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National Family Planning and Reproductive Health Association, Inc. v. Sullivan

United States Court of Appeals for the District of Columbia Circuit
979 F.2d 227 (D.C. Cir. 1992)


Section 1008 of Title X of the Public Health Service Act, 42 U.S.C. § 300a-6, provides that “[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning.” In 1988, the Department of Health and Human Services (HHS) promulgated by notice and comment rulemaking new regulations that included a “gag rule” applicable to all Title X personnel against discussing with clients the availability of abortions as an option. In Rust v. Sullivan, 500 U.S. 173 (1991), the Supreme Court upheld the rule against challenge that the rule interfered with a doctor’s right to treat her patient as she thought best. In 1991, President Bush directed HHS not to apply the regulations in a way that would prevent a woman from receiving information about abortion from her doctor. Dr. Louis Sullivan, the director of HHS, complied by ordering his subordinates to apply the regulations in accordance with the President’s wishes. HHS issued directives to regional administrators to enforce the existing regulations in ways that would permit the discussion of abortions by physicians. National Family Planning and Reproductive Health Association, Inc. and other organizations (plaintiffs) filed suit challenging the directives on the ground that they had not complied with the notice-and-comment rulemaking procedures in the Administrative Procedure Act (APA) and that the new directives were arbitrary and capricious. The district court enjoined enforcement of the directives because they were procedurally improper. HHS appealed.

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