling and
abortion referrals if requested by the patient (2021–present). See Ohio v. Becerra, 87 F.4th 759,
765–67 (6th Cir. 2023) (summarizing the history of the Counseling and Referral rule).
Generally, HHS grants are awarded for a one-year period and any subsequent continuation
awards are similarly determined one year at a time. 42 C.F.R. § 59.8(a)–(b). When “non–
Federal” entities fail to comply with the “[f]ederal statutes, regulations, or the terms and
conditions” of an award, HHS is empowered to terminate the grant. 45 C.F.R. §§ 75.371(c),
75.372(a)(1).
In October 2021, HHS promulgated a rule requiring Title X programs to 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.1 Ensuring
Access to Equitable, Affordable, Client-Centered, Quality Family Planning Services, 86 Fed.
Reg. 56144 (Oct. 7, 2021); see also 42 C.F.R. § 59.1 et seq; 42 C.F.R. § 59.5(a)(5)(i)–(ii). The
2021 Rule also required Title X programs to provide referrals for any of these options in
response to a patient request. 42 C.F.R. § 59.5(a)(5)(ii). To comply with § 1008’s prohibition of
funding for programs where abortion is a method of family planning, the 2021 Rule emphasized
that a referral for abortion services “may include providing a patient with the name, address,
telephone number, and other relevant factual information” about a medical provider, but that a
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.”
Ensuring Access, 86 Fed. Reg. at 56150.
In March 2022, HHS awarded the Tennessee Department of Health a Title X grant for the
period from April 1, 2022, through March 31, 2023. The notice of award stated that the amount
requested represented the one-year “budget period,” (as opposed to the project’s five-year
1
Through this rule, HHS readopted the regulations in place from 2000 to 2019. 86 Fed. Reg. 56144, 56144
(Oct. 7, 2021).
No. 24-5220 Tennessee v. Becerra, et al. Page 4
period), and that it was “not obligated to make additional Federal Funds available.” (R. 1-7,
PageID 172).
In June 2022, the Supreme Court handed down its decision in Dobbs v. Jackson Women’s
Health Organization, 597 U.S. 215 (2022), in which it held that there is no individual right under
the Constitution to obtain an abortion. Following Dobbs, several states—Tennessee included—
implemented laws that criminalized abortion in all but a few circumstances. Reasoning that
Dobbs did not affect the Title X grant regime, in January 2023, HHS notified grantees it would
be auditing their compliance with its counseling and referral regulations. HHS requested that
grantees submit copies of their policies for providing neutral, nondirective options counseling
and referrals for abortion services and a signed statement confirming compliance with those
regulations.
Tennessee responded by submitting a letter confirming its compliance with the regulation
and attaching its policy. The policy stated, in pertinent part, that Title X “[p]atients with positive
pregnancy test[s] must be offered the opportunity to be provided information and counseling
regarding all options that are legal in the State of Tennessee.” (R. 1-3, PageID 99). The letter
did not clarify which options the state deemed “legal in the State of Tennessee,” but seemed to
be alluding to a new law that had recently taken effect restricting abortion in the State. See Tenn.
Code Ann. § 39-15-213. HHS notified Tennessee that its response appeared to place it out of
compliance and offered Tennessee the option of submitting an “alternate compliance proposal”
with specific examples of acceptable arrangements. (R. 1-9, PageID 190). For instance, HHS
suggested the option of providing Title X patients with the number for a national call-in hotline
where operators would supply referral information. Tennessee responded by reiterating its
compliance based on its understanding of its obligations under state law and federal regulations.
(R. 1-10, PageID 192 (citing Tenn. Code Ann. § 39-15-213(a)(1))). HHS disagreed with
Tennessee’s assertion that it was in compliance. On March 20, 2023, the agency sent the state a
No. 24-5220 Tennessee v. Becerra, et al. Page 5
letter explaining its decision to decline to issue a Title X continuation award to the Tennessee
Department of Health.2
B.
Procedural History. In October 2023, Tennessee brought the instant action in the United
States District Court for the Eastern District of Tennessee seeking: (1) a declaratory judgment
under 28 U.S.C. § 2201 stating that HHS’s termination of the state’s Title X funding was
unlawful; (2) dissolution of HHS’s March 20, 2023, discontinuation decision; (3) a preliminary
injunction enjoining HHS and others from enforcing or implementing the discontinuation
decision; (4) to enjoin HHS from withholding Title X funds based on the counseling and referral
clause; (5) reinstatement of Title X funds from the date of discontinuation; and (6) any and all
other relief the court deemed proper.
In November 2023, this court reviewed a similar Title X case and held that HHS’s 2021
Rule was a permissible construction of the Title X statute. See Ohio, 87 F.4th at 771–72. Based
in large part on our decision in Ohio, the district court denied Tennessee’s preliminary
injunction, concluding that Tennessee was not likely to succeed on the merits and that the
balance of the equities and the public interest did not favor relief. The district court further
concluded that Tennessee had “no basis to force funding from HHS without meeting the
obligations upon which the [Title X] funding [was] conditioned.” (R. 30, PageID 857).
Tennessee timely appealed.
II.
We review a district court’s denial of a motion for a preliminary injunction for abuse of
discretion. Wonderland Shopping Ctr. Venture Ltd. P’ship v. CDC Mortg. Cap., Inc., 274 F.3d
1085, 1097 (6th Cir. 2001). We will find that a district court has abused its discretion when it has
made “clearly erroneous findings of fact, improperly applied the governing law, or used an
erroneous legal standard.” Id. (quoting Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir.2001)).
2
HHS concluded that a continuation award was not “in the best interest of the government” based on its
determination that Tennessee’s Title X project was not in compliance with the Title X regulation. (See R. 1-12,
PageID 198 (quoting 42 C.F.R. § 59.8(b))).
No. 24-5220 Tennessee v. Becerra, et al. Page 6
Though we review de novo the question of whether a movant is likely to succeed on the merits, a
district court’s ultimate determination as to whether the factors weigh in favor of granting or
denying preliminary injunctive relief is subject to review for abuse of discretion. Ohio, 87 F.4th
at 768 (citing City of Pontiac Retired Emps. Ass’n v. Schimmel, 751 F.3d 427, 430 (6th Cir.
2014) (en banc) (per curiam)). Thus, absent a legal or factual error, “the district court’s
weighing and balancing of the equities will be overruled ‘only in the rarest of cases.’” Am.
Imaging Servs., Inc. v. Eagle-Picher Indus., Inc. (In re Eagle-Picher Indus., Inc.), 963 F.2d 855,
858 (6th Cir. 1992) (citations omitted).
Courts 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.” Ohio, 87 F.4th at 768 (citing City of Pontiac, 751 F.3d at 430).
“Where the federal government is the defendant, as here, the third and fourth factors merge.” Id.
(citing Nken v. Holder, 556 U.S. 418, 435 (2009)).
III.
Likelihood of Success on the Merits. Tennessee first argues that it has a strong likelihood
of success on the merits because HHS’s discontinuation of Title X funds usurped Congress’s sole
Spending Clause powers and disregarded the Administrative Procedure Act’s (“APA”) limits.
A.
The Spending Clause. Tennessee maintains that HHS’s enforcement (through rescission
of funding) of the 2021 Rule’s counseling and referral requirements violated the Spending
Clause of the United States Constitution. It argues that HHS’s imposition of these requirements
usurped Congress’s exclusive authority to regulate Title X funding. The Spending Clause
empowers Congress to “lay and collect Taxes . . . to pay the Debts and provide for the common
Defence and general Welfare of the United States.” U.S. Const. art. I, § 8. It grants Congress the
broad power to “set the terms” for when and to whom it will disburse federal funds. Cummings
v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 216 (2022). As it regards funds disbursed to
No. 24-5220 Tennessee v. Becerra, et al. Page 7
individual states, Congress’s spending power operates like a contract; “in return for federal
funds,” states must agree to “comply with federally imposed conditions.” Pennhurst State Sch.
& Hosp. v. Halderman, 451 U.S. 1, 17 (1981).
As a result, Congress’s legitimacy to legislate under the spending power depends on
(1) whether Congress’s conditions on its grants of federal funds are unambiguous; and (2)
“whether the State voluntarily and knowingly accepts the terms of the ‘contract.’” Id. Because
the district court reasonably concluded that Congress unambiguously authorized HHS to regulate
Title X eligibility; the conditions of the grant were unambiguous; and Tennessee knowingly and
voluntarily accepted the grant’s terms, we find that the district court did not abuse its discretion
in concluding that Tennessee is unlikely to succeed on the merits of its Spending Clause claim.
1.
Unambiguous Statutory Authorization. Tennessee argues that Congress did not
unambiguously place counseling and referral requirements in Title X and did not grant HHS the
authority to add these conditions. Therefore, these conditions violate the Spending Clause.
Tennessee’s arguments here mirror the state of Oklahoma’s challenge to HHS’s counseling and
referral requirements which it asserted in Oklahoma v. United States Department of Health &
Human Servs., 107 F.4th 1209, 1217 (10th Cir. 2024). Under similar facts, the state of Oklahoma
also argued that Title X’s ambiguity prevented HHS from imposing counseling and referral
requirements on grant recipients. Like Tennessee, Oklahoma argued that because the Supreme
Court, in Rust v. Sullivan, 500 U.S. 173 (1991), held that § 1008’s language barring usage of
federal funds “in programs where abortion is a method of family planning” is ambiguous, then
“Congress’s silence on counseling and referrals render[ed] Title X ambiguous for purposes of the
spending power.” Oklahoma, 107 F.4th at 1218 (quoting 42 U.S.C. § 300a-6). The Oklahoma
court rejected these arguments because it found that Congress’s instructions to HHS to determine
eligibility for Title X grants likely did not violate the spending powers. Id. (citing 42 U.S.C.
§ 300a-4(a); § 300a-4(b)). We agree.
To begin, as the Oklahoma court recognized, Congress’s charge to HHS to promulgate
eligibility requirements for Title X funds is explicit; “Grants . . . made under this subchapter shall
No. 24-5220 Tennessee v. Becerra, et al. Page 8
be made in accordance with such regulations as the Secretary may promulgate” and “shall be
payable . . . subject to such conditions as the Secretary may determine to be appropriate” so they
are “effectively utilized for the purposes for which made.” 42 U.S.C. § 300a-4(a)–(b). In this
way, Congress both imposed on the Secretary the responsibility to fashion conditions and alerted
grant recipients to the existence of conditions for funding. As to the former, the Supreme Court,
in recognition of the fact that Congress is unable to “prospectively resolve every possible
ambiguity concerning particular applications of requirements,” has permitted such delegations.
Bennett v. Kentucky Dep’t. of Educ., 470 U.S. 656, 669 (1985). True, the statutory language does
not illuminate the nature of any such conditions on the grant. But these questions can be
resolved by looking to both statutes and an agency’s authorized regulations. In Bennett that
meant looking to the statute’s language indicating that Title I education funds could not be used
to supplant state and local funds for public schools, along with the Department of Education’s
(“DOE”) regulations specifying the measures that states and local grant recipients were required
to take to assure compliance with the grant. When the DOE issued a final order, demanding that
Kentucky repay funds that it purportedly used to supplant state educational funding “in violation
of statutory and regulatory requirements,” the state challenged the action as a violation of the
Spending Clause. Id. at 663. Though the Court of Appeals had found that “the statute and
regulations concerning supplanting were not unambiguous,” id. (cleaned up), the Supreme Court
upheld the agency action; Kentucky had agreed to but failed to comply with the conditions for
the grant as set forth in the statute and regulations, so the DOE could pursue this statutory
remedy. See Jackson v. Birmingham Bd. of Ed., 544 U.S. 167, 183 (2005) (crediting Title IX’s
implementing regulations as well as circuit precedent interpreting the statute with placing grant
recipients on notice of potential liability for retaliatory actions).
Here, Title X “unambiguously authorized HHS to impose conditions for federal grants”
to ensure that the funds issued will be efficaciously put to use for their intended purpose.
Oklahoma, 107 F.4th at 1219 (citing 42 U.S.C. § 300a-4(b); 86 Fed. Reg. 56144, 56154 (Oct. 7,
2021)). This clear delegation of authority to HHS, viewed in combination with HHS’s 2021
counseling and referral regulation, are sufficient for notice purposes under the Spending Clause.
No. 24-5220 Tennessee v. Becerra, et al. Page 9
Resisting this conclusion, Tennessee argues that Rust’s holding that § 1008 is ambiguous
as it relates to counseling and referrals for abortions, precluded HHS from requiring counseling
and referrals and violated the Spending Clause. But as discussed, the Supreme Court has long
recognized Congress’s power to authorize agencies to issue grants and leave the minutia of its
spending programs to be clarified through regulations and other guidelines—even in the face of
statutory ambiguity. Id. at 1218 (citing Bennett, 470 U.S. at 670 (“We agree with the [agency]
that the [state grantee] clearly violated existing statutory and regulatory provisions . . . .”)
(emphasis added) (collecting cases)3). Again, Title X authorizes HHS “to make grants . . . to
State health authorities to assist in planning, establishing, maintaining, coordinating, and
evaluating family planning services.” 42 U.S.C. § 300a(a). It directs that these grants “shall be
made in accordance with such regulations as the Secretary may promulgate.” Id. § 300a-4(a).
And Congress made the disbursement of grant funds “subject to such conditions as the Secretary
may determine to be appropriate to assure that such grants will be effectively utilized for the
purposes for which made.” Id. § 300a-4(b). These clauses, in addition to HHS’s regulations
explaining the importance of nondirective counseling and referrals for Title X services, foreclose
Tennessee’s arguments. See Bennett, 470 U.S. at 670. Congress made compliance with HHS’s
requirements a clear and unambiguous condition of receiving a Title X grant. See 86 Fed. Reg.
56144, 56154 (Oct. 7, 2021). Moreover, we agree with our concurring colleague that Congress’s
inclusion of a yearly appropriations rider which expressly contemplates nondirective pregnancy
counseling lends further support for the notion that HHS acted within its authority in setting that
condition for funding—a fact that has implications for both the Spending Clause and APA
analysis. See Omnibus Consol. Rescissions and Appropriations Act of 2022, Pub. L. No. 117-
103, 136 Stat. 49, 444 (Mar. 15, 2022).
Tennessee’s reliance on Kentucky v. Yellen, 54 F.4th 325 (6th Cir. 2022) and West Virginia
ex rel. Morrisey v. U.S. Department of Treasury, 59 F.4th 1124 (11th Cir. 2023) does not increase
3
See id. (reviewing the spending power based on both the “the statutory provisions” and “the
regulations . . . and other guidelines provided by the [the agency] at th[e] time” that funding had been accepted); see
also Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 643 (1999) (finding an agencies’ unambiguous regulations
satisfied the notice requirements under the spending power); South Dakota v. Dole, 483 U.S. 203, 206 (1987)
(“Congress . . . has repeatedly employed the spending power ‘to further broad policy objectives by conditioning
receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.’”
(emphasis added) (quoting Fullilove v. Klutznick, 448 U.S. 448, 474 (1980))).
No. 24-5220 Tennessee v. Becerra, et al. Page 10
its likelihood of success on the merits. It insists that these two cases support its proposition that,
in the face of an ambiguous statute, regulations alone generally cannot establish conditions.
Specifically, Tennessee argues that HHS was barred from resolving § 1008’s ambiguity through
its own interpretations. But Yellen, which grappled with a vague rather than an ambiguous
statute, did not reach a holding on the broader question of whether Congress could condition
funding on compliance with agency regulations. 54 F.4th at 353. Indeed, in Yellen, the
Department of Treasury argued that statutory language alone sufficiently placed states on notice
of its conditions for funding. Id. And in Morrisey,4 the Eleventh Circuit found that grantees
were subject to regulations and legal requirements in place when the grants were made. 59 F.4th
at 1148 (acknowledging that Congress may require grantees to abide by “‘the legal requirements
in place when the grants were made’ [and] [t]hese ‘legal requirements’ include existing
regulations.”) (quoting Bennett, 470 U.S. at 670). Thus, because § 1008 is situated among other
provisions of Title X that clearly instruct HHS to determine the eligibility requirements, the
district court did not err in concluding that Congress’s delegation to HHS would not violate the
Spending Clause.
2.
Voluntarily and Knowingly. The district court likely also did not err in determining that
Tennessee voluntarily and knowingly agreed to HHS’s requirement for nondirective counseling
and referrals. Despite Congress’s broad powers to set the unambiguous terms of its grants, it
may not do so in a manner that “surprise[es] participating States with post acceptance or
‘retroactive’ conditions.” Pennhurst, 451 U.S. at 25. As discussed above, this means that HHS’s
decision to discontinue Tennessee’s grant based on the state’s refusal to adhere to the counseling
and referral conditions would violate the Spending Clause if it imposed new requirements after
Tennessee’s acceptance of the grant. See Bennett, 470 U.S. at 670 (“[L]iability is determined
by[] the legal requirements in place when the grants were made.”). But HHS issued the
4
In addition to Morrisey’s nonbinding effect on our jurisprudence, the circumstances there differ from this
case in two important ways. In an effort to resolve the ambiguity of a tax offset provision in a stimulus act which
potentially implicated states’ sovereign tax authority, the Treasury Department created an entirely new regulatory
framework. The HHS did no such action. Second, the Treasury Department’s regulatory framework changed the
fundamental function of the relevant statute. The HHS’s counseling and referral requirements here do not have such
a fundamental effect on the application of the grant program. See Oklahoma, 107 F.4th at 1219.
No. 24-5220 Tennessee v. Becerra, et al. Page 11
nondirective counseling and referral requirements in 2021, which then went into effect on
November 8, 2021—several months before Tennessee accepted its Title X grant award in March
2022. See 86 Fed. Reg. 56144 and (R. 1-7, PageID 170). Moreover, as the district court aptly
observed, the Counseling and Referral Rule has been in place in all but two of the last twenty-
nine years. As a decades-long recipient of Title X funds, Tennessee was aware of this fact.
So Tennessee was on clear notice of the 2021 Rule and voluntarily agreed to its requirements
when it accepted the grant. See Miss. Comm’n on Env’t Quality v. EPA, 790 F.3d 138, 179 (D.C.
Cir. 2015) (“[T]he fact that the State has long accepted billions of dollars notwithstanding the
challenged conditions may be an additional relevant factor in the contract-like analysis the Court
has in mind for assessing the constitutionality of Spending Clause legislation.”).
Tennessee points out that HHS issued the 2021 Rule at a time when the law of the land
stated that women had a constitutional right to obtain an abortion. Thus, there was no possibility
that the state’s adherence to the Rule might conflict with a law banning the procedure. But after
the Supreme Court’s decision in Dobbs, Tennessee criminalized the procedure in all but the
narrowest of cases. It argues that this “supervening illegality” of abortions in the state
demonstrated a clear and permissible public policy statement on an issue within the domain of its
own sovereignty. This critical shift in circumstances, according to Tennessee, rendered
inadequate any notice of the Rule it had received pre-criminalization because the 2021 Rule did
not contemplate such a scenario. (ECF 20, Appellant’s Br. 30). But to the extent that Tennessee
argues that the 2021 Rule is “silent” regarding its obligations post-Dobbs, HHS provided detailed
guidance on how its nondirective counseling and referral requirements remained unchanged and
active. Consistent with § 1008, HHS reiterated that Title X projects “may not take further
affirmative action . . . to secure abortion services for the patient.” (R. 1-6, PageID 165 (citing 65
Fed. Reg. at 41281)). And after Tennessee raised compliance concerns following its
criminalization of abortion, HHS offered Tennessee the opportunity to submit an “alternate
compliance proposal,” which included the option to use a national call-in hotline where third-
party operators would supply the requisite information. (R. 1-9, PageID 190). Thus, given that
Dobbs did not address what, if any, effect the decision might have on Title X’s underlying
program requirements, the district court did not err in determining that Tennessee voluntarily and
knowingly agreed to the conditions when accepting its grant award.
No. 24-5220 Tennessee v. Becerra, et al. Page 12
3.
Tennessee’s Sovereignty. Tennessee also asserts that HHS’s 2021 Rule violates the
spending power because it infringes on Tennessee’s state sovereignty. It suggests that the 2021
Rule’s counseling and referral requirements compel Tennessee to undermine its own state
criminal abortion laws. But like Oklahoma, Tennessee may not use its state criminal laws to
“dictate eligibility requirements” for Title X grants. Oklahoma, 107 F.4th at 1220 (citing
Planned Parenthood Fed’n of Am., Inc. v. Heckler, 712 F.2d 650, 663 (D.C. Cir. 1983)
(“Although Congress is free to permit the states to establish eligibility requirements for
recipients of Title X funds, Congress has not delegated that power to the states.”)). The 2021
Rule makes no reference to incorporating state law and does not limit compliance with its
requirements to the procedures available within a given state. And Tennessee was free to
voluntarily relinquish the grants for any reason, especially if it determined that the requirements
would violate its state laws. (R. 1-9, PageID 190); see also Rust, 500 U.S. at 199 n.5 (“The
recipient is in no way compelled to operate a Title X project; to avoid the force of the
regulations, it can simply decline the subsidy.”)). Instead, Tennessee decided to accept the grant,
subject to the 2021 Rule’s counseling and referral requirements.
In addition, Tennessee’s suggestion that the 2021 Rule violates the Spending Clause by
impairing its general police powers to regulate “health and welfare” through “limits on the
medical profession” is unsubstantiated. Thus, we find that the district court did not err in its
conclusions that Title X and HHS’s regulations did not violate the spending power and that
Tennessee voluntarily and knowingly accepted its grant conditions. Tennessee is not likely to
succeed on its Spending Clause claims.
B.
Tennessee’s APA Challenge. Tennessee next argues that HHS’s decision to discontinue
funding its grant violated the APA. Specifically, Tennessee asserts that HHS’s action to enforce
the 2021 Rule: (1) exceeded HHS’s regulatory authority under Title X; (2) is unreasonable; (3) is
arbitrary and capricious; and (4) represents a new legislative rule which may only be
promulgated via notice-and-comment rulemaking.
No. 24-5220 Tennessee v. Becerra, et al. Page 13
1.
Compliance with Title X. Tennessee maintains that HHS has misinterpreted § 1008’s
prohibition on the use of Title X funds for “programs where abortion is a method of family
planning.” 42 U.S.C. § 300a-6. It argues that the best reading of that provision, according to its
text and history, is that it bars HHS from conditioning Title X funding on grantees’ counseling or
referring for abortion services. This court must “hold unlawful and set aside agency
action . . . found to be . . . in excess of statutory jurisdiction, authority, or limitations, or short of
statutory right.” 5 U.S.C. § 706(2).
Several states raised similar arguments before this court in Ohio, 87 F.4th at 770–75. In
Ohio, we held that HHS’s application of the 2021 Rule was within its statutory authority. Id. In
deciding Ohio, we relied on the Supreme Court’s conclusion in Rust, that § 1008 is indeed
ambiguous with respect to nondirective counseling and referral options under Chevron step one
and that given this ambiguity, under Chevron step two, HHS’s “reasoned analysis” for
proscribing such actions was a permissible construction of Title X. Rust, 500 U.S. at 187; see
also Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). Thus, in
reviewing HHS’s 2021 Rule requiring nondirective counseling and referral in Ohio, we held that
HHS’s action also “must” have been permissible under Chevron’s step two analysis so long as
HHS adequately explained its choice. Ohio, 87 F.4th at 772. In other words, because Rust held
that a permissible construction of § 1008 permitted HHS to promulgate regulations banning
counseling and referrals for abortion, we held that HHS’s subsequent promulgation of a rule
going the opposite way also “must” have been permissible so long as it adequately explained its
choice. Id. at 722. We also concluded that HHS’s reasoned analysis was sufficient to establish
that the 2021 Rule is not arbitrary and capricious—regardless of whether it represents the best
reading of the statute.
Since our decision in Ohio, Chevron deference has fallen. See Loper Bright Enters. v.
Raimondo, 144 S. Ct. 2244, 2273 (2024). Consequently, given Rust’s and Ohio’s application of
Chevron deference to HHS’s actions relating to the provisions of neutral, nondirective
No. 24-5220 Tennessee v. Becerra, et al. Page 14
counseling5 and referrals in those cases, Tennessee challenges their precedential effect.
However, the extent to which Loper Bright undermines the validity of prior cases that were
decided using Chevron deference depends on several factors not addressed by the parties in their
briefing. In its guidance to lower courts, the Court broadly stated that it “do[es] not call into
question prior cases that relied on the Chevron framework.” Id. And it further explained that
“[t]he holdings of those cases that specific agency actions are lawful . . . are still subject to
statutory stare decisis despite [its] change in interpretive methodology.” Id. (citing CBOCS West,
Inc. v. Humphries, 553 U.S. 442, 457 (2008)). So, while Loper Bright opens the door to new
challenges based on new agency actions interpreting statutes, it forecloses new challenges based
on specific agency actions that were already resolved via Chevron deference analysis. See id.Unremarked upon was whether statutory stare decisis includes Circuit court precedent. See id.;
see also Amy Coney Barrett, Statutory Stare Decisis in the Court of Appeals, 73 Geo. Wash. L.
Rev. 317 (2005). For instance, here, Tennessee’s argument involves the same “specific agency
action”6 challenged in Ohio—the HHS’s application of its 2021 Rule interpreting § 1008 to
require nondirective counseling and referral options. In Ohio, we concluded that the 2021 Rule
was lawful. Regardless of whether Ohio binds us,7 like the Oklahoma court, we find its
conclusion upholding the 2021 Rule—and by extension its enforcement against Tennessee
here—persuasive. Ohio relied on Rust for its determination that HHS acted within statutory
authority in treating referrals as falling outside of § 1008’s restriction on using funds for
programs in which abortion is a “method of family planning.” We have held that we are bound
by precedent “unless a Supreme Court decision ‘mandates modification’ of our precedent.” RLR
Investments, LLC v. City of Pigeon Forge, Tenn., 4 F.4th 380, 390 (2021) (quoting United States
v. Moody, 206 F.3d 609, 615 (6th Cir. 2000)). A fair reading of Loper Bright leads us to conclude
5
The states declined to challenge the counseling requirement included in the 2021 Rule in Ohio v. Becerra,
th
87 F.4 759, 773 (6th Cir. 2023).
6
“‘[A]gency action’ includes the whole or a part of any agency rule, order, license, sanction, relief, or the
equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551.
7
In Metropolitan Hospital v. U.S. Department of Health and Human Services, we concluded that statutory
stare decisis attaches to our own cases interpreting statutes in relation to their application under the APA only when
such prior decisions were based on a finding that the terms of the statute were unambiguous and therefore left no
room for agency discretion. 712 F.3d 248, 255–56 (6th Cir. 2013) (citing Nat’l Cable and Telecomms. Ass’n v.
Brand X Internet Servs., 545 U.S. 967, 982 (2005)).
No. 24-5220 Tennessee v. Becerra, et al. Page 15
that the district court did not improperly accede to the holdings in Rust and our earlier decision in
Ohio. The Supreme Court cautioned litigants hoping to rehash or relitigate previously settled
issues decided on Chevron that “[m]ere reliance on Chevron cannot constitute a special
justification for overruling such a holding.” Loper Bright, 144 S. Ct. at 2273 (quoting
Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014) (cleaned up)). To argue
as much, the Court continued, would “at best,” be “just an argument that the precedent was
wrongly decided.” Id. And this, as the majority concluded, is “not enough to justify overruling a
statutory precedent.” Id.Here, Tennessee argues that Loper Bright abrogated the precedential effect of Rust and
Ohio because they relied on Chevron. But this is exactly the conclusion that Loper Bright
rejected; Loper Bright does not dictate abandonment of Rust or Ohio because it does not “call
into question prior cases that relied on Chevron.” Id. And, even if the “specific agency action”
in Rust was HHS’s 1988 Rule prohibiting counseling and referral requirements pursuant to
§ 1008, our own circuit precedent addressed the inverse specific agency action and specifically
affirmed HHS’s authority under Title X to require nondirective counseling and referral options.
See Ohio, 87. F.4th at 772. In short, abandoning Rust and Ohio based on their reliance on
Chevron, is unwarranted. Alternatively, Tennessee argues Ohio and Rust are distinguishable
because they only involved facial challenges to § 1008. Tennessee asserts that its claim is an as-
applied challenge because it disputes HHS’s decision to discontinue its Title X funding based on
the state’s refusal to unqualifiedly confirm its commitment to give neutral nondirective
counseling and referrals after passing a law banning abortion post-Dobbs. But this as-applied
distinction is less meaningful where, as discussed above, Dobbs did not address its effect on Title
X’s underlying program requirements or HHS’s enforcement of such requirements. See Dobbs,
597 U.S. at 231. In other words, despite the change in circumstances, Tennessee’s claim centers
on its challenge of HHS’s statutory authority to apply the 2021 Rule. See 42 U.S.C. § 300a-4(b).
Notably, the counseling and referral requirements were unambiguously in place before Tennessee
accepted its grant award and before it changed its own laws. As such, Tennessee’s arguments
amount to whether the counseling and referral requirements were legal as per the limitation
contained in § 1008. Because this is the same issue addressed in Rust and Ohio, it has likely
been foreclosed. Nevertheless, while the district court must ultimately determine whether HHS’s
No. 24-5220 Tennessee v. Becerra, et al. Page 16
actions complied with Title X, we confine our inquiry to whether the district court erred in its
tentative conclusion. See Oklahoma, 107 F.4th at 1226. And even if we accept that Ohio is no
longer binding, we agree with its conclusion that the 2021 Rule is lawful.
Applying Loper Bright, the best reading of § 1008 permits both neutral, non-directive
counseling and referrals. As noted earlier, Congress’s yearly spending rider presumes the
provision of such counseling, specifically instructing—like the 2021 Rule—that all pregnancy
counseling must be non-directive. Requiring grantees to follow up with additional information
to those who request it, in the form of names, addresses, and phone numbers of health care
providers, is a natural outgrowth of that counseling. And short of that, HHS has granted
Tennessee the option of merely providing patients with a hotline number where they can obtain
such health care provider information. Under either scenario, the grant recipient’s role is
informational only. It neither recommends nor promotes any particular pregnancy care option,
while, at the same time, it promotes HHS’s stated intention to advance a patient-centered
approach. In this light, it seems quite a stretch to say that merely supplying to patients health
provider information or a means to obtain such information elevates a grantee’s actions to the
status of having abortion as a method of family planning. Even accepting the dissent’s definition
of the term “method,” the provision of such information cannot be characterized as a deliberate
or systematic action toward a particular end. Offering a list of phone numbers is simply too
attenuated an act to characterize an entire program as one that conclusively offers abortion as a
“method of family planning.” For this reason, Tennessee is unlikely to succeed on its claim that
the 2021 Rule violates the APA. The 2021 Rule’s counseling and referral requirement is
consistent with the meaning of § 1008.
Tennessee also relies on a series of other arguments to attack HHS’s authority based on
§ 1008’s ambiguity. For instance, it argues that because of § 1008’s ambiguity, HHS’s actions
implicated the major-questions doctrine, which requires agencies to have “clear congressional
authorization” before making major policy decisions. W. Virginia v. EPA, 597 U.S. 697, 722
(2022). But, given the limited scope of HHS’s authority under Title X, the doctrine is likely not
implicated. Title X describes HHS’s authority to “make grants to and enter into contracts with
public or nonprofit private entities to assist in establishment and operation of voluntary family
No. 24-5220 Tennessee v. Becerra, et al. Page 17
planning projects which shall offer a broad range of acceptable and effective family planning
methods and services.” 42 U.S.C. § 300(a). We agree with the district court’s conclusion that
this language sets forth a sufficiently intelligible principle supporting Congress’s delegation. See
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 474 (2001). And as the district court accurately
observed, HHS does not “exercise powers of vast economic and political significance.” Ala.
Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2489 (2021). It issued only
eighty-six Title X grants in 2023 with an average award value of $3 million. Office of
Population Affairs, Fiscal Year 2023 Title X Service Grant Awards, https://opa.hhs.gov/grant-
programs/title-x-service-grants/current-title-x-servicegrantees/fy2023-title-X-service-grant-
awards (last accessed Aug. 16, 2024). Given this relatively circumscribed grant-making
authority, it is unlikely that HHS has run afoul of the non-delegation doctrine here and we see no
reason to disturb the district court’s conclusion on this point. See, e.g., FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 159–60 (2000) (finding nondelegation problem where
“the FDA . . . asserted jurisdiction to regulate an industry constituting a significant portion of the
American economy.”).
2.
Compliance with HHS Regulations. Tennessee next argues that HHS’s actions are
inconsistent with its own regulations because program services must be “allowable under state
law” and referrals must be made to service providers “in close physical proximity.” (ECF 20,
Appellant’s Br. 44 (citing 42 C.F.R. § 59.5(b)(6)); (id. at 45 (citing 42 C.F.R. § 59.5(b)(8))).
Allowable Under State Law. “[A] fundamental canon of statutory construction is that
when interpreting statutes, the language of the statute is the starting point for interpretation, and
it should also be the ending point if the plain meaning of that language is clear.” Saginaw
Chippewa Indian Tribe of Mich. v. Blue Cross Blue Shield of Mich., 32 F.4th 548, 557 (6th Cir.
2022) (citations and quotations omitted). 42 C.F.R. § 59.5(b)(6) states that Title X projects must
“[p]rovide that family planning medical services will be performed under the direction of a
clinical services provider, with services offered within their scope of practice and allowable
under state law, and with special training or experience in family planning.” (emphasis added).
Tennessee first argues that the plain meaning of § 59.5(b)(6) is that its Title X project may not
No. 24-5220 Tennessee v. Becerra, et al. Page 18
encompass services relating to abortions because the procedure is not allowable under state law
in Tennessee. But as the district court correctly concluded, Tennessee’s interpretation does not
reflect the plain meaning of the regulation. There is no indication that the nondirective options
for counseling and the neutral information required by the Rule are not “allowable under state
law” in Tennessee. Though Tennessee law prohibits a person from performing an abortion, the
law “contains no language whatsoever related to counseling or referral[s],” and does not overlap
with § 59.5(b)(6). (R. 30, PageID 840); see Tenn. Code Ann. § 39-15-213. Indeed, HHS’s
commentary accompanying the 2021 Rule indicates HHS included the “allowable under state
law” phrase to “more clearly reflect the role of a broader range of healthcare providers in
providing Title X services.” 86 Fed. Reg. at 56163–64 (emphasis added). Thus, this provision
addresses “who” may qualify as a clinical services provider, not the types of services provided
under Title X programs. In short, because Tennessee law does not prohibit mere abortion-related
counseling or referrals, we find no conflict between § 59.5(b)(6) and Tennessee law. The district
court did not err in this regard.
Close Physical Proximity. Tennessee next argues that 42 C.F.R. § 59.5(b)(8)’s mandate to
provide services close to patients, conflicts with its need to refer patients to out-of-state providers
due to its laws criminalizing abortions. Section 59.5(b)(8) requires Title X projects to “[p]rovide
for coordination and use of referrals and linkages with [other health-care entities], who are in
close physical proximity to the Title X site, when feasible, in order to promote access to services
and provide a seamless continuum of care.” (emphasis added). However, the phrase “when
feasible” in this provision plainly modifies the requirement to refer to providers “in close
physical proximity to the Title X site.” Id. Thus, as the district court again correctly determined,
the regulation only requires that Title X projects refer patients to nearby healthcare providers
“when it is possible to do so.” When such close-in-proximity referrals are not possible, it
permits the referral to be made “to a provider farther away.” (R. 30, PageID 837–39 (quoting 42
C.F.R. § 59.5(b)(8)); 86 Fed. Reg. at 56164 (explaining that “referrals are to be to providers in
close proximity to the Title X site when feasible”). This regulation does not require a referral to
a provider within the state. The district court did not err.
No. 24-5220 Tennessee v. Becerra, et al. Page 19
3.
Finally, Tennessee contends that HHS’s counseling and referral conditions are arbitrary
and capricious because the agency failed to consider several “important aspect[s]” of its
requirement. (ECF 20, Appellant’s Br. 47 (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
Auto. Ins., 463 U.S. 29, 43 (1983))).
Federalism Concerns. First, Tennessee asserts that HHS ignored federalism concerns
because its decision to discontinue Tennessee’s grant award did not consider the effect of Dobbs
on counseling and referral requirements. But as discussed above, HHS issued extensive
guidance about the effect of Dobbs on the requirements regarding counseling and referrals.
Though Tennessee is correct that the 2021 Rule did not contemplate Dobbs, that case did not
address the power of the agency to set conditions on federal grants. 597 U.S. at 231. And as the
Supreme Court has previously noted, “[t]he recipient is in no way compelled to operate a Title X
project; to avoid the force of the regulations, it can simply decline the subsidy.” Rust, U.S. at
199 n.5. The district court did not err here.
Unlawful Position Switch. Tennessee argues that the rescindment was an “unlawful
position switch,” because it came only months after HHS approved Tennessee’s Title X program
with “full awareness the State’s post-Dobbs policy that ‘[n]o referrals for abortion are made.’”
(ECF 20, Appellant’s Br. 50 (quoting (R. 1-1, PageID 56))). Tennessee points to HHS’s July
2022 program review of its Title X project to support its argument that the agency unlawfully
changed positions. However, the July 2022 program review indicated that there would be a
follow-up if Tennessee changed its counseling and referral policies in response to the abortion
restriction that was soon to take effect. And regardless, the counseling and referral requirements
have been in place since 2021, before Tennessee applied for and received Title X funds.
Reliance Interests. Lastly, Tennessee argues that the rescindment overlooked Tennessee’s
legitimate reliance interests in the grant award because it has been receiving Title X funding for
50 years. And the rescindment was procedurally invalid because HHS was required to undertake
notice-and-comment rulemaking procedures to impose “new requirements” on Tennessee’s Title
X project. (ECF 20, Appellant’s Br. 53 (quoting Nat’l Council for Adoption v. Blinken, 4 F.4th
No. 24-5220 Tennessee v. Becerra, et al. Page 20
106, 114 (D.C. Cir. 2021) (citation omitted)). But Tennessee’s notice-and-comment arguments
fail because HHS did not impose any “new” requirements on grantees. Furthermore, Tennessee
likely has no legally cognizable reliance interest in the receipt of a discretionary funding award
on the conditions that it prefers. Cf. Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 222
(2016). HHS’s regulations make clear that Title X grants provide funding for one year with the
option of issuing noncompetitive continuation grants for additional years. 42 C.F.R. § 59.8(b).
HHS was not obligated to award more. Id. § 59.8(c). The district court did not err in this regard.
IV.
Irreparable Harm. Tennessee argues that it will face irreparable harm without an
injunction because the rescindment: (1) will cause Tennessee severe financial losses that it
cannot later recover; (2) threatens the viability of Tennessee’s Title X program; (3) causes
irreparable reputational harm impacting its ability to secure future federal grants; and
(4) interferes with its “sovereign interest” in setting its own abortion laws. Maryland v. King,
567 U.S. 1301, 1303 (2012) (Roberts, C.J., in chambers).
“A plaintiff’s harm from the denial of a preliminary injunction is irreparable if it is not
fully compensable by monetary damages.” Overstreet v. Lexington-Fayette Urb. Cnty. Gov’t,
305 F.3d 566, 578 (6th Cir. 2002) (citing Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th
Cir. 1992)). Tennessee bears the burden of showing that its injuries are both “certain and
immediate” and not “speculative or theoretical.” D.T. v. Sumner Cnty. Schs., 942 F.3d 324, 327
(6th Cir. 2019) (citation omitted). However, finding harm is not enough for Tennessee to satisfy
its burden here. It is “the peculiarity and size of a harm” that “affects its weight in the equitable
balance.” Kentucky v. Biden, 57 F.4th 545, 556 (6th Cir. 2023). For instance, when the
likelihood of success on the merits is low, plaintiffs must inversely show a higher degree of harm
to warrant an injunction. See Friendship Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100, 105
(6th Cir. 1982) (“[I]n general, the likelihood of success that need be shown . . . will vary
inversely with the degree of injury the plaintiff will suffer absent an injunction.”) (citation
omitted).
No. 24-5220 Tennessee v. Becerra, et al. Page 21
The district court satisfied itself that Tennessee’s harm was insufficient to warrant a
preliminary injunction because its claims failed to establish a high degree of harm. Tennessee
says the court abused its discretion because Tennessee believes it will suffer severe financial,
reputational, and sovereign harm. Specifically, it argues that its loss of $7 million in federal
Title X funds will cause irreparable harm because the funds are unrecoverable, and this court in
Ohio has similarly found lower amounts of lost federal funds sufficient to compel an injunction.
87 F.4th at 782–83. But there, the state of Ohio lost one-fifth of its Title X funding because of
HHS’s contested rule change. Id. Moreover, the court found that Ohio established that it was
likely to succeed on the merits of one of its claims, further warranting an injunction.
Tennessee’s situation is different. Unlike Ohio, Tennessee lost its funding because it refused to
comply with requirements established before it accepted the grant and declined to proceed with
HHS’s proffered alternative. There was no intervening rule change. We agree with the district
court that Tennessee likely will not succeed on the merits. So, while Tennessee’s complaints
may demonstrate some degree of harm, the state was required to show a higher degree of harm
than what was asserted here. See Friendship Materials, 679 F.2d at 105.
Second, there is no indication that Tennessee will lose its Title X program because of the
lack of federal funding. Irreparable injury cannot be speculative. See D.T., 942 F.3d at 327
(requiring that irreparable harm not be speculative); see also Mich. Coal. of Radioactive Material
Users, Inc. v. Griepentrog, 945 F.2d 150, 154 (6th Cir. 1991) (“[T]he harm alleged must be both
certain and immediate, rather than speculative or theoretical.”). As it currently stands, the
Tennessee legislature has already provided the state’s Title X project with the $7 million it
would have otherwise received from HHS. (R. 21-1, PageID 335, ¶15). The Tennessee
legislature earmarked the appropriations to fund its Title X project as “recurring.” (R. 21-1,
PageID 335, ¶15). Because this suggests that Tennessee’s family planning program will
continue to be funded—at least in the near-term—Tennessee’s arguments that it will lose its
program based on a lack of federal funding amount to speculation.
Tennessee’s next claim, that it will suffer irreparable reputational harm, is similarly
unpersuasive. Tennessee argues that because HHS is required to report its termination of
Tennessee’s grant to the federal grantee clearinghouse, the Federal Awardee Performance and
No. 24-5220 Tennessee v. Becerra, et al. Page 22
Integrity Information System (“FAPIIS”), HHS’s actions threaten Tennessee’s “ability to obtain
[any] future Federal funding.” (see R. 1-9, PageID 190). Tennessee cites ACT, Inc. v.
Worldwide Interactive Network, Inc., 46 F.4th 489, 503–04 (6th Cir. 2022), for the proposition
that its possible reported status is the type of reputational damage that “constitute[s] irreparable
harm” because it is “likely to occur” and “difficult to quantify monetarily.” (ECF 20,
Appellant’s Br. 56). But Tennessee provided no evidence as to how being reported would
“affect the grants it currently receives or will receive in the future.” (R. 30, PageID 854 (citing
ACT, Inc., 46 F.4th at 503–04). True, the inclusion in FAPIIS “may” affect a grantee’s ability to
obtain future federal funding, (see R. 1-9, PageID 190). But Tennessee does not do its part to
establish the evidence of how FAPIIS inclusion has hurt grantees “in the past” or that it “is likely
to occur again.” State of Ohio ex rel. Celebrezze v. Nuclear Regul. Comm’n, 812 F.2d 288, 290
(6th Cir. 1987). Thus, because Tennessee does not provide the “requisite facts and affidavits”
supporting its theory of reputational harm, Ohio, 87 F.4th at 784, we agree with the district court
that Tennessee’s reputational-injury claim is too speculative.
Last, Tennessee claims that HHS’s interference with its “sovereign interest” in setting its
abortion laws constitutes a form of irreparable injury. (ECF 20, Appellant’s Br. 56–57 (citing
Maryland, 567 U.S. at 1303)). However, we have already concluded that there is no direct
conflict between HHS’s counseling and referrals requirement and Tennessee’s recent abortion
criminalization laws. Moreover, as discussed above, Tennessee was free to voluntarily
relinquish the grants for any reason, especially if it determined the requirements would violate its
state laws. (R. 1-9, PageID 190); see also Rust, 500 U.S. at 199 n.5. Thus, because the district
court thoroughly addressed each of Tennessee’s arguments regarding irreparable harm and
correctly found them insufficient, we find that the district court did not abuse its discretion here.
V.
The Public Interest. Tennessee argues that declining to issue an injunction harms the
public interest because it deprives Tennesseans of family planning services and generates new
public-health risks. “[T]he public’s true interest lies in the correct application of the law.”
Kentucky v. Biden, 23 F.4th 585, 612 (6th Cir. 2022) (citation omitted); see also Priorities USA
v. Nessel, 860 F. App’x 419, 423 (6th Cir. 2021) (“[T]he public interest necessarily weighs
No. 24-5220 Tennessee v. Becerra, et al. Page 23
against enjoining a duly enacted statute, and our assessment that the appellants will likely prevail
on the merits tips the public-interest factor further in their favor.”).
The district court found that this factor favored HHS because the court found HHS’s
actions lawful, and both parties had agreed that the public interest lies in the correct application
of Title X and its regulations. Because we similarly find that HHS’s actions were lawful, we
find no abuse of discretion here.
VI.
Tennessee cannot demonstrate how HHS’s decision to discontinue its Title X grant due to
the state’s failure to comply with the 2021 Rule’s requirements regarding counseling and referral
for abortions, violated the Spending Clause or the APA. As a result, Tennessee is unable to
prove the likelihood of its claims succeeding on the merits. The district court thoroughly
assessed the balance of interests and found that they did not support granting an injunction. The
district court’s handling of Tennessee’s claims in denying the motion for a preliminary
injunction was consistent with this court’s precedent and did not constitute an abuse of
discretion. Because the majority of the preliminary injunction factors do not favor Tennessee’s
position, we find that the balance of the equities weighs in favor of denying a preliminary
injunction.
For the reasons above, we AFFIRM the judgment of the district court.
No. 24-5220 Tennessee v. Becerra, et al. Page 24
_____________________________________________________________________
DISSENTING IN PART / CONCURRING IN THE JUDGMENT IN PART
_____________________________________________________________________
KETHLEDGE, Circuit Judge, dissenting in part and concurring in the judgment in part.
Tennessee should succeed on its claim under the Administrative Procedure Act, 5 U.S.C.
§ 706(2)(A), that HHS’s abortion-referral requirement is contrary to law. The relevant law here
is § 1008 of Title X, which provides that “[n]one of the funds appropriated under this title shall
be used in programs where abortion is a method of family planning.” 42 U.S.C. § 300a-6. Yet
HHS’s 2021 Rule specifies—as a condition of Title X funding—that recipients must, upon a
patient’s request, provide referrals to abortion providers. The question, then, is whether HHS’s
abortion-referral requirement makes Tennessee’s program one in which “abortion is a method of
family planning[,]” in violation of § 1008.
A threshold issue is whether authority definitively to interpret § 1008 lies with the courts
or with HHS. In Rust v. Sullivan, 500 U.S. 173, 184 (1991), the Supreme Court said the agency
had that authority, under the Court’s decision seven years earlier in Chevron, U.S.A. Inc. v. Nat’l
Res. Defense Council, Inc., 467 U.S. 837 (1984). Rust was a Chevron case down to its bones: in
the first sentence of its analysis, the Court said that “[w]e need not dwell on the plain language
of” § 1008 because that “language is ambiguous.” 500 U.S. at 184. The Court then described
the question before it as “whether the agency’s answer is based on a permissible construction of
the statute.” Id. (quoting Chevron, 467 U.S. at 842-43). The agency’s answer there was the
opposite of its answer here: in its 1988 Rule, HHS stated that, under § 1008, a “Title X project
may not provide counseling concerning the use of abortion as a method of family planning or
provide referral for abortion as a method of family planning.” Id. at 179 (quoting 42 C.F.R.
§ 59.8(a)(1) (1989)) (emphasis added). The Court then deferred to that interpretation and
deemed the 1988 Rule lawful.
No. 24-5220 Tennessee v. Becerra, et al. Page 25
In the decades since, HHS has gone back and forth as to whether Title X programs may
or even must provide abortion counseling and referrals. The 2021 Rule at issue here takes the
“must provide” approach. Last year, our court acknowledged that Chevron and hence Rust
remained binding precedent—even though the Supreme Court had recently granted certiorari to
consider whether to overrule Chevron. See Ohio v. Becerra, 87 F.4th 759, 769 (6th Cir. 2023);
Loper Bright Enters. v. Raimondo, 143 S. Ct. 2429 (2023) (mem.). Accordingly, we held,
“Rust’s holding requires us to reject the States’ argument that the 2021 Rule’s referral
requirement is contrary to law.” Ohio, 87 F.4th at 771.
During the pendency of this appeal, however, the Supreme Court overruled Chevron. See
Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2273 (2024). In Loper Bright, the Court
observed what the Court in Chevron had not: that § 706 of the Administrative Procedure Act
“directs that, ‘[t]o the extent necessary to decision and when presented, the reviewing court shall
decide all relevant questions of law, interpret constitutional and statutory provisions, and
determine the meaning or applicability of the terms of an agency action.”’ Id. at 2302 (quoting 5
U.S.C. § 706). Hence, the Court observed, the APA “codifies for agency cases the
unremarkable, yet elemental proposition reflected by judicial practice dating back to Marbury v.
Madison, 1 Cranch 137, 177 (1803): that courts decide legal questions by applying their own
judgment.” Loper Bright, 144 S. Ct. at 2261. Thus—in agency cases as in any other case of
statutory interpretation—the court must identify the statute’s “single, best meaning” rather than
merely a permissible one. Id. at 2266. And in agency cases specifically, “[c]ourts must exercise
their independent judgment in deciding whether an agency has acted within its statutory
authority, as the APA requires.” Id. at 2273.
Whether HHS “has acted within its statutory authority” is precisely the question
presented here. Yet the Department of Justice (as counsel for HHS) insists that, in answering
that question, Loper Bright is of no moment whatever. Specifically, before argument, the
Department opposed supplemental briefing as to the effect of Loper Bright upon our decision in
this appeal. Instead, the Department merely asserted that, in Rust, the Court concluded that
§ 1008 “‘does not speak’ [“directly” is the next word in Rust] to ‘counseling’ or ‘referral’”—as
if, even after Loper Bright, the judicial task was therefore at an end. Dep’t. of Justice 28(j)
No. 24-5220 Tennessee v. Becerra, et al. Page 26
Letter of July 3, 2024 (citing Rust, 500 U.S. at 184). And at oral argument, the agency’s counsel
repeatedly refused to answer questions about what § 1008 means—instead asserting (again) that
we remain bound by Rust. Oral Arg. at 20:00-26:45, 33:30-36:20. In support, the Department
emphasizes one sentence from Loper Bright—in which the Court said its decision did “not call
into question prior cases that relied on the Chevron framework.” 144 S. Ct. at 2273. So in the
Department of Justice’s view, apparently, Chevron lives on in perpetuity as to any statute that the
Supreme Court has ever deemed ambiguous under that doctrine.
But the Department studiously overlooks the extent to which lower courts remain bound
by the Court’s “prior cases that relied on the Chevron framework.” Id. And in the very next
sentence of Loper Bright, the Chief Justice was surpassingly clear in defining that extent: “The
holdings of those cases that specific agency actions are lawful—including the Clean Air Act
holding of Chevron itself—are still subject to statutory stare decisis despite our change in
interpretive methodology.” Id. (emphasis added).
The “specific agency action” held lawful in Rust was the 1988 Rule, which has since
been rescinded. Thus, in this appeal, we have no occasion to defer to that holding. Instead, we
“must exercise [our] independent judgment in deciding whether [the] agency has acted within its
statutory authority, as the APA requires.” Id. We would therefore contravene Loper Bright if
we deferred to the agency’s interpretation of § 1008 in the 2021 Rule. (And to say the agency
actually interpreted § 1008 is generous, since in the Rule the agency nowhere deigns to interpret
it.)
So our court must determine for itself whether the 2021 Rule’s abortion-referral
requirement is contrary to law. Again, § 1008 provides: “None of the funds appropriated in this
title shall be used in programs where abortion is a method of family planning.” I have no quarrel
with HHS’s definition of “family planning”—under the prior administration’s 2019 Rule and the
2021 Rule alike—as a process by which individuals can determine “the number and spacing” of
their children. See 42 C.F.R. § 59.1 (2019); 42 C.F.R. § 59.1 (2021). And the word “where,” as
used in § 1008, pretty clearly means “in which[.]” See Bryan A. Garner, Garner’s Modern
American Usage 856 (3d ed. 2009); Webster’s Third New International Dictionary (Unabridged)
2602 (1971). A “method,” in turn, is not merely a means of obtaining a particular end, but a
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“regular, orderly,” or “systematic” means of doing so. See Webster’s New Universal
Unabridged Dictionary 1134 (2d ed. 1983); Webster’s Third New International Dictionary 2322.
So a method is a deliberate or systematic means of obtaining a particular end.
Section 1008 thus denies funding to programs in which abortion is a regular or systematic
means of enabling individuals to determine the number and spacing of their children. For
achieving that end, of course, there are many means other than abortion: contraception,
abstinence, in vitro fertilization, adoption. A program that has nothing to do with a particular
means is not a program in which that means is a “method.” For a program to be one in which a
particular means “is a method of family planning,” rather, the program must assist the patient in
using or obtaining that means, and do so in a deliberate or systematic way. Yet the program
itself need not provide the ultimate service or product necessary for those means: the 2019 and
2021 Rules both expressly contemplate referrals to “actual providers of services,” 42 C.F.R.
§ 59.5(b)(8), (9) (2019) and 42 C.F.R. § 59.5(b)(8), (9) (2021); and surely adoption and IVF, for
example, are methods of family planning for programs that help patients obtain those services
elsewhere. For a means to be attributable to a program as a “method,” therefore, deliberate or
systematic facilitation must be enough.
Facilitation means assistance toward a particular end. In this context, facilitation means
assistance toward a patient’s use of a particular means of family planning. Referral is such
assistance, regardless of the means the patient seeks. For in family planning, as in life generally,
knowledge of where to obtain a product or procedure is the first step toward actually obtaining it.
Indeed, in the 2021 Rule, HHS itself acknowledged that referrals to abortion providers are
“affirmative action” toward actually obtaining an abortion—when HHS stated that, apart from
the referral itself, a Title X funds recipient “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. 56144, 56150 (Oct. 7, 2021) (emphasis added). For
purposes of § 1008, however, HHS’s distinction between referrals and these other affirmative
actions is without a difference: all these actions provide assistance toward “secur[ing] abortion
services for the patient.” Id. And the referral requirement makes that assistance systematic,
since by its terms every recipient of Title X funds must provide it.
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Just as adoption or IVF are methods of family planning for programs that refer patients to
providers for those services, therefore, so too is abortion a method of family planning for
programs that refer patients to abortion providers. And the 2021 Rule mandates that every Title
X program do exactly that. Thus, HHS’s abortion-referral requirement makes every Title X
program one “where abortion is a method of family planning.”
HHS counters, in passing, that Tennessee could comply with the referral requirement “by
providing Title X patients the number for a call-in hotline where operators would supply the
requisite information.” Br. at 10. But the “hotline” would supply the patient with the same
information (“requisite” for obtaining an abortion) that handing her a printed list of abortion
providers would. That indeed would transparently be the whole point of the exercise. Providing
the patient with the hotline number would facilitate actually obtaining an abortion just as handing
her the form would. That the hotline would contrive to add a step to that referral process
(namely, that of dialing a phone number) should make zero difference to the analysis under
§ 1008. Courts enforce legal rules, rather than allow parties patently to circumvent them.
In sum, the abortion-referral requirement likely violates § 1008’s proscription, and I
would enjoin its enforcement.
* * *
A closer question is whether the 2021 Rule’s requirement of nondirective counseling
regarding abortion is likewise contrary to § 1008. The 2021 Rule provides in relevant part:
A project must:
(i) Offer pregnant clients the opportunity to be provided information and counseling
regarding each of the following options:
(A) Prenatal care and delivery;
(B) Infant care, foster care, or adoption; and
(C) Pregnancy termination.
(ii) If requested to provide such information and counseling, provide neutral, factual
information and nondirective counseling on each of the options, and, referral upon
request, except with respect to any option(s) about which the pregnant client
indicates they do not wish to receive such information and counseling.
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42 C.F.R. § 59.5 (2021). Counseling on these topics must therefore be “neutral” and
“nondirective[.]” The question, then, is whether the counseling requirement—to provide, upon
request, nondirective counseling regarding abortion and various other topics—likewise makes a
Title X program one in which abortion is a method of family planning.
An action is not a “method” just because it makes a particular outcome more likely.
Rather, a method is deliberate or systematic action toward a particular end. And nondirective
counseling by definition is not directed toward a particular outcome. (The same is not true of
promotion or advocacy: persuading a person to choose a particular outcome is a deliberate step
toward reaching it.) Nondirective counseling helps the patient choose her own means of family
planning, but advances none of them. Hence nondirective counseling does not amount to
deliberate or systematic facilitation of any of the pregnancy options the counseling might cover.
Thus, the 2021 Rule’s requirement of nondirective counseling likely does not violate § 1008.
An appropriations rider enacted every year since 1996 (including the years relevant here)
all but confirms the point. By way of background, Congress “may amend substantive law in an
appropriations statute, as long as it does so clearly.” Robertson v. Seattle Audubon Soc., 503
U.S. 429, 440 (1992). “Clearly” need not mean “expressly.” In Robertson, for example, the
Court held that an appropriations statute had implicitly (though clearly) “modified” provisions of
the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq., among two other Acts. 503 U.S. at 438-
40.
Here, the appropriations rider provides in relevant part:
For carrying out the program under Title X . . . to provide for voluntary
family planning projects, $286,479.00: Provided, that amounts provided to said
projects under such title shall not be expended for abortions, [and] that all
pregnancy counseling shall be nondirective[.]
Omnibus Consol. Rescissions and Appropriations Act of 2022, Pub. L. No. 117-103, 136 Stat.
49, 444 (Mar. 15, 2022).
An ordinary reader would understand the phrase “all pregnancy counseling shall be
nondirective” to mean that nondirective pregnancy counseling is permissible under Title X. In
like fashion, for example, the phrases “all passenger vehicles must have seatbelts” and “all dogs
No. 24-5220 Tennessee v. Becerra, et al. Page 30
shall be kept on a leash,” proscribe neither manufacturing passenger vehicles nor taking dogs for
a walk; instead, those phrases specify a condition for doing those things lawfully. Here, the
specified condition is that counseling be “nondirective”; and the rider makes clear enough that
pregnancy counseling is lawful under Title X so long as that condition is met.
Moreover, the rider’s reference to “all” pregnancy counseling suggests that such
counseling may concern various topics; and the relevant context—among other things, that the
rider’s preceding clause ends with the word “abortions”—suggests that abortion is one of them.
Indeed, in light of § 1008, one can surmise that abortion, above all, was the topic Congress had
in mind when it mandated that “pregnancy counseling” be nondirective. Thus—regardless of
whether one thinks that § 1008, construed within its four corners, would bar nondirective
counseling regarding abortion—§ 1008 construed along with the appropriations rider, in the
years in which the rider is enacted, very likely permits such counseling. The prior administration
thought so, see 84 Fed. Reg. 7714, 7745-46 (Mar. 4, 2019); and I think they were likely right.
Nor should it matter that the 2019 Rule permitted such counseling, whereas the 2021 Rule
requires it: if nondirective counseling falls outside the proscription of § 1008, whether an agency
permits or requires it is immaterial for purposes of that proscription. Thus, in my view,
Tennessee is unlikely to prevail on its claim under the APA that the 2021 Rule’s requirement of
nondirective pregnancy counseling is contrary to law; and so I would not enjoin that
requirement.
* * *
Given that (in my view) the abortion-referral requirement violates § 1008, I do not reach
Tennessee’s parallel challenge to that requirement on constitutional grounds (namely under the
Spending Clause). See Northwest Austin Mun. Utility Dist. No. One v. Holder, 557 U.S. 193,
205 (2009). Tennessee does claim that the 2021 Rule’s requirement of nondirective pregnancy
counseling likewise “expressly violate[s] the Spending Clause by imposing unforeseen
conditions far afield from Congress’s Title X legislation.” Complaint ¶112. But I think that
claim will likely fail, since the rider plainly contemplates nondirective pregnancy counseling and
indeed prescribes a rule for its legality (namely that the counseling be nondirective). Nor do I
No. 24-5220 Tennessee v. Becerra, et al. Page 31
think that Tennessee will likely show that the agency’s actions with regard to the counseling
requirement were arbitrary and capricious under the APA.
I respectfully dissent in part and concur in the judgment in part.