In a ruling Tuesday in Tennessee v. Becerra, a divided panel of the Sixth Circuit held that the state of Tennessee was not entitled to a preliminary injunction that would prevent the U.S. Department of Health and Human Services from terminating its Title X family-planning grant.
The panel majority makes a muddle of the Supreme Court’s recent directive in Loper Bright Enterprises v. Raimondo (2024) (overturning Chevron deference) that courts should exercise independent judgment in deciding whether an agency has acted within its statutory authority. It also eviscerates Spending Clause limitations on the conditions that an agency can attach to grants to states. The case cries out for en banc review.
Let’s take a deeper dive:
1. Title X of the Public Health Service Act, enacted in 1970, authorizes HHS to award grants to fund family-funding programs. 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.”
HHS over time has taken varying positions on whether section 1008 allows it to require grantees to provide counseling and referrals for abortion. In its 1991 decision in Rust v. Sullivan, the Supreme Court determined that section 1008 was ambiguous and, applying Chevron deference, held that HHS permissibly interpreted section 1008 to prohibit counseling and referrals for abortion. In 2000, HHS required Title X grantees to provide “nondirective” counseling and referrals for abortion. In 2019, it forbade Title X grantees from providing referrals. In 2021, it again required them to do so.
After the Supreme Court’s 2022 ruling in Dobbs overturned Roe v. Wade, a Tennessee law that broadly bars abortion went into effect. Tennessee informed HHS that it would provide counseling and referrals under its Title X grant only for activities that are legal in Tennessee. HHS then informed Tennessee that it would terminate its Title X grant.
Tennessee sued HHS to prevent it from ending the grant. The district court denied Tennessee’s request for a preliminary injunction.
2. In November 2023—seven months before the Court issued its decision in Loper Bright—a Sixth Circuit panel (in Ohio v. Becerra) invoked the holding in Rust v. Sullivan that section 1008 is ambiguous and held that HHS’s rule requiring counseling and referrals for abortion reflected a permissible interpretation of section 1008.
3. Briefing on Tennessee’s appeal took place in the shadow of the Supreme Court’s consideration of Loper Bright and was completed not long before the Court issued its decision on June 28. Tennessee immediately requested permission to file a supplemental brief on Loper Bright and repeated its request at the oral argument in mid-July. HHS opposed supplemental briefing. The panel, for whatever reason, never granted Tennessee’s request.
4. Despite not allowing supplemental briefing on Loper Bright, the panel majority proceeded to engage in extensive discussion about Loper Bright that is likely to confuse district courts in the Sixth Circuit. The panel majority suggests the highly dubious proposition that a pre-Loper Bright ruling that applied Chevron deference to uphold a specific agency action is binding on panels reviewing the same action after Loper Bright. (Slip op. at 15.) In dissent, Judge Raymond Kethledge vigorously contests that notion. (Slip op. at 24-26.) This is an important and recurring issue that the en banc Sixth Circuit should resolve with clarity. This case provides a great opportunity to do so.
It strikes me as very strange that a previous circuit ruling that applied Chevron deference to a specific agency action should be binding circuit precedent after Loper Bright. Assume, say, that the panel (or the en banc court, for that matter) applying Chevron deference affirmatively stated that the agency interpretation that it was allowing did not strike it as the best interpretation of the statute. Why should a panel after Loper Bright be bound to abide by the inferior interpretation? And why shouldn’t an earlier panel’s silence on which is the best interpretation be understood to allow exactly what Chevron required—that the panel was deferring to what it regarded as an inferior interpretation?
More broadly, the Supreme Court’s statements in Loper Bright that it “do[es] not call into question prior cases that relied on the Chevron framework” and that the “holdings of those cases that specific agency actions are lawful … are still subject to statutory stare decisis” do not imply that circuit courts should take the same approach to their own prior cases. On the contrary. When an intervening Supreme Court ruling casts doubt on a circuit precedent, a panel is free to reconsider that precedent. Here, the Court’s decision in Loper Bright is that intervening ruling.
On specific legal issues that it hasn’t yet resolved, the Supreme Court will benefit from appellate judges who exercise the “independent judgment” that Loper Bright calls for. Or, better yet, appellate judges from different courts will come to a uniform conclusion and thus make Supreme Court review unnecessary. Conversely, an appellate court that stubbornly adheres to a pre-Loper Bright precedent that allows an inferior agency interpretation to govern is more likely to generate conflicts with other circuits that exercise their independent judgment.
5. Purporting to apply Loper Bright, the panel majority asserts that “the best reading of § 1008 permits both neutral, non-directive counseling and referrals” for abortion. In his dissent, Judge Kethledge cogently argues (slip op. at 26-28) that section 1008 is best read to forbid HHS’s requirement that Title X grantees provide referrals for abortion. This is also an important matter that would warrant en banc consideration.
6. The panel majority also makes a hash of federalism-based limitations on Congress’s Spending Clause power. Under the Sixth Circuit’s 2022 precedent in Kentucky v. Yellen (opinion by Judge John Bush), an agency may not impose a funding condition that implicates “a core aspect of state sovereignty” unless “Congress itself” has spoken “with a ‘clear voice.’” (Emphasis in original; quoting Supreme Court opinion in Pennhurst v. Halderman (1981).) Yet here HHS would take a statutory provision that the Court in Rust v. Sullivan held to be ambiguous and impose on Tennessee a condition to provide counseling and referrals for an act that Tennessee, in the exercise of its sovereign authority, has proscribed.
The panel majority attempts to evade Yellen by asserting that it “grappled with a vague rather than an ambiguous statute.” That assertion is both wrong and irrelevant. Yellen states that the statute at issue there “is subject to a range of plausible meanings”—a phrase that amply encompasses ambiguity (as well as vagueness). In any event, both vagueness and ambiguity defeat the clarity that an exercise of Congress’s Spending Clause power requires.
The panel majority also claims that the court in Yellen “did not reach a holding on the broader question of whether Congress could condition funding on compliance with agency regulations.” I confess that I’m unclear what the panel majority might mean. The court in Yellen held that the “Treasury [Department] cannot use its Rule to impose compliance requirements upon Tennessee that are not clearly authorized by the [statute] itself.” It stated:
When … a clear-statement rule is in play, it is insufficient merely that an agency reasonably liquidated ambiguities in the relevant statute. Rather, in such circumstances, Congress itself must have spoken with a “clear voice.” [Emphasis in original.]
The en banc Sixth Circuit needs to clarify circuit law on the Spending Clause.