On February 8, the Sixth Circuit issued an unsigned order declining to enjoin (pending appeal) an HHS rule that does at least two notable things:  (1) the rule eliminates the prior Administration’s requirement “that grantees create strict physical and financial separation between their Title X programs and any abortion services they may provide” and (2) the rule requires “that grantees provide referrals to abortion services when requested by the patient.”  The panel consisted of Judges Boggs, Bush, and Larsen.

Ohio and eleven other States had sued under the APA, claiming the rule was “arbitrary, capricious, and contrary to law[,]” and sought a preliminary injunction.  Judge Black of the Southern District of Ohio found that the States did not meet their burden of establishing entitlement to a preliminary injunction. The panel agreed.

The panel opinion focused its analysis on the States’ burden of showing irreparable harm.  The States claimed they would be irreparably harmed in three ways: (1) increased competition for funds from other grantees who were unable to compete for grants under the previous rule; (2) reputational injuries because they would not be able to provide the same level of service of care; and (3) being forced to place their imprimatur on abortion by making referrals to abortion providers.

The panel found that the first two alleged harms were speculative. There was no way to conclusively determine if the States would receive less money in the next round of funding. Moreover, it was unclear what impact, if any, the rule would have on the States’ quality of services.  Finally, the third alleged harm was “neither certain nor immediate.”  The panel declined to reach a conclusion on whether federal conscience statutes mitigated this harm.  Instead, the panel noted that, at the time of argument, “all state programs that apparently desire[d] Title X funds for this year . . . ha[d] already applied.”  Notably, the panel did not reach the States’ likelihood of success on the merits or rule out a future injunction.

Judge Larsen, concurring in the judgement, wrote separately to underscore that “the States have not shown that granting them temporary relief will cure their alleged harm.”  According to Judge Larsen, it was unclear whether competitors who had previously declined to apply for Title X grants before the rule would rescind their funding applications under the new rule if the rule was enjoined.  Without knowing who the States’ competitors were and how they would react to an injunction, there was no way to know whether an “injunction would cause the decrease in grant competition that the States desire.”

The panel’s decision follows on the heels of the en-banc court’s decision earlier this month to stay an injunction granted to abortion providers in Memphis Center for Reproductive Health.  Notably, Judges Bush and Larsen (who sat on the en banc court) did not join Judge Moore’s dissent from that decision, and thus presumably voted with the majority.

The divergent outcomes of the two decisions is a reminder that the judges of the Sixth Circuit approach each case on its own merits, regardless of whether it arises in the hot-button abortion context.