Three Sixth Circuit judges are likely to be among the first to consider how the recent US Supreme Court decision rolling back judicial deference to agency actions affects a health-care lawsuit already in the pipeline.

Oral arguments on Thursday will test the US Department of Health and Human Services’ interpretation of Title X of the Public Health Service Act, which the agency says allows it to compel grant program participants to require that providers give pregnant patients information about their options, including abortion if asked. Title X is the only federal program that awards money to operate family planning programs.

Tennessee, which is suing over witheld grant funding, proposed further briefing in late June on whether Loper Bright Enterps. v. Raimondo means the appeals court need not defer to the challenged interpretation. Courts “must exercise their independent judgment” when deciding if an agency acted lawfully when it interpreted a statute it’s charged with implementing, the state said.

The US opposed the request, saying Loper Bright doesn’t apply in this case. Miriam Becker-Cohen, appellate counsel at the Constitutional Accountability Center, agreed. The justices made it clear that they weren’t “calling into question any prior cases that had relied on” what was known as Chevron deference, she said.

Moreover, the US Court of Appeals for the Sixth Circuit already settled the issue in November 2023’s Ohio v. Becerra, she said.

“That decision is still good law after Loper Bright, and it is binding on the Sixth Circuit,” Becker-Cohen said.

A ruling that HHS’ referral rule doesn’t reflect the “single best” interpretation of the law would frustrate the Biden administration’s attempt to influence state abortion care policy in the wake of Dobbs v. Jackson Women’s Health Organization. About half the states criminalized or substantially limited the procedure after the Supreme Court held in June 2022 that there’s no federal constitutional right to abortion.

‘Definitely Relevant’

“Loper Bright is definitely relevant” to Tennessee’s case, according to Rachel Morrison, director of the Ethics and Public Policy Center’s HHS Accountability Project. The Supreme Court held in Rust v. Sullivan in 1991 that Section 1008 of Title X, which expressly forbids using federal money to pay for any program where abortion is a form of birth control, is ambiguous, and it relied on Chevron to uphold HHS’s regulation, she said.

“After Loper Bright, HHS’s interpretation of ambiguous statutes is no longer given deference and HHS cannot hide behind that deference,” Morrison said. “Regardless, under both Chevron and Loper Bright, it is absurd to think that HHS can take away states’ Title X funding for not providing counseling and referrals for abortions unlawful under state law when Congress explicitly prohibited Title X funds from being used in programs where abortion is a method of family planning.”

John Bursch, senior counsel and vice president of appellate advocacy at Alliance Defending Freedom, said “there’s a good chance” Tennessee will bring up Loper Bright during oral arguments. The Supreme Court’s ruling suggests that HHS’ statement that Title X participants must provide referrals isn’t entitled to deference in light of a federal conscience law that prohibits government discrimination against providers who object to abortion, he said.

Loper Bright requires courts to look at the law itself instead of deferring to an agency’s interpretation of it, Bursch said. Chevron “put a thumb on the scale for the government,” he said; Loper Bright takes that thumb off.

Raymond M. Kethledge, one of the Sixth Circuit judges hearing the case, “is very attuned to recent Supreme Court decisions,” he added. It wouldn’t be surprising if he asks questions about Loper Bright, Bursch said.

Brigitte Amiri, deputy director at the ACLU’s Reproductive Freedom Project, like Becker-Cohen, thinks it likely that the judges will take the Supreme Court at its word that Loper Bright doesn’t disturb prior rulings that relied on Chevron.

Moreover, because this case is still at the preliminary injunction stage, the judges may limit their inquiries to what the district court actually decided, leaving any questions about deference for the lower court to decide first, she said.

The Tenth Circuit declined to consider Loper Bright in its July 15 opinion rejecting Oklahoma’s request to have its Title X money reinstated. The decision correctly treated Loper Bright as irrelevant, Becker-Cohen said.

That court’s “compelling analysis” of the other issues in the case, “while not technically binding on the Sixth Circuit, should be highly persuasive to that court,” she added. “At bottom, there is no reason why the outcome in the Sixth Circuit should be any different than the outcome in the Tenth Circuit.”

Amiri agreed, saying that the Tenth Circuit held that Congress in Title X gave HHS a clear directive to set grant conditions.

Grant Terminated

HHS terminated Tennessee’s Title X grant after the state said it wouldn’t comply with the referral rule because abortion is mostly illegal in the state. Tennessee sued, arguing that the agency acted unlawfully under the US Constitution’s spending clause and the Administrative Procedure Act.

A lower court denied Tennessee’s request for a preliminary injunction to preserve its access to some of the 2024 award while its lawsuit is awaiting trial. The state appealed, and HHS agreed to keep about $7.1 million in reserve pending the outcome at the Sixth Circuit.

The crux of the issue is whether Tennessee is likely to show that HHS didn’t have authority to adopt the referral rule. The state argued that the rule imposes an unlawful condition because it isn’t a proper interpretation of Section 1008.

In the 2023 Ohio ruling, the Sixth Circuit said that Section 1008 is ambiguous because it doesn’t directly address abortion counseling, referral, or advocacy; that the agency’s interpretation must be accorded substantial deference; and that its adoption of the referral rule was a reasonable interpretation. It wasn’t writing on a blank slate: The Supreme Court, construing an earlier version of the rule in Rust, reached the same result.

Tennessee, in its June 29 briefing letter, said Loper Bright changed the analysis. “HHS now must show that the best reading of Title X is that it empowers HHS to require States to counsel and refer women for abortions that state law prohibits,” Tennessee said.

Judges Julia Smith Gibbons and Stephanie Dawkins Davis will also hear the case.

The Tennessee Attorney General’s Office represents the state. The US Justice Department represents HHS. CAC filed a friend of the court brief supporting the government, while the EPPC and ADF filed amicus briefs supporting the state. ACLU filed an amicus brief in the Tenth Circuit to address an issue not raised in Tennessee’s case.

The case is Tennessee v. Becerra, 6th Cir., No. 24-5220, oral arguments 7/18/24.