On February 24, 2020, the Ninth Circuit, sitting en banc, upheld the Trump administration’s regulation that prohibits grantees under Title X of the Public Health Service Act from referring patients for, or otherwise encouraging, an abortion (the Rule). A seven-judge majority of the court reversed preliminary injunctions issued by district courts in California, Oregon, and Washington and held that the rule was not arbitrary and did not run afoul of the HHS Appropriations Act or the Affordable Care Act. Four judges dissented and would have affirmed the preliminary injunctions.

The majority of the court reasoned that the Supreme Court’s holding in Rust v. Sullivan, 500 U.S. 173 (1991), which had upheld an earlier version of the Title X regulations, controlled the outcome here. The court recognized that Congress had addressed Title X funding in several statutes enacted after Rust, but reasoned that these statutes did not lessen Rust’s precedential force. An appropriations rider, first enacted in 1996 and re-enacted in each year since, instructs that pregnancy counseling shall be “nondirective”; the court held, however that HHS had reasonably interpreted the statute not to require abortion referrals. Section 1554 of the Affordable Care Act prohibits the agency from issuing regulations that create unreasonable barriers to the ability of individual to obtain appropriate medical care. The court held that the statute did not govern how the agency distributed the funds it administers. The court also held that the Rule was not arbitrary and capricious.

In the dissenting opinion, the four-judge minority strongly criticized the majority’s reasoning, arguing that “[b]ecause Congress has clarified the scope of HHS’s authority, the Rust line of cases has little bearing on the matter before us. Our only task is to determine whether HHS has exceeded the authority Congress granted it. And as the district courts concluded, it has.” The dissent reasoned that the Rule, by prohibiting medical facilities from informing patients of the full range of their medical options, was not “nondirective” within the meaning of the appropriations rider, and that the Rule created unreasonable barriers to medical care. The dissent also would have affirmed the preliminary injunctions on the ground that the Rule was arbitrary and capricious, and it faulted the majority for deciding the arbitrary-and-capricious challenge on the merits rather than remanding the case for the development of the full administrative record.

The case is State of California v. Alex Azar II et al., Case number 19-15974. A copy of the Ninth Circuit opinion can be found here.