On March 5, 2019, the State of Washington (Washington) filed this lawsuit in the U.S. District Court for the Eastern District of Washington against the U.S. Department of Health and Human Services (HHS) for violating Title X’s “Nondirective Mandate,” the Patient Protection and Affordable Care Act (ACA), Title X generally, and the Administrative Procedure Act (5 U.S.C. § 706). On March 4, 2019, HHS published a Final Rule, scheduled to go into effect on May 3, 2019, which would alter longstanding regulations governing Title X grants for family planning services. Washington sought declaratory and injunctive relief to invalidate the Final Rule and prohibit HHS from implementing or enforcing it, as well as costs and attorneys’ fees.

On March 18, 2019, this case was consolidated for pretrial proceedings with a separate case filed by the National Family Planning & Reproductive Health Association (NFPRHA; a national membership organization of Title X providers that operate or administer more than 3,500 health centers providing family planning services to more than 3.7 million patients each year), a Washington-based NFPRHA member organization, and two health care professionals, challenging the same HHS Rule on behalf of themselves and their patients. These plaintiffs were represented by the American Civil Liberties Union Foundation (ACLU) and private counsel. The original Washington case and consolidated case were assigned to Judge Stanley A. Bastian.

Plaintiffs alleged that the Rule would eliminate a Title X requirement that pregnant patients receive nondirective pregnancy counseling (“Nondirective Mandate”); deny Title X funds to entities that provide comprehensive reproductive health care services at the same clinical site (such as abortion services); and impose numerous additional requirements that would undermine the quality of medical care, interfere with provider-patience relationships, reduce access to services, and contravene Title X’s purpose. Washington alleged that the Final Rule would expel providers representing 89% of Washington’s Title X network, require a DOH program contrary to Washington Law, and result in a loss of Title X funds that would irreparably harm Washington and its most vulnerable residents by reducing the effectiveness of Washington’s family planning program and causing financial harm to State Medicaid and related programs.

Washington and the NFPRHA parties filed preliminary injunctions on March 22, 2019, seeking to prohibit HHS from implementing the Final Rule. HHS filed a motion in opposition on April 12, 2019, and a motion hearing was held on April 25, 2019. After the hearing, Judge Bastian granted plaintiffs’ motion for a preliminary injunction, enjoining the Final Rule nationwide until further order of the court. 376 F.Supp.3d 1119. The decision noted that, “although Plaintiffs have met their burden of showing that all four factors [likelihood of success on the merits, irreparable harm, balance of equities, and public interest] tip in their favor, the irreparable harm and balance of equities factors tip so strongly in Plaintiffs’ favor that a strong showing of likelihood on the merits was not necessary.”

On May 3, 2019, defendants filed a notice of appeal and motion to stay the preliminary injunction, as well as a notice of interlocutory and preliminary injunction appeal regarding plaintiffs’ preliminary injunction. On May 4, 2019, defendants filed a motion to expedite the hearing on their motion to stay plaintiff’s preliminary injunction, which was denied three days later.

On May 24, 2019, defendants filed a motion to stay proceedings pending appeal. Defendant’s motion to stay plaintiff’s preliminary injunction pending appeal was denied on June 3, 2019, and defendant’s motion to stay proceedings pending appeal was denied on June 14, 2019.

On June 20, 2019, the Ninth Circuit Court of Appeals issued a three-judge panel per curiam decision granting defendant’s motion to stay pending appeal. The Ninth Circuit noted that the Final Rule was challenged in federal court in California, Oregon, and Washington (this case), and district courts in each case granted plaintiffs’ preliminary injunction motions on nearly identical grounds. HHS appealed in each case and sought to stay the injunctions pending a decision of the merits of its appeals. The panel found that HHS was likely to prevail on the merits of the case, and that the remaining factors also favored a stay pending appeal.

On June 25, 2019, plaintiffs in the Oregon and Washington cases filed an emergency motion for reconsideration en banc regarding the stay. On July 3, 2019, the Ninth Circuit Court of Appeals ordered that the three cases (California, Oregon, and Washington) be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3, and that the motions for stay pending appeal granted by the Ninth Circuit panel would not be cited as precedent by or to any court of the Ninth Circuit.

On July 11, 2019, the Ninth Circuit en banc court denied the motions for administrative stay of the three-judge panel’s order granting defendant’s motion to stay pending appeal. The en banc court stated they would proceed expeditiously to rehear and reconsider the merits of Defendant-Appellants’ motions for stay of the district courts’ preliminary injunction orders pending consideration of the appeals on the merits. This case is ongoing.

Elise Coletta - 07/13/2019


compress summary