Judge Stephanie Davis, nominated by President Biden to the Sixth Circuit court of appeals, wrote a 2-1 decision that temporarily upheld a federal requirement that a Tennessee state agency muxt provide neutral abortion referrals to patients who request it as a condition of receiving federal Title X family planning grants. The ruling rejected a preliminary injunction against the federal government, finding that Tennessee was unlikely to succeed on the merits. Judge Julia Smith Gibbins, a George W Bush nominee, joined Davis’ opinion, to which Bush nominee Raymond Kethledge dissented. The August 2024 decision was in Tennessee v Becerra.
What is the background of this case?
Since 1970, Congress has authorized the Department of Health and Human Services (HHS) to make grants to state and other agencies to fund family planning projects. Although the law provides that funds cannot be granted to programs that provide abortions, HHS regulations since 2000 (except for two years during the Trump Administration) have required that grant recipients provide “nondirective counseling and referrals for abortion” along with other alternatives to patients who request it. HHS provides grants one year at a time.
After the Supreme Court overruled Roe v Wade in the Dobbs decision in 2022, Tennessee promptly “implemented laws that criminalized abortion in all but a few circumstances.” HHS believed that the Court’s decision did not affect its counseling and referral requirement and asked Tennessee, along with other states, to certify compliance. Tennessee refused to do so, and HHS sent it a letter explaining that as a result, it would not continue the state’s Title X grants of approximately $7 million.
Tennessee filed suit in federal court, contending that HHS’ action was illegal, and sought a preliminary injunction demanding reinstatement of the Title X funds. The district court denied the state’s request, and Tennessee took the case to the Sixth Circuit.
How did Judge Davis and the Sixth Circuit Rule and Why is it Important?
Judge Davis wrote a 2-1 opinion that affirmed the lower court and rejected the state’s request for a preliminary injunction, finding that it was not likely to succeed on the merits of its claim. Davis also rejected a number of other claims raised by Tennessee and sent the case back to the lower court to go forward.
Tennessee argued that under the Constitution’s Spending Clause, only Congress itself could withhold funding to grant recipients, not HHS. Based on a careful review of statutory language and past precedent, Judge Davis disagreed and ruled that HHS could take such action. She explained that according to a previous case, Congress had delegated “explicit” authority to set conditions for Title X grants that was “sufficient” under the Spending Clause. As a “decades-long recipient” of Title X funds that included the counseling and referral requirement, she went on, Tennessee “was aware” of the mandate and “voluntarily agreed” to it when it acceptd the latest grant in 2021. And after the Court overruled Roe v Wade, she pointed out, HHS “provided detailed guidance” on how its “nondirective counseling and referral requirements remained unchanged and active.” And as past precedent made clear, she wrote, the state ‘may not use its state criminal laws to ‘dictate eligibility requirements’ for Title X grants.”
Tennessee’s other major argument was that HHS’ actions violated the Administrative Procedure Act (APA) because they exceeded its authority under the law and were unreasonable, arbitrary and capricious, To the extent HHS relied on past precedent upholding its interpretation, the state maintained, that precedent is undermined by the Supreme Court’s recent Loper Bright that overruled the Chevron doctrine that gave deference to agency interpretation of ambiguous statutes. Judge Davis thoroughly analyzed and refuted the state’s claims. She showed that HHS’ interpretation was correct regardless of Chevron deference, and that Loper Bright itself pointed out that it “forecloses new challenges to agency actions that “were already resolved via Chevron deference analysis” as in this case.
Judge Davis concluded that HHS will “likely prevail on the merits” and accordingly upheld the district court’s denial of a preliminary injunction. Her decision is obviously important to upholding HHS’ mandate that family planning grant recipients must provide nondirective abortion counseling and referral to those who request it, particularly in the Sixth Circuit, which includes Tennessee, Michigan, Kentucky and Ohio. The ruling is also important because it prevents the effects of Dobbs and Loper Bright from being even worse than they already are. It also serves as a reminder of the importance of promptly confirming fair-minded judges to our federal courts.