U.S. District Judge Michael McShane issued a nationwide preliminary injunction to block a rule issued by the U.S. Department of Health and Human Services (HHS) aimed at keeping Title X fund recipients from engaging in abortion-related activities. McShane’s ruling follows a similar decision made by Judge Stanley Bastian in the Eastern District of Washington, who granted an injunction on April 25, 2019. Preliminary injunctions keep new rules from going into effect while courts decide how to resolve legal challenges brought against them. In this case, HHS issued a final rule prohibiting the use of Title X funds to perform, promote, or refer to abortion as a family planning method. The rule also requires clear financial and physical separation for clinics conducting Title X and non-Title X activities.

 

McShane’s order, issued on April 29, 2019, came down four days before the HHS rule was supposed to go into effect. He argued that the rule is “a solution in search of a problem” and that “[a]t worst, it is a ham-fisted approach to health policy that recklessly disregards the health outcomes of women, families, and communities.” He also held that the people challenging the rule raised serious claims that the rule was arbitrary and capricious. The arbitrary-or-capricious test comes from Administrative Procedure Act (APA), which requires courts reviewing agency decisions to rule against actions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

 

Judge McShane said that a previous version of the HHS rule survived a challenge at the U.S. Supreme Court in the 1991 case Rust v. Sullivan. There, the court applied the Chevron doctrine and held that the HHS interpretation of Title X reflected a plausible reading of the law and must be upheld. Under the Chevron doctrine, federal courts defer to agency interpretations of ambiguous laws that Congress empowers the agency to implement.

 

However, McShane held that post-Rust actions by Congress and HHS changed the way courts should approach the issue. He ruled that “HHS must do more than merely dust off the 30-year old regulations and point to Rust.” He said, “That HHS appears to have failed to seriously consider persuasive evidence that the Final Rule would force providers to violate their ethical obligations suggests that the rule is arbitrary and capricious.”

 

You can read more about Chevron deference here: