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The Family Planning Association of Maine v. United States Department of Health and Human Services

United States District Court, D. Maine

July 3, 2019

THE FAMILY PLANNING ASSOCIATION OF MAINE D/B/A MAINE FAMILY PLANNING, et al., Plaintiffs
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants

          DECISION AND ORDER ON MOTION FOR PRELIMINARY INJUNCTION

          Lance E. Walker U.S. District Judge.

         The matter is again before the Court on Plaintiffs' motion for preliminary injunctive relief.[1] In this action, The Family Planning Association of Maine d/b/a Maine Family Planning, on its own behalf and on behalf of its staff and patients, and J. Doe, a doctor of osteopathic medicine, who similarly seeks to vindicate personal and third-party/patient rights (“Plaintiffs”), allege that the United States Department of Health and Human Services, Secretary Alex M. Azar II, and Deputy Assistant Secretary Diane Foley, M.D., through the Department's Office of Population Affairs (“Defendants”), have exercised rulemaking authority under the Title X family planning program in violation of the Administrative Procedures Act, and that the new Final Rule[2] governing post-conception activities and certain program separation requirements, if allowed to stand, will deprive Plaintiffs and those they represent of fundamental freedoms enshrined in the First and Fifth Amendments to the United States Constitution.

         In the course of this decision, I will do my level best to explain why the extraordinary relief of a preliminary injunction is not warranted in this case. For the uninitiated let me stress that in this decision the District Court does not strike down or otherwise circumscribe any right to abortion previously recognized by the Supreme Court. Instead, the Court simply concludes - on a preliminary and non-final basis - that Plaintiffs have failed to meet the burden required by law for preliminary injunctive relief to issue. To that end, my role is circumscribed by Article III of the United States Constitution, which does not charge federal courts with the duty of judging the wisdom of public policy as the Oracle of Delphi heroically saving the republic from the product of its own democratic process. The exercise of sound judicial review must be hallmarked by restraint.

         BACKGROUND

         The Title X program is a federal welfare program that provides grants to providers to support public access to contraceptive and reproductive health products and services. Plaintiff Maine Family Planning is the sole statewide Title X grantee for the State of Maine. Maine Family Planning is also one of the primary providers and funders of abortion services in Maine, even though the federal statute that creates the Title X program states that “[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning.” 42 U.S.C. § 300a-6.

         In this civil action, Plaintiffs challenge a Final Rule promulgated by the Department of Health and Human Services that they contend is irrational, unlawful, and unconstitutional because it unduly interferes with their ability to counsel Title X patients about abortion and to provide abortion services within their Title X clinics. Importantly, the Final Rule does not prohibit Plaintiffs from continuing to provide abortion services, although it does raise significant barriers which will require Plaintiffs to reconfigure their operations. The following background is provided to contextualize how Maine Family Planning came to be both the sole Title X grantee for the State of Maine and a major provider of abortion services in Maine, and to lay the groundwork for the legal arguments that inform Plaintiffs' request for preliminary injunctive relief.

         I. The Title X Program

         In 1969, President Richard Nixon delivered a special message to Congress focusing on the nation's ever-growing concern with population growth - both globally and in the United States. Richard Nixon, Special Message to the Congress on Problems of Population Growth (July 18, 1969).[3] President Nixon decried the far-reaching ramifications of “involuntary childbearing” and its role in the perpetuation of poverty.[4] Id. He concluded: “[N]o American woman should be denied access to family planning assistance because of her economic condition.” Id.

         On the heels of this presidential imperative, Congress enacted the Family Planning Services and Population Research Act (“the Act”) with the primary purpose of “assist[ing] in making comprehensive voluntary family planning services readily available to all persons desiring such services.”[5] Pub. L. No. 91-572, § 2, 84 Stat. 1506 (1970) (codified as amended at 42 U.S.C. §§ 300 - 300a-8) (“Title X”). In words that have remained largely unchanged to this day, Congress authorized the Secretary of the Department of Health and Human Services (“the Department”) “to make grants to and enter into contracts with public or nonprofit private entities” in order to further Congress's goal of supporting “voluntary family planning projects.”[6] 42 U.S.C. § 300(a). This far-reaching legislation provided authorization for a broad range of grants to meet the needs of affiliated programs and the population they serve. See Id. (authorizing family-planning project grants); see also id. § 300a (authorizing formula grants to State health authorities); id. § 300a-1 (authorizing training grants); id. § 300a-2 (authorizing research grants in “biomedical, contraceptive development, behavioral, and program implementation fields related to family planning and population”); id. § 300a-3 (authorizing grants for the development and distribution of educational materials). The Act also empowered the Secretary of the Department with discretion to determine the amount of each grant as well as the conditions to which each grant is subject. 42 U.S.C. § 300a-4(a), (b) (“Grants under this subchapter shall be payable in such installments and subject to such conditions as the Secretary may determine to be appropriate to assure that such grants will be effectively utilized for the purposes for which made.”). “Grants and contracts under Title X must ‘be made in accordance with such regulations as the Secretary may promulgate.'” Rust v. Sullivan, 500 U.S. 173, 178 (1991) (quoting 42 U.S.C. § 300a-4(a)).

         Specific to the issue of abortion, Section 1008 of the Act provided (and still provides today) that “[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning.” 42 U.S.C. § 300a-6. As commented by the Supreme Court, “[t]hat restriction was intended to ensure that Title X funds would ‘be used only to support preventive family planning services, population research, infertility services, and other related medical, informational, and educational activities.'” Rust, 500 U.S. at 178-79 (citing H.R. Conf. Rep. No. 91-1667, p. 8 (1970), U.S. Code Cong. & Admin. News 1970, pp. 5068, 5081-82).

         II. Title X Regulatory History, Prior to 2019

         A. Initial abortion-related regulations (1970s)

         In accordance with Congress's mandate, in 1971, the Department issued regulations indicating that a Title X “project will not provide abortions as a method of family planning.” Grants for Family Planning Services, 36 Fed. Reg. 18, 465, 18, 466 (Sept. 15, 1971) (codified at 42 C.F.R. § 59.5(9) (1972)). For many years, this prohibition was the extent of the official guidance provided by the Department regarding the topic of abortion and even abortion counseling. However, in this period of rapidly-evolving legal acceptance of abortion, the Department, through its Office of General Counsel opinions, generally “took the view that activity which did not have the immediate effect of promoting abortion or which did not have the principal purpose or effect of promoting abortion was permitted.” Statutory Prohibition on Use of Appropriated Funds in Programs Where Abortion is a Method of Family Planning; Standard of Compliance for Family Planning Services Projects (“1988 Regulations”), 53 Fed. Reg. 2922, 2923 (Feb. 2, 1988). Thus, as observed by the United States Court of Appeals for the District of Columbia, the Department adopted a permissive viewpoint regarding abortion counseling and “[d]uring the mid-1970s, HHS General Counsel memoranda made a . . . distinction between directive (‘encouraging or promoting' abortion) and nondirective (‘neutral') counseling on abortion, prohibiting the former and permitting the latter.”[7] Nat'l Family Planning & Reprod. Health Ass'n, Inc. v. Sullivan, 979 F.2d 227, 229 (D.C. Cir. 1992).

         B. Emergence of the “non-directive” counseling ethos (1980s)

         In 1981, the Department issued guidelines that solidified its previously-informal stance regarding abortion counseling and, for the first time, explicitly required Title X programs to provide pregnant women, upon request, with “non-directive counseling” regarding “options for the management of an unintended pregnancy, ” including “[p]renatal care and delivery”; “[i]nfant care, foster care, or adoption”; and “[p]regnancy termination.” HHS, Program Guidelines for Project Grants for Family Planning Services, 13 (1981).

         C. 1988 backpedaling on non-directive counseling; preclusion of abortion referral, promotion and advocacy; separation requirement

         In 1988, the Department dramatically changed course and promulgated new regulations which aimed to “bring program practices into conformity with the language of the statute” by providing “‘clear and operational guidance' to grantees about how to preserve the distinction between Title X programs and abortion as a method of family planning.”[8] 1988 Regulations, 53 Fed. Reg. at 2923. The 1988 regulations (1) prohibited Title X projects from “provid[ing] counseling concerning the use of abortion as a method of family planning or provid[ing] referral for abortion as a method of family planning, ” 42 C.F.R. § 59.8(a)(1) (1989), (2) barred Title X projects from participating in activities that “encourage, promote or advocate abortion as a method of family planning, ” id. § 59.10(a), and (3) required Title X projects to be “physically and financially separate” from abortion activities, id. § 59.9.

         In Rust v. Sullivan, the Supreme Court upheld the 1988 regulations following a facial challenge brought by “Title X grantees and doctors who supervise Title X funds suing on behalf of themselves and their patients.” 500 U.S. at 181. As in this case, the claims included challenges based on the First Amendment and the Fifth Amendment, and a challenge to the Department's authority to regulate under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Rust, 500 U.S. at 181 (resolving a circuit split by affirming the judgment of the Second Circuit in New York v. Sullivan, 889 F.2d 401 (1989), and vacating the judgments of the First Circuit and Tenth Circuit in Massachusetts v. Secretary of Health and Human Services, 899 F.2d 53 (1st Cir. 1990) (en banc), and Planned Parenthood Federation of America v. Sullivan, 913 F.2d 1492 (10th Cir. 1990)).[9]

         D. 1992 moderation of 1988 regulations; abortion counseling and referral permitted by physicians

         Despite the Supreme Court's approval of the Department's interpretation of the Act and, in part, due to a memorandum issued by President George H. W. Bush, [10] in March 1992, the Department issued a directive moderating its stance regarding abortion counseling. See Nat'l Family Planning & Reprod. Health Ass'n, Inc., 979 F.2d at 230 (discussing the March 1992 HHS directive). This directive allowed for physicians working within Title X programs to provide abortion counseling to their patients. Id. The directive addressed separately the provision of abortion information and the provision of abortion referral. Id.

         E. 1992 congressional response to Rust

         Following the Supreme Court's ruling in Rust v. Sullivan, both houses of Congress voted in favor of the Family Planning Amendments Act of 1992, which, in part, would have permitted “nondirective counseling and referrals” regarding “termination of pregnancy.” Family Planning Amendments Act of 1992, S. 323, 102nd Cong. (1992). However, the bill failed to pass over President Bush's veto. Id.

         F. Clinton era rejection of “Gag Rule”; eventual permission for co-location of abortion services

         In 1993, President William Clinton directed the Department to suspend the 1988 prohibition on nondirective abortion counseling (the “Gag Rule”) pending the promulgation of new regulations. The Title X “Gag Rule, ” 58 Fed. Reg. 7455 (Jan. 22, 1993) (Memorandum for the Secretary of Health and Human Services). First proposed in 1993, the new regulations eventually emerged in 2000. See Standards of Compliance for Abortion-Related Services in Family Planning Services Projects (“2000 Rule”), 65 Fed. Reg. 41, 270 (July 3, 2000). Like the Family Planning Amendments Act of 1992, the 1993 proposed rule and the eventual 2000 Rule drew a distinction between “abortion counseling and referral.” Standards of Compliance for Abortion-Related Services in Family Planning Service Projects, 58 Fed. Reg. 7464, 7464 (Feb. 5, 1993); 2000 Rule, 65 Fed. Reg. at 41, 273.

         The 2000 Rule reaffirmed the prohibition against Title X projects “provid[ing] abortion as a method of family planning, ” but required a Title X project to offer and, if requested, provide “neutral, factual information and nondirective counseling, and referral” regarding “(A) [p]renatal care and delivery; (B) [i]nfant care, foster care, or adoption; and (C) [p]regnancy termination.” 42 C.F.R. § 59.5(a)(5) (2000). In addition, the 2000 Rule allowed for ‘co-location' or, in other words, for “shared facilities . . ., so long as it is possible to distinguish between the Title X supported activities and non-Title X abortion- related activities.”[11] Provision of Abortion-Related Services in Family Planning Services Projects, 65 Fed. Reg. 41, 281 (July 3, 2000) (Notice); see also 2000 Rule, 65 Fed. Reg. 41, 270, 41, 275-76 (discussing physical separation as wasteful and inefficient).

         G. 1996 and forward, congressional appropriations riders

         In partial agreement with President Clinton's directive, from 1996 forward, Congress has included a provision in each Title X appropriation bill that requires “all pregnancy counseling” under Title X to be “nondirective.” See Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321, 1321-221; Department of Defense and Labor, Health and Human Services, and Education Appropriations Act, 2019 and Continuing Appropriations Act, Pub. L. No. 115-245, 132 Stat. 2981, 3070-71. These riders have never included language endorsing the Clinton-era referral requirement or the co-location authorization.

         III. Maine Family Planning's Organizational Evolution

         Maine Family Planning is “the provider or funder of much of Maine's abortion care, ” Compl. ¶ 91, and this development appears to be the product of Maine Family Planning's dependence on the 2000 Rule, in particular the co-location authorization. Maine Family Planning was founded in 1971 for the express purpose of competing for, receiving, distributing, and managing the Title X grant for the state of Maine - and to do so in a manner that addresses the complex geography and challenges faced by Mainers. Id. ¶ 99. For forty-eight years, Maine Family Planning has been the sole statewide Title X grantee for Maine. Id. ¶ 100. In this time, no government or independent auditor, including agents of the Office of Population Affairs, has ever found a violation of the Title X requirements by Maine Family Planning. Id. Maine Family Planning began as an umbrella agency, subcontracting with eight other non-profits in other parts of Maine to provide Title X-supported services for low-income women and teens. Maine Family Planning's role during its first 15 years included grant management, training, some research, and advocacy. Id. ¶ 101.

         In April 1997, Maine Family Planning began providing abortion care using resources independent from the Title X program to fund these supplemental services. Maine Family Planning perceived a dearth of abortion services in the region and wanted to fill the void. Id. ¶ 102. At this time, the Clinton administration had not yet approved the co-location of Title X services and abortion services through the rulemaking process, and the Rehnquist Court had upheld the 1988 Rules prohibiting Title X grantees from making abortion referrals in Rust v. Sullivan; however, in 1993, President Clinton had banned enforcement of the Gag Rule and his administration had proposed a new rule that would permit co-location of Title X and abortion services.

         Maine Family Planning identified and purchased a stand-alone building in North Augusta, which would serve as its headquarters and would include a clinical space fully equipped to offer first trimester abortion care. Id. ¶ 102. It then hired a family planning staff with the specific intention of co-locating family planning services with the abortion care services already being provided at Maine Family Planning's new headquarters. Id. ¶ 103. Maine Family Planning began offering Title X services in its Augusta building in July 1998, a year after its initiation of abortion services. Id. In the ensuing decade, Maine Family Planning acquired other family planning clinics. By 2012, it directly managed eighteen clinical sites where Title X services would be provided. Id. ¶ 104. Today, Maine Family Planning operates eighteen family planning centers and provides funding through subcontracts that support twenty-nine additional sites. Id. ¶ 105. Maine Family Planning describes its network as geographically comprehensive with sites in fifteen counties, providing clinical and educational reproductive health services to approximately 24, 000 Mainers annually, 78% of whom qualify for free or reduced fee services.[12] Id.

         All of Maine Family Planning's Title X services are provided by advanced practice registered nurses (“APRNs”), i.e., certified nurse practitioners and/or certified nurse-midwives, often with the support of medical assistants. Id. ¶ 106. Maine Family Planning's provision of abortion services is coordinated through its Augusta headquarters, where it provides medication abortions through ten weeks of pregnancy, as dated from the woman's last menstrual period (“LMP”), and aspiration abortions through the end of the first trimester (i.e., fourteen weeks LMP). Id. ¶ 107. These services are provided one day per week, and on that particular day no Title X services are provided at the Augusta site. Id.

         Maine Family Planning employs seven physicians part-time at its Augusta location, including Plaintiff Dr. Doe. The physicians are employed for the exclusive purpose of providing abortion services. The physicians in this network fill a rotation, working one or two days per month to provide abortion services on the one day per week in which Maine Family Planning provides its patients access to abortion services. Maine Family Planning employed physicians for this purpose only because, until very recently, Maine law, 22 M.R.S. § 1598(3), restricted the performance of abortions to physicians.[13] In addition to performing aspiration abortions, these physicians facilitate medication abortions at Maine Family Planning's seventeen other clinics through a “telehealth program.” An APRN trained in abortion care evaluates the patient at a “satellite” clinic, including by administration or review of an ultrasound, to ensure the patient is an appropriate candidate for medication abortion. The patient then consults with one of the Augusta-based Maine Family Planning physicians via a secure video platform. After confirming that a medication abortion is medically appropriate for the patient, obtaining informed consent to the abortion, and ensuring that the APRN has worked with the patient to establish a contraception plan, the physician instructs the patient to take a first pill (mifepristone) during the real-time video encounter. The patient takes additional pills (misoprostol) at home, as instructed. At a follow-up visit four to fourteen days later, the APRN confirms abortion. Id. ¶ 109. Through its telehealth medication abortion program, Maine Family Planning has expanded the reach of its abortion services to all of its satellite clinics. However, it has done so only since 2014. Declaration of Evelyn K ¶ 16 n.3 (ECF No. 17- 3). Maine Family Planning more recently, in 2017, initiated a “meds-by-mail” study, but the program still requires travel to obtain an ultrasound and lab work. Id. Despite the availability of these more remote services, only 25% of the roughly 500 abortions performed per year take place at a clinic other than the Augusta clinic.[14] Id. ¶ 20.

         But for Maine's physician-only abortion law, Maine Family Planning's APRN staff members would have performed the counseling and prescribed the abortion medication on-site, i.e., under the same roof as the Title X clinic, because the 2000 Rule authorized co-location provided that abortions are not paid for with Title X grant funds. Compl. ¶ 109. Now, with the passage of An Act to Authorize Certain Health Care Professionals to Perform Abortion, P.L. 2019, ch. 262, §§ 1596 to 1599-A, it appears Maine Family Planning is authorized to do so, except to the extent its implementation of this authorization would run afoul of the Department's 2019 Rule.

         In summary, Maine Family Planning has taken advantage of the 2000 Rule, in particular the co-location rule, to develop a statewide program to deliver “a range of health care services, ” including both family planning services and abortion services. Id. ¶ 18. Maine Family Planning describes it current services as follows:

Maine Family Planning provides a range of health care services at its sites, including annual gynecological exams; screening for cervical and breast cancer; family planning counseling; contraceptive services; pregnancy testing and counseling regarding pregnancy options (including continuing the pregnancy and parenting, making a plan for adoption or foster care, or ending the pregnancy with an abortion); abortion care; miscarriage care; referrals for adoption; prenatal consultation; colposcopy; endometrial and vulvar biopsy; screening, diagnosis, and treatment of urinary, vaginal, and sexually transmitted infections; hormone therapy and other services for transgender clients; and services for mid-life women.

Id. According to Plaintiffs, from an accounting standpoint, care is taken to ensure that Title X grant monies are not used in the provision of abortion services. Id. ¶ 33. Plaintiffs aver that all abortion-related costs are “pro-rated and properly allocated.” Id. ¶ 52.

         Today, Maine Family Planning is both the sole Maine-based Title X grantee with a statewide network and also “the provider or funder of much of Maine's abortion care.” Id. ¶¶ 91, 100. Although Plaintiffs state that Maine Family Planning “has always clearly and properly separated its Title X activities from non-Title X activities, including abortion services” by “maintaining a financial management system that clearly separates and accounts for all expenses and revenues associated with the Title X project, ” id. ¶ 110, Plaintiffs attest that despite Title X providing only 27% of Maine Family Planning's total revenue, the abortion network Maine Family Planning developed under the 2000 Rule is unsustainable without the Title X grant monies.

         IV. The Contested “Final Rule”

         On March 4, 2019, following a public notice and comment period, the Department promulgated new regulations with the goal of “ensur[ing] compliance with, and enhance[ing] implementation of, the statutory requirement that none of the funds appropriated for Title X may be used in programs where abortion is a method of family planning, as well as related statutory requirements.”[15] Compliance with Statutory Program Integrity Requirements (“Final Rule”), 84 Fed. Reg. 7714, 7715 (March 4, 2019) (to be codified at 42 C.F.R. pt. 59). As impetus for the Final Rule, the Department cited concerns that “the 2000 regulations fostered an environment of ambiguity surrounding appropriate Title X activities.” Id. at 7721.

         The Final Rule reintroduces certain of the requirements contained in the 1988 regulations, by requiring “clear physical and financial program separation from programs that use abortion as a method of family planning.” Id. at 7765, 7789, codified at 42 C.F.R. § 59.15 (the “Separation Requirement”). It also reformats the standards to be applied to consultation services with respect to “post-conception activities.” Id. at 7788, codified at 42 C.F.R. § 59.14. These standards entail a return of the so-called “Gag Rule” (a prohibition on abortion referral), an option to supply patients with a nondirective referral list, and a requirement that the Title X program refer pregnant patients for prenatal services.

         A. Separation Requirement

         Under the Separation Requirement, Title X projects “must be organized so that [they are] physically and financially separate . . . from activities which are prohibited.” 42 C.F.R. § 59.15 (2019). The rule continues: “[A] Title X project must have an objective integrity and independence from prohibited activities. Mere bookkeeping separation of Title X funds from other monies is not sufficient.” Id. In determining whether a Title X project has achieved physical and financial separation, the rule allows the Department to consider factors such as:

(a) The existence of separate, accurate accounting records;
(b) The degree of separation from facilities (e.g., treatment, consultation, examination and waiting rooms, office entrances and exits, shared phone numbers, email addresses, educational services, and websites) in which prohibited activities occur and the extent of such prohibited activities;
(c) The existence of separate personnel, electronic or paper-based health care records, and workstations; and
(d) The extent to which signs and other forms of identification of the Title X project are present, and signs and material referencing or promoting abortion are absent.

Id.

         In support of this provision, the Department asserts the requirements will serve to “protect[] against the intentional or unintentional co-mingling of Title X resources with non-Title X resources or programs” as well as counteract “the potential for ambiguity between approved Title X activities and non-Title X activities and services.”[16] Final Rule, 84 Fed. Reg. at 7715 (discussing need for “clear financial and physical separation”), 7765 (“The performance of abortions at nonspecialized clinics that also may provide Title X services increases the risk and potential both for confusion and for the co-mingling or misuse of Title X funds.”). The Rule does not preclude Title X grantees from also providing abortion services through separate programs and facilities. “The rule continues to allow organizations to receive Title X funds even if they also provide abortion as a method of family planning, as long as they comply with the physical and financial separation requirements.” Id. at 7766.

         B. Post-Conception Activities

         The Final Rule's post-conception activities provision begins with an express prohibition on abortion referral: “A Title X project may not perform, promote, refer for, or support abortion as a method of family planning, nor take any other affirmative action to assist a patient to secure such an abortion.” 42 C.F.R. § 59.14(a) (2019). In a list of examples, the Department extends the prohibition against referral for abortion (including any specific identification of abortion providers as such) to cover communications with any “pregnant woman, ” not just existing Title X clients/patients. Id. § 59.14(e)(4). I will refer to this provision, shorthand, as the Gag Rule.

         The post-conception activities provision also requires Title X projects to provide patients who are “medically verified as pregnant” with a referral for prenatal care. Id. § 59.14(b). According to the Department, “[p]renatal care is medically necessary for any patient who is pregnant, so referrals for such care do not render counseling directive.” Final Rule, 84 Fed. Reg. at 7761. In the Department's view, referrals for prenatal care should be de rigueur “[b]ecause prenatal care is essential in order to optimize the health of the mother and unborn child, and to help ameliorate the current health inequality as it relates to low income women.” Id. at 7762.

         Finally, the post-conception activities provision states that once a Title X client is confirmed to be pregnant, a Title X project “may also choose to provide” the client with additional information, including:

(i) Nondirective pregnancy counseling, when provided by physicians or advanced practice providers;
(ii) A list of licensed, qualified, comprehensive primary health care providers (including providers of prenatal care);
(iii) Referral to social services or adoption agencies; and/or
(iv) Information about maintaining the health of the mother and unborn child during pregnancy.

Id. § 59.14(b).

         In contrast to the 2000 regulations which, upon the request of the patient, required pregnancy counseling and referral (including counseling and referral for abortion if desired by the patient), see 2000 Rule, 65 Fed. Reg. 41, 270, the Final Rule permits, but does not require, nondirective counseling by a doctor or advanced practice provider (“APP”). 42 C.F.R. § 59.14(b)(1)(i). As explained by the Department, “[n]ondirective pregnancy counseling is the meaningful presentation of options where the physician or advanced practice provider (APP) is ‘not suggesting or advising one option over another.''' Final Rule, 84 Fed. Reg. at 7716 (citing 138 Cong. Rec. H2822, H2826, 1992 WL 86830). While physicians or APPs[17] “within Title X projects” may choose to provide nondirective pregnancy counseling - including counseling regarding abortions, “among other options” - they must not make a referral for an abortion “as a method of family planning.”[18] Id. at 7745. The Department explains:

In nondirective counseling, abortion must not be the only option presented by physicians or APPs; otherwise the counseling would violate not only the Congressional directive that all pregnancy counseling be nondirective, but also the prohibitions in this rule on encouraging, advocating, or supporting abortion as a method of family planning, which the Department prohibits in order to implement, among other provisions, section 1008. Each option discussed in such counseling must be presented in a nondirective manner. This involves presenting the options in a factual, objective, and unbiased manner and (consistent with other Title X requirements and restrictions) offering factual resources that are objective, rather than presenting the options in a subjective or coercive manner.

Id. at 7747. Thus, a Title X project need not provide post-conception pregnancy counseling at all, but “[w]hen a project chooses to offer such pregnancy counseling, it must be nondirective.” Id. at 7761. In addition to requiring nondirective counseling, the 2000 Rule also required abortion referral upon a patient's request. 42 C.F.R. § 59.5(a)(5) (2000). The Final Rule removes this requirement and replaces it, in part, with an option to provide a nondirective referral list and, in part, with a mandatory referral for prenatal care services.

         Should a Title X provider decide to do so, it may furnish a client with a list of “comprehensive primary health care providers, ” which list “may be limited to those that do not provide abortion” or may include providers that “also provide abortion as part of their comprehensive health care services”; however, those providers who perform abortions must not constitute the majority of the references provided. 42 C.F.R. § 59.14(c)(2) (2019). While the project cannot exclude from its list providers that do not supply abortion services, id., it may exclude providers that do. Id. § 59.14(e)(4), (5).

         Additionally, if the list includes both types of providers, “[n]either the list nor project staff may identify which providers on the list perform abortion.”[19] Id. § 59.14(c)(2).

         The Final Rule's post-conception activities provision then concludes much as it begins: “[a] Title X project may not use the provision of any prenatal, social service, emergency medical, or other referral, of any counseling, or of any provider lists, as an indirect means of encouraging or promoting abortion as a method of family planning.” Id. § 59.14(c)(1).

         IV. Implications of the Final Rule for Maine Family Planning's Program, As Alleged

         Plaintiffs contend that reformatting Maine Family Planning's statewide practice to conform to the Final Rule would likely result in wide-scale closures of several clinics, depriving Maine residents of valuable family planning and other health care services. In particular, Plaintiffs state that Maine Family Planning would have to eliminate abortion services at seventeen of its eighteen clinics that currently provide the services (all but the Augusta clinic). Compl. ¶ 111. Plaintiffs allege it is economically impossible for Maine Family Planning to sustain their abortion program at its current level because its clinics are too small to subdivide and securing separate facilities is prohibitively expensive. Id. ¶¶ 112-13. Evidently, the number of abortions provided annually (roughly 500, most of which occur in or near one of Maine's population centers) would also tend to make so many freestanding abortion-specific satellite clinics - each staffed by an APRN - impractical, particularly if the clinics would exist only to facilitate telemedicine through the Augusta headquarters.[20] Id. ¶ 114.

         Plaintiffs also allege that it would prove prohibitively expensive to separate its Augusta abortion clinic from its headquarters, and that without a telemedicine program, rural access to a physician willing to provide abortion services would effectively require a long road trip. Id. ΒΆΒΆ 116-17. Maine Family Planning forecasts that full implementation of the Final Rule would result in ...


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