Title X After Dobbs and Loper Bright: HHS May Condition and Withdraw Grants for Refusal to Provide Nondirective Abortion Referrals Upon Request

Introduction

This case sits at the intersection of federal grant conditions, post-Dobbs v. Jackson Women's Health Organization state abortion prohibitions, and post-Loper Bright Enters. v. Raimondo administrative-law doctrine. The State of Tennessee—after criminalizing most abortions—sought to retain Title X family-planning funds while limiting counseling and referrals to options “legal in the State of Tennessee.” The United States Department of Health and Human Services (“HHS”) viewed that limitation as noncompliance with its 2021 Title X regulation requiring (1) neutral, nondirective counseling including abortion and (2) abortion referrals upon request. HHS therefore declined to issue a continuation award, and Tennessee sued, asserting violations of the Spending Clause and the Administrative Procedure Act (“APA”).

The Sixth Circuit affirmed the denial of preliminary injunctive relief, holding that Tennessee had not shown a strong likelihood of success on the merits and had not established irreparable harm sufficient to overcome that weakness.

Summary of the Opinion

The court (Judge Davis, joined by Judge Gibbons) held that Tennessee was unlikely to prevail on:

• Spending Clause claims, because Congress unambiguously authorized HHS to impose Title X eligibility conditions through regulations, Tennessee had clear notice of the 2021 requirements before accepting the grant, and Tennessee could decline the subsidy if state policy conflicted with federal conditions.
• APA claims, because the 2021 rule is within HHS’s Title X authority and is neither contrary to law nor arbitrary and capricious; the court relied heavily on Ohio v. Becerra and treated Loper Bright Enters. v. Raimondo as not automatically destabilizing prior “specific agency action” holdings upholding the 2021 rule.

The court also held Tennessee failed to show irreparable harm given (among other things) state legislative backfill funding, speculative reputational harm, and the absence of a direct conflict between Tennessee’s abortion ban and the federal counseling/referral requirements.

Analysis

Precedents Cited

1) Preliminary-injunction framework and appellate review

• Wonderland Shopping Ctr. Venture Ltd. P'ship v. CDC Mortg. Cap., Inc. and Bonnell v. Lorenzo set the abuse-of-discretion framework: reversal requires clearly erroneous facts, legal error, or use of an erroneous standard.
• Ohio v. Becerra and City of Pontiac Retired Emps. Ass'n v. Schimmel (en banc) supply the four-factor test and emphasize deference to the district court’s equitable balancing.
• Am. Imaging Servs., Inc. v. Eagle-Picher Indus., Inc. (In re Eagle-Picher Indus., Inc.) underscores that the balance is overturned only “in the rarest of cases.”
• Nken v. Holder supports merging the “harm to others” and “public interest” factors when the federal government is the defendant.

2) Spending Clause “contract” notice and delegation principles

• Cummings v. Premier Rehab Keller, P.L.L.C. and Pennhurst State Sch. & Hosp. v. Halderman anchor the “contract-like” model: states must have unambiguous notice of conditions and accept them knowingly and voluntarily.
• Bennett v. Kentucky Dep't. of Educ. is the majority’s central analogue: grant conditions may be spelled out through a combination of statute and implementing regulations; “legal requirements in place when the grants were made” include regulations.
• South Dakota v. Dole (quoting Fullilove v. Klutznick) supports Congress’s use of conditions including “administrative directives.”
• Davis v. Monroe Cnty. Bd. of Educ. and Jackson v. Birmingham Bd. of Ed. are invoked to show regulations and established interpretations can supply notice of obligations and potential consequences.
• Kentucky v. Yellen and West Virginia ex rel. Morrisey v. U.S. Department of Treasury are treated as not undermining the statute+regulation notice principle; Morrisey is read as reaffirming that existing regulations are part of “legal requirements.”
• Miss. Comm'n on Env't Quality v. EPA supports the relevance of long-term acceptance of federal funds to the contract-like analysis.

3) Title X, § 1008, and the counseling/referral rule’s legality under the APA

• Ohio v. Becerra is the majority’s key in-circuit authority upholding HHS’s 2021 Title X counseling and referral rule as within Title X’s scope.
• Rust v. Sullivan supplies the historical baseline that § 1008 is “ambiguous” as to counseling/referrals and that HHS may choose among permissible constructions (as Rust applied Chelvron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.).
• Loper Bright Enters. v. Raimondo is the doctrinal inflection point: the majority reads it as not “call[ing] into question prior cases that relied on the Chevron framework” and emphasizes its statement that holdings that “specific agency actions are lawful” remain protected by “statutory stare decisis.”
• CBOCS West, Inc. v. Humphries and Halliburton Co. v. Erica P. John Fund, Inc. are used via Loper Bright to support the force of stare decisis even after interpretive-method changes.
• RLR Investments, LLC v. City of Pigeon Forge, Tenn. (quoting United States v. Moody) frames the circuit’s rule on when Supreme Court decisions “mandate modification” of circuit precedent.
• Metropolitan Hospital v. U.S. Department of Health and Human Services and Nat'l Cable and Telecomms. Ass'n v. Brand X Internet Servs. appear in a footnote to address when circuit statutory precedent binds in APA cases.
• In re Baker is cited for the notion that lower courts must heed Supreme Court dicta.
• Lopez v. Garland is cited for not reopening prior Chevron precedent absent a new agency interpretation.
• In re MCP No. 185 is used to distinguish the situation where an agency changes its interpretation (not present here, per the majority).

4) Major-questions and nondelegation adjacent principles

• W. Virginia v. EPA frames the major-questions “clear authorization” idea; the majority finds it likely inapplicable given Title X’s relatively modest scale and explicit delegation.
• Whitman v. Am. Trucking Ass'ns is cited for the “intelligible principle” standard.
• Ala. Ass'n of Realtors v. Dep't of Health & Hum. Servs. and FDA v. Brown & Williamson Tobacco Corp. are used to contrast Title X with “vast economic and political significance” assertions of power.

5) Arbitrary-and-capricious and reliance interests

• Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. supplies the “important aspects of the problem” requirement.
• Encino Motorcars, LLC v. Navarro is cited on reliance interests; the majority finds no cognizable reliance on discretionary continuation awards.

6) Irreparable harm and public interest

• Overstreet v. Lexington-Fayette Urb. Cnty. Gov't, D.T. v. Sumner Cnty. Schs., and Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog underpin the “certain and immediate” requirement and the general rule that monetary harm is not irreparable.
• Kentucky v. Biden and Friendship Materials, Inc. v. Mich. Brick, Inc. support the sliding-scale point: weaker merits require stronger irreparable harm.
• ACT, Inc. v. Worldwide Interactive Network, Inc. and State of Ohio ex rel. Celebrezze v. Nuclear Regul. Comm'n are used to reject speculative reputational harm absent concrete evidence.
• Maryland v. King is cited for state sovereign interests, but the majority finds no direct conflict and notes Tennessee’s ability to decline funds.
• Priorities USA v. Nessel is used (with Kentucky v. Biden) for the proposition that the public interest tracks the correct application of law.

Legal Reasoning

1) Spending Clause: delegation + clear notice + voluntariness

The court treats Title X as classic conditional spending. It emphasizes three statutory features: (1) Title X grants “shall be made in accordance with such regulations as the Secretary may promulgate” (42 U.S.C. § 300a-4(a)); (2) they are payable “subject to such conditions as the Secretary may determine to be appropriate” to assure effectiveness (42 U.S.C. § 300a-4(b)); and (3) compliance failures can justify termination under HHS’s grant regulations (45 C.F.R. §§ 75.371(c), 75.372(a)(1)).

From these, the court concludes Congress unambiguously empowered HHS to specify eligibility and compliance conditions by regulation, satisfying Pennhurst State Sch. & Hosp. v. Halderman notice concerns. It then finds Tennessee knowingly and voluntarily accepted the 2021 conditions because the rule predated Tennessee’s grant acceptance and had been the norm for most of the past three decades. The state’s post-Dobbs policy choice, in the court’s view, does not retroactively alter the federal “contract.”

On sovereignty, the majority draws a sharp line: Tennessee may enforce its criminal laws, but may not “dictate eligibility requirements” for a federal program; it can either comply with federal conditions or decline the subsidy, echoing Rust v. Sullivan.

2) APA: the 2021 rule is within statutory authority even after Loper Bright

The opinion’s most jurisprudentially significant move is its handling of Loper Bright Enters. v. Raimondo. Tennessee argued that because Rust v. Sullivan and Ohio v. Becerra relied on Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., those decisions’ support for the 2021 rule collapses. The majority refuses that inference, quoting Loper Bright’s assurance that it does not call into question prior Chevron-reliant cases and emphasizing Loper Bright’s point that the “holdings” of cases upholding “specific agency actions” remain protected by statutory stare decisis.

The majority then treats the decisive “specific agency action” as HHS’s enforcement of the 2021 Title X rule—already upheld in Ohio v. Becerra. That framing allows the court to characterize this case as an attempt to relitigate a settled question, rather than as a fresh interpretive exercise demanded by Loper Bright.

Even while leaning on stare decisis, the majority also offers an independent textual-structure rationale: § 1008’s bar on using funds “in programs where abortion is a method of family planning” is not plausibly triggered by nondirective counseling and the limited referral mechanism HHS requires (names/addresses/phone numbers or a hotline). The majority emphasizes the informational, non-promotional nature of the requirement and cites an appropriations rider—“all pregnancy counseling shall be nondirective”—as contextual support for HHS’s position.

3) Regulatory-compliance arguments rejected on plain meaning

Tennessee’s attempt to find internal inconsistency within HHS’s own regulations fails on ordinary textual parsing:

• “Allowable under state law” in 42 C.F.R. § 59.5(b)(6) is read as describing provider scope-of-practice, not as importing state substantive abortion prohibitions into Title X counseling/referral obligations.
• The “close physical proximity” language in 42 C.F.R. § 59.5(b)(8) is tempered by “when feasible,” allowing out-of-area referrals when nearer providers are unavailable—critically relevant after state abortion bans.

4) Arbitrary-and-capricious, reliance, and “position switch” arguments

The majority rejects the claim that HHS ignored post-Dobbs federalism concerns, pointing to HHS guidance and Tennessee’s ability to submit alternative compliance proposals (including a hotline). It likewise rejects “unlawful position switch” and reliance arguments because: (1) the counseling/referral obligation was unchanged since 2021; and (2) continuation awards are discretionary and annual (42 C.F.R. § 59.8(b)-(c)), limiting any protected reliance interest.

Impact

• Title X compliance in abortion-ban states: The decision signals that state abortion prohibitions do not, without more, excuse Title X grantees from federal nondirective counseling and referral-on-request requirements; compliance can include referrals to out-of-state providers or indirect mechanisms (e.g., hotlines).
• Conditional-spending enforcement posture: The court reinforces a robust view of agency authority to enforce grant conditions set by regulation where Congress has broadly delegated condition-setting power and the conditions predate acceptance.
• Post-Loper Bright stability of Chevron-era outcomes: The majority’s approach—treating prior rulings upholding an agency’s “specific action” as shielded by statutory stare decisis—may make it harder to reopen settled grant-condition regimes simply by invoking Loper Bright, at least absent a new agency interpretation or materially new agency action.
• Doctrinal fault line highlighted by the dissent: Judge Kethledge’s opinion lays out a path for future litigants: characterize the “specific agency action” upheld in prior cases narrowly (e.g., only the old rule), insist on fresh “single, best meaning” review of § 1008, and argue that “referrals” are systematic facilitation that makes abortion a “method of family planning.”

Complex Concepts Simplified

• Title X: A federal program providing discretionary grants for family-planning services, administered by HHS.
• 42 U.S.C. § 300a-6 (Section 1008): A statutory limitation: Title X funds may not be used “in programs where abortion is a method of family planning.”
• Nondirective counseling vs. referral: “Nondirective” counseling means giving neutral information without steering a patient to choose any particular option. A “referral” provides information (or a channel to information) about where to obtain a service upon request.
• Spending Clause notice rule: States must have clear notice of the conditions attached to federal funds, because accepting funds is treated as agreeing to a contract.
• APA “contrary to law” / “arbitrary and capricious”: Courts can set aside agency action that exceeds statutory authority or is irrational, unexplained, or ignores important issues.
• Chevron and Loper Bright: Chevron required courts to defer to reasonable agency interpretations of ambiguous statutes; Loper Bright overruled that deference and requires courts to use independent judgment to find the statute’s “single, best meaning.” This case grapples with how much that shift allows reopening of earlier rulings upholding particular agency actions.
• Statutory stare decisis: A doctrine favoring stability in statutory interpretations because Congress can amend statutes if it disagrees with judicial readings; the majority applies it to preserve earlier holdings that a specific agency action was lawful.

Conclusion

The Sixth Circuit’s decision solidifies, at the preliminary-injunction stage, two practical rules: (1) Title X grantees cannot condition federal compliance on the scope of services legal under their own abortion regimes where HHS’s rule requires nondirective counseling and referrals upon request; and (2) after Loper Bright Enters. v. Raimondo, litigants may not assume that the demise of Chevron automatically destabilizes prior holdings upholding the legality of a “specific agency action,” particularly where the same agency rule has already been upheld in-circuit (here, Ohio v. Becerra). At the same time, Judge Kethledge’s partial dissent spotlights a developing interpretive battleground: whether mandatory abortion referrals, even if informational, transform a Title X project into a “program[] where abortion is a method of family planning” under § 1008 when courts apply independent judgment rather than deference.